P.A. Shamsudheen v. Thrissur Corporation and The Assistant Executive Engineer, Thrissur Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **MONDAY, THE 15TH DAY OF FEBRUARY 2016/26TH MAGHA, 1937** **WP(C).No. 1447 of 2016 (E)** ## **---------------------------** **PETITIONER:** **------------** **P.A.SHAMSUDHEEN, AGED 52 YEARS, S/O.ABBAS HAJI, RESIDING AT POKKAKKILLATHU HOUSE, ENAMACKAL, CHAVAKKAD, THRISSUR DISTRICT.** **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 ASSISTANT EXECUTIVE ENGINEER, THRISSUR CORPORATION, CORPORATION OFFICE, THRISSUR-680 001.** **R1 & 2 BY ADV. SRI.K.P.VIJAYAN, SC, THRISSUR CORPORATION ADV. SRI.V.N.HARIDAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 1447 of 2016 (E)** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT-P1: TRUE COPY OF THE TAX RECEIPT ISSUED IN FAVOUR OF THE PETITIONER AND OTHERS BY THE VILLAGE OFFICER, THRISSUR VILLAGE OFFICE DATED 3.8.2015.** **EXHIBIT-P2: TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 22.12.2015.** **EXHIBIT-P3: TRUE COPY OF THE JUDGMENT IN W.A.NO.1731/2008 DATED 14.6.2011.** **EXHIBIT-P4: TRUE COPY OF FEW PHOTOGRAPHS DEPICTING THE LIE OF THE PROPERTY DATED NIL.** **EXHIBIT-P5: TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.25252/2015 ON THE FILE OF THIS HONOURABLE COURT DATED 19.8.2015.** **RESPONDENT(S)' EXHIBITS** **-----------------------** ## **NIL** //true copy// P.S. to Judge ## **K. HARILAL, J. -----------------------------------------------------W.P. (C) No.1447 of 2016-L -----------------------------------------------------Dated this the 15[th] day of February, 2016** ## **JUDGMENT** The petitioner is the title holder in possession of 7.75 cents of property comprised in Sy.No.1950/3P of Thrissur Village in Thrissur District, within the limits of the 1[st] respondent/Corporation. The petitioner wanted to construct a commercial building comprising ground plus three floors, in the property and he had submitted an application for granting a building permit; but the 2[nd] respondent rejected the said application stating that as per the DTP Scheme, the area has been classified as 'residential' and hence the building permit could not be granted. According to the petitioner, the DTP Scheme has never been implemented in the 1[st] respondent Corporation. Therefore, the 1[st] respondent **W.P. (C) No.1447 of 2016** -: 2 :- cannot insist for implementation of zonal regulations on the basis of the DTP Scheme which has not been materialised so far and the denial of the building permit on the basis of the DTP Scheme is against the decisions laid down by the Supreme Court. It is with these averments, the petitioner filed this writ petition and prayed for issuing a writ of certiorari calling for the records leading to Ext.P2 and quash the same and to issue a writ of mandamus directing the 1[st] respondent to reconsider the petitioner's application for building permit in the light of the dictum laid down by the Apex Court. 2. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the 1[st] respondent/Corporation. 3. Going by Ext.P2, it is seen that the building permit has been denied, on the sole reason that as per the DTP Scheme, the area has been earmarked as 'residential'. The genuineness and credibility of Ext.P4 **W.P. (C) No.1447 of 2016** -: 3 :- series of photographs have not been challenged by the respondents. Ext.P4 photographs clearly show that huge commercial buildings are seen constructed in the adjacent properties. The Apex Court as well as this Court had considered the question whether the building permit can be denied on the basis of the DTP Scheme which has not come into existence and held as follows: 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. In the above view of the matter, 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 **W.P. (C) No.1447 of 2016** -: 4 :- 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 Town Planning Scheme, without implementation of the same cannot be a ground for rejection of an ## **W.P. (C) No.1447 of 2016** -: 5 :- 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], 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 **W.P. (C) No.1447 of 2016** -: 6 :- 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.1447 of 2016** -: 7 :- a person who wants to enjoy his property in the manner he desired fit, albeit, subject to legal limitations. 8. In view of the above decisions, 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. The proposition which can be culled out from the above decisions is that the building permit cannot be denied on the basis of the DTP Scheme which has not come into force, despite the long lapse of years, after the preparation of the same. 10. In the above view of the matter, the 1[st] respondent is not justified in denying the building permit on the reason that the area has been earmarked as 'residential' one. 11. In the above view of the matter, Ext.P2 order **W.P. (C) No.1447 of 2016** -: 8 :- will stand set aside and the 1[st] respondent/Corporation is directed to consider the application afresh and pass orders accordingly in view of the decisions referred above, within a period of one month from the date of receipt of a copy of this judgment. This writ petition is disposed of accordingly. Sd/- **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge