Kerala High Court

Dr.Shahabudeen P.Q vs The Palakkad Municipality on 18 February, 2022

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
             THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
     FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943
                         WP(C) NO.30422 OF 2021
PETITIONER :-

           DR.SHAHABUDEEN P.Q., AGED 68 YEARS
           S/O. PERIYAVEEDU KHADER MEERAN,
           NO.8/413-PERIYAVEEDU, NELLIPUZHA, MANNARKADU P.O.,
           PALAKKAD DISTRICT, PIN-678 582.

           BY ADVS.
           K.M.SATHYANATHA MENON
           KAVERY S THAMPI


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 SECRETARY TO LOCAL SELF GOVERNMENT
             DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM,
             PIN-695 001.
             BY ADV BINOY VASUDEVAN
             BY SMT.VINITHA B, SR.GP


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   18.02.2022,   THE    COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO.30422 OF 2021

                                  -: 2 :-


                              JUDGMENT

Dated this the 18th day of February, 2022

This writ petition is filed seeking the following reliefs :-

"(i) Issue a writ of certiorari or other appropriate writs, order or direction calling for the Original of Ext.P1 and quash the same.

(ii) Issue a writ of mandamus or other appropriate writs, directions or orders directing the respondents 1 and 2 to issue building permit to the petitioner on his application dated 30.11.2019."

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 is the owner in

possession of 3.65 Ares of property in Survey No.2562 of

Palakkad III Village in Palakkad Taluk of Palakkad District. It is

submitted by the learned counsel for the petitioner that the

petitioner has submitted an application for building permit for

construction of a commercial building before the 2 nd respondent.

The application has been rejected by Ext.P1, which is under

challenge in this writ petition. The reason stated for rejection of

the application is that the road in front of the petitioner's

property is proposed to be widened to 10 metres as per the DTP WP(C) NO.30422 OF 2021

Scheme of the Palakkad Municipality and therefore, there is no

sufficient set back shown in the plan submitted by the

petitioner.

4. The learned counsel for the petitioner submits that

when the petitioner sought details under the RTI Act with

respect to the Government Order approving the Town Planning

Scheme in existence with the Municipality, he received a reply

from the Municipality stating that the Town Planning Scheme

mentioned in Ext.P1 communication is the Detailed Town

Planning Scheme for Central Area, Palakkad Municipality. It is

submitted that the Detailed Town Planning Scheme for Central

Area, Palakkad Municipality was sanctioned and approved on

16.7.1993 and thereafter modified by Ext.P5 order dated

11.2.2000. It is submitted that neither the Government nor the

Municipality had taken any steps to acquire any land for

implementation of the Detailed Town Planning Scheme. It is

stated that the Scheme has, therefore, become obsolete and

unworkable.

5. It is further submitted that as per Section 65(3) of the

Kerala Town and Country Planning Act, 2016 the Secretary of

the Municipal Corporation has to consider only the Master Plans WP(C) NO.30422 OF 2021

and Detailed Town Planning Schemes in force or the Interim

Development Orders which is in force. It is also submitted that

the petitioner's property is not hit by the draft master plan

prepared under the Kerala Town and Country Planning Act,

2016 and there is no proposal for widening of the road as

proposed in the Detailed Town Planning Scheme.

6. Relying on the judgment of this Court in Padmini v.

State of Kerala [1999 (3) KLT 465] and of the Apex Court in

Raju S. Jethmalani and others v. State of Maharashtra and

others [(2005) 11 SCC 222], it is contended that refusing to

grant permits relying on obsolete DTP Scheme is a clear

violation of the provisions of the Constitution and therefore,

Ext.P1 is illegal and unsustainable.

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

and 2. It is stated therein at paragraphs 6 and 7 as follows :-

"6. It is submitted that in the first site plan submitted by the petitioner, on the eastern side there was encroachment to the public canal. The same was reported by the town surveyor attached to the Municipality. Hence the petitioner was directed to submit a revised plan excluding the alleged encroachment. The petitioner submitted the same as well.

Subsequently, a further communication was issued to the petitioner pointing out that since there is a proposal for road widening of 10 metres on the western side, a further WP(C) NO.30422 OF 2021

communication was issued asking him to submit a new plan providing sufficient set back after leaving the road widening space. This communication was issued on 22.9.2020.

7. It is submitted that the petitioner submitted a reply on 28.9.2020. On perusal of the files, it was found that there is no sufficient set back after leaving the road widening area, the application was rejected by the impugned order. It is submitted that all allegations in the writ petition including the one of the effect that the master plan for Palakkad Municipality are obsolete is unsustainable in the eye of law."

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

Schemes had become either obsolete or unworkable 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 there is a proposed road

widening in accordance with the detailed Town Planning

Scheme and that the said widening is not taken into account in

the building plan submitted by the petitioner cannot be accepted

as a valid reason for rejecting the building permit application

submitted by the petitioner.