Kerala High Court
B.Vijayakumar vs State Of Kerala on 9 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 9TH DAY OF JUNE 2022 / 19TH JYAISHTA, 1944
WP(C) NO. 4663 OF 2021
PETITIONER(S):
B.VIJAYAKUMAR
AGED 63 YEARS
S/O. LATE BHASKARAN, RESIDING AT DIVYALAYAM, THOLOOR,
ARYANADU P.O, THIRUVANANTHAPURAM - 695542.
BY ADVS.
REKHA VASUDEVAN
SMT.V.DEEPA
SMT.ELIZABETH V.JOSEPH
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY, LOCAL
SELF GOVERNMENT DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM - 695001.
2 NEDUMANGAD MUNICIPALITY
REPRESENTED BY ITS SECRETARY, MUNICIPALITY OFFICE,
SATHRAM JUNCTION, NEDUMANGAD P.O,
THIRUVANANTHAPURAM - 695541.
3 THE ASSISTANT ENGINEER
NEDUMANGAD MUNICIPALITY, MUNICIPALITY OFFICE, SATHRAM
JUNCTION, NEDUMANGAD P.O, THIRUVANANTHAPURAM - 695541.
BY ADVS.
SHRI.R.B.RAJESH, SC, NEDUMANGAD MUNICIPALITY
GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 4663 OF 2021
2
P.V.KUNHIKRISHNAN, J.
------------------------------
W.P.(C).No. 4663 of 2021
----------------------------------------------
Dated this the 09th day of June, 2022
JUDGMENT
The above writ petition is filed with the following
prayers:
"(i) Quash Exhibit P3 letter dated 26.02.2020
issued by the 2nd respondent by the issuance of the
writ of certiorari, or other appropriate writ, order or
direction.
(ii) Declare that the petitioner is fully entitled to
be issued with the Permit for Construction as sought
by him in the absence of approved Town Planning
Scheme in existence.
(iii) Direct the 2nd respondent to reconsider the
application submitted by the petitioner for permit for
construction in the property comprised in Exhibit P1
and P2 within a time frame, by the issuance of the
writ of mandamus, or other appropriate writ, order or
direction.
(iv) Grant such other reliefs as may be prayed
for and as the court may deem fit to grant and
(v) Grant the cost of the writ petition."[SIC]
2. Petitioner is challenging Ext.P3 order by which a
building permit application is rejected by the
Municipality. The petitioner is in absolute possession of
WP(C) NO. 4663 OF 2021
certain items of property in Sy.No.779/3 in Nedumangad
Village. The 2nd respondent rejected the application for
building permit on the ground that the property is
'reserved for parks'. According to the petitioner, Exts.P4
to P8 will prove that there is no sanctioned master plan
for the 2nd respondent and that it is Ext.P8 draft master
plan which is in existence. A perusal of Ext.P8 will show
that a certain portion of Sy.No.779 is earmarked for
parks but which portion of Sy.No.779 is earmarked for
parks is not mentioned in Ext.P8 draft master plan. The
counsel also relied on Ext.P9 judgment in which in a
similar situation the construction is permitted. The
property covered in Ext.P9 judgment is an adjacent
property to the petitioner's property.
3. Heard counsel appearing for the petitioner,
learned Government Pleader and the learned Standing
counsel appearing for the Municipality.
4. This Court considered the contentions of the
petitioner and the respondents. I perused Ext.P3 order.
The reason for rejecting the building permit is that, as
WP(C) NO. 4663 OF 2021
per the master plan it is earmarked as reserved for
parks. Counsel appearing for the Municipality submitted
that the master plan is now pending before the
Government for approval. The learned Government
Pleader submitted that, when the matter is pending
before the Government, there is nothing wrong in
passing Ext.P3 by the Municipality. It is an admitted
fact that, in an adjacent property which is also
earmarked in the master plan as "reserved for parks",
this Court interfered and passed Ext.P9 judgment. It will
be beneficial to extract the relevant portion of the
judgment:
"4. Having considered the rival contentions of the
contesting parties, it has to be held that Ext.P4 is
unsustainable in view of the dictum laid down by the
apex court in Raju S.Jethmalani and others v. State of
Maharashtra and others [(2005) 11 SCC 222]. The
petitioner cannot be prevented from putting his
property to any use on the ground that there is a DTP
scheme in existence which has not been implemented
for a long time. For the above reason, Ext.P4 is set
aside.
