Alex Raphel vs Thrissur Corporation
2021 Latest Caselaw 18387 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. 16325 OF 2021
PETITIONER:

          ALEX RAPHEL
          AGED 32 YEARS
          S/O. RAPPAI, OLLUKKARAN HOUSE, 1197/25, KURIACHIRA
          P.O., THRISSUR-680 006.

          BY ADVS.
          A.R.NIMOD
          M.A.AUGUSTINE



RESPONDENTS:

    1     THRISSUR CORPORATION
          REPRESENTED BY ITS SECRETARY, THRISSUR-1.

    2     THE ASSISTANT ENGINEER
          THRISSUR CORPORATION, THRISSUR-1.

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

          BY ADV SANTHOSH P.PODUVAL




          SRI. P.S. APPU-G.P.




     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. 16325 OF 2021

                                      2


                                 JUDGMENT

This writ petition is filed challenging Ext.P4 notice issued by the

Thrissur Corporation dated 08.07.2021 and seeking directions to the 1 st

respondent to reconsider Ext.P3 application de hors the DTP Scheme.

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

Standing Counsel appearing for the Corporation as well as the learned

Government Pleader.

3. The learned counsel for the petitioner submits that an

application preferred by the petitioner for change of use of a building

from residential to commercial use has been rejected by Ext.P4 on the

ground that the property was included in the residential zone as per

the East Ring Road DTP Scheme. However, it is stated in Ext.P4 itself

that in accordance with the approved revised master plan, the

property is included in the mixed zone. The learned counsel places

reliance on Ext.P5 judgment 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 WP(C) NO. 16325 OF 2021

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, in Ext.P5 judgment 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.

4. The learned counsel appearing for respondents 1 and 2

submits that there is already a direction issued by this Court 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.

5. 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 mixed zone in the WP(C) NO. 16325 OF 2021

revised master plan, the petitioner's request for change of occupancy

from residential to commercial is therefore liable to be considered.

In the result, Ext.P4, to the extent it rejects the request of the

petitioner for change of occupancy is set aside. There will be a

direction to the 1st respondent to take up the application preferred by

the petitioner for change of occupancy and to consider and pass orders

on the same and grant the request, if the same is otherwise in order, in

view of the revised master plan. Appropriate orders shall be passed

within a period of one month 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. 16325 OF 2021

APPENDIX OF WP(C) 16325/2021

PETITIONER EXHIBITS

Exhibit P1 SERIES POSSESSION CERTIFICATES DATED 3.3.2021, 3.3.2021, 2.3.2021 AND 3.3.2021.

Exhibit P2 TRUE COPY OF THE OCCUPANCY CERTIFICATE DATED 29.5.2017.

Exhibit P3 TRUE COPY OF APPLICATION DATED 26.3.2021.

Exhibit P4 TRUE COPY OF NOTICE DATED 8.7.2021.

Exhibit P5 TRUE COPY OF JUDGMENT IN WPC 34894/2019 DATED 9.3.2021.