Kerala High Court
P.Swaminathan vs Nedumangad Municipality on 7 July, 2022
WP(C) NO. 20844 OF 2019 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
WP(C) NO. 20844 OF 2019
PETITIONER/S:
P.SWAMINATHAN,
AGED 59 YEARS
S/O.LATE M.PARAMESWARANACHARI, THENGUVILAKATH VEEDU,
THEKKUMKARA DESAM, NEDUMANGAD VILLAGE, NEDUMANGAD P.O.,
PIN - 695 541.
BY ADVS.
ARUN KUMAR.P
SRI.THIYYANNOOR RAMAKRISHNAN
SMT.AMBIKA RADHAKRISHNAN
RESPONDENT/S:
1 NEDUMANGAD MUNICIPALITY,
REPRESENTED BY ITS CHAIRMAN, NEDUMANGAD P.O., PIN - 695
541.
2 SECRETARY, NEDUMANGAD MUNICIPALITY,
NEDUMANGAD P.O., PIN - 695 541.
3 ADDL.R3. DISTRICT TOWN PLANNING OFFICER,
MUNICIPAL CORPORATION OF TRIVANDRUM, VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM KERALA, PIN - 695033 ADDL.R3 IS
IMPLEADED AS PER ORDER DATED 06.01.2021 IN IA NO.01/2019
IN WPC 20844/2019.
THE ADDRESS OF R3 CORRECTED IN THE CAUSETITLE AS
DISTRICT TOWN PLANNING OFFICER, OFFICE OF DISTRICT TOWN
PLANNER, LSGD PLANNING, 1ST FLOORUPPER ZONE, HOUSING BOARD
BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM 695001. AS PER
ORDER DATED 06.01.2021 IN IA 2/2020 IN WPC 20844/2019.
BY ADV SRI.P.RAMAKRISHNAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 20844 OF 2019 2
P.V.KUNHIKRISHNAN, J
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W.P.(C) No.20844 of 2019
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Dated this the 7th day of July, 2022
JUDGMENT
The above writ petition is filed with following prayers :
"i) to issue a writ in the nature of certiorari or any
other appropriate writ, direction or order to quash Ext P3
order dated 24.4.2019 bearing no.TP/3186/19 of the 2nd
respondent rejecting the building permit application of
the petitioner;
ii) to issue a writ in the nature of mandamus or any
other appropriate writ, direction or order directing the
respondents to grant the petitioner permit for
construction of commercial building;
iii) to issue such other writ, direction or order as are
just and necessary to the facts and circumstances of the
case and this Hon'ble Court deems fit to grant."
[SIC]
2. The writ petition is filed challenging an order by
which a building permit application of the petitioner is rejected
stating that the land is included in the DTP scheme "area to be
reserved/acquired for parks and open spaces" and also for a
writ of mandamus directing the respondents to grant building
permit to the petitioner. The petitioner applied for a building
permit to construct a commercial building in his property
before the 1st respondent - Municipality. The 2 nd respondent
vide Ext.P3 order rejected the application of the petitioner for
construction of the commercial building stating that the above
property is included under the DTP scheme as "area to be
reserved/acquired for parks and open spaces". According to the
petitioner, DTP scheme has come into existence since long time
and no process of acquisition of land for the implementation of
scheme has taken place till date and hence rejection of the
building permit is per-se illegal and arbitrary and does not
stand the test of law. It is also the contention of the petitioner
that the 2nd respondent has granted building permit to the
immediate neighbour of the petitioner in the very same survey
number (old survey No.1707) as that of the petitioner and the
said neighbour had constructed a two storied building in which
a fire cracker shop and a studio is presently functioning. When
the building permit application was rejected, the petitioner
submitted an application under Sec. 67(1) of the Kerala Town
and Country Planning Act, 2016. Ext.P5 is the application. Even
after 60 days, no orders are passed in Ext.P5 application.
Therefore, it is submitted that in the light of Sec.67(2) of the
Act, the Municipality is bound to consider the building permit
application.
