IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 14TH SEPTEMBER 2009 / 23RD BHADRA 1931 WP(C).No. 24388 of 2009(P) -------------------------- PETITIONER(S): --------------- 1. P.ABDUL RASHEED, S/O.PARAYIL MUHAMMEDKUTTY, PARAYIL HOUSE, P.O.EDARIKKODE, MALAPPURAM DISTRICT. 2. P.SHAMIM, S/O.PARAYIL UNNEENKUTTY, PARAYIL HOUSE, P.O.EDARIKKODE, MALAPPURAM DISTRICT. (BOTH PETITIONERS ARE REPSRESENTED BY THEIR DULY AUTHORIZED POWER OF ATTORNEY HOLDER N.HEMARAJ AGED 61 YEARS, S/O.N.GOVINDAN “SANAM” KOTTULY VILLAGE, KOZHIKODE TALUK, P.O.PARAYANCHERI, KOZHIKODE). BY ADV. SRI.A.RANJITH NARAYANAN SRI.S.K.SAJU RESPONDENT(S): --------------- THE CORPORATION OF KOZHIKODE, REPRESENTED BY ITS SECRETARY, OFFICE OF THE CORPORATION OF KOZHIKODE, BEACH ROAD, KOZHIKODE. ADV. SRI.K.D.BABU,SC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.24388/09 PETITIONER'S EXHIBITS: EXT.P1: TRUE PHOTOSTAT COPY OF THE JUDGMENT IN W.P(C).10693/07 DATED 31.5.2007. EXT.P2: TRUE PHOTOSTAT COPY OF THE BUILDING PERMIT IN THE NAME OF THE PETITIONERS PREDECESSOR DATED 15.1.2008. EXT.P3: TRUE PHOTOSTAT COPY OF THE BUILDING PERMIT IN THE NAME OF THE PETITIONERS PREDECESSOR DATED 15.1.2008. EXT.P4: THE IMPUGNED ORDER ISSUED BY THE RESPONDENT REJECTING THE APPLICATION OF THE PETITIONERS DATED 4.5.09. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.24388 OF 2009 ------------------------------------------- Dated this the 14th day of September, 2009 JUDGMENT 1.The petitioners applied for a building permit. That has been rejected on the ground that the land in question is one earmarked for public purposes like school, bus stand etc. and that the area falls within the semi-residential area in terms of the DTP scheme. 2.The petitioners contend that as is disclosed even by judgments of this Court, including Ext.P1, the DTP scheme referred to by the respondent has never become operational in terms of law and no useful purpose will be served by rejecting the application of the petitioners on grounds referred to the DTP scheme. 3.With the aforesaid contentions and faced with Ext.P1 judgment, all that the respondent points out is that in terms of WPC.24388/09 Page numbers the DTP scheme, the area is a semi-residential area and refusal of building permit cannot be treated as wholly without jurisdiction. 4.It is laid down in Ext.P1 judgment that the scheme remains inoperative. It would be irrational to put such a scheme as a defence to an application for building permit. Deprivation of right to property which would tantamount to deprivation of the constitutional right under Article 300 A can be done only by a procedure established by law. The DTP scheme would get its statutory sustainability only when it becomes operational in terms of the statutory provisions under which it is brought into force. 5.For the foregoing reasons, this writ petition is allowed quashing the impugned decision and directing that the application of the petitioners for building permit will be taken up, considered and orders issued without reference to the WPC.24388/09 Page numbers grounds stated in Ext.P4. Let this be done within a period of four weeks from the date of receipt of a copy of this judgment. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.14/9.