Balakrishnan and Nirmala v. Kozhikode Municipal Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 11TH DAY OF MARCH 2016/21ST PHALGUNA, 1937** **WP(C).No. 6529 of 2016 (M) ---------------------------** **PETITIONERS:** **------------** **1. BALAKRISHNAN, AGED 69 YEARS, S/O.KUTTAPPU, NIRMMAL, MAKKADA P.O., CALICUT - 673 612.** **2. NIRMALA, AGED 61 YEARS, W/O.BALAKRISHNAN, KUTTAPPU, NIRMMAL, MAKKADA P.O., CALICUT - 673 612.** **BY ADV. SRI.V.N.HARIDAS** **RESPONDENTS:** **-------------** **1. KOZHIKODE MUNICIPAL CORPORATION, REP. BY ITS SECRETARY, BEACH ROAD, KOZHIKODE.** **2. SECRETARY, KOZHIKODE MUNICIPAL CORPORATION, BEACH ROAD, KOZHIKODE.** **R1-R2 BY ADV. SRI.K.D.BABU, SC,KOZHIKODE CORPORATION** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 6529 of 2016 (M)** **---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **-----------------------** **EXT.P-1: TRUE PHOTOCOPY OF THE TAX RECEIPT DATED 29.4.2015 ISSUED BY THE VILLAGE OFFICER, VENGERI.** **EXT.P-2: TRUE PHOTOCOPY OF THE POSSESSION CERTIFICATE DATED 15.6.2015 ISSUED BY THE VILLAGE OFFICER, VENGERI.** **EXT.P-3: TRUE PHOTOCOPY OF THE REJECTION ORDER DATED 16.2.2016 ISSUED BY THE 2ND RESPONDENT.** **EXT.P-4: TRUE PHOTOCOPY OF THE JUDGEMENT DATED 21.8.2015 IN WPC NO.25712/2015 OF THIS HON'BLE COURT.** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** ## **NIL** //true copy// P.S. to Judge ## **K. HARILAL, J. -----------------------------------------------------W.P. (C) No. 6529 of 2016-M -----------------------------------------------------Dated this the 11[th] day of March, 2016** ## **JUDGMENT** The petitioners are the absolute owners in possession of 4.86 Ares of property comprised in Re.Sy.No.117/4 in Vengeri Village of Kozhikode Corporation. According to the petitioners, the said property is lying as a 'dry land'. So, the petitioners want to construct a commercial building in the said property and they applied for a building permit before the 1[st] respondent/Corporation with approved plans and all other necessary documents. But, the 2[nd] respondent rejected the application, by Ext.P3, stating that as per the Zoning Regulation under the DTP Scheme, commercial constructions with the height not exceeding 7 Mtrs. and the total extent not exceeding 200 M[2] are only permitted and that too, after **W.P. (C) No. 6529 of 2016** -: 2 :- obtaining the concurrence from the Regional Town Planner. The legality and propriety of the reasonings; whereby the building permit stands rejected by the 2[nd] respondent, are under challenge in this writ petition. 2. Heard the learned counsel for the petitioners and the learned Standing Counsel appearing for the respondent/Corporation. 3. Going by Ext.P3 order, it is seen that the sole reason for rejecting the application for building permit is that according to the Master Plan, the proposed construction site is included in the 'Buffer Zone' and for the commercial constructions with the height not exceeding 7 Mtrs. and the total extent not exceeding 200 M[2] are only permitted and that too, after obtaining the concurrence from the Regional Town Planner. The question whether the building permit can be rejected on the basis of the Zoning Regulation under the DTP Scheme, which is not implemented and which has become obsolete, was considered by the Apex Court as well as this Court in various decisions which are given below: **W.P. (C) No. 6529 of 2016** -: 3 :- 4. In Raju S. Jetmalani v. State of Maharashtra and Ors. [(2005) 11 SCC 222] and Nazar v. Malappuram Municipality [2009(3) KLT 92] and Saidu P. v. State of Kerala and Ors. [2010 (3) KHC 974] and Gopalakrishnan T.V. v. State of Kerala and Ors.[2011 (3) KHC 162]. 5. The decision laid down by the Supreme Court in Raju S. Jetmalani's case (Supra) assumes significance and relevancy in the instant case. In the above decision, the Apex Court held that land belonging to private individuals cannot be included in development plans unless a 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 ## **W.P. (C) No. 6529 of 2016** -: 4 :- 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 of India.” 6. In Saidu P. v. State of Kerala and Ors. [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. In Gopalakrishnan's case (Supra) this Court held as follows: “If an area is earmarked as a residential zone number of constructions for commercial purpose 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” **W.P. (C) No. 6529 of 2016** -: 5 :- 7. 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 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 ## **W.P. (C) No. 6529 of 2016** -: 6 :- 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. 8. The proposition that can be culled out from the above decisions is that the building permit cannot be denied on the basis of the Zoning Regulation under the DTP Scheme, which is not implemented and which has become obsolete. If an area is earmarked as 'residential zone' in the DTP Scheme, which is not implemented so far, the property owners' right to use the building, in accordance with their wish and will, cannot be prevented by zoning or freezed regulations. 9. In the above view of the matter, Ext.P3 will stand quashed and the matter is remitted back to the **W.P. (C) No. 6529 of 2016** -: 7 :- 2[nd] respondent for fresh consideration. The 2[nd] respondent shall conduct a site inspection and thereafter, consider the application afresh in view of the decisions referred above, 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. This writ petition is disposed of accordingly. Sd/- - **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge