Ideal Properties, Binu Sebastian and Geevargheese v. State of Kerala, Thrikakkara Grama Panchayath, Regional Town Planning Officer, Greater Cochin Development Authority

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY, THE 2ND DAY OF MARCH 2012/12TH PHALGUNA 1933** ## **WP(C).No. 17217 of 2008 (Y) ---------------------------** ## **PETITIONER(S):** ## **-------------** **1. IDEAL PROPERTIES, REG. OFF 1/05, MOTI MANZIL, PARMAR GURUJI MARG PAREL (EAST) MUMBAI -400012 REPRESENTED BY MANAGING PARTNER-SIRAJ MATHER** **2. BINU SEBASTIAN, S/O PULLOORUTHIKARIYIL SEBASTIN, C.M.C. NO. 25/277 PULLOORUTHIKARIYIL, CHERTHALA.** **3. GEEVARGHESE, S/O K.G. KURIAKOSE,** - **34/822,K.R.W.A., PPN NAGER 73 EDAPPALLY** **BY ADVS.SRI.V.V.ASOKAN SMT.S.AMINA** **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA, REPRESENTED BY** - **PRINCIPAL SECRETARY-LOCAL ADMINISTRATION (M) DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM.** **2. THRIKKAKARA GRAMA PANCHAYATH,** **REPRESENTED BY ITS SECRETARY, THRIKKAKARA.** **WP(C).No. 17217 of 2008 (Y)** **3. REGIONAL TOWN PLANNING OFFICER, ERNAKULAM.** **4. GREATER COCHIN DEVELOPMENT AUTHORITY, REPRESENTED BY ITS SECRETARY, OFFICE OF G.C.D.A. KADAVANTHARA, KOCHI.** **R1 & R3 BY SPL.GOVT.PLEADER SRI.TOM K.THOMAS R2 BY ADV.SRI.S.SHANAVAS KHAN R4 BY ADV.SRI.S.B.PREMACHANDRA PRABHU** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **BKA** ## **WP(C).No. 17217 of 2008 (Y)** ## **APPENDIX** ## **PETITIONER'(S) EXHIBITS:** **EXT.P1 COPY OF THE APPLICATION FOR PERMIT SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P1(a) COPY OF THE DRAWING OF THE PROPOSED CONSTRUCTION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P1(b) COPY OF THE DRAWING OF THE PROPOSED CONSTRUCTION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P1(c) COPY OF THE DRAWING OF THE PROPOSED CONSTRUCTION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P1(d) COPY OF THE DRAWING OF THE PROPOSED CONSTRUCTION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT .P2 COPY OF THE DRAWING OF THE NOTIFICATION GO(MS)NO. 143/07/LSGD ISSUED BY THE 1ST RESPONDENT 31.5.07. EXT.P3 COPY OF THE NOTIFICATION GO(MS)NO.144/07/LSGD ISSUED BY THE 1ST RESPONDENT 31.5.2007. EXT.P4 COPY OF THE FINALIZED STRUCTURAL PLAN FOR KOCHI ISSUED AS PER GO(MS).143.07/LSGD. EXT.P5 COPY OF THE INFORMATION GATHERED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT FROM THE GCDA EXT.P6 COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT. EXT.P7 COPY OF THE GOVERNMENT NOTIFICATION GO(MS)NO. 103/91/LAD. EXT.P8 COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C)NO.24830 OF 2007. EXT.P9 COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WA NO.80 OF 2007.** **RESPONDENT'(S) EXHIBITS: NIL** **//TRUE COPY//** **PA TO JUDGE** **BKA** ## **K. VINOD CHANDRAN, J.** ## **-----------------------------------------WP(C) NO. 17217 OF 2008 -----------------------------------------Dated this the 2[nd] day of March, 2012** ## **J U D G M E N T** The petitioner is a builder and developer who had applied to the 2[nd] respondent for sanctioning the construction of a multi-storied building by Ext.P1 series dated 22.04.2008. However, the same was rejected by Ext.P6 order dated 25.04.2008 on the ground that the land, where building is proposed, comes under the structure plan for the Central City of Cochin, which comes under Greater Cochin Development Authority and the land is earmarked for a park and open space. 2. The petitioner would contend on the basis of Ext.P8 judgment as also the decision reported in **Nasar v.