Kerala High Court
K.Vijayasekharan Nair vs The State Of Kerala on 22 July, 2015
Author: K. Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
FRIDAY, THE 4TH DAY OF MARCH 2016/14TH PHALGUNA, 1937
WP(C).NO. 29992 OF 2015 (Y)
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PETITIONER:
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K.VIJAYASEKHARAN NAIR, AGED 62 YEARS,
S/O.LATE DAMODARAN NAIR, PRASANTH NIVAS,
KANJIRAMATTOM KARA, THODUPUZHA.
BY ADV. SRI.R.RAMADAS
RESPONDENT(S):
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1. THE STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY
TO GOVT.L.S.G.D.
LOCAL SELF GTOVERNMENT DEPARTMENT, SECRETARIAT
THIRUVANANTHAPURAM, PIN-695 001.
2. THODUPUZHA MUNICIPALITY,
REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE
THODUPUZHA, IDUKKI DISTRICT, PIN-685 584.
3. THE SECRETARY,
THODUPUZHA MUNICIPALITY, THODUPUZHA, IDUKKI DISTRICT
PIN-685 584.
4. THE ASSISTANT ENGIINEER,
THODUPUZHA MUNICIPALITY, THODUPUZHA, IDUKKI DISTRICT
PIN-685 584.
BY GOVERNMENT PLEADER, SRI. VIJU THOMAS
BY SRI.P.K.SOYUZ,THODUPUZHA MUNICIPALIT
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).NO. 29992 OF 2015 (Y)
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APPENDIX
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PETITIONER'S EXHIBITS :
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EXT.P1:TRUE COPY OF THE LAND TAX RECEIPTS DATED 22.07.2015 AND
12.08.2015 ISSUED BY THE VILLAGE OFFICER,THODUPUZHA SHOWING THE
REMITTANCE OF LAND TAX FOR THE PERIOD 2015-16
EXT.P2:TRUE COPY OF THE POSSESSION CERTIFICATES DATED 04.08.2015
ISSUED BY THE VILLAGE OFFICER,THODUPUZHA TO THE PETITIONER IN
RESPECT OF THE ABOVE PROPERTY.
EXT.P3:TRUE COPY OF THE COMMUNICATION NO.BA/258/15-16 DATED
18.09.2015 ISSUED BY THE 4TH RESPONDENT-ASSISTANT
ENGINEER,THODUPUZHA MUNICIPALITY.
EXT.P4:TRUE COPY OF THE JUDGMENT DATED 20.11.2014 IN
W.P.C.NO.15972/2014.
RESPONDENT(S)' EXHIBITS : NIL
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//TRUE COPY//
P.A. TO JUDGE
DST
K. HARILAL, J.
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W.P. (C) No.29992 of 2015
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Dated this the 4th day of March, 2016
J U D G M E N T
The petitioner is the owner in possession of 11.250 cents of landed property comprised in Sy.No.195/13-5 of Thodupuzha Village, within the limits of the 2nd respondent-Municipality. According to the petitioner, since the land is a dry land, considering the commercial importance of the landed property, the petitioner intended to construct a temporary commercial building therein. Accordingly, the petitioner submitted an application for building permit, before the 2nd respondent. By Ext.P3 communication, the 4th respondent rejected the application, stating that the land, in which the construction of a temporary commercial building is W.P.(C) No. 29992 of 2015 -: 2 :- proposed, to be made, is a part of the area included in the DTP scheme of Thodupuzha Municipality; so the building permit cannot be granted to the petitioner.
2. According to the petitioner, the DTP scheme of Thodupuzha Municipality mentioned Ext.P3 is one envisaged long back in the year 1990 and even after the lapse of more than two decades thereafter, respondents 2 and 4 have not taken necessary follow up action to implement the various proposals included in the DTP scheme. That apart, respondents 2 to 4 have already granted building permits to owners of similarly situated lands which are included in the DTP scheme.
3. To support the above arguments, the learned counsel drew my attention to the decisions in Raju S. Jetmalani v. State of Maharashtra and Ors. W.P.(C) No. 29992 of 2015 -: 3 :- [(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. 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."
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. 29992 of 2015 -: 4 :- 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. The proposition that can be culled out from the decision is that the building permit cannot be denied, on the basis of proposed DTP scheme, which has not been implemented so far and became obsolete.
6. In the above view of the matter, Ext.P3 will stand quashed and the matter is remitted to the 2nd respondent, for fresh consideration. The 2nd respondent is directed to conduct a site inspection and thereafter, consider the application afresh, in W.P.(C) No. 29992 of 2015 -: 5 :- the light of the legal position well settled by the Supreme Court and 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/-
K. HARILAL, JUDGE DST //True copy// P.A. To Judge