JAYASREE JAYAPRAKASH Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners 1 to 5 are allottees of residential plots in the area developed by the Greater Cochin Development Authority (GCDA) in terms of Elamkulam West Town Planning Scheme (the Scheme) sanctioned by the State Government under the Town Planning Act, 1108 ME (the Act). They have constructed residential buildings in the plots allotted to them and are residing in their respective plots. The sixth petitioner is the tenant of an allottee of residential plot and she is residing in the building constructed in the said plot. Ext.P7 is the map of the area covered by the Scheme. In Ext.P7, a plot measuring 21.308 cents is earmarked for public purposes like neighborhood centres, schools etc. The said plot is located on the eastern side of the plot owned by the fourth petitioner. On 24.07.1993, GCDA sold the said plot to the third respondent for Rs.1,03,572.22/- in terms of Ext.P1 assignment deed. It is stated, among others, in Ext.P1 assignment deed that the assignment is for running a nursery school in the plot; that the third respondent shall establish the nursery school in the plot within one year as per the plan and design approved by the GCDA and shall maintain the same; that they shall not make any addition or alteration in the school building without obtaining previous written approval of the GCDA; that they shall not put the said plot to any use except for running the nursery school and that they shall not be entitled to transfer the plot for any purpose other than running nursery school. The third respondent has not established the nursery school in the plot as provided for in Ext.P1 assignment deed. Instead, on 19.06.2010, they sold the plot to the fourth respondent, and the fourth respondent has, in turn, sold the plot on 28.09.2011, to the fifth respondent. The writ petition was filed on 27.2.2017 alleging that the fifth respondent is proposing to put up a multi storied building in the plot and that the fifth respondent cannot make use of the plot for any purpose other than the purpose for which the same was assigned to the third respondent. The relief sought in the writ petition was for a direction to the GCDA to take appropriate steps to stop the construction proposed by the fifth respondent in the plot.

(2.) On 09.03.2017, the fifth respondent has filed a counter affidavit in the matter stating, among others, that on 16.01.2006, the Chairman of the GCDA has permitted the third respondent to make use of the land for commercial/residential purpose in terms of Ext.R5(i) communication; that she has been issued Ext.R5(k) building permit by the Corporation of Kochi (the Corporation) on 6.2.2017 to put up a residential building in the plot measuring 3502.61 square meters on the basis of the permission granted by the Chairman of the GCDA; that she is undertaking only the construction permitted in terms of Ext.R5(k) building permit in the plot and that the construction undertaken by her is therefore, in order.

(3.) On 16.07.2017, GCDA has filed a counter affidavit in the matter stating, among others, that the Scheme has so far not been varied and the area covered under the Scheme can be used therefore, only in the manner indicated in the Scheme.