Madhusoodanan P; Parimal Kumar; Shyamal Kumar v. Kozhikode Municipal Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 31ST DAY OF MARCH 2016/11TH CHAITHRA, 1938** **WP(C).NO. 3018 OF 2016 (B) ---------------------------** **PETITIONERS:** **-------------** **1. MADHUSOODANAN P, AGED 55 YEARS, S/O.RARUKUTTY NAIR,4/155,KEEZHMANA GARDEN,KARUVISSERY.P.O,KARAPARAMBA.S.O,KOZHIKODE6731010.** **2. PARIMAL KUMAR,AGED 48 YEARS, S/O.KUMARAN NAIR,1436,KIZHAKKE KUNDOTIL PARAMBU, VENGERI,KOZHIKODE-36.** **3. SHYAMAL KUMAR,AGED 52 YEARS, S/O.KUMARAN NAIR,1356.G(6/1297),PRABHU PADAM, THADAMBATTUTHAZHAM,KOZHIKODE-36.** **BY ADV. SRI.YASH THOMAS MANNULLY** **RESPONDENT(S)/RESPONDENTS: --------------------------** **1. KOZHIKODE MUNICIPAL CORPORATION, REPRESENTED BY ITS SECRETARY,BEACH ROAD,KOZHIKODE673032.** **2. SECRETARY, KOZHIKODE MUNICIPAL CORPORATION,BEACH ROAD,KOZHIKODE673032.** **R1 & 2 BY ADV. SRI.K.D.BABU,SC,KOZHIKODE CORPORATION** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).NO. 3018 OF 2016 (B) ---------------------------** ## **APPENDIX** ## **========** ## **PETITIONERS' EXHIBITS -----------------------** - **EXT.P1 TRUE COPY OF THE TAX RECEIPT DTED 10.09.2015 ISSUED BY THE VILLAGE OFFICER,VENGERI TO THE 1ST PETITIONER** - **EXT.P2 TRUE COPY OF THE TAX RECEIPT DATED 08.09.2015 ISSUED BY THE VILLAGE OFFICER,VENGERI TO THE 2ND PETITIONER** - **EXT.P3 TRUE COPY OF THE TAX RECEIPT DATED 25.04.2015 ISSUED BY THE VILLAGE OFFICER,VENGERI TO THE 3RD PETITIONER** - **EXT.P4 TRUE COPY OF THE ORDER DATED 14.01.2016 ISSUED BY THE 2ND RESPONDENT** - **EXT.P5 TRUE COPY OF THE JUDGMENT DATED 16-01-2016 IN WP(C036320/2015 OF THIS HON'BLE COURT.** ## **RESPONDENT(S)' EXHIBITS: NIL** **-----------------------** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **DST** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = = = W.P. (C) No.3018 of 2016** **- - - - - - - - - -- - - - - - - - - - -** Dated this the 31st day of March, 2016 ## **J U D G M E N T** The petitioners are highly aggrieved by Ext.P4 decision of the 2[nd] respondent Corporation, rejecting the application for building permit, seeking construction of a commercial building, on the ground that according to the master plan, the proposed construction site is included in the Buffer zone and thereby, there is a violation of Rule 3(a) of the Kerala Municipality Building Rules, 1999 ( _hereinafter referred to as 'the Rules')_ . The petitioners submit that the Detailed Town Planning for the 1[st] respondent Corporation is in papers for the last more than 28 years and not even an inch of land had been acquired for the said purpose. The ## **W.P.(C) No. 3018 of 2016** ## **-: 2 :-** said scheme was sanctioned by the Government in the year 1987 and the period of execution of the said scheme was limited to 20 years. Thus, the scheme has become obsolete and rejection of the building permit, on the basis of obsolete scheme would result in infraction of the right of the property, under Article 300A of the Constitution of India. So also, so many commercial buildings are standing in adjacent properties. Thus, the denial of building permit is in violation of Article 14 of the Constitution of India. Thus, this writ petition is filed, challenging the denial of building permit, on the basis of zonal classification in the DTP scheme. 2. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondent Corporation. 3. The question, whether building permit can be denied, on the basis of a zonal classification in ## **W.P.(C) No. 3018 of 2016** ## **-: 3 :-** a DTP scheme, which has not been implemented so far and has become obsolete, was considered by this Court as well as the Apex Court in various decisions, which are given below: _**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]. 4. 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 the land is acquired by the State Government or the Municipal Corporation. The State Government cannot deprive the ## **W.P.(C) No. 3018 of 2016** ## **-: 4 :-** 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 a _ny 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.”_ 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 ## **W.P.(C) No. 3018 of 2016** ## **-: 5 :-** sensible thing for the Corporation to do is to take a realistic approach by not regarding the area any longer as a residential zone” 5. The proposition that can be culled out from all the above referred decision is that building permit cannot be denied, on the basis of zonal classification under DTP scheme, which has not been materialised so far, despite the long lapse of years and has become obsolete and the denial of building permit on that ground would violate the fundamental rights of the citizen of India, under the Constitution. 6. In the above view of the matter, the denial of building permit under the ground No.9 in Ext.P4, cannot be justified and the denial of building permit on that ground alone will stand quashed, in Ext.P4. But, at the same time, the petitioners are liable to submit a revised plan, curing the defects enumerated under 1 to 8. ## **W.P.(C) No. 3018 of 2016** ## **-: 6 :-** Therefore, the respondent Corporation is directed to reconsider the application and pass orders afresh, if a revised plan is produced, and defects shown in Ext.P4 are cured, within a period of one month from the date of receipt of the revised plan, after affording an opportunity of being heard to the petitioners. This writ petition is disposed of accordingly. DST Sd/- **K. HARILAL,** //True copy// P.A. To Judge **JUDGE**