IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 9TH DAY OF JUNE 2022 / 19TH JYAISHTA, 1944
WP(C) NO. 4663 OF 2021
PETITIONER(S):
B.VIJAYAKUMAR
AGED 63 YEARS
S/O. LATE BHASKARAN, RESIDING AT DIVYALAYAM, THOLOOR,
ARYANADU P.O, THIRUVANANTHAPURAM - 695542.
BY ADVS.
REKHA VASUDEVAN
SMT.V.DEEPA
SMT.ELIZABETH V.JOSEPH
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY, LOCAL
SELF GOVERNMENT DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM - 695001.
2 NEDUMANGAD MUNICIPALITY
REPRESENTED BY ITS SECRETARY, MUNICIPALITY OFFICE,
SATHRAM JUNCTION, NEDUMANGAD P.O,
THIRUVANANTHAPURAM - 695541.
3 THE ASSISTANT ENGINEER
NEDUMANGAD MUNICIPALITY, MUNICIPALITY OFFICE, SATHRAM
JUNCTION, NEDUMANGAD P.O, THIRUVANANTHAPURAM - 695541.
BY ADVS.
SHRI.R.B.RAJESH, SC, NEDUMANGAD MUNICIPALITY
GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 4663 OF 2021
2
P.V.KUNHIKRISHNAN, J.
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W.P.(C).No. 4663 of 2021
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Dated this the 09th day of June, 2022
JUDGMENT
The above writ petition is filed with the following prayers:
"(i) Quash Exhibit P3 letter dated 26.02.2020 issued by the 2nd respondent by the issuance of the writ of certiorari, or other appropriate writ, order or direction.
(ii) Declare that the petitioner is fully entitled to be issued with the Permit for Construction as sought by him in the absence of approved Town Planning Scheme in existence.
(iii) Direct the 2nd respondent to reconsider the application submitted by the petitioner for permit for construction in the property comprised in Exhibit P1 and P2 within a time frame, by the issuance of the writ of mandamus, or other appropriate writ, order or direction.
(iv) Grant such other reliefs as may be prayed for and as the court may deem fit to grant and
(v) Grant the cost of the writ petition."[SIC]
2. Petitioner is challenging Ext.P3 order by which a building permit application is rejected by the Municipality. The petitioner is in absolute possession of WP(C) NO. 4663 OF 2021 3 certain items of property in Sy.No.779/3 in Nedumangad Village. The 2nd respondent rejected the application for building permit on the ground that the property is 'reserved for parks'. According to the petitioner, Exts.P4 to P8 will prove that there is no sanctioned master plan for the 2nd respondent and that it is Ext.P8 draft master plan which is in existence. A perusal of Ext.P8 will show that a certain portion of Sy.No.779 is earmarked for parks but which portion of Sy.No.779 is earmarked for parks is not mentioned in Ext.P8 draft master plan. The counsel also relied on Ext.P9 judgment in which in a similar situation the construction is permitted. The property covered in Ext.P9 judgment is an adjacent property to the petitioner's property.
3. Heard counsel appearing for the petitioner, learned Government Pleader and the learned Standing counsel appearing for the Municipality.
4. This Court considered the contentions of the petitioner and the respondents. I perused Ext.P3 order. The reason for rejecting the building permit is that, as WP(C) NO. 4663 OF 2021 4 per the master plan it is earmarked as reserved for parks. Counsel appearing for the Municipality submitted that the master plan is now pending before the Government for approval. The learned Government Pleader submitted that, when the matter is pending before the Government, there is nothing wrong in passing Ext.P3 by the Municipality. It is an admitted fact that, in an adjacent property which is also earmarked in the master plan as "reserved for parks", this Court interfered and passed Ext.P9 judgment. It will be beneficial to extract the relevant portion of the judgment:
"4. Having considered the rival contentions of the contesting parties, it has to be held that Ext.P4 is unsustainable in view of the dictum laid down by the apex court in Raju S.Jethmalani and others v. State of Maharashtra and others [(2005) 11 SCC 222]. The petitioner cannot be prevented from putting his property to any use on the ground that there is a DTP scheme in existence which has not been implemented for a long time. For the above reason, Ext.P4 is set aside.
This Writ Petition is accordingly disposed of directing the respondent to consider the application WP(C) NO. 4663 OF 2021 5 submitted by the petitioner afresh, after conducting an inspection of the petitioners' land and thereafter, to pass appropriate orders on the application in accordance with law. Appropriate orders as indicated above shall be passed, as expeditiously as possible and at any rate within a period of one month of the date of receipt of a copy of this judgment."
5. Moreover, in District Town Planner v. Linson [2021(2)KLT 56], this Court observed that, denying right to effect construction in a property citing existence of a scheme which had been in force for more than three and half decades without any concrete steps for the effectuation of the scheme is nothing but one that takes away the right of a citizen to have a shelter, to enjoy his property also negation of human right. It is true that, in this case, the master plan is pending before the Government. But in the light of Ext.P9 judgment, in a similar situation, this Court interfered. In such circumstances, I think it will be an injustice to the petitioner, if a similar benefit is not given to the petitioner. Therefore, according to me, Ext.P3 is to be WP(C) NO. 4663 OF 2021 6 set aside and the Municipality can be directed to reconsider the matter in the light of Ext.P9 judgment.
Therefore this writ petition is allowed in the following manner:
i. Ext.P3 is set aside.
ii. The 2nd respondent is directed to reconsider the
matter in the light of Ext.P9 judgment and pass appropriate orders in it, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment, after giving an opportunity of hearing to the petitioner.
Sd/-
P.V.KUNHIKRISHNAN DM JUDGE WP(C) NO. 4663 OF 2021 7 APPENDIX OF WP(C) 4663/2021 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE TAX RECEIPT DATED 03.10.2019 ISSUED BY THE SPECIAL VILLAGE OFFICER, NEDUMANGAD VILLAGE TO THE PETITIONER.
EXHIBIT P2 TRUE COPY OF THE POSSESSION CERTIFICATE NO.626/2020 DATED 14.02.2020 ISSUED BY THE VILLAGE OFFICER, NEDUMANGAD TO THE PETITIONER.
EXHIBIT P3 TRUE COPY OF THE LETTER NO.
TP1/21143/2020 DATED 26.02.2020 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE GO(MS) NO.127/2019/LSGD DATED 14.10.2019 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE APPLICATION DATED 27.10.2020 SUBMITTED BY THE PETITIONER TO THE PUBLIC INFORMATION OFFICER OF THE 2ND RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE LETTER
NO.DPI/TPI/10877/20 DATED 24/11/2020
ISSUED BY THE PUBLIC INFORMATION OFFICER OF THE 2ND RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE LIST OF SANCTIONED MASTER PLANS FOR THIRUVANANTHAPURAM DISTRICT AS AVAILABLE IN THE WEBSITE OF THE TOWN PLANNING DEPARTMENT.
EXHIBIT P8 TRUE COPY OF THE RELEVANT PAGES OF THE DRAFT MASTER PLAN FOR THE NEDUMANGAD MUNICIPALITY AS AVAILABLE IN THE WEBSITE OF THE 2ND RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 11/11/2014 IN WP(C) NO.13160 OF 2014 OF THIS HONOURABLE COURT.
RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE