Salim Kunnath vs Palakkad Municipality
2022 Latest Caselaw 6606 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
             THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 9TH DAY OF JUNE 2022 / 19TH JYAISHTA, 1944
                   WP(C) NO. 13532 OF 2022
PETITIONER

           SALIM KUNNATH,
           AGED 51 YEARS
           S/O. ABDU KUNNATH, RESIDING AT KUNNATH HOUSE,
           P.O. VALLAPPUZHA, CHERUKODE, PALAKKAD 679 336.
           BY ADVS.
           V.N.HARIDAS
           SAIFUDEEN T.S
           M.MANU


RESPONDENTS

    1      PALAKKAD MUNICIPALITY,
           REP. BY ITS SECRETARY, PALAKKAD MUNICIPAL
           OFFICE, SANTHI NAGAR, KUNNATHURMEDU, PALAKKAD
           678 001.
    2      THE SECRETARY,
           PALAKKAD MUNICIPALITY, PALAKKAD MUNICIPAL
           OFFICE, SANTHI NAGAR, KUNNATHURMEDU, PALAKKAD
           678 001.
    3      REVENUE DIVISONAL OFFICER,
           REVENUE DIVISIONAL OFFICE, PARAKKUNNAM, VIDYUT
           NAGAR, PALAKKAD 678 001.
           BY ADV BINOY VASUDEVAN


OTHER PRESENT:

           SRI.SYAMANTHAK B S, GP


THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 09.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.P.(C) No. 13532 of 2022       :2:




                            JUDGMENT

Dated this the 9th day of June, 2022

The petitioner, who is the owner of 4 Ares 21 square

metres of land situated within the limits of the 1 st respondent-

Municipality, approached this Court seeking to declare that

the DTP Scheme relied on by the respondents became

obsolete and the petitioner is entitled to obtain a Building

Permit dehors the DTP Scheme.

2. The petitioner states that he is the owner of 4 Ares

21 square metres comprised in Survey No.3834/2A situated

within the limits of Palakkad Municipality. According to the

petitioner, there is already a building existing in the said

property. The petitioner wanted to construct a commercial

building there, demolishing the existing building. The

petitioner therefore submitted an application for Building

Permit. The 2nd respondent rejected the application for

Building Permit submitted by the petitioner as per Ext.P3,

stating that the area in which the land is situated is

categorised as Special Category Residential Zone in the

approved Master Plan and that the land is included in Data

Bank. It is aggrieved by the said rejection that the petitioner

is before this Court.

3. The petitioner would submit that the respondents

ought to have taken into consideration the fact that they

cannot raise any objection based on an obsolete DTP

Scheme, in view of the judgment of this Court in W.P(C)

No.22091 of 2021. The respondents ought to have taken into

consideration the fact that there is already an existing

building in the property and therefore, a Building Permit

cannot be denied for construction of a new building,

demolishing the existing building.

4. The Government Pleader entered appearance and

resisted the writ petition on behalf of the 3 rd respondent. The

Government Pleader submitted that the area is included in a

Town Planning Scheme framed under the Kerala Town and

Country Planning Act. As long as the Scheme subsists, no

Building Permit can be granted violating the provisions

contained in the Scheme.

5. As regards Ext.P5 judgment of this Court, the

Standing Counsel representing respondents 1 and 2

submitted that the said judgment relates to a land falling

within the Palakkad Municipality itself and the application of

the petitioner can be considered in the light of Ext.P5

judgment.

6. I have heard the learned counsel for the petitioner,

the learned Standing Counsel for respondents 1 and 2 and

the learned Government Pleader representing the 3 rd

respondent.

7. The petitioner owns 4 Ares 21 square metres of land

in Survey No.3834/2A of Palakkad-3 Village, within the

Palakkad Municipality. Going by Ext.P5 judgment in

W.P(C) No.22091 of 2021, it is seen that a learned Single

Judge of this Court considered a similar issue of grant of

Building Permit in Palakkad Municipality. This Court in Ext.P5

judgment found that most of the detailed Town Planning

Scheme has become either obsolete or unworkable.

Therefore, the rejection of application of the petitioner for a

Building Permit for commercial building on the ground that

the property is included in a detailed Town Planning Scheme

which is admittedly under revision cannot be accepted.

7. The petitioner's property is also situated in the very

same Municipality. Therefore, this Court is of the view that

the petitioner's application should also get a similar treatment

like the application made mention in Ext.P5 judgment.

In the circumstances of the case, the writ petition is

disposed of directing respondents 1 and 2 to reconsider the

application submitted by the petitioner taking into account of

Ext.P5 judgment of this Court. A decision in this regard shall

be taken by respondents 1 and 2, in accordance with law,

within a period of three months.

Sd/-

N. NAGARESH, JUDGE smm/13.06.2022

APPENDIX OF WP(C) 13532/2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE TAX RECEIPT DATED 13.08.2021 ISSUED BY THE REVENUE AUTHORITIES.

Exhibit P2 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 17.08.2021 ISSUED BY THE VILLAGE OFFICE PALAKKAD.

Exhibit P3 TRUE COPY OF THE REJECTION ORDER DATED 05.10.2021 ISSUED BY THE 2ND RESPONDENT.

Exhibit P4 (3 NUMBERS) PHOTO GRAPHS SHOWING EXISTENCE OF BUILDING IN THE PROPERTY. Exhibit P5 TRUE COPY OF THE JUDGMENT OF THIS HONBLE COURT IN WPC NO. 22091/2021 DATED 23.11.2021.