Babu Francis v. Thrissur Corporation and Assistant Executive Engineer

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **WEDNESDAY, THE 17TH DAY OF FEBRUARY 2016/28TH MAGHA, 1937** **WP(C).No. 1612 of 2016 (B) ---------------------------** **PETITIONER(S):** **---------------** **BABU FRANCIS, AGED 58 YEARS,S/O.P.I.FRANCIS,PULLOKKORAN HOUSE, AGED 58 YEARS, CHELAKKOTUKARA, UNITY ROAD, THRISSUR-5.** **BY ADVS.SRI.RENJITH THAMPAN (SR.) SMT.P.R.REENA** **RESPONDENT(S):** **--------------** **1. THRISSUR CORPORATION,REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, THRISSUR, PIN-680 001.** **2. ASSISTANT EXECUTIVE ENGINEER,THRISSUR CORPORATION, CORPORATION OFFICE, THRISSUR, PIN-680 001.** **R1 & 2 BY ADV. SRI.K.P.VIJAYAN,SC,THRISSUR CORPORATION R1 & 2 BY ADV. SRI.V.N.HARIDAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 1612 of 2016 (B) ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **------------------------** **EXT.P1:TRUE COPY OF BASIC TAX RECEIPT DATED 07.12.2015 ISSUED BY CHIYYARAM VILLAGE.** **EXT.P1(A):TRUE COPY OF BASIC TAX RECEIPT DATED 07.12.2015 ISSUED BY CHIYYARAM VILLAGE. EXT.P2:PHOTOGRAPHS SHOWING THE RESIDENTIAL BUILDINGS ADJACENT TO THE PETITIONER'S PROPERTY. EXT.P2(A):PHOTOGRAPHS SHOWING THE RESIDENTIAL BUILDINGS ADJACENT TO THE PETITIONER'S PROPERTY.** **EXT.P3:TRUE COPY OF THE INTIMATION DATED 08.01.2016 ISSUED BY THE CORPORATION.** **EXT.P4:TRUE COPY OF THE JUDGMENT REPORTED IN 2014 KHC 2517.** ## **RESPONDENT(S)' EXHIBITS: NIL** **-----------------------** ## **OKB** **True copy** **P.A. to Judge** ## K.HARILAL, J. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ## W.P.(C) No.1612 of 2016 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dated this the 17[th] day of February, 2016 ## JUDGMENT ~ ~ ~ ~ ~ The petitioner is the owner in possession of 21½ cents of land comprised in survey No.85/2 of Chiyyaram Village. According to the petitioner, on all sides of the aforesaid property there are large residential buildings constructed recently and the same is evidenced by Exts.P2 and P2(a) series of photographs. So, the petitioner also wanted to construct a residential building in the said property and applied for the same before the 1[st] respondent Corporation. But, by Ext.P3, the Corporation rejected the application, stating that the building permit cannot be granted since the aforesaid area is earmarked as industrial zone in the Town Planning Scheme and building having a plinth area below 200 Sq.M. alone can be allowed to be constructed in that area, and the **WP(C).1612/16 :2:** petitioner's application is for constructing a residential building having a plinth area of 556.47 Sq.M. This is the grievance projected in this writ petition and it is with this averment this writ petition is filed with a prayer to quash Ext.P3 intimation issued by the 2[nd] respondent and to issue a writ of mandamus directing the 2[nd] respondent to grant building permit to the petitioner. 2. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent Corporation. 3. The legality and propriety of the reasonings, whereby the building permit stands rejected, are under challenge in this writ petition. Going by Ext.P3 passed by the 2[nd] respondent, it could be seen that the application for building permit was rejected on the sole reason that the property is situated in an industrial zone where building permit can be allowed for construction with plinth area below 200 Sq.M. only **WP(C).1612/16 :3:** and the petitioner's application is for constructing a residential building having a plinth area of 556.75 Sq.M. The question whether the building permit can be denied on the ground of zonal classification in a Master plan, which has not been implemented, was considered by this Court in various decisions, which are given below: In Raju S. Jethmalani v. State of Maharashtra and Others [2005 (11) SCC 222], the Apex Court held that the land belonging to private individuals cannot be included in development plans, unless the land is acquired by the State Government or the Municipal Corporation. The State Government cannot deprive the land owner of beneficially using his property, under the guise of DTP scheme, when no steps have been taken to actually implement the Scheme. Further, in Nazar v. Malappuram Municipality [2009 (3) KLT 92], this Court held as follows: “If any demand to create a rider over the title of the owner of the property under the pretext of a Town **WP(C).1612/16 :4:** 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 of India”. 4. In Saidu P. v. State of Kerala and others [2010 (3) KHC 974) this Court held that mere proposal under a Town Planning Scheme, without implementation of the same cannot be a ground for rejection of an application for building permit. 5. In Muhammed Subair v. Corporation of Kozhikode [2015 (3) KHC 307], the learned Single Judge of this Court following the ratio of Padmini v. State of Kerala [1999 KHC 619], has observed that in so far as the owner of the land is concerned, the acquisition affects his interest only from the issuance of notifications and declarations under the Land Acquisition Act. Therefore, any attempt to curb the rights of the owners of lands, until the publication of those statutory notifications and declarations, would result in infraction of the right to property under Art.300A of the Constitution. It is further opined **WP(C).1612/16 :5:** that any infraction of that nature would also result in the violation of the equality principle in the matter of enforcement of laws as is enshrined in Art.14 of the Constitution. It is, in the end, emphatically 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 in the face of Art.14 of the Constitution. It is also observed that in terms of the ratio laid down in the decisions referred to above, no property right can be interdicted and ipso facto no building permit can be refused on a mere proposal to have certain lands acquired. In other words, contemplation on the part of the officials cannot be a substantive ground to defeat the constitutional right of a person who wants to enjoy his property in the manner he desired fit, albeit, subject to legal limitations. **WP(C).1612/16 :6:** 6. The proposition that can be culled out from the above decisions is that building permit cannot be rejected on the basis of a zonal classification made in the Master Plan or DTP Scheme which was formulated years back and has not come into reality despite the long lapse of time. Here, the genuineness of Ext.P2 photographs is not challenged by the respondents and it shows that huge residential buildings are constructed in the area ear-marked for industrial zone. 7. Having regard to the decisions laid down by this Court, I am of the opinion that the building permit cannot be rejected on the basis of zonal classification made in the Master Plan which has not come into force so far and pending consideration of the Government. In the above view of the matter, the 2[nd] respondent is directed to consider the application afresh in the light of the decisions referred above. 8. Consequently, Ext.P3 will stand set aside and **WP(C).1612/16 :7:** the 2[nd] respondent is directed to consider the application afresh, in the light of the decisions referred above, within a period of one month from the date of receipt of a copy of this judgment. This writ petition is disposed of. Sd/- K. HARILAL, JUDGE okb.