JOY MATHEW Vs. STATE OF KERALA

JUDGEMENT

(1.) APPLICATION for Building Permit submitted by the petitioners for construction of a commercial shopping complex was rejected through Ext.P3 proceedings issued by the 3rd respondent Municipality, on the basis of Ext.P4 letter received from the 4th respondent. The reason for not granting the permit mentioned in Exts.P3 and P4 is that, the property in question situates in an area earmarked "Mixed use zone" as per the Master Plan notified for the 3rd respondent Municipality and it comes within the 'residential zone' and 'Architectural control zone' under the 'Mullackal Temple and Environs DTP scheme'. The petitioners challenges Exts.P3 and P4 contending that the master plan as per the DTP scheme was not implemented in any manner since the lapse of so many years and that those schemes are not in force as on today. The petitioners also relied on Ext.P5 judgment in which this court had quashed identical orders with respect to a property situated nearby to the petitioners' site.

(2.) HEARD; counsel appearing for the petitioners, Sri. M.K. Chandra Mohan Das, standing counsel for respondent Municipality and Sri. P. Jayasankar, learned special Government Pleader who appeared on behalf of State Government.

(3.) SRI. P.Jayasankar, learned Special Government Pleader raised contentions that the zonal classification envisaged in the structural plan formulated under the Town Planning Act is intended only for providing spatial planning and regulations and it does not involve any development which need acquisition of land. Referring to the decision of the hon'ble Supreme Court in Friends Colony Development Committee V. State of Orissa and others (2004 (8) SCC 733) it is contended that although development plans restrict freedom of individual property owners to use their property, merely for that reason it cannot be termed as an arbitrary and unreasonable restriction. Private interest in such cases stands subordinated to public good. Power to plan development of cities and to regulate building activity therein was upheld as a power vested on the State and it cannot be said as an infraction to the rights of private owners. Referring to a Full Bench decision of this court in Francis V. Chalakudy Municipality (1999(3) KLT 560) it is contended that merely because there is failure for acquisition of land within the time limit prescribed in a scheme notified under Section 12 of the Town Planning Act, it will not lapse. Hence it is argued that the contention of the petitioners that the scheme has not been notified and implemented, is of no consequence.