Jijo Jacob vs State Of Kerala
2021 Latest Caselaw 17565 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
     THURSDAY, THE 26TH DAY OF AUGUST 2021 / 4TH BHADRA, 1943
                        WP(C) NO. 15077 OF 2021
PETITIONER:

          JIJO JACOB
          AGED 53 YEARS
          S/O.P.D.CHACKO, PULICKAL HOUSE, HOUSE NO.11/787 A,
          COCHIN SPECIAL ECONOMIC ZONE, T.C.ANTONY LANE,
          KAKKANAD, ERNAKULAM DISTRICT-682037, MOB-9446319895

          BY ADVS.
          V.RAJENDRAN (PERUMBAVOOR)
          N.RAJESH
          P.GOPAKUMAR


RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY PRINCIPAL SECRETARY TO LOCAL SELF
          GOVERNMENT DEPARTMENT, SECRETARIAT,
          THIRUVANANTHAPURAM-695001.

    2     THRIKKAKARA MUNICIPALITY
          REP. BY SECRETARY, MUNICIPAL OFFICE, THRIKKKAKKARA,
          ERNAKULAM-682032.

    3     SECRETARY,
          THRIKKAKKARA MUNICIPALITY, MUNICIPAL OFFICE,
          THRIKKAKKARA, ERNAKULAM-682032.

          SRI. P.S. APPU, G.P.
          SRI.G.G.MANOJ, SC


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 15077 OF 2021

                                          2




                                  JUDGMENT

This writ petition is filed seeking the following prayers:

"(i) To call for the records leading to Exhibit P4 notice and quash the same by issuing a writ of certiorari.

(ii) to issue a writ of mandamus or any writ order or direction, directing the 2nd respondent Municipality to take up Exhibit P3 building permit application and allow the same within a time limit, provided there are no other reasons to disallow the same."

2. Heard the learned counsel for the petitioner, the learned

Government Pleader as well as the learned standing counsel appearing

for respondents 2 and 3.

3. It is submitted by the learned counsel for the petitioner that the

petitioner had applied for Building permit for construction of a

residential building in the property covered by Ext.P1. It is submitted

that the application has been rejected by Ext.P4 communication of the

respondents on the ground that the property is situated in an area which

is earmarked as 'park and open space' zone in the Detailed Town

Planning Scheme applicable to the municipality. It is stated that the

construction of a building having an area of more that 300m 2 cannot be WP(C) NO. 15077 OF 2021

permitted in such a zone. The learned counsel for the petitioner submits

that the rejection on the ground that there is an obsolete DTP Scheme

which is never been worked upon or carried out cannot be a ground for

rejecting an application for Building permit. Reliance is placed on the

judgments of this Court which are produced as Exts.P5 to P8 in support

of the said contention.

4. The learned standing counsel appearing for respondents 2 and 3

submits that the respondents can consider applications for Building

permit only in accordance with the DTP Scheme and that since the area

is earmarked as 'park and open space' zone, residential buildings

exceeding 300m2 cannot be permitted in such area. It is submitted that

the contention of the petitioner that the Scheme has not been acted

upon and that it has fallen into disuse and is obsolete cannot be

accepted.

5. I have considered the contentions advanced. Judgments in writ

petitions of similar nature seeking grant of Building permits in areas

covered by the very same DTP Scheme in respect of the same local

authority are produced by the petitioner as Exts.P5 to P8. This Court,

after considering the contentions raised in detail had found that the DTP WP(C) NO. 15077 OF 2021

Scheme which was relied upon by the local authority to reject the

applications for Building permits had become antiquated and obsolete. It

was held that the rejection of the applications on the ground that they

violate the DTP Scheme, therefore, cannot be accepted and that the

applications for Building permit have to be considered in accordance

with the applicable Building Rules, without reference to the objection

raised on the ground of the DTP Scheme. In the above view of the matter,

I am of the opinion that the petitioner's case is also liable to be treated in

a like manner.

6. In the result, Ext.P4 communication is set aside. There will be a

direction to the 3rd respondent to consider the application preferred by

the petitioner for Building permit strictly in accordance with the

Building Rules in force and without reference to the DTP Scheme

referred to in Ext.P4. Orders shall be passed within one month from the

date of receipt of a copy of this judgment.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE NP WP(C) NO. 15077 OF 2021

APPENDIX OF WP(C) 15077/2021

PETITIONER'S/S EXHIBITS:

Exhibit P1 TRUE COPY OF SALE DEED NO.1879 DATED 05.10.2020 OF THRIKKAKKARA SUB REGISTRY OFFICE.

Exhibit P2 TRUE COPY OF NOTICE ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT DATED 18.12.2020 BEARING NO.T.P1-B.A 527/20.

Exhibit P3 TRUE COPY OF PERMIT APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ON 17.06.2021.

Exhibit P4 TRUE COPY OF THE NOTICE ISSUED TO THE PETITIONER BY 2ND RESPONDENT DATED 01.07.2021 BEARING NO.T.P-1-BA 195/2021.

Exhibit P5 TRUE COPY OF JUDGMENT IN W.P(C)NO.15551/15 OF THIS HON'BLE COURT DATED 27.05.2015.

Exhibit P6 TRUE COPY OF JUDGMENT IN WRIT APPEAL NO.559/16 DATED 26.10.2016 OF THIS HON'BLE COURT.

Exhibit P7 TRUE COPY OF JUDGMENT IN W.P(C)NO.9057/20 DATED 23.03.2020 OF THIS HON'BLE COURT.

Exhibit P8 TRUE COPY OF JUDGMENT IN W.P(C) 11767/2020 DATED 24.06.2020 OF THIS HON'BLE COURT.

RESPONDENT'S/S EXHIBITS: NIL