Kerala High Court
Secretary vs A.V. Francis on 8 April, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943
WP(C).No.32635 OF 2011(D)
PETITIONER/S:
SECRETARY, KOZHIKODE CORPORATION
CORPORATION BUILDING,, KOZHIKODE.
BY ADV. SHRI.K.D.BABU, SC, KOZHIKODE CORPORATION
RESPONDENT/S:
1 A.V. FRANCIS
S/O.ALUKKAS VARGHESE, MANAGING PARTNER,, ALUKKAS
JEWELLERY, ALUKKA HOUSE,, POST KUTHIRAVATTOM, KOTTOLI,
CALICUT-673 001.
2 THE TRIBUNAL FOR LOCAL SELF GOVERNMENT
INSTITUTIONS, MEDICAL COLLEGE (P.O),,
THIRUVANANTHAPURAM.695 001.
R1 BY ADV. SRI.SHYAM PADMAN
R1 BY ADV. SRI.A.RANJITH NARAYANAN
R1 BY ADV. SRI.S.K.SAJU
R1 BY ADV. SMT.A.SIMI
R1 BY ADV. SMT.VIDYA V.DEVAN
SRI.M.R.DHANIL,GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 32635/2011 :2:
Dated this the 8th day of April, 2021.
JUDGMENT
This writ petition is filed by the Secretary, Kozhikode Corporation
challenging Ext.P3 order passed by the Tribunal for Local Self
Government Institutions. Apparently, Ext.P2 order dated 23.10.2009
declining building permit to the petitioner was passed on the ground
that as per the detailed Town Planning Scheme, the permit sought for
by the petitioner is in a residential area and therefore, no permit can
be granted for the construction of a commercial building. The said
order was challenged before the Tribunal, which as per Ext.P3 order
dated 29.12.2009 allowed the appeal and directed the Secretary of the
Corporation to reconsider the application submitted on 14.12.2007
afresh without recourse to the Detailed Town Planning Scheme and to
issue orders allowing application, if the application is otherwise in
order, within one month from that day.
2. When this writ petition was admitted to the files on 10 th April,
2013, a learned single Judge of this Court has passed the following
order:
"The learned counsel for the first respondent submits that a
revised plan has already been submitted pursuant to Ext.R1(a)
communication. However, the same has not been considered till
date. I have heard the learned counsel for the petitioner also.
Since it is stated that a revised plan has been submitted, the first
respondent shall consider such revised plan and shall pass
appropriate orders thereon, in accordance with law, as
expeditiously as possible and at any rate, within a period of one
month, pending final orders in this writ petition."
3. I have heard the learned Standing Counsel for the petitioner
Corporation and Sri. Shyam Padman, learned counsel for the first
respondent and perused the pleadings and documents on record.
4. Apparently, the first respondent has submitted a revised plan
for the construction of the building, which was directed to be
considered. Moreover, all the erstwhile Town Planning Acts were
repealed consequent to the introduction of the Kerala Town and
Country Planning Act, 2016. However, the schemes are protected
under Section 113 of the Act, 2016 and a clear procedure is prescribed
in respect of an application submitted for the construction of the
building and therefore, it cannot be said that the scheme launched by
the Corporation can be overlooked, and to consider the application
submitted by the petitioner for building permit. However, Section 50
of the Act, 2016 clearly specifies the manner in which a scheme is to
be modified. Therefore, even if a scheme is existing, a person
aggrieved with zoning regulations made by the Corporation, is entitled
to submit a suitable application before the concerned authority for
modification of the scheme.
5. In that view of the matter, I am of the view that interference
with Ext.P3 order is required to a limited extent, since the Tribunal has
directed the Municipal Secretary to overlook the scheme and consider
the building permit of the party respondent. Therefore, the writ
petition is allowed to the extent, vacating the direction issued by the
Tribunal to overlook the detailed Town Planning Scheme pending and
then to consider the building permit application of the first respondent.
6. However, there will be a direction to the Secretary of the
Corporation to consider the building permit application, if any,
submitted by the petitioner, taking into account the provisions of the
Town and Country Planning Act, 2016 and if already commercial
building are permitted in the area in question, the said benefit shall
also be extended to the first respondent, when the application is
considered. However, I make it clear that if any decision is taken in
accordance with the interim order passed by this Court or otherwise in
the application for building permit submitted by the first respondent
after Ext.P3 order passed by the Tribunal dated 29.12.2009, the
direction contained above would stand vacated.
SHAJI P. CHALY,
JUDGE.
Rv
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: TRUE COPY OF THE BUILDING PERMIT APPLICATION SUBMITTED BY THE 1ST
RESPONDENT DATED 11.12.2007.
EXT.P2: TRUE COPY OF THE ORDER NO.E4/87262/07 PASSED BY THE PETITIONER
DATED 23.10.2009.
EXT.P3: TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT IN APPEAL
NO. 949/2009 DATED 29.12.2009.
EXT.P4: TRUE COPY OF THE RELEVANT PAGE OF DEVELOPMENT PLAN DETAILS
ISSUED BY THE GOVERNMENT BY G.O.(MS) NO. 25/77/LA ND SWD DATED 24.01.77.
RESPONDENTS' EXHIBITS:
EXT.R1(a): COPY OF LETTER DATED 11.08.2010 ISSUED BY THE PETITIONER.
EXT.R1(b): COPY OF CHALLAN DATED 05.01.2011 FOR OBTAINING NOC FROM THE
FIRE AND RESCUE DEPARTMENT.
EXT.R1(c): COPY OF LETTER ISSUED BY THE SECRETARY TO GOVERNMENT DATED
21.12.2011.
EXT.R1(d): COPY OF THE LETTER ISSUED BY THE SECRETARY TO GOVERNMENT
DATED 18.08.2012.
/True Copy/
PS To Judge.
rv
