Mohan Nair v. Thrissur Corporation and The Executive Engineer, Thrissur Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 22ND DAY OF MARCH 2016/2ND CHAITHRA, 1938** **WP(C).No. 9265 of 2016 (G)** **---------------------------** **PETITIONER:** **------------** **MOHANAN NAIR, AGED 60 YEARS, S/O. MEENAKSHI AMMA, RESIDING AT 52/511, NADUVATHERY HOUSE, KANATTUKARA P.O., THRISSUR-680 011.** **BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** **RESPONDENTS:** **------------** **1. THE THRISSUR CORPORATION, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, THRISSUR-680 001.** **2. THE EXECUTIVE ENGINEER, THRISSUR CORPORATION, CORPORATION OFFICE, THRISSUR-680 001.** **R1-2 BY ADV. SRI.K.P.VIJAYAN ADV. SRI.V.N.HARIDAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 9265 of 2016 (G)** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------** **EXT.P1 : COPY OF THE POSSESSION CERTIFICATE ISSUED IN FAVOUR OF THE PETITIONER AND HIS WIFE BY THE VILLAGE OFFICER, CHEMBUKAVU VILLAGE OFFICE, DTD.26.11.2015.** **EXT.P2 : COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DTD.15.2.2016.** **EXT.P3 : COPY OF THE JUDGMENT IN WA NO.1731/2008 DTD.14.6.2011.** **EXT.P4 : COPY OF FEW PHOTOGRAPHS DEPICTING THE LIE OF THE PROPERTY DATED NIL.** **EXT.P5 : COPY OF THE JUDGMENT IN WPC NO.35670/2015 ON THE FILE OF THIS HON'BLE COURT, DTD.1.12.2015.** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL** //true copy// P.S. to Judge ## **K. HARILAL, J. -----------------------------------------------------W.P. (C) No.9265 of 2016 -----------------------------------------------------Dated this the 22[nd] day of March, 2016** ## **JUDGMENT** The petitioner is the owner in possession of 0.0453 Hectares (11.20 cents) of property comprised in Sy.No.87/3 of Chembukavu Village in Thrissur District within the limits of the 1[st] respondent/ Corporation. The petitioner wants to construct a commercial building in the said property and accordingly, he applied to the 1[st] respondent/ Corporation for a building permit. But, the 2[nd] respondent, by Ext.P2 order, rejected the application stating that as per the DTP Scheme, the area has been zoned as 'residential' and since the building sought to be constructed being a commercial one, building permit cannot be granted. The legality and propriety ## **W.P. (C) No.9265 of 2016** -: 2 :- of the reasonings; whereby the petitioner's 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 appearing for the respondents. 3. In the above view of the matter, the question whether the building permit can be denied on the basis of a mere proposal of DTP Scheme, was considered by the Supreme Court as well as this Court in various decisions, which are given below: 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 ## **W.P. (C) No.9265 of 2016** -: 3 :- 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 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 **W.P. (C) No.9265 of 2016** -: 4 :- 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” 7. In Muhammed Subair v. Corporation of Kozhikode [2015 (3) KHC 307], a 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 **W.P. (C) No.9265 of 2016** -: 5 :- 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 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 **W.P. (C) No.9265 of 2016** -: 6 :- a person who wants to enjoy his property in the manner he desired fit, albeit, subject to legal limitations. 8. It can be safely concluded that the denial of building permit under the guise of the DTP scheme, which has not been implemented so far, is unreasonable and unjust, warranting interference of this Court under Article 226 of the Constitution of India. 9. Consequently, Ext.P2 will stand set aside and the 1[st] respondent/Corporation is directed to 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 petitioner. This writ petition is disposed of accordingly. ## Sd/- ## ## **Nan/** ## **//true copy//** ## **P.S. to Judge**