NOEL VILLAS AND APARTMENTS REPRESENTED BY ITS MANAGING PARTNER-JOHN THOMAS Vs. THRIKKAKARA MUNICIPALITY REPRESENTED BY ITS SECRETARY THRIKKAKARA

JUDGEMENT

(1.) THE petitioner, a builder, had applied for approval of layout for construction of residential villas in a property owned by them situated within the limits of the 1st respondent Municipality. THE 3rd respondent had rejected the application through Ext.P4 (a) assigning reason that the property in question is included in the structural plan as "Ground and Public open space" and hence no residential layout can be permitted. On the basis of Ext.P4 (a) the 2nd respondent had informed the petitioner about the rejection, through Ext.P4 letter. THE petitioner is challenging Ext.P4 and Ext.P4 (a).

(2.) IT is stated in the writ petition that the property in question is surrounded by large number of residential and commercial buildings including highrise buildings of multi- storied apartment complexes. Exhibit P1 series photographs are produced inorder to substantiate the same. Exhibit P2 is the relevant extract of the Government notification fixing the fair value of land, which will indicate that the property in question is included as residential plots. Contention of the petitioner is that the structural plan formulated under the town planning scheme mentioned in the impugned proceedings is a scheme envisaged by the respondents 2 and 3 as early as in the year, 1990 under the provisions of the Town Planning Act, 1939, which was varied from time to time. But it has not been implemented so far, since the lapse of so many years. The structural plan cannot be pressed into service as it became obsolete due to the various constructions effected in the area in question, during all these years. Exhibits P5 to P11 documents are produced inorder to show that various authorities concerned with implementation of the Town Planning Scheme are at different opinion with respect to existence of the structural plan and with respect to its implementation. Further contention of the petitioner is that the structural plan formulated under the provisions of the Town Planning Act, 1939 cannot survive in view of the subsequent legislative developments. The provisions of the Town Planning Act is in variance with the 74th amendment to the Constitution of India contained in Part IXA, and is in variance with the Kerala Municipality Act, 1994. Much reliance is placed on the decision of this court in Shivaprasad V. State of Kerala (2011 (1) KLT 690).

(3.) SINCE denial of permit is based on violation of the zonal classification under the structural plan formulated under the Town Planning Act 1930, it is necessary to evaluate the legal position settled through various precedents by the hon'ble apex court and this court. In the decision of the hon'ble Supreme Court in Raju S. Jethmalani V. State of Maharashtra and others (2005 (11) SCC 222) it is held that, though land belonging to private persons can be included in development plans, unless the land is acquired by the State Government or by the Municipal Corporation to effectuate the public purposes, such development plan cannot be implemented and the land owner cannot be deprived of using the property for any other purposes. When the Government or Municipal Corporation fails to acquire the land, the private persons cannot be deprived of the use of the land, is the dictum. A Division Bench of this court in Padmini V. State of Kerala (1999 (3) KLT 465) observed that the Municipality has no authority to reject application for building permit on the ground that the land is proposed to be acquired. Referring to section 393 of the Kerala Municipality Act it is observed that, the application can be rejected only if the land is under acquisition proceedings. This court held that the Municipality cannot freeze the land for any indefinite period on the pretext that they are taking steps to acquire the land.