3. Heard the learned counsel for the petitioner and the
learned counsel appearing for the Municipality.
4. After hearing both sides, I think there is some force in
the argument of the petitioner. In view of the Division Bench
judgment of this Court in District Town Planner, Thrissur v.
Joby M.C. and others [2020 (6) KHC 455], I think the petition
is to be allowed, because the Municipality has not taken any
decision in Sec. 67 application submitted by the petitioner.
Therefore, this writ petition is allowed in the following
manner :
1) Ext.P3 is set aside.
2) The 2nd respondent - Municipality is directed to reconsider
the building permit application in the light of the
observation in this judgment, if it is otherwise in order, as
expeditiously as possible, at any rate within one month
from the date of receipt of a copy of this judgment.
3) The building permit shall not be rejected for the reason
that the DTP scheme is in force.
SD/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
APPENDIX OF WP(C) 20844/2019
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE BASIC TAX RECEIPT BEARING
NO.KL01031104618/2019 DATED 02/07/2019
ISSUED BY THE VILLAGE OFFICE, NEDUMANGAD
WITH RESPECT TO THE PROPERTY OF THE
PETITIONER.
EXHIBIT P2 TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT
EVIDENCING RECEIPT OF APPLICATION FOR
BUILDING PERMIT DATED 22/03/2019.
EXHIBIT P2 TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT
EVIDENCING RECEIPT OF PAYMENT OF BUILDING
PERMIT FEES DATED 22/03/2019.
EXHIBIT P3 TRUE COPY OF THE ORDER OF THE 2ND
RESPONDENT DATED 24/04/2019 BEARING
NO.TP/3186/19 REJECTING THE APPLICATION OF
THE PETITIONER FOR CONSTRUCTION OF A
COMMERCIAL BUILDING.
EXHIBIT P4 PHOTOGRAPH SHOWING THE PROPERTY OF THE
PETITIONER, TWO STORIED BUILDING
CONSTRUCTED BY HIS NEIGHBOUR IN WHICH FIRE
CRACKER SHOP AND A STUDIO IS FUNCTIONING
AND ALSO PLOT OF MR.SHIBY, PUNALUR, WHEREIN
CONSTRUCTION ACTIVITIES HAVE COMMENCED.
EXHIBIT P4 PHOTOGRAPH SHOWING THE PROPERTY OF THE
PETITIONER, TWO STORIED BUILDING
CONSTRUCTED BY HIS NEIGHBOUR IN WHICH FIRE
CRACKER SHOP AND A STUDIO IS FUNCTIONING
AND ALSO PLOT OF MR.SHIBY, PUNALUR, WHEREIN
CONSTRUCTION ACTIVITIES HAVE COMMENCED.
EXHIBIT P4 PHOTOGRAPH SHOWING THE PROPERTY OF THE
PETITIONER, TWO9 STORIED BUILDING
CONSTRUCTED BY HIS NEIGHBOUR IN WHICH FIRE
CRACKER SHOP AND A STUDIO IS FUNCTIONING
AND ALSO PLOT OF MR.SHIBY, PUNALUR, WHEREIN
CONSTRUCTION ACTIVITIES HAVE COMMENCED.
Exhibit P5 TRUE COPY OF THE NOTICE OF PURCHASE DATED
13.10.2021 ISSUED BY THE PETITIONER TO THE
2ND RESPONDENT U/S. 67 OF THE KERALA TOWN
AND COUNTRY PLANNING ACT, 2016.
Exhibit P5(A) TRUE COPY OF THE POSTAL RECEIPT DATED
13.10.2021 EVIDENCING ISSUANCE OF EXT. P5
NOTICE TO THE 2ND RESPONDENT.
Exhibit P5(B) TRUE COPY OF THE ACKNOWLEDGEMENT CARD
EVIDENCING RECEIPT OF EXT. P5 NOTICE ON
16.10.2021 BY THE 2ND RESPONDENT.
