Bhavadas vs Palakkad Municipality
2023 Latest Caselaw 3002 Ker

W.P.(C).No.12724 of 2022
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              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                      PRESENT
              THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
  MONDAY, THE 13TH DAY OF MARCH 2023 / 22ND PHALGUNA, 1944
                           WP(C) NO. 12724 OF 2022
PETITIONER:

              BHAVADAS
              AGED 50 YEARS
              S/O. KRISHNAN, EZHUTHACHAN HOUSE, PUTHUR
              PALAKKAD - 678005.
              BY ADVS.
              V.N.HARIDAS
              SAIFUDEEN T.S
              M.MANU


RESPONDENTS:

      1       PALAKKAD MUNICIPALITY
              REPRESENTED BY ITS SECRETARY, PALAKKAD MUNICIPAL
              OFFICE, SANTHI NAGAR, KUNNATHURMEDU, PALAKKAD -
              678001.

      2       THE SECRETARY
              PALAKKAD MUNICIPALITY, PALAKKAD MUNICIPAL OFFICE,
              SANTHI NAGAR, KUNNATHURMEDU, PALAKKAD - 678001.

      3       DISTRICT TOWN PLANNER,
              DISTRICT TOWN PLANNING OFFICE, CIVIL STATION,
              PALAKKAD - 678001.

              BY ADVS.
              BINOY VASUDEVAN
              PARVATHI K GOVERNMENT PLEADER


       THIS     WRIT       PETITION    (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 21.2.2023 THIS COURT ON 13.03.2023 DELIVERED
THE FOLLOWING:
 W.P.(C).No.12724 of 2022
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                         ANU SIVARAMAN, J.
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                       W.P.(C).No.12724 of 2022
                   = = = = = = = = = = = = = = = =
                 Dated this the 13th day of March, 2023

                                    JUDGMENT

1. This writ petition is filed seeking the following reliefs:-

"a. Issue a writ in the nature of certiorari quashing Exhibit P3 issued by the 2nd respondent,

b) issue appropriate writ order or direction declaring that the master plan relied on by the respondents became obsolete and petitioner is entitled to the building permit dehors the said master plan and DTP scheme.

c) Issue appropriate writ in the nature of Mandamus directing the 2 nd respondent to consider the application for building permit submitted by the petitioner dehors the DTP scheme and master plan."

2. Heard the learned counsel for the petitioner and the learned

standing counsel appearing for the Municipality.

3. It is submitted by the learned counsel for the petitioner that

the petitioner is the owner of 14.10 Ares of property in Survey

No.1296/38 of Palakkad Taluk within the jurisdiction of the 1 st

respondent Municipality. He has submitted an application for

construction of a commercial building, which has been W.P.(C).No.12724 of 2022

rejected by Exhibit P3 on the ground that the application

violates the Ayyapuram-Ramanathapuram sanctioned DTP

scheme in which the property is included in the paddy zone.

The petitioners rely on Exhibit P4 judgment by which an

identical issue was directed to be considered in the light of

the inclusion of the property in the mixed zone in the revised

draft master plan. The learned counsel for the petitioners also

relies on the judgment dated 1.3.2021 of the Division Bench in

W.A.No.1143 of 2020.

4. A counter affidavit has been placed on record by the 3 rd

respondent contending that going by the provisions of the

Kerala Town and Country Planning Act, 2016, the provisions

of a Detailed Town Planning Scheme prevails over the draft

master plan. However, if it is deemed necessary, a sanctioned

Detailed Town Planning Scheme may be revoked by a master

plan published and sanctioned in accordance with the

provisions of the Act. It is stated that the zoning exemptions

used to be granted by the Government before 2005, but this

Court in Sayeesh Kumar v. State of Kerala [2005(4) KLT W.P.(C).No.12724 of 2022

1027] has held that the Government has no power to exempt

individual building applications from the provisions of zoning

regulations of the Government approved/sanctioned Master

plans and detailed Town Planning Schemes.

5. Reliance is also placed on the judgment dated 16.09.2022 in

W.A.No.1249 of 2022 passed in appeal from Exhibit P4

judgment, wherein the direction to the appellants to consider

the application of the 1st respondent in terms of the revised

master plan was set aside and the Municipality was directed

to reconsider the application in accordance with the scheme

and plan applicable to the area in question.

6. Having considered the contentions advanced and in view of

the judgments of the Division Bench, there will be a direction

to the respondents to take up the application submitted by the

petitioner for construction of a commercial building and to

consider and pass orders on the same, strictly in accordance

with the Building Rules as well as the applicable Town

Planning Schemes and the master plan. In case the W.P.(C).No.12724 of 2022

petitioner points out that the Detailed Town Planning Scheme

has not been enforced by the Municipality and that

commercial buildings have been constructed in the vicinity of

the property in question, the said aspect shall also be

appropriately considered. Necessary orders shall be passed

on the application for building permit within a period of one

month from the date of receipt of a copy of this judgment.

sd/-

Anu Sivaraman, Judge

sj W.P.(C).No.12724 of 2022

APPENDIX OF WP(C) 12724/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE TAX RECEIPT DATED 15.04.2021 ISSUED BY THE REVENUE AUTHORITIES.

Exhibit P2 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 09.11.2021 ISSUED BY THE VILLAGE OFFICE, PALAKKAD- 2.

Exhibit P3 TRUE COPY OF THE REJECTION ORDER DATED 21.04.2021 ISSUED BY THE 2ND RESPONDENT.

Exhibit P4 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) 22091/2021 DATED 23.11.2021.

TRUE COPY

PS to Judge