SAJAN GEORGE Vs. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT DEPARTMENT OF TOWN PLANNING GOVTSECRETARIAT

JUDGEMENT

(1.) APPLICATION for building permit submitted by the petitioner for construction of a commercial building within the limits of respondents 4 and 5, was rejected through Ext.P2 proceedings, assigning the reason that the property in question is included in "Green zone" under the DTP scheme and hence construction of commercial building cannot be permitted.

(2.) PETITIONER is challenging Ext.P2 contending that DTP scheme in question was formulated way back in 1993 and the same was not operational inspite of lapse of more than 18 years. The petitioner had produced Ext.P3 judgment of this court in W.P (c) No.14209/2009, in which, while considering the rejection of building permit on identical reason this court observed that the 5th respondent Municipality had agreed for re-consideration of the application without reference to the DTP scheme and hence a direction was issued accordingly. It is stated that, even though the respondents 3 and 4 had challenged Ext.P3 judgment in writ appeal, the Division Bench had dismissed the appeal following earlier decision on the same point. The petitioner relies on the decision of the hon'ble apex court and this court inorder to contend that the building permit cannot be denied on the basis of a town planning scheme which has become obsolete. It is also contended that the DTP scheme formulated under the Town Planning Act, 1939 cannot be sustained in view of the subsequent legislative amendments.

(3.) SRI. P.Jayasankar, learned Special Government Pleader raised contentions that the zonal classification envisaged in the DTP scheme formulated under the Town Planning Act is intended only for providing special 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 petitioner that the scheme has not been notified and implemented is of no consequence.