Allowed

N.J.Mathew v. the Secretary to Govt.

Kerala HC8 Jul 2010WP(C)/11171/2010

Case brief

AI extract

What is this about?

Writ petition challenging rejection of building permit granted. Court held that without initiated or completed acquisition proceedings, a Development Town Plan Scheme cannot deprive owners of using their private land for residential purposes. Writ petition allowed and impugned order quashed.

What did the court decide?

Exhibit P1 quashed. Municipality directed to reconsider the application for building permit without reference to the DTP Scheme and communicate an appropriate decision within one month.

N.J.Mathew Vs the Secretary to Govt. — Municipal and Town Planning | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR

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THURSDAY, THE 8TH JULY 2010 / 17TH ASHADHA 1932

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WP(C).No. 11171 of 2010(V) --------------------------

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PETITIONER:

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N.J.MATHEW,S/O.JOSEPH, NEELETTU HOUSE, COLLECTORATE POST, KOTTAYAM.

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BY ADV. SRI.MATHEW JOHN (K)

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RESPONDENT(S):

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THE SECRETARY TO GOVERNMENT, TOWN PLANNING LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, TRIVANDRUM.

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THE CHIEF TOWN PLANNER, TRIVANDRUM.

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THE TOWN PLANNING OFFICER, KOTTAYAM.

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THE SECRETARY, KOTTAYAM MUNICIPALITY KOTTAYAM.

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BY GOVERNMENT PLEADER SHRI C.M.SURESH BABU FOR R1 TO R3 ADV.SHRI SIBY MATHEW -STANDING COUNSEL FOR R4

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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APPENDIX IN W.P.(C)No.11171/10

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PETITIONER'S EXTS:

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EXT.P1: TRUE COPY OF MEMO ISSUED BY THE 3RD RESPONDENT DATED 16.3.10.

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EXT.P2: TRUE COPY OF JUDGMENT DATED 7.11.05 IN W.P.(C)No.20315/05.

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EXT.P3: TRUE COPY OF JUDGMENT DATED 28.5.09 IN W.P.(C)No.14209/09.

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EXT.P4: TRUE COPY OF JUDGMENT DATED 16.9.09 IN W.A.NO.1935/09.

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TRUE COPY

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T.R.RAMACHANDRAN NAIR,J.

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------------------------------------W.P.(C)No.11171 of 2010

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--------------------------------DATED THIS THE 8^th DAY OF JULY, 2010

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JUDGMENT

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The petitioner is aggrieved by the rejection of the application for construction of residential houses in an extent of property having 44 cents in Survey No.85/2 of Nattassery Grama Panchayat. Exhibit P1 is the said order. What is mentioned as the reason for rejection is that there is a DTP Scheme called “Detailed Town Planning Scheme for Area between Kottayam Railway Station and Eranjal Bridge” and the property falls within zones, viz; land to be acquired for roads, land to be acquired for residential purposes and land to be acquired for park and open space.

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Heard the learned counsel appearing for the petitioner, the learned Government Pleader and the learned Standing Counsel for the Municipality. The learned counsel for petitioners made reference to Exhibits P2 to P4 judgments to contend for the position that the Scheme has not as such become effective in spite of Section 12(5) of the Act and therefore it is redundant . It is submitted that the validity of the same Scheme was considered

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W.P.(C)No.11171/10

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by this Court in Exhibits P2 to P4 judgments and reliance is also placed on a decision of a Division Bench of this Court in Writ Appeal No.1614/2006 arising under the very same Scheme.

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The main objection taken in Exhibit P1 evidently shows that the scheme envisages land to be acquired for roads, land to be acquired for residential purposes and land to be acquired for parks and open space. Evidently, no steps have been in contemplation for acquisition of land to make effective the scheme. For implementation of the above, acquisition proceedings would be required to be initiated and completed. A similar question was considered by a Division Bench of this Court in Padmini vs. State of Kerala (1999 (3) KLT 465). The Division Bench was of the view that the local authority cannot object an application for building permit wherever acquisition of properties would be required, but not initiated for implementing the details of the scheme. Reliance is placed on the decision of the Apex Court in Raju S.Jethmalani and others vs. State of

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Maharashtra and others ((2005) 11 SCC 222) also. Therein

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the issue was regarding the development of a park and after considering the various aspects, the Court held in paragraph 3 as

W.P.(C)No.11171/10

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follows:

“........Therefore, the question is whether the Government can prepare a development plan and deprive the owner of the land from using that land? There is no prohibition of including private land in a development plan but no development can be made on that land unless that private land is acquired for development. The Government cannot deprive the persons from using their private property. We quite appreciate the interest of the residents of that area that for the benefit of the ecology, certain areas should be earmarked for garden and park so as to provide fresh air to the residents of that locality. In order to provide such amenities to the residents of the area private land can be acquired in order to effectuate their public purpose but without acquiring the private land the Government cannot deprive the owner of the land from using that land for residential purpose..........”.:

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Therefore, this Court need not go into the question whether the Scheme is redundant or not and I am of the view that the reason shown in Exhibit P1 cannot be sustained. No

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W.P.(C)No.11171/10

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proceedings for acquisition are in contemplation here.

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In that view of the matter, the Writ Petition is allowed. Exhibit P1 is quashed. There will be a direction to the Municipality to reconsider the application for building permit, which will be considered without reference to the DTP Scheme for Railway Station and appropriate decision will be communicated to the petitioner within a period of one month from the date of receipt of a copy of this judgment. No costs.

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Sd/- (T.R.RAMACHANDRAN NAIR, JUDGE.)

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dsn

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True copy

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P.A.to Judge

N.J.Mathew v. the Secretary to Govt.

Case brief

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N.J.Mathew v. the Secretary to Govt.

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