Kerala High Court
Sivadas vs Palakkad Municipality on 13 March, 2023
W.P.(C).No.12818 of 2022
1
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. 12818 OF 2022
PETITIONERS:
1 SIVADAS,
AGED 58 YEARS
S/O. KRISHNAN, EZHUTHASSAN HOUSE, PUTHUR,
PALAKKAD-678005.
2 DEVADAS,
AGED 54 YEARS
S/O. KRISHNAN, EZHUTHASSAN HOUSE, PUTHUR,
PALAKKAD-678005.
3 BHAVADAS,
AGED 52 YEARS
S/O. KRISHNAN, EZHUTHASSAN 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.
W.P.(C).No.12818 of 2022
2
3 THE DISTRICT TOWN PLANNER,
DISTRICT TOWN PLANNING OFFICE, CIVIL STATION
PALAKKAD-678001.
BY ADVS.
BINOY VASUDEVAN
SMT.PARVATHY R GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 21.2.2023, THE COURT ON 13.03.2023 DELIVERED
THE FOLLOWING:
W.P.(C).No.12818 of 2022
3
ANU SIVARAMAN, J.
= = = = = = = = = = = = = = =
W.P.(C).No.12818 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 DTP
scheme relied on by the respondents became obsolete and petitioners
are entitled to the building permit dehors the said 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 petitioners dehors the DTP scheme ;"
2. Heard the learned counsel for the petitioners and the learned
standing counsel appearing for the Municipality.
3. It is submitted by the learned counsel for the petitioners that
the petitioners are joint owners of 40.65 Ares of property in
Survey Nos.1296/36. 1291/4,1296/35, of Palakkad 2 village of
Palakkad Taluk within the jurisdiction of the 1 st respondent
Municipality. They have submitted an application for
construction of a commercial building, which has been
W.P.(C).No.12818 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 of the Division Bench in W.A.No.1143
of 2020 dated 1.3.2021.
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.12818 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
petitioners 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.12818 of 2022
petitioners point 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.12818 of 2022
APPENDIX OF WP(C) 12818/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE TAX RECEIPT DATED
07/09/2021 ISSUED BY THE REVENUE
AUTHORITIES.
Exhibit P2 TRUE COPY OF THE POSSESSION CERTIFICATE
DATED 05/10/2021 ISSUED BY THE VILLAGE
OFFICE, PALAKKAD-2.
Exhibit P3 TRUE COPY OF THE REJECTION ORDER ISSUED
BY THE 2ND RESPONDENT DATED 03/02/2021.
Exhibit P4 TRUE COPY OF THE JUDGMENT OF THIS
HON'BLE COURT IN WPC NO.22091/2021
DATED 23/11/2021.
True copy
PS to Judge
