Thomas .K.P And Another vs The Corporation Of Kozhikode
2021 Latest Caselaw 14926 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
     THURSDAY, THE 15TH DAY OF JULY 2021 / 24TH ASHADHA, 1943
                         WP(C) NO. 3818 OF 2011
PETITIONER/S:

    1     THOMAS .K.P, AGED 66YEARS, S/O. K.C.POULOSE, KAKKASSERI
          HOUSE, PAVAMANI ROAD,, KOZHIKODE - 673005.

    2     FRANCIS K.P., SO.K.C.POULOSE, AGED 71
          YEARS, KAKKASSERI HOUSE, PAVAMANI ROAD,, KOZHIKODE -
          673005.

          BY ADVS.
          SRI.SHYAM PADMAN
          SMT.M.LISHA
          SRI.A.RANJITH NARAYANAN
          SRI.S.K.SAJU



RESPONDENT/S:

          THE CORPORATION OF KOZHIKODE
          REP. BY ITS SECRETARY,, BEACH ROAD, KOZHIKODE.

          BY ADV SRI.P.V.SURENDRANATH


          SMT BINDUMOL JOSEPH,SC




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 3818 OF 2011
                                         2



                                   JUDGMENT

This writ petition is filed by the petitioners, basically challenging Ext.P7

order passed by the Tribunal for Local Self Government Institutions,

Thiruvananthapuram, in Appeal No.878/2010 dated 15.11.2010, whereby, the

Tribunal allowed the appeal in part and the liberty of the petitioners was left

open to submit a fresh application, seeking building permit, after curing the

defects. It is thus challenging the legality and correctness of the order of the

Tribunal, this writ petition is filed. Brief material facts for the disposal of the

writ petition are as follows:

2. The 1st petitioner applied for a building permit for construction of a

commercial building in the property situated in Re.Sy.No.81 2A, Ward No.17

E1 and 42, in Kasaba Village, Kozhikode Taluk, Kozhikode District. The

application was rejected by the Secretary of the Corporation as per Ext.P4

order, on the ground that, as per the alleged DTP Scheme, the same comes

under residential zone and commercial complexes are not permissible there.

It was challenging the said order of the Secretary, the appeal was preferred

before the Tribunal for Local Self Government Institutions.

3. It is curious to note that, after verifying the factual circumstances, the

Tribunal has found that the building permit application submitted by the WP(C) NO. 3818 OF 2011

petitioner was not in accordance with the provisions of the Kerala

Municipality Act, 1994, as well as the Kerala Municipality Building Rules,

1999. Anyhow, during the pendency of this writ petition, the Kerala Town

and Country Planning Act is brought into force with effect from the year 2016,

and the petitioner is also guided by the provisions of the said Act, 2016.

Therefore, I do not find any reason to interfere with the factual circumstance

pointed out by the Tribunal in the application submitted by the petitioner,

especially due to the fact that the Tribunal has given full opportunity to the

petitioner to submit fresh application seeking building permit, before the

Secretary of the Corporation. I do not find any illegality or arbitrariness in

the order passed by the Tribunal, justifying this Court to interfere by

exercising the powers of judicial review conferred under Article 226 of the

Constitution of India.

4. Needless to say, the writ petition is liable to be dismissed and

accordingly, I do so. However, I make it clear that, the liberty of the

petitioner to submit fresh application before the Secretary, is left open. It is

further made clear that, if the petitioner has already submitted any

application in accordance with the directions issued by the Tribunal and the

Secretary has acted upon the said application, then the liberty granted to the

petitioner would stand vacated. On the other hand, if any application is

submitted hereafter, seeking building permit, a decision shall be taken by the WP(C) NO. 3818 OF 2011

Secretary, at the earliest and at any rate, within two months from the date of

receipt of a copy of this judgment, taking into account, the provisions of the

Kerala Municipality Act, 1994, and the Kerala Municipality Building Rules,

1999, and the Kerala Town and Country Planning Act, 2016.

The writ petition is disposed of accordingly.

Sd/-

SHAJI P.CHALY JUDGE

uu 16.07.2021 WP(C) NO. 3818 OF 2011

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE ORDER DATED G.O.(Rt) NO.2432/94/LAD DATED 18.6.94 ISSUED BY THE GOVERNMENT OF KERALA

EXHIBIT P2 THE TRUE COPY OF THE DEVELOPMENT PERMIT NO.E1/42177/93 DATED 16.11.1994 ISSUED BY THE RESPONDENT

EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 07.04.10 SUBMITTED BY THE PETITIONER

EXHIBIT P4 TRUE COPY OF THE ORDER DATED 27.08.2010

EXHIBIT P5 TRUE COPY OF THE MEMORANDUM OF APPEAL IN A.NO.878/2010 DATED 20.09.2010

EXHIBIT P6 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT

EXHIBIT P7 TRUE COPY OF THE ORDER DATED 01.07.2010 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM IN APPEAL NO.878/2010 DATED 15.11.2010.