Umesh Mohanan vs The Palakkad Municipality
2021 Latest Caselaw 22833 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
          THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
TUESDAY, THE 23RD DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943
                    WP(C) NO.22091 OF 2021
PETITIONER :-

          UMESH MOHANAN, AGED 39 YEARS
          S/O.G.MOHANAN, RESIDING AT DHANYA, 10/224,
          KINASSERY, KANNADI P.O, PALAKKAD DISTRICT,
          PIN - 678 701.

          BY ADVS.
          JACOB SEBASTIAN
          ANU JACOB
          K.V.WINSTON


RESPONDENTS :-

    1     THE PALAKKAD MUNICIPALITY
          REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE,
          PALAKKAD DISTRICT, 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 STATE OF KERALA,
          REPRESENTED BY ITS SECRETARY,
          DEPARTMENT OF LOCAL SELF GOVERNMENT,
          THIRUVANANTHAPURAM, PIN - 695 001.

          BY ADVS.
          SRI.BINOY VASUDEVAN, SC, PALAKKAD MUNICIPALITY
          SRI.APPU.P.S., GP

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 23.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) NO.22091 OF 2021

                                      -: 2 :-


                                 JUDGMENT

Dated this the 23rd day of November, 2021

This writ petition is filed seeking the following reliefs :-

"(i) Issue a writ in the nature of mandamus directing the second respondent to issue a building permit to the petitioner as applied for.

(ii) Call for the Detailed Town Planning Scheme and approved Master Plan of the first respondent referred to in Exhibit P3 and quash them in so far as it relates to the plot of the petitioner by the issue of a writ of certiorari.

(iii) Call for the records leading to issue of Exhibit P3 by the second respondent and quash it of a writ of certiorari or other appropriate writ or order."

2. Heard the learned counsel for the petitioner and the

learned Government Pleader as well as the learned Standing

Counsel appearing for the 1st respondent Municipality.

3. It is submitted that the petitioner has an extent of

32.38 Ares of land in the jurisdiction of the 1 st respondent

Municipality. It is submitted that the said plot is abutting the

main road and is bounded by residential and commercial

buildings. It is submitted that by Ext.P2 dated 12.3.1990, the

Government had exempted the area from the provisions of the

zoning regulations under a Detailed Town Planning Scheme. It

is submitted that the petitioner had submitted an application for WP(C) NO.22091 OF 2021

a building permit to construct a commercial building in the

property. The application was rejected by the 2 nd respondent for

the reason that the plot is located in a residential zone under the

DTP Scheme (Stadium Complex Scheme).

4. The learned counsel for the petitioner submits that

there is a published draft Master Plan prepared in respect of the

Palakkad Municipality and the property in question is included

as mixed zone in the said draft Master Plan. It is submitted that

several commercial buildings have also come up in the vicinity

and the refusal on the part of the respondents to consider the

application for building permit for a commercial building is

completely misconceived. It is further submitted that Exts.P4

and P5 judgments have been rendered in similar circumstances

and that the respondents cannot prevent the petitioner from

putting his property to use.

5. A statement has been filed on behalf of respondents 1

and 2. It is stated therein that the petitioner has an alternate

remedy as against Ext.P3 before the Tribunal for Local Self

Government Institutions. It is further stated that the exemption

granted in Ext.P2 is only for the construction of residential

buildings. It is further stated that so long as the new Master WP(C) NO.22091 OF 2021

Plan is not approved and notified by the Government, the

petitioner cannot rely on the draft Master Plan to state that his

property can be put to use disregarding the DTP Scheme in

force.

6. A statement has also been placed on record by the 3 rd

respondent. It is stated that Section 61 of the Kerala Town and

Country Planning Ordinance Act, 2016 provides that a Master

Plan will override the provisions of an earlier Master Plan and a

Detailed Town Planning Scheme only once it is approved and

published. It is stated that the petitioner can carry out only the

permitted constructions in the stipulated zones.

7. I have considered the contentions advanced. This

Court in Ext.P4 judgment had considered an identical situation

with regard to the same Municipality and had held that in view

of the fact that the draft Master Plan for the Palakkad

Municipality clearly indicated that the property in question was

included in the mixed zone, in view of the judgment of the Apex

Court in Raju S. Jethmalani and others v. State of

Maharashtra and others [(2005) 11 SCC 222], the

respondents would not be justified in refusing to consider the

application submitted by the petitioner for construction of a WP(C) NO.22091 OF 2021

commercial building. The respondents were, therefore, directed

to consider the building permit application in accordance with

law. The learned counsel for the petitioner submits that Ext.P5

judgment has also been rendered where a residential building

was permitted to be put up in an agricultural zone taking note of

the inclusion of the property in the mixed zone in the revised

draft Master Plan.

8. Having considered the contentions advanced on all

sides and in view of the fact that this Court had also considered

the issue and found that most of the Detailed Town Planning

Scheme had become either obsolete or unwarranted and had

directed the revision of such schemes, the rejection of the

application of the petitioner for a building permit for a

commercial building on the ground that the property is included

in the residential zone in a Detailed Town Planning Scheme

(Stadium Complex), which admittedly is under revision, cannot

be accepted.

In the above view of the matter, Ext.P3 is set aside.

There will be a direction to respondents 1 and 2 to take up the

application submitted by the petitioner for building permit for a

commercial building and consider and pass orders on the same, WP(C) NO.22091 OF 2021

taking note of the fact that the property stands included as a

mixed zone in the revised draft Master Plan which has been

published inviting objections and in strict compliance with the

applicable statutory building Rules, within a period of six weeks

from the date of receipt of a copy of this judgment.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE

Jvt/29.11.2021 WP(C) NO.22091 OF 2021

APPENDIX OF WP(C) 22091/2021

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE BASIC TAX PAID RECEIPT DATED 08.09.2020 ISSUED BY THE VILLAGE OFFICER, PALAKKAD - III VILLAGE.

Exhibit P2 A TRUE COPY OF THE GOVERNMENT ORDER NO.G.O. RT.

907/90/LAD DATED 12.03.1990.

Exhibit P3 A TRUE COPY OF THE ORDER ISSUED BY THE SECOND RESPONDENT DATED 29.09.2021.

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 WP(C) NO. 17881/2020 OF THIS HONOURABLE COURT.