Geethamani A. v. Kozhikode Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 7TH DAY OF APRIL 2016/18TH CHAITHRA, 1938 WP(C).No. 11013 of 2016 (B) ----------------------------** **PETITIONER(S): -------------** **GEETHAMANI A.** **D/O.ALANCHERI KUTTAPPAN NAIR, AGED 58 YEARS, ALANCHERI HOUSE, FLORICAN ROAD, KARAPARAMBA P.O., KOZHIKODE 673 010.** **BY ADV. SRI.K.PRAVEEN KUMAR** **RESPONDENT(S): --------------** **1. THE KOZHIKODE CORPORATION, REPRESENTED BY ITS SECRETARY, KOZHIKODE - 673 011. 2. THE SECRETARY, KOZHIKODE CORPORATION, KOZHIKODE - 673 011. 3. THE SUPERINTENDENTING ENGINEER, KOZHIKODE CORPORATION, KOZHIKODE - 673 011.** **R3 BY GOVERNMENT PLEADER SRI.MANZOOR ALI R1,2 BY SRI.K.D.BABU,SC,KOZHIKODE CORPORATION** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 11013 of 2016 (B)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT.P1: TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT DATED 30.12.2015.** **RESPONDENT(S)' EXHIBITS: NIL** **-----------------------** ## **OKB** **// True copy //** **P.A. to Judge** ## K.HARILAL, J. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ## W.P.(C) No.11013 of 2016 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dated this the 7[th] day of April, 2016 JUDGMENT ~ ~ ~ ~ ~ The petitioner is the absolute owner in possession of 58.4 cents of land comprised in Sy.No.21/6A of Vengeri Village of Kozhikode Taluk, within the limits of the 1[st] respondent Corporation. According to the petitioner, the said property is lying as a dry land. So she wants to construct a commercial building in the said property and applied to the 1[st] respondent for a building permit. But the 2[nd] respondent rejected the said application, by Ext.P1, for various reasons. Out of the ten reasons stated for rejection of the application, nine are curable; but the other reason is that as per the Master Plan available in the Corporation, the said land is situating in the residential zone. Therefore, no permit can be issued to construct a commercial building. The legality and **WP(C).11013/16-B :2:** propriety of the reasonings, whereby the application seeking building permit stands rejected, are under challenge in this writ petition. 2. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents. 3. Going by Ext.P1, as submitted by the petitioner, out of the ten defects, nine are curable and the other one is that the property stands included in the residential zone. 4. The question whether building permit can be denied on the basis of the zonal classification under the DTP scheme, which has not been implemented so far and has become, was considered by the Apex 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 **WP(C).11013/16-B :3:** 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 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”. 5. 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. 6. 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 **WP(C).11013/16-B :4:** 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 Constitution. It is also observed that in terms of the ratio laid down in the decisions referred to above, no **WP(C).11013/16-B :5:** 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. 7. The proposition that can be culled out from the above decisions is that building permit cannot be rejected on the basis of 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 standing in the area ear-marked for industrial zone. 8. In the above analysis, Ext.P1 will stand set aside. The 2[nd] respondent is directed to reconsider the **WP(C).11013/16-B :6:** application and pass orders 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, after affording an opportunity of being heard to the petitioner. This writ petition is disposed of accordingly. Sd/- K. HARILAL, JUDGE okb.