The provisions of the Town Planning Act, 1939 and the Madras Town Planning Act, 1920 cannot survive in view of Part IX A of the Constitution of India and in the light of the Kerala Municipality Act, 1994.

1. The petitioner along with two other co-owners had obtained Ext.P1 permit from the respondent Corporation for construction of a building (Dormitory) in a property owned by them situated within the limits of the respondent Corporation. Subsequently Ext.P2 revised building permit was issued on 02-12-2010. The petitioner again applied for revision of the permit in order to convert the nature of the construction as a commercial building. Exhibit P4 application submitted in this regard was rejected through Ext.P5 letter issued by the respondent Corporation assigning the reason that the occupancy change cannot be permitted in view of the classification of the area as "residence zone" under the DTP scheme. Petitioner is challenging Ext.P5 in this writ petition.

2. It is contended that the area wherein the property is situated is fully developed as commercial area, surrounded by a lot of commercial buildings. According to the petitioner, the DTP scheme in question namely 'Thekkinkad Scheme' was formulated about 35 years back and it remained on paper without implementation. It had lost its significance in view of the subsequent developments of the area and because of the enormous number of commercial constructions came into existence. The petitioner points out Ext.P6 and similar other judgments wherein this court had issued directions for re- consideration of the matter without reference to the town planning scheme.

3. In the counter affidavit of the respondent it is admitted that Ext.P2 building permit was granted for construction of building comprising the basement floor and ground floor plus four floors. But the occupancy prescribed under the DTP scheme for 'South West Swaraj Round', the area is included in the residential zone. It is mentioned that the scheme was approved by the Government as early as on 15-11-1990. According to respondent the scheme in question will continue in force till it is revised through any new town planning scheme. Since the scheme being formulated by the respondent Corporation and since the area is included in the residential zone, the respondent Corporation has no authority to alter the town planning scheme or to grant any permit in violation of the zonal classification, is the contention.

4. Heard; learned counsel for the petitioner and standing counsel appearing on behalf of respondent Corporation. Since this matter is of general importance affecting interest of the State Government, Sri. P. Jayasankar, special Government Pleader had also addressed arguments in this case, along with some other cases of identical issues.

5. Since denial of permit isbased on violation of the zonal classification under the DTP scheme envisaged through the Master Plan formulated by the respondent Municipality under the Town Planning Act 1930, it is necessary to evaluate the legal position settled through various precedents by the hon'ble apex court and this court. In the decision of the hon'ble Supreme Court in Raju S. Jethmalani V. State of Maharashtra and others (2005 (11) SCC 222) it is held that, though land belonging to private persons can be included in development plans, unless the land is acquired by the State Government or by the Municipal Corporation to effectuate the public purposes such development plan cannot be implemented and the land owner cannot be deprived of using the property for any other purposes. When the Government or Municipal Corporation fails to acquire the land, the private persons cannot be deprived of the use of the land, is the dictum. A Division Bench of this court in Padmini V. State of Kerala (1999 (3) KLT 465) observed that the Municipality has no authority to reject application for building permit on the ground that the land is proposed to be acquired. Referring to section 393 of the Kerala Municipality Act it is observed that, the application can be rejected only if the land is under acquisition proceedings. This court held that the Municipality cannot freeze the land fo