Kerala High Court
Sunny Pashanath vs The Town Planner on 9 November, 2021
W.P.(C).No.20816/21
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
TUESDAY, THE 9TH DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943
WP(C) NO. 20816 OF 2021
PETITIONER:
SUNNY PASHANATH
AGED 49 YEARS
S/O MOHANAN P,
PASHANATH VEEDU,
V.K.K.MENON ROAD,
KALAYI P.O, KOZHIKODE-673003.
BY ADV P.E.SAJAL
RESPONDENTS:
1 THE TOWN PLANNER
KOZHIKODE REGIONAL TOWN PLANNING COMMITTEE,
REGIONAL TOWN AND COUNTRY PLANNING OFFICE,
KOZHIKODE-673005.
2 THE SECRETARY
KOZHIKODE MUNICIPAL CORPORATION, NEAR AKASHAVANI,
CALICUT BEACH, KOZHIKODE DISTRICT-673302.
BY ADV G.SANTHOSH KUMAR (P).
OTHER PRESENT:
RIYAL DEVASSY-GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 09.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C).No.20816/21
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ANU SIVARAMAN, J.
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W.P.(c).No.20816 of 2021
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Dated this the 9th day of November, 2021
JUDGMENT
1. This writ petition is filed seeking the following reliefs:-
i) Issue a writ of mandamus, order or direction commanding and
compelling the 2nd respondent to consider and dispose of Ext.P3
application of the petitioner within a time frame prescribed by this
Hon'ble Court;
(ii) Issue a writ of mandamus, order or direction
commanding and compelling the 2nd respondent to consider and
dispose of Ext.P3 application of the petitioner after hearing of the
petitioner or his representative."
2. Heard the learned counsel for the petitioner, the learned
Standing Counsel appearing for the Corporation as well as the
learned Government Pleader.
3. It is submitted that the petitioner submitted an application
before the 2nd respondent for construction of a residential
apartment building. It was rejected by a communication dated
27.1.2021 on the ground that it was included in the
W.P.(C).No.20816/21
agricultural zone as per a Detailed Town Planning Scheme.
The petitioner approached this Court and Exhibit P1 judgment
was rendered directing the District Town Planner to consider
the application submitted by the petitioner. However, Exhibit
P2 order has been passed by the 1 st respondent stating that
the DTP scheme had been prepared not by the Joint Town
Planning Committee but by the Kozhikode Corporation and
therefore the application has to be considered by the
Corporation. It is submitted that the petitioner has
approached the Corporation with Exhibit P3 application and
the same is liable to be considered in accordance with law,
taking note of Section 50 of the Kerala Town and Country
Planning Act, 2016.
4. I have considered the contentions advanced . Section 50 of the
Kerala Town and Country Planning Act, 2016 provides for
review of detailed Town Planning Schemes. It is the specific
case of the learned counsel for the petitioner that as per the
revised Master Plan for the Kozhikode Corporation prepared
in the year 2016, the property of the petitioner comes in the
W.P.(C).No.20816/21
special residential zone and therefore, construction of the
building as proposed by the petitioner would be permissible.
5. The learned counsel for the petitioner places reliance on
judgments of this Court where a similar issue was
considered and this Court found that in view of the fact that
the property therein was included in the residential cum
commercial zone according to the revised master plan, the
restrictions in the erstwhile DTP Scheme should not stand in
the way of the consideration of the application and that the
DTP Scheme would be liable to be varied in tune with the
revised master plan. This Court has held that for the reason
that the DTP Scheme has not been varied in
accordance with the revised master plan, the petitioner should
not be put to difficulties and that the application is to be
considered in accordance with the revised master plan, even
though the DTP Scheme has not been varied yet.
6. The learned counsel appearing for the respondents
submits that there is already a direction issued by this Court
W.P.(C).No.20816/21
to the District Town Planners to vary all DTP Schemes which
are not in accordance with the revised master plans and to
effect such variations within a time frame. However, the
learned counsel for the petitioner would contend that the mere
fact that such variations have not been carried out cannot be
an impediment to a consideration of the request made by the
petitioner.
7. Having heard the learned counsel on all sides and having
considered the contentions advanced, I am of the opinion that
since it is not in dispute that the property is included in the
special residential zone in the revised master plan, the
petitioner's request for building permit is liable to be
considered.
8. In the result,there will be a direction to the 2 nd respondent to
take up Ext.P3 application submitted by the petitioner and to
consider and pass orders on the same in accordance with law,
taking note of the fact that the revised master plan has been
published and taking note of the inclusion of the property in
W.P.(C).No.20816/21
the said plan. Appropriate orders shall be passed within a
period of three weeks from the date of receipt of a copy of
this judgment.
This writ petition is ordered accordingly.
sd/-
Anu Sivaraman, Judge
sj
W.P.(C).No.20816/21
APPENDIX OF WP(C) 20816/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE JUDGMENT IN WPC
NO.16473/2021 DATED 27/08/2021.
Exhibit P2 TRUE COPY OF THE LETTER
NO.TCPKZD/334/2021-C2 ISSUED BY THE 1ST
RESPONDENT DATED 18/08/2021.
Exhibit P3 TRUE COPY OF THE APPLICATION SUBMITTED
BY THE PETITIONER BEFORE THE 2ND
RESPONDENT DATED 08.09.2021.
True copy
PS to Judge
