IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 26644 of 2007(V)
1. SAJITHLAL P., AGED 40 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY ITS
... Respondent
2. CORPORATION OF CALICUT, KOZHIKODE.
3. SECRETARY, CORPORATION OF CALICUT,
4. TOWN PLANNING OFFICER,
For Petitioner :SRI.AVM.SALAHUDIN
For Respondent :SRI.P.V.KUNHIKRISHNAN,SC,KOZHIKODE CORP
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :06/11/2007
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C)No.26644 OF 2007
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DATED THIS THE 6TH NOVEMBER, 2007
J U D G M E N T
The grievance of the petitioner who applied to the Corporation of
Calicut for construction of a residential building on the house plot
belonging to him is that the application was returned to him by the
Corporation on the reason that the plot falls within the Sarovaram
Project covered by a DTP Scheme and that he will have to obtain
exemption from the Government. When the Government was
approached, the Government under Exts.P2 and P5 declined the
petitioner’s request on the ground that the area falls within the Dream
City Project. Being aggrieved, the petitioner has filed this Writ Petition
seeking the following reliefs:-
“i) to issue a writ of certiorari or any other appropriate
writ, order or direction quashing Exts.P2 and P5;
ii) to declare that Exts.P2 and P5 are illegal, arbitrary,
unconstitutional and opposed to the principles of
natural justice;
iii) to direct the respondents to issue building permit
to the petitioner as applied for by him as per
application No.E8/13565/2004 forthwith.
2. On behalf of respondents 2 and 3, as directed by this Court, a
detailed statement has been filed. Paragraph No.6 is the relevant
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paragraph and the contention prominently taken is that a DTP Scheme
has been approved for the Calicut Corporation area by the Government
as per Notification No.GO(MS)81/94 dated 15.4.1994 and that the said
scheme is even now valid. The Tourism Department has renamed the
project as “Sarovaram Project” and the Department is all set to
implement the same. As regards the building permit issued to one
Johnson in the area falling within the very same Scheme, it is stated
that steps are under way for revoking the permit.
3. Heard Sri.A.V.M.Salahuddeen, counsel for the petitioner and
Sri.P.V.Kunhikrishnan, Standing Counsel for the Corporation.
4. Sri.Salahuddeen would submit that the DTP Scheme has not
been implemented for the past 13 years. He further submitted that
the Scheme has become oppressive from the petitioner’s perspective.
The petitioner who is the owner of a small plot is unable to build his
residential building. He is ready and willing to demolish the building
without demanding any compensation, in the event of any acquisition
proceedings being initiated within a period of one year of getting
permit. My attention was drawn by Sri.Salahuddeen to the judgment
of the Full Bench of this Court in Francis v. Chalakudy Municipality
(1999 (3) KLT 560) and to the judgment of the Division Bench in
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Padmini v. State of Kerala (1999 (3) KLT 465). He also drew my
attention to the judgment of the Supreme Court inRaju
S.Jethmalani v. State of Maharashtra [(2005) 11 SCC 222).
5. Having considered the principles emerging from the decisions
cited above, I am of the view that the respondents are not justified in
insisting that the petitioner should keep his only item of property idle
on the reason that the area is ear-marked for the establishment of
Sarovaram Project under the DTP Scheme or for the Dream City
Project. It will be noticed that the petitioner has a case that his plot
does not fall within that area. Whatever that be, considering the
principles emerging from the decisions cited at the Bar, the Writ
Petition will stand disposed of issuing the following directions:-
The Corporation is directed to entertain the application for
building permit submitted by the petitioner, uninfluenced by the
proposal to implement the Sarovaram Project or the Dream City
Project. In other words, if the plan is otherwise in order, the same
shall be approved and the existence of the Sarovaram Project or
Dream City Project shall not be a ground for rejection of the
application for permit. The above direction however will be conditional
on the petitioner submitting an affidavit undertaking to demolish the
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building to be constructed by him pursuant to the permit to be issued,
without demanding any compensation for the building under the Land
Acquisition Act, if a notification under Section 4(1) in that regard is
promulgated within a period of one year of the petitioner receiving the
permit. Orders shall be passed on the permit application within one
month of the petitioner filing the affidavit and submitting the plan and
the application along with copy of this judgment. It is made clear that
even thereafter nothing will stand in the way of the Corporation or the
Government acquiring the petitioner’s property including the building
for any genuine public purpose. But under such an eventuality, the
petitioner will be entitled for adequate compensation under the Land
Acquisition Act.
(PIUS C.KURIAKOSE, JUDGE)
tgl
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