Umesh Mohanan vs Palakkad Municipality
2022 Latest Caselaw 1835 Ker

           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.28737 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
          K.V.WINSTON
          ANU JACOB


RESPONDENTS :-

    1     THE PALAKKAD MUNICIPALITY
          REPRESENTED BY IS 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
          SMT.PRINCY XAVIER, 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.28737 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 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 P2 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 P2 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 63

cents 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 the petitioner had submitted an application for a building

permit to construct a commercial building in the property. The

application was rejected by the 2nd respondent for the reason that

the plot is located in a residential zone under the sanctioned

Master Plan and DTP scheme for Palakkad Town. WP(C) NO.28737 OF 2021

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.P3 and

P4 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.P2 before the Tribunal for Local Self

Government Institutions. It is further stated that so long as the

new Master 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 WP(C) NO.28737 OF 2021

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.P3 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 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.P4 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 WP(C) NO.28737 OF 2021

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 under

the sanctioned Master Plan and DTP scheme for Palakkad Town

cannot be accepted.

In the above view of the matter, Ext.P2 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,

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/22.2.2022 WP(C) NO.28737 OF 2021

APPENDIX OF WP(C) 28737/2021

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE POSSESSION CERTIFICATE DATED 09.12.20201 ISSUED BY THE VILLAGE OFFICER, YAKKARA VILLAGE

Exhibit P2 A TRUE COPY OF THE ORDER ISSUED BY THE SECOND RESPONDENT DATED 20.11.2021

Exhibit P3 A TRUE COPY OF THE JUDGMENT DATED 25.06.2020 IN WPC NO.11533 OF 2021 OF THIS HONOURABLE COURT

Exhibit P4 A TRUE COPY OF THE JUDGMENT DATED 05.10.2020 IN WPC NO.17881/2020 OF THIS HONOURABLE COURT