IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 WP(C).No. 8146 of 2008(T) ------------------------- PETITIONERS: --------------- 1. SHEREEF, THURUTHIYIL HOUSE, S/O. BAVA, MEENADATHOOR, TIRUR, MALAPPURAM DIST. 2. SAJITHA, S/O. PRASANNAN, SREEPRASANTH HOUSE, MAVILIPARAMBA, KUTHIRAVATTOM P.O., KOZHIKODE. 3. JYOTHI GOPAKUMAR, S/O. THEVARKANDI GOPAKUMAR, NADUVATTOM, KOTTOOLY, KOZHIKODE DIST. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, KOZHIKODE. 3. THE SPECIAL TAHSILDAR (LA), KOZHIKODE. 4. CORPORATION OF CALICUT, REPRESENTED BY ITS SECRETARY, KOZHIKODE. BY GOVT. PLEADER SRI. C.M.SURESH BABU FOR R1 TO R3 ADV. SRI.K.D.BABU,SC,KOZHIKODE CORPORATION FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No.8146/08 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF THE ORDER DT. 3.5.07 REJECTING THE APPLICATION FOR BUILDING CONSTRUCTION PERMIT. EXT.P2: TRUE COPY OF THE LAND TAX RECEIPT ISSUED BY THE VILLAGE OFFICE, KOTTOOLI. EXT.P3: TRUE COPY OF THE NOTIFICATION DT. 31.8.94 ISSUED BY THE 3RD RESPONDENT UNDER RULE 7(1) OF LAND ACQUISITION RULES. EXT.P4: TRUE COPY OF THE JUDGMENT DT. 4.1.2005 IN OP NO.17583/1997 EXT.P5: TRUE COPY OF THE CERTIFICATE DT.6.7.2009 BEARING NO.E3/41686/09 ISSUED BY THE TOWN PLANNING OFFICER OF THE 4TH RESPONDENT CORPORATION. EXT.P6: TRUE COPY OF THE JUDGMENT DT.10.3.2008 IN W.P.(C)No. NO.6356/2008 TRUE COPY P.A.TO JUDGE T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.8146 of 2008 --------------------------------- DATED THIS THE 10th DAY OF JUNE, 2010 JUDGMENT The petitioners applied for a building permit from the Corporation to construct an eight storeyed flat. The property is having an extent of 29 cents in survey No.72/10 of Ward No.29 of Koottoolly Village in Calicut Corporation. The application for building permit was denied by Exhibit P1 order stating that the property for the proposed building is a property under the proposal for acquisition for the purpose of Sports Complex and and the petitioners' property is included in the parks and open space. 2. The contention raised is that the proposal for a Sports Complex at Calicut even though was moved in the year 1994 the notification under the Land Acquisition Act elapsed for the reason that declaration was not published within the time limit. Exhibit P3 is the true copy of the notice dated 31.8.1994 issued by the 3rd respondent under Rule 7(1) of the Land Acquisition Rules. It is also mentioned that the proceedings have been quashed by W.P.(C)No.8146/08 -2- this Court in the judgment in O.P.No.17583/97 filed by another property owner and Exhibit P4 is the copy of the said judgment. 3. The petitioners have produced along I.A.No.9887/09, Exhibit P5, a copy of the certificate given by the Town Planning Officer of the Corporation to the effect that the area is one included for the purpose of acquisition for establishing an International Sports Complex. Therefore, it is contended that the sole reason being the establishment of the Sports Complex and as the acquisition proceedings have been quashed in the Original Petition, O.P.No.17583/97, the said objection no longer survives. 4. The learned Standing Counsel for the Corporation pointed out that the scheme which is notified by the Government under the Town Planning Act as per G.O.(MS)No.159/07 LSGD dated 16.6.2007 specifies that this area can be used only for providing parks, open space and residential buildings upto 100 Sq.M. It is therefore submitted that the Corporation cannot grant building permit in such circumstances. 5. Going by the development scheme, in paragraph 18 (2), if any doubt arises with regard to the interpretation or W.P.(C)No.8146/08 -3- otherwise of any classification of use or any difficulty arises in the implementation of any provision of the regulation, the Chief Town Planning Officer shall issue necessary directions for removing such doubts and difficulties. The learned counsel for the petitioners submitted that the Town Planner has got the power to relax the conditions after considering various aspects and therefore it was not right on the part of the Corporation to reject the application straightaway. 6. As pointed out by the learned Government Pleader, paragraph 18(2) confers power on the Chief Town Planner which is a power to remove difficulty with regard to the classification etc. Therefore, it is upto the petitioners to move the Chief Town Planner with an appropriate application, which will be routed through the Corporation and if such an application is filed before the Chief Town Planner, the same will be considered after assessing various materials produced by the petitioners and other matters which are relevant. If the petitioners file an appropriate representation within a period of 10 days from the date of receipt of a copy of this judgment, the same will be forwarded to the W.P.(C)No.8146/08 -4- Chief Town Planner for his decision and he will take appropriate decision within three months thereafter. The Writ Petition is disposed of as above. T.R.RAMACHANDRAN NAIR, JUDGE. dsn