** **Malappuram Municipality (2009 (3) KLT 92) and Shivaprasad v. State of Kerala (2011 (1) KLT 690)** that the town planning scheme has to be first approved by the local authority and only on a requisition from such local WP(C) NO. 17217 OF 2008 **==> picture [20 x 8] intentionally omitted <==** authority can the Government proceed for acquisition. Ext.P8 was passed when the land owners challenged the refusal to grant construction permits in their lands. It was contended by the Government, there, that acquisition was anticipated for the widening of road. On the petitioners therein refusing to surrender the property voluntarily, this Court held that there cannot be a compulsion on the petitioner to surrender their land, despite the fact that extending the width of the road would enure to their benefit also. This Court had relied on a Full Bench decision of this Court reported in **Francis v. Chalakudy Municipality (1999 (3) KLT 560)** and **Padmini v. State of Kerala (1999 (3) KLT 465)** . In the said case also there was no requisition made by the GCDA even at the time of the writ petition being heard. In such circumstances, this Court directed the petitioners to file an affidavit before the concerned authority that on permission being granted for carrying out construction, they shall not claim any compensation for such constructions and shall also WP(C) NO. 17217 OF 2008 **==> picture [20 x 8] intentionally omitted <==** demolish the portion of the constructions to the extent it would encroach into the land proposed to be acquired by the Government. However, the period of the undertaking was limited to 18 months to enable the Government to take appropriate proceedings for acquisition of land within that time. In **Nasar v. Malappuram Municipality (2009 (3) KLT 92),** this Court considered a specific question as to whether a Municipality can reject application for building permit on the ground that Detailed Town Planning Scheme does not provide for grant of permit. This Court relying on **Padmini v. State of Kerala (1999 (3) KLT 465)** (supra) held that the proposition enunciated by the Division Bench of this Court was in conformity with the decisions of the Hon'ble Supreme Court in **Raju S. Jethmalani v. State of Maharashtra ((2005) 11 SCC 222)** . The Supreme Court had, in fact, held that while Government is free to prepare a development plan, that alone was not sufficient to deprive the owner of the land from enjoying the same. The Hon'ble WP(C) NO. 17217 OF 2008 **==> picture [20 x 8] intentionally omitted <==** Supreme Court held that while there is no prohibition of including private land in a development plan, the owners cannot be deprived of the enjoyment of their land till acquisition proceedings are taken in accordance with the plan. The very same principle was reiterated in **Shivaprasad v. State of Kerala (2011 (1) KLT 690).** 3. In the instant writ petition, the Sate has filed a statement dated 02.03.2012 in which it has been stated that in the present case no acquisition proceedings are initiated till date. However, it is also stated that in the present case, permission for construction was sought in violation of the sanctioned scheme. Going by the dictum laid down by the above reported decisions, merely because there is a sanctioned scheme for development, private owners cannot be deprived of their right to enjoyment of their lands, which enjoyment would necessarily include making constructions in such lands. In such circumstances, on the declaration of law made by this Court in the judgments above referred as also WP(C) NO. 17217 OF 2008 **==> picture [20 x 8] intentionally omitted <==** the admitted fact that there are no acquisition proceedings now initiated against the property, Ext.P6 cannot be sustained and is hence set aside. It is for the local authority, 2[nd] respondent, which it is submitted, is now a Municipality to consider the application of the petitioner, however, subject to and in accordance with the Kerala Municipality Building Rules, 1999. The petitioner shall produce a copy of this judgment before the 2[nd] respondent within a period of two weeks from the receipt of the same and the 2[nd] respondent shall consider the same within one month thereafter in accordance with law and taking into account that the existence of a sanctioned scheme alone cannot fetter or deprive the land owners from carrying out construction in a land coming within such scheme. The writ petition is disposed of as above. ## Sd/- **K. VINOD CHANDRAN, JUDGE** bka/- //True copy// PA to Judge