Kerala High Court
M/S Abad Builders(P) Ltd vs The Cochin Corporation on 30 November, 2012
Author: C.T.Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
FRIDAY, THE 14TH DAY OF FEBRUARY 2014/25TH MAGHA, 1935
WP(C).No. 22686 of 2013 (I)
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PETITIONERS:
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1. M/S ABAD BUILDERS(P) LTD
ABAD PLAZA, M.G.ROAD, KOCHI-35
REPRESENTED BY ITS MANAGING DIRECTOR DR.NAJEEB ZACKERIA
RESIDING AT APARTMENT NO.12B, SILVER CREST
JAWAHAR NAGAR, KADAVANTHARA, KOCHI-682 020.
2. K.V. JACOB, AGED 61 YEARS, S/O.K. PAPPACHAN
RESIDING AT SONI VILLA, AIMALY, MAEKKUMMURI OMALLOOR
PATHANAMTHITTA.
3. GEEVARGHESE YOHANNAN, AGED 65 YEARS,
S/O.YOHANNAN VARGHESE
RESIDING AT KUZHIVILA PUTHENVEEDU
NELLIKKUNNAM KOZHENCHERI.
4. P.K. THOMAS, AGED 65 YEARS, S/O.LATE KOCHUKUNJU
POOVANNAM THADATHIL HOUSE, ULLANNOOR
KULANADA, KOZHENCHERRY.
5. K.A. THOMAS, AGED 63 YEARS, S/O.ABRAHAM
KANNANETH HOUSE, PARAYANALI, OMALLOOR
KOZHENCHERRI.
BY ADVS.SRI.K.K.CHANDRAN PILLAI (SR.)
SRI.THOMAS JAMES MUNDACKAL
SRI.ARUN ANTONY
SMT.K.V.SHENU
RESPONDENTS:
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1. THE COCHIN CORPORATION
REPRESENTED BY ITS SECRETARY
CORPORATION OFFICE KOCHI - 682 011
2. THE ASSISTANT EXECUTIVE ENGINEER
COCHIN CORPORATION, REGIONAL OFFICE
VYTTILA, KOCHI -682 019
3. THE SECRETARY
COCHIN CORPORATION, CORPORATION OFFICE, KOCHI-682 011
WP(C).No. 22686 of 2013 (I)
4. THE GREATER COCHIN DEVELOPMENT AUTHORITY
REPRESENTED BY ITS SECRETARY
G.C.D.A. OFFICE, KADAVANTHRA, KOCHI - 682 020.
5. STATE OF KERALA
REPRESENTED BY LOCAL SELF GOVERNMENT
DEPARTMENT, GOVERNMENT SECRETARIAT
THIRUVANANTHAPURAM-695 001.
R4 BY ADV. SRI.C.A.MAJEED, GREATER COCHIN DEVELOPMENT
AUTHORITY
R1-R3 BY ADV. SRI.K.J.MANU RAJ
R5 BY GOVERNMENT PLEADER SRI.BIJU MEENATTOOR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
14-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 22686 of 2013 (I)
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APPENDIX
PETITIONERS' EXHIBITS
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EXT.P1 - COPY OF POWER OF ATTORNEY EXECUTED BY PETITIONERS 2 TO 5
DATED 30-11-2012
EXT.P1(A) - COPY OF AGREEMENT DATED 30-11-2012 BETWEEN THE 1ST
PETITIONER AND PETITIONERS 2 TO 5.
EXT.P2 - COPY OF COMMUNICATION ISSUED BY THE 2ND RESPONDENT DATED
29-8-2013
EXT.P3 - COPY OF THE INFORMATION RECEIVED BY THE PETITIONER DATED
19-6-2013
EXT.P4 - COPY OF DECISION TAKEN BY THE 3RD RESPONDENT ON 17-6-2013
REDUCING THE WIDTH OF THE ROAD TO 16 METERS
EXT.P5 - COPY OF INFORMATION RECEIVED FROM THE 3RD RESPONDENT DATED
26-6-2013
EXT.P6 - COPY OF APPLICATION DATED 20-5-2013 REQUESTING FOR
INFORMATION FROM THE 3RD RESPONDENT.
EXT.P7 - COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS TO THE
2ND RESPONDENT.
EXT.P8 - COPY OF THE PLAN SUBMITTED ALONG WITH EXT.P7
RESPONDENTS' EXHIBITS : NIL
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// TRUE COPY //
TKS
P.S. TO JUDGE
C.T.RAVIKUMAR, J.
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W.P.(C)No.22686 of 2013
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Dated 14th February, 2014
JUDGMENT
This writ petition has been filed by the petitioners challenging Ext.P2 order passed by the 2nd respondent rejecting their application for building permit. The first petitioner is a company registered under the Companies Act, 1956 and it is a land developer and builder. Petitioners 2 to 5 are the owners in possession of an extent of 64.5 cents of property comprised in Survey No.841/1 of Elamkulam Village in Ernakulam District. The first petitioner on behalf of the other petitioners submitted an application for permission to construct a multi storeyed residential building apartments thereon. As per Ext.P2, the said application was rejected assigning the reason that the site in question is included in the structural plan proposed for widening the existing Pandarachira road. The contention of the petitioners is that despite its inclusion in the structural plan, no acquisition proceedings have been initiated in respect of the said property. It is also contended that in view of the decision of a Division Bench of this Court in Padmini v. State of Kerala (1999 (3) KLT WP(C).No.22686/2013 2
465) the second respondent could not have rejected the application for construction of a building on the ground that the land is proposed to be acquired. That apart, the mere inclusion of a land in an area covered by a DTP Scheme which was not implemented and no acquisition proceedings have been initiated to effectuate such a scheme is not a ground for rejecting an application for building permit. The Hon'ble Apex Court in Raju.S. Jethmalani & Ors V. State of Maharashtra & Ors reported in 2005(11) SCC 222 held that existence of such a scheme could not be a reason for depriving a land owner to enjoy his property. Essentially, refusing to grant permission to effect any construction in such circumstances would violate the provision under Article 300-A of the Constitution of India. In view of the said submissions and the decision in Raju.S. Jethmalani's case (supra) I am of the view that the reason assigned in Ext.P2 for refusing the building permit cannot be sustained. In the said circumstances Ext.P2 is set aside. The second respondent is directed to conduct an inspection into the property bearing in mind the decision of the Hon'ble Apex WP(C).No.22686/2013 3 Court in Raju.S. Jethmalani's case (supra) and the observations made in this judgment and take appropriate decisions on the application for building permit afresh, expeditiously and in accordance with law, at any rate, within two months from the date of receipt of a copy of this judgment. It is made clear that this Court has not made any observation on merits regarding the entitlement or otherwise of the petitioners for building permit.
Sd/-
C.T.RAVIKUMAR Judge TKS