High Court of KeralaSingle Judge2016-03-11This Writ Petition is disposed of; Ext.P2 quash...

Saju v. State of Kerala and Chalakudy Municipality

Case / Petition Number:WP(C).NO. 31283 OF 2015 (I)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2016-03-11
Court Decision / Holding: Ext.P2 will stand quashed and the matter is remitted to the 2nd respondent for fresh consideration, in view of the above decisions. The 2nd respondent shall take a decision afresh, 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, notwithstanding the zonal classification in the DTP Scheme.
Final Disposition: This Writ Petition is disposed of; Ext.P2 quashed and the matter remitted for fresh consideration by the Municipality within one month, with opportunity of hearing to the petitioner.

Parties to the Case

Appellants / Petitioners

Saju, S/o Kunjuppalu, Melen House, East Chalakudy Village, Chalakudy Taluk, Thrissur District

Respondents

The State of Kerala represented by the Secretary to the Government, Local Self Government Department, Government Secretariat, Thiruvananthapuram 695001
The Chalakudy Municipality represented by its Secretary, Chalakudy P.O., Thrissur District 680001

Legal Representation & Advocates

Counsels for Petitioners

• Sri. G. Sreekumar (Chelur)
• Sri. N. L. Bitto

Counsels for Respondents

• Sri. Sheejo Chacko, SC
• Sri. P. M. Saneer

Case Synopsis & Summary

The petitioner, Saju, holds 17.36 cents of land in Sy.No. 507/6 of Chalakudy Village within the Chalakudy Municipality. He applied for a building permit to construct a commercial building, but the Municipality rejected the application on the ground that the property is reserved for residential development under a sanctioned DTP Scheme for market area development and that the DTP Scheme requires Government permission to alter. The petitioner challenged the decision under Article 226 of the Constitution, arguing that the unexecuted DTP Scheme cannot deprive him of the beneficial use of his land and that the denial is arbitrary and inconsistent with constitutional guarantees. The 1st respondent State and 2nd respondent Municipality defended the denial, relying on the DTP Scheme and the requirement of government permission to modify it. The court examined precedents including Raju S. Jetmalani v. State of Maharashtra, Nazar v. Malappuram Municipality, Saidu P. v. State of Kerala, and Gopalakrishnan TV v. State of Kerala, which hold that a landowner cannot be deprived through an unimplemented DTP Scheme and that mere proposals without implementation cannot bar permits. The court concluded the denial was unreasonable and arbitrary, quashed Ext.P2, and remitted the matter for fresh consideration by the Municipality within one month, with due opportunity to be heard.

Provisions of Law Cited

Article 226 of the Constitution of India

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that denial of a building permit solely on the ground that the land lies within an unimplemented DTP Scheme is arbitrary and unenforceable against a private landowner, especially when the scheme has not been operationalized. The petitioner relies on decisions of the Supreme Court and this Court holding that non-operational DTP schemes cannot bar beneficial use of property and that acquiring land is required before its inclusion in development plans. He seeks quashing of Ext.P2 and a direction to the 2nd respondent to consider the permit afresh after giving an opportunity of hearing, without being constrained by the unimplemented DTP zone. The petitioner argues for a realistic approach that permits construction pending development plans, consistent with Article 14 of the Constitution.

