MUHAMMED HARRIS T. Vs. STATE OF KERALA

JUDGEMENT

(1.) An extent of 32.52 cents of property in Re-Sy.No.985/1 of Kasba Village, Kozhikode District originally belonged to one Pradeep Cheruvari. Sri Pradeep Cheruvari had applied for a building permit for the construction of a residential apartment and it was rejected as per Ext.P2 dtd. 7/1/2010. The reason stated for rejection was that the construction was proposed in an "area to be acquired for residential" zone in the sanctioned Detailed Town Planning Scheme (DTP Scheme for short) for Ward No.5, Sector 9. It is also stated that as per the layout of the Cherutty Nagar Housing Colony, construction of a residential apartment cannot be permitted. Sri Pradeep Cheruvari approached this Court by filing W.P.(C)No.14168 of 2010, which was disposed of by Ext.P3 judgment dtd. 10/12/2010. This Court found that though nearly 23 years had elapsed after the scheme was approved on 30/7/1987, and published in the Gazette, no steps had been taken to acquire any portion of the lands situated in Sy.No.TS 985/1. The Court noted that residential apartments have come up in the adjacent lands and sanctions had been granted to neighbouring land owners to put up residential apartments on their lands. This Court held that the mere existence of a DTP Scheme cannot be a ground to deny a building permit to the petitioner and also rejected the contention that the layout of Cherutty Nagar Housing Colony does not permit the construction of a multi-storeyed building. The Corporation was directed to reconsider the application. Sri Pradeep Cheruvari sold the property to M/s Al Hind Builders as per document No.260/2012 of SRO, Kozhikode. M/s Al Hind Builders thereafter approached the 3rd Respondent for a building permit which was rejected as per Ext.P4 since the previous owner had not been issued with a permit. Owing to financial constraints, M/s Al Hind Builders sold the property to the petitioner as per Ext.P1 document No.249 of 2016. The petitioner thereafter applied for a commercial-cum-special residential building. Ext.P5 is the plan submitted by the petitioner before the 4th Respondent. The intention was to start a lodging house and as per the plan, the building was to have a cellar + 8 floors with a plinth area of 5119.80 Sq.Metres. The first and second floors were earmarked for "commercial purposes" and the remaining floors for "special residential". Ext.P6 is the specification report regarding the petitioner's application. It can be seen from the workflow history in Ext.P6 that the application was registered on 6/9/2019 and the site was inspected on 2/12/2019 and defects were noted. One of the defects noted is that the plot is in the area to be "acquired for residential" as per the sanctioned DTP Scheme for Ward 5 Sector 8 and that the type of construction proposed is not allowed in the said zone. The 4th Respondent as per Ext.P7 dtd. 21/1/2020 rejected the request for a building permit, for the reasons stated above and for the reason that as per the possession certificate submitted, the type of land is 'nanja' and hence conversion permit for land from the revenue authority is required. The petitioner has challenged the rejection of the building permit in this writ petition.

(2.) Counter affidavits have been filed by Respondents 3 and 4 and the 2nd Respondent. The reasons stated in Ext.P7 have been reiterated as the reasons for the denial of the building permit. It is further stated that the earmarking of areas into residential/ industrial/commercial/agricultural and keeping apart areas for parks and roads, etc. is an exercise that is done in the public interest and the public interest will override the private interest, that a new Master Plan 2035 for the Kozhikode urban area has been sanctioned as per GO(Ms.)No.131/2017/LSGD dtd. 7/7/2017 and that as per the said Master Plan, the area in question comes under the residential zone. It is stated that the draft Master Plan was finalized after hearing the objections received. The petitioner had taken a contention that no permission is required from revenue authorities since the area is earmarked as a residential zone. According to the Respondents, the above contention cannot be countenanced in view of the judgment of the Hon'ble Supreme Court in RDO, Fortkochi v. Jalaja Dileep reported in [2015 (1) KLT 984].

(3.) Heard Sri.S. Shanavas Khan for the petitioner, Smt.K.R.Deepa, learned Special Government Pleader for official Respondents/State, Sri C.M.Nazar for the 2nd Respondent and Smt.Bindumol Joseph, Standing Counsel for the Corporation.