Kerala High Court
Niyas vs The Palakkad Municipality on 20 April, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 20TH DAY OF APRIL 2021 / 30TH CHAITHRA, 1943
WP(C).No.7481 OF 2021(I)
PETITIONERS:
1 NIYAS
AGED 38 YEARS
S/O. GANESH KUMAR, PENSION STREET, HOUSE NO.
39/630, KOPPAM P.O, PALAKKAD DISTRICT, PIN 678
001
2 JOHN KENNADY,
AGED 39 YEARS
S/O. LATE AMBROSE, MANIYAKARAR HOUSE,
PAMPAMPALLAM P.O, ATTAPALLAM, PALAKKAD
DISTRICT, PIN 678 621
BY ADVS.
SRI.JACOB SEBASTIAN
SRI.K.V.WINSTON
SMT.ANU JACOB
RESPONDENTS:
1 THE PALAKKAD MUNICIPALITY
REPRESENTED BY ITS SECRETARY,MUNICIPAL OFFICE,
PALAKKAD DISTRICY,PIN 678 001
2 THE SECRETARY,
PALAKKAD MUNICIPALITY, MUNICIPAL OFFICE,
PALAKKAD DISTRICT, PIN 678 001
3 THE DISTRICT TOWN PLANNING OFFICER,
PALAKKAD, CIVIL STATION, PALAKKAD DISTRICT,
PIN-678 001.
4 THE REVENUE DIVISIONAL OFFICER,
OFFICE OF THE REVENUE DIVISIONAL OFFICE,
COLLEGE ROAD, PALAKKAD DISTRICT, PIN 678 001
R1-2 BY ADV. SHRI.BINOY VASUDEVAN, SC, PALAKKAD
MUNICIPALITY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 20.04.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C)No.7481 of 2021 -2-
T.R. RAVI, J.
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W.P.(C)No.7481 of 2021
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Dated this the 20th day of April, 2021
JUDGMENT
The petitioners are owners of a commercial plot having an
extent of 0.0652 hectares in old Sy. No. 1189/17, 1201/7 and
1203/5 in Resurvey Block 2/28 of Palakkad-2 village in Palakkad
taluk, within the limits of the Palakkad Municipality. The plot was
previously included in the data bank prepared under the Kerala
Consideration of Paddy land and Wetland Act, 2008 (hereinafter
referred to as the Act). By order dated 17.11.2019, the said
entry was deleted from the data bank. The petitioners had
submitted an application before the 4th respondent under Section
27A of the Act, requesting for orders enabling the use of the land
for other purposes. On 27.1.2021, the 4th respondent issued
Exhibit P2 order under Section 27A(3) directing the petitioners to
pay the requisite fee in terms of Rule 12(9) of the Paddy and
Wetland Conservation Rules.
2. The petitioner has thereafter applied for a building
permit to construct a commercial building, on 23.2.2021, which
was rejected by the 2nd respondent by Ext.P3 order, for the
reason that the plot is located in a paddy zone under the
sanctioned master plan for Palakkad town. The Writ petition has
been filed challenging Ext.P3 order on the ground that this Court
has held in Exts.P4 and P5 judgments that in cases where a draft
Master plan is available, the consideration of an application for
building permit shall be under the draft master plan and that the
same cannot be under a previously issued obsolete master plan.
It is a case of the petitioner that as far the Palakkad town was
concerned, the sanctioned master plan prepared by the Town and
Country Planning Department of Kerala in 1986 with the horizon
upto 2001 was the sanctioned plan available. It is submitted that
the Municipal Council had taken a resolution on 2.5.2006 to
revise the master plan and a draft master plan was prepared as
per GO(MS) No. 280/08/LSGD dated 25.10.2008. It is further
submitted that the sanctioned master plan of the year 1986 was
revised by GO(MS) No.210/09/LSGD dated 11.11.2009, which
permitted construction of commercial buildings to a depth of 50m
on the side of roads having a width of 15m or more. It is further
stated that even in paddy zones construction was permitted
subject to certain restrictions.
3. Heard Sri Jacob Sebastian, counsel for the petitioner,
Sri Binoy Vasudevan Standing counsel appearing for respondents
1 and 2 and the Government Pleader appearing for respondents
3 and 4. The counsel for the petitioner submitted that the issue is
covered by Exhibits P4 and P5 judgments of this Court, which
had become final. The counsel for the Palakkad Municipality fairly
submitted that Exts.P4 and P5 judgments have not been
appealed against. In Exhibit P4, the petitioner therein had
challenged an order of the Secretary of the Palakkad Municipality,
rejecting building permit on the ground that the property was
classified as a residential zone in the Town Planning Scheme
which had been issued in 1986. Relying on the judgment in
Raju.S. Jethmalani and others vs. State of Maharashtra
and others reported in [(2005)11 SCC 222] and the judgment
dated 11.10.2019 in W.P.(C) No. 3077 of 2019, relating to the
very same Municipality, this Court in Ext.P4 judgment held that
where there is a change in the classification of the area in the
draft master plan issued in 2016, even if the draft master plan is
yet to be finalised, the building permit cannot be rejected on the
basis of the zoning under the earlier master plan. In Ext.P5
judgment, this Court was considering the challenge to an order
issued by the Secretary of the Palakkad Municipality, in a case
where the construction was sought to be made in an area which
was a paddy zone under the earlier master plan, as in the
present case. This Court allowed the Writ petition and directed
the 1st respondent therein to consider the application submitted
by the petitioner for grant of building permit by referring to the
draft master plan. I do not find any reason to take a different
view than the one which has been taken in Exts.P4 and P5
judgments of this Court.
4. In the above circumstances, Exhibit P3 order is quashed.
The respondents are directed to reconsider the application for
building permit submitted by the petitioner in accordance with
the draft master plan which has been prepared as per GO(MS)
No.280/08/LSGD dated 25.10.2008 and GO(MS) No. 210/09/
LSGD dated 11.11.2009, and pass fresh orders within a period of
one month from the date of receipt of a certified copy of the
judgment.
The Writ petition is disposed of as above.
Sd/-
T.R. RAVI
JUDGE
dsn
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE POSSESSION
CERTIFICATE DATED 31-01-2021 ISSUED BY
THE VILLAGE OFFICER, PALAKKAD 2 VILLAGE
EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 27-01-
2021 ISSUED BY THE FOURTH RESPONDENT.
EXHIBIT P3 A TRUE COPY OF THE ORDER ISSUED BY THE
SECOND RESPONDENT ON THE APPLICATION
SUBMITTED BY THE PETITIONER DATED 16-
03-2021
EXHIBIT P4 A TRUE COPY OF THE JUDGMENT DATED 25-
06-2020 IN WP(C) NO 11533 OF 2020 OF
THIS HONOURABLE COURT.
EXHIBIT P5 A TRUE COPY OF THE JUDGMENT DATED 05-
10-2020 IN W.P(C) NO. 17881/2020 OF
THIS HONOURABLE COURT.
