IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 WP(C).No. 13952 of 2011(T) ------------------------------------ PETITIONER(S): ------------------------ K.T.KESAVAN, S/O.THEVAN, AGED 69 YEARS, KATTANIKATHIL HOUSE, AIMS P.O., EDAPPALLY NORTH, ERNAKULAM DISTRICT. 2. M.K.LAKSHMI, AGED 59 YEARS, W/O.K.T.KESAVN, KATTANIKATHIL HOUSE, AIMS P.O., EDAPPALLY NORTH, ERNAKULAM DISTRICT. BY ADV. SRI.M.RAMESH CHANDER SMT.K.A.SANJEETHA RESPONDENT(S): ---------------------------- 1. THE REGIONAL TOWN PLANNER, ERNAKULAM 682 011. 2. THE TOWN PLANNING OFFICER, COCHIN CORPORATION, CORPORATION OFFICE, ERNAKULAM , COCHIN 682 011. 3. THE COCHIN CORPORATION REPRESENTED BY SECRETARY, COCHIN 682 011. R1 BY GOVT. PLEADER SRI. R2 & R3 BY ADV. SRI.JIBU P.THOMAS,SC,COCHIN CORPORATION THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.13952/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE TAX RECEIPT DTD. 19.3.2010. P2:- COPY OF THE POSSESSION CERTIFICATE ISSUED TO THE PETITIONERS BY THE VILLAGE OFFICER DTD. 2.11.2010. P3:- COPY OF THE ENCUMBRANCE CERTIFICATE . P4:- COPY OF THE LOCATION SKETCH OF THE PROPERTY. P5:- COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT TO IST RESPONDENT DTD. 9.2.2011. P6:- COPY OF THE JUDGMENT IN WPC. 20525/2009. P7:- COPY OF THE LOCATION MAP GIVEN BY ACE ASSOCIATES. P8:- COPY OF THE BUILDING PERMIT HAS BEEN ISSUED TO MATHEW JOSEPH OF ACE HOMES ON 28.10.2009. RESPONDENT'S EXHIBITS R3(a):- COPY OF THE ORDER G.O.(MS) NO.103/91/LAD ISSUED BY THE GOVERNMENT DTD. 20.3.1991. TRUE COPY P.AA. TO JUDGE tss HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.13952 Of 2011 ---------------------- Dated this the 24th day of November, 2011. J U D G M E N T The writ petition is filed for a direction commanding the respondents to allow the application dated 28.1.2011 for permission to construct residential apartments in the property comprised in R.S.Nos.127/14A & 127/13 of Edappally North Village, Kanayannur Taluk forthwith or in the alternative for a direction commanding the 1st respondent to consider and pass appropriate orders pursuant to Ext.P5 order allowing the petitioners' application for construction of residential apartments in survey Nos.127/14A & 127/13 of Edappally North Village. 2. The petitioners applied for permission to construct residential apartment in the property owned by them on 28.1.2011. The 2nd respondent issued Ext.P5 communication dated 9.2.2011 to the 1st respondent stating that as the property owned by the petitioners is situated in an industrial zone, a lay out permission is necessary. According to the petitioners, zones are classified as per the structure plan (General Town Planning Scheme) for Central City of Kochi and that Table No.4.5 relates ::2:: W.P.(C).No.13952 Of 2011 to use regulations in commercial use zones. It is pointed out that Use Regulations (1) deal with uses permitted. Serial No.2 in Use Regulations, which is extracted at page 3 of the writ petition, reads as follows: “Individual residential buildings, lodging or rooming houses, apartment houses, dormitories and hotels, as defined in NBC”. Relying on the above regulation it is contended that apartment houses even in commercial zones are permitted. It is pointed out that no notification was issued notifying that it is an industrial use zone area. 3. The petitioners submit that most of the buildings constructed in the area are residential buildings which are in existence for the past several years. It is also submitted that there are no industries in the vicinity of the property that the Government cannot deprive the land owners from enjoying their properties and that there is no acquisition proceedings are pending. 4. In the counter affidavit filed by the 1st respondent it is inter alia stated that the petitioners’ property lies in industrial ::3:: W.P.(C).No.13952 Of 2011 zone as per the Scheme, that only industrial uses are permissible and lay out approval is needed for industrial use. According to the 1st respondent there was no need to forward the application to the Senior Town Planner instead the Corporation had to reject the application for construction of the residential apartment in the industrial zone as the construction of residential apartment is not permissible in the industrial zone. It is further stated that exemption from a Town Planning Scheme is not permissible as per the judgment in O.P.No.8740/1997. The contention raised by the 1st respondent is that the plot lies in the industrial zone, as per the Scheme, only industrial uses are permissible and lay out is needed for industrial uses. 5. In the statement filed on behalf of respondents 2 & 3 it is stated inter alia that being an industrial zone, the maximum plinth area permitted in the area is 300 sq.metre. It is further stated that there is no other residential buildings in the area and only individual houses within the permitted extent is only allowed to be constructed. In the counter affidavit filed by the 1st respondent it is stated that there is no need to forward the application to the Senior Town Planner instead, that the ::4:: W.P.(C).No.13952 Of 2011 Corporation had to reject the application for residential apartments in the industrial zone since residential apartments are not permissible in the industrial zone. 6. The Apex Court, in the decision reported in Raju s. Jethmalani and others v. State of Maharashtra and others (2005 (11) SCC 222), held that though land belonging to private persons can be included in development plan, unless the land is promptly acquired by State Government or the Municipal Corporation to effectuate the said purpose, the land owner cannot be denied the right to use the property for any other purpose. This Court in the decision reported in Nasar v. Malappuram Municipality (2009 (3) KLT 92) held that “any demand to create a rider over the title of the owner of the property under the pretext of a Town Planning Scheme which has not become operational by acquisition would, essentially be oppressive and would not be countenanced on the face of Article 14 of the Constitution”. A similar view was taken by this Court in Padmini v. State of Kerala (1999 (2) KLT 465). The learned counsel for the petitioner also referred to the decision reported in Gopalakrishnan T.V. v. State of Kerala and others (2011 (3) ::5:: W.P.(C).No.13952 Of 2011 KHC 162 DB). This Court held that “if in an area, earmarked as a residential zone, large number of constructions for commercial purposes were permitted, whether under orders issued by the Government or not, then the only sensible thing for the Corporation to do is to take a realistic approach by not regarding the area any longer as a residential zone and request the Government to make suitable change in the Master Plan to make it in conformity with ground reality”. Therefore, I am constrained to hold that Ext.P5 cannot be sustained. 7. The writ petition is disposed of directing the 3rd respondent to consider and pass appropriate orders on the application for building permit, within a period of one month from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioners. It is made clear that the judgment passed by this Court does not stand in the way of implementation of any Scheme or to acquire the property for any public purpose in future. HARUN-UL-RASHID, Judge. bkn/-