Indira vs The Nedumangad Municipality
2021 Latest Caselaw 18299 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
    TUESDAY, THE 7TH DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943
                        WP(C) NO. 14676 OF 2021
PETITIONERS:

    1     INDIRA
          AGED 57 YEARS
          W/O. REVEENDRAN NAIR, SIVASADANAM, PARAPPARA P.O.,
          VITHURA, THIRUVANANTHAPURAM DISTRICT,PIN-695 551

    2     SIVAPRASAD,
          AGED 34, S/O. REVEENDRAN NAIR, SIVASADANAM, PARAPPARA
          P.O., VITHURA, THIRUVANANTHAPURAM DISTRICT,PIN-695 551

          BY ADVS.
          T.A.UNNIKRISHNAN
          K.K.AKHIL



RESPONDENT:

          THE NEDUMANGAD MUNICIPALITY
          PRESENTED BY ITS SECRETARY, NEDUMANGAD,
          THIRUVANANTHAPURAM DISTRICT,PIN-695 541


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 14676 OF 2021

                                         2


                                  JUDGMENT

This writ petition is filed seeking the following reliefs:

i. Issue a writ of certiorari or such other writ order or direction quashing the decision in Exhibit P1.

ii. Issue a writ of mandamus or such other writ order or direction directing the respondent to grant building permit to the petitioners on the basis of his request dated 21.05.2019 referred to in Exhibit P1 forthwith.

2. Heard the learned counsel for the petitioners and the learned

Standing Counsel appearing for the respondent Municipality.

3. The petitioners submit that the petitioners are the owners of 2

Ares and 90 square meters of dry land in Nedumangadu Village within

the jurisdiction of the respondent Municipality. It is submitted that on

21.05.2019, they had submitted an application for construction of a

commercial building in the property. It is submitted that the request

was rejected on the ground that there is a Detailed Town Planning

Scheme in existence and that the property is demarcated as area to be

reserved for residential building in the DTP Scheme. It is further stated

in Ext.P1 that the building does not have the required front set back. WP(C) NO. 14676 OF 2021

4. It is contended by the learned counsel for the petitioners that

the existence of a Detailed Town Planning Scheme cannot be a ground

for denial of a building permit. It is submitted that Ext.P2 judgment

dated 20.09.2014 issued by this Court in a similar situation covers the

issue.

5. The learned Standing Counsel appearing for the respondent

Municipality submits that the existence of the DTP Scheme by itself

was not the reason for the rejection of the building permit and that

further ground has been stated in Ext.P1 that the front set back is not

adequate. It is further submitted that the question whether there is an

approved master plan in force and whether the DTP Scheme has been

varied or requires a variation, are matters to be considered when the

application preferred by the petitioners for building permit is being

considered by the Municipality. It is further submitted that the District

Town Planner is not been made a party to these proceedings and that

the variation of the DTP Scheme is to be done by the District Town

Planner, if there is an approved master plan and if the property is

differently noted in the said master plan.

WP(C) NO. 14676 OF 2021

6. Having considered the contentions advanced and in view of the

fact that the existence of a DTP Scheme appears to be the major reason

for rejection of the application preferred by the petitioners in Ext.P1, I

am of the opinion that the issue requires a reconsideration at the

hands of the respondent.

Ext.P1 order is, therefore, set aside. There will be a direction to

the respondent to take up the application preferred by the petitioners

for building permit and to consider and pass orders on the same in

accordance with law. Orders shall be passed within a period of two

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

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE SVP WP(C) NO. 14676 OF 2021

APPENDIX OF WP(C) 14676/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE COMMUNICATION DATED 13.06.2019 ISSUED BY THE ASST.ENGINEER, NEDUMANAGAD MUNICIPALITY

Exhibit P2 TRUE COPY OF THE JUDGMENT DATED 20.9.2014 IN WPC NO.15869/2014 OF THIS HON'BLE COURT