DISTRICT TOWN PLANNER Vs. LINSON

JUDGEMENT

(1.) The above appeal is directed against judgment dated 01.02.2019 in W.P.(C).No. 42445 of 2018. The third respondent in the said writ petition is the appellant herein. In fact, it is the perennial problem of deprival of the right of use of the land for residential purpose that made the first respondent herein to file the said writ petition. His application for building permit was rejected on the second occasion also, citing the existence of draft master plan for construction of an outer ring road for Thrissur Town. He is the owner in possession of 30.47 Ares of land comprised in Re-sy. Nos.666/4P, 666/5, 666/4, 666/3, 941/4-Re and 666/8 of Ollukkara village in Thrissur Taluk. The application submitted for permit for residential construction was rejected as per Ext.P7 dated 10.01.2018. A perusal of the same would reveal that existence of a proposal for construction of ring road as per the draft master plan prepared by the Thrissur Municipal Corporation and forwarded for approval of the State Government is the reason for rejecting the said application. Earlier, the first respondent, the writ petitioner had submitted an application for the very same purpose on 11.8.2017 and it was rejected as per Ext.P5 dated 23.08.2017, evidently assigning virtually the very same reason. Aggrieved by the rejection of the said application as per Ext.P5, the first respondent had filed W.P.(C).No.31198 of 2017. As per Ext.P6 judgment passed thereon, this Court set aside Ext.P5 and the Assistant Engineer, the third respondent therein was directed to pass fresh orders on the application for building permit submitted by the first respondent having regard to the proposed revision to the master plan referred to in Ext.P5 communication. Evidently, the application was again considered by the third respondent and it culminated in the impugned Ext.P7 order in W.P(C) No.42445 of 2018. A perusal of Ext.P7 would reveal that the reason assigned in Ext.P5 for rejecting the earlier application is virtually restated in Ext.P7. It is in such circumstances that the writ petitioner moved this Court by filing W.P.(C).No.42445 of 2018. The learned Single Judge disposed of the same with directions. The appellant herein, who was the third respondent therein, feels aggrieved by the same and hence this appeal.

(2.) Heard the learned Senior Government Pleader and the learned standing counsel appearing for respondents 2 and 3. At the very outset, it is to be stated that on going through the pleadings in the appeal and on scanning the impugned judgment, we are at a loss to understand as to how the appellant can be said to be a person aggrieved by the judgment in W.P.(C).No.42445 of 2018. The raison d'etre for the said observation is that on going through the directions issued by the learned Single Judge while disposing of the writ petition, we find absolutely nothing that could make the appellant to feel aggrieved. No volume of argument is required to reveal the said position as a mere glance at its operative portion would make it evincibly clear. The operative portion of the impugned judgment reads as hereunder:-

(3.) As a matter of fact, the oldness of the scheme in question is about three and a half decades and, to be precise, it was published in the year 1985. Though it is submitted that thereafter it was revised, the submission made before us by the learned Senior Government Pleader would reveal that the proposed revision of the scheme is yet to be approved by the Government. It is submitted that the proposal for revision mooted by respondents 2 and 3 is before the Chief Town Planner and that it would be forwarded for consideration by the Government. It would thus reveal that the revised scheme is yet to be placed before the Government and in such circumstances, it cannot be said that an approved revised scheme is actually in force. To state it pithily, what is now available is only a scheme which was published in the year 1985 and a proposal for its revision by respondents 1 and 2. It is true that the master plan under the scheme of 1985 includes a proposal for construction of an outer ring road in Thrissur Town and that the said proposal is there in the revised scheme pending for approval, as well. The learned counsel for the appellant submitted that the Town Planning Scheme is prepared for the benefit of public and it will prevail over private rights and interests. True that the said position is indisputable. However, the moot question is whether based on such a plan, which is still in its embryonic stage despite the lapse of about three and a half decades, a land owner could be deprived of rights to use his own property for residential purpose? Whether deprival of such a right and keeping the public on tender hooks for so long, is illegal? Those issues are actually no longer res integra in the light of the decision of a Division Bench of this Court in Padmini v. State of Kerala (1999 (3) KLT 465) and a decision of the Hon'ble Apex Court in Raju S. Jethmalani and others v. State of Maharashtra and others [(2005) 11 SCC 222].