Contentions of Respondents

The State and the Chalakudy Municipality contend that the land is earmarked for residential construction under a sanctioned DTP Scheme for market area development; the 2nd respondent cannot grant a permit contrary to the DTP Scheme or alter it without Government permission; the denial was proper and in conformity with the plan; the decision to deny is legally sustainable and consistent with the DTP framework.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Raju S. Jetmalani v. State of Maharashtra and Ors.	(2005) 11 SCC 222	Positive	Apex Court held that private land cannot be included in development plans unless acquired; unimplemented DTP schemes cannot deprive landowners.
Nazar v. Malappuram Municipality	2009(3) KLT 92	Positive	Held that imposing riders on title under an unoperational Town Planning Scheme would be oppressive and violate Article 14.
Saidu P. v. State of Kerala and Ors.	2010 (3) KHC 974	Positive	Mere proposal under a Town Planning Scheme without implementation cannot ground a building-permit rejection.
Gopalakrishnan T.V. v. State of Kerala and Ors.	2011(3) KHC 162	Positive	If an area is marked as residential, some commercial constructions may be permitted; adopt a realistic approach.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **FRIDAY, THE 11TH DAY OF MARCH 2016/21ST PHALGUNA, 1937** ## **WP(C).NO. 31283 OF 2015 (I)** **----------------------------** ## **PETITIONER:** ## **-------------** **SAJU, AGED 48 YEARS,** **S/O.KUNJIPPALU, MELEN HOUSE, EAST CHALAKUDY VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT.** **BY ADVS.SRI.G.SREEKUMAR (CHELUR) SRI.N.L.BITTO** **RESPONDENT(S):** **---------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.** **2. THE CHALAKUDY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, CHALAKUDY P.O., THRISSUR DISTRICT. 680 001.** **R2 BY ADV. SRI.SHEEJO CHACKO, SC, CHALAKUDY MUNICIPALITY BY GOVERNMENT PLEADER, SRI. P.M. SANEER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).NO. 31283 OF 2015 (I)** **----------------------------** ## **APPENDIX** ## **========** ## **PETITIONER(S)' EXHIBITS** **-------------------------** **EXHIBIT P1. COPY OF THE DOCUMENT BEARING NO.2463/1980 DATED 2.7.80 OF THE CHALAKUDY S.R.O.** **EXHIBIT P2. COPY OF THE ORDER PASSED BY THE SECOND RESPONDENT DATED 23.9.15.** **RESPONDENT(S)' EXHIBITS : NIL** **--------------------------** **//TRUE COPY//** **P.A. TO JUDGE** **DST** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = = = W.P. (C) No.31283 of 2015** **- - - - - - - - - -- - - - - - - - - - -** Dated this the 11th day of March, 2016 ## **J U D G M E N T** The petitioner is the owner in possession of 17.36 cents of land comprised in Sy.No.507/6 of Chalakudy Village, within the limits of the 2[nd] respondent Municipality, by the virtue of Ext.P1. According to the petitioner, the said property is a pauca dry land. So he wanted to construct a commercial building and applied for building permit before the 2[nd] respondent, Municipality. But, the 2[nd] respondent rejected the said application, stating that this property is proposed to be acquired for residential purpose, under the DTP Scheme. The legality and propriety of the reasoning, whereby the petitioner's request, seeking building permit stand ## **W.P.(C) No. 31283 of 2015** ## **-: 2 :-** rejected, are under challenge in this writ petition. 2. The 1[st] respondent filed a counter statement, stating that the application filed by the petitioner was duly considered by the respondent and it was found that the property comprised in Sy.No.507/6 is reserved for construction of residential buildings, under the DTP Scheme framed by the Municipality, for the market area development. Thus, the property to which building permit is sought for is included in a sanctioned DTP Scheme and the respondent Municipality, cannot make any variation in the DTP Scheme, without the permission of the Government. 3. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the 2[nd] respondent Municipality. 3. The respective counsel advanced arguments, **W.P.(C) No. 31283 of 2015** ## **-: 3 :-** in support of their rival pleadings and I have carefully considered the submissions made at the Bar. The point to be considered is, whether building permit can be denied on the sole reason that the property to which building permit is sought for is included in the sanctioned DTP Scheme, as residential zone. The question, whether building permit can be denied on the above reason was considered by the Apex Court in various decisions as 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 ## **W.P.(C) No. 31283 of 2015** ## **-: 4 :-** 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 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 ## **W.P.(C) No. 31283 of 2015** ## **-: 5 :-** 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”_ 5. 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 and has become obsolete, is unreasonable and arbitrary, warranting interference of this Court, under Article 226 of the Constitution of India. ## **W.P.(C) No. 31283 of 2015** ## **-: 6 :-** 6. In the above view of the matter, Ext.P2 will stand quashed and the matter is remitted to the 2[nd] respondent for fresh consideration, in view of the above decisions. The 2[nd] respondent shall take a decision afresh, 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, notwithstanding the zonal classification in the DTP Scheme This Writ Petition is disposed of accordingly. Sd/- **K. HARILAL,** **JUDGE** DST //True copy// P.A. To Judge