This Writ Petition is accordingly disposed of
directing the respondent to consider the application
WP(C) NO. 4663 OF 2021
submitted by the petitioner afresh, after conducting an
inspection of the petitioners' land and thereafter, to
pass appropriate orders on the application in
accordance with law. Appropriate orders as indicated
above shall be passed, as expeditiously as possible and
at any rate within a period of one month of the date of
receipt of a copy of this judgment."
5. Moreover, in District Town Planner v.
Linson [2021(2)KLT 56], this Court observed that,
denying right to effect construction in a property citing
existence of a scheme which had been in force for more
than three and half decades without any concrete steps
for the effectuation of the scheme is nothing but one
that takes away the right of a citizen to have a shelter,
to enjoy his property also negation of human right. It is
true that, in this case, the master plan is pending before
the Government. But in the light of Ext.P9 judgment, in
a similar situation, this Court interfered. In such
circumstances, I think it will be an injustice to the
petitioner, if a similar benefit is not given to the
petitioner. Therefore, according to me, Ext.P3 is to be
WP(C) NO. 4663 OF 2021
set aside and the Municipality can be directed to
reconsider the matter in the light of Ext.P9 judgment.
Therefore this writ petition is allowed in the
following manner:
i. Ext.P3 is set aside.
ii. The 2nd respondent is directed to reconsider the
matter in the light of Ext.P9 judgment and pass
appropriate orders in it, as expeditiously as possible, at
any rate, within a period of one month from the date of
receipt of a copy of this judgment, after giving an
opportunity of hearing to the petitioner.
Sd/-
P.V.KUNHIKRISHNAN
DM JUDGE
WP(C) NO. 4663 OF 2021
APPENDIX OF WP(C) 4663/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE TAX RECEIPT DATED
03.10.2019 ISSUED BY THE SPECIAL VILLAGE
OFFICER, NEDUMANGAD VILLAGE TO THE
PETITIONER.
EXHIBIT P2 TRUE COPY OF THE POSSESSION CERTIFICATE
NO.626/2020 DATED 14.02.2020 ISSUED BY
THE VILLAGE OFFICER, NEDUMANGAD TO THE
PETITIONER.
EXHIBIT P3 TRUE COPY OF THE LETTER NO.
TP1/21143/2020 DATED 26.02.2020 ISSUED BY
THE 2ND RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE GO(MS) NO.127/2019/LSGD
DATED 14.10.2019 ISSUED BY THE 1ST
RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE APPLICATION DATED
27.10.2020 SUBMITTED BY THE PETITIONER TO
THE PUBLIC INFORMATION OFFICER OF THE 2ND
RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE LETTER
NO.DPI/TPI/10877/20 DATED 24/11/2020
ISSUED BY THE PUBLIC INFORMATION OFFICER
OF THE 2ND RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE LIST OF SANCTIONED
MASTER PLANS FOR THIRUVANANTHAPURAM
DISTRICT AS AVAILABLE IN THE WEBSITE OF
THE TOWN PLANNING DEPARTMENT.
EXHIBIT P8 TRUE COPY OF THE RELEVANT PAGES OF THE
DRAFT MASTER PLAN FOR THE NEDUMANGAD
MUNICIPALITY AS AVAILABLE IN THE WEBSITE
OF THE 2ND RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED
11/11/2014 IN WP(C) NO.13160 OF 2014 OF
THIS HONOURABLE COURT.
RESPONDENTS EXHIBITS : NIL
//TRUE COPY//
PA TO JUDGE
