Kerala High Court
The Kozhikode Jilla Varthakamandalam vs Kozhikode Corporation on 22 October, 2024
WP(C) NO. 22636 OF 2023 1
2024:KER:78615
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
TUESDAY, THE 22ND DAY OF OCTOBER 2024 / 30TH ASWINA, 1946
WP(C) NO. 22636 OF 2023
PETITIONERS:
THE KOZHIKODE JILLA VARTHAKAMANDALAM,
CALICUT REPRESENTED BY ITS GENERAL SECRETARY,
1 VARTHAKA BHAVAN, JAIL ROAD, KOZHIKODE, PIN -
673004
THE PRESIDENT,
KOZHIKODE JILLA VARTHAKAMANDALAM, VARTHAKA
2
BHAVAN, JAIL ROAD, KOZHIKODE, PIN - 673004
THE GENERAL SECRETARY,
KOZHIKODE JILLA VARTHAKAMANDALAM, VARTHAKA
3
BHAVAN, JAIL ROAD, KOZHIKODE, PIN - 673004
BY ADVS.
AVM.SALAHUDIN
RAKHI RAMACHANDRAN
RESPONDENTS:
KOZHIKODE CORPORATION,
REPRESENTED BY ITS SECRETARY, KOZHIKODE, PIN -
1
673001
SECRETARY,
2 KOZHIKODE CORPORATION, KOZHIKODE, PIN - 673001
BY ADV G.SANTHOSH KUMAR (P).
OTHER PRESENT:
SRI.V.KRISHNA MENON- S.C-R1
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 22.10.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO. 22636 OF 2023 2
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MOHAMMED NIAS C.P., J
............................................................
W.P(C) No.22636 of 2023
.............................................................
Dated this the 22nd day of October 2024
JUDGMENT
The petitioners challenge Ext.P5, an order rejecting the
application for a building permit stating four reasons, out of
which one is that the property is included in the DTP scheme
which restricts putting up residential buildings above 180
sq.mtrs. In this writ petition, this is a specific averment that
there are so many commercial buildings in and around the
petitioners' property in paragraph 2 of the writ petition. There is
no denial of the said averments in the counter affidavit filed by
the respondents. It is stated that the 2nd petitioner had submitted
an application for constructing a commercial cum residential
building on 19.08.2022 with 1237.40 sq. mtrs in 7.9073 ares of land
situated in Revenue Ward-17 of Kozhikode Corporation which on
inspection was found to be included in DTP scheme for ward 17,
in the zone specified as "reserved for residential area ". Three
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defects were also noticed in Ext.P.5 order, alleging violation of
the building Rules.
2. The learned counsel for the petitioners relies
on the judgment of this Court in Gopalakrishnan T.V v. State of
Kerala and others [2011 (3) KHC 162] wherein it was held that
when there are many commercial buildings adjacent to the land
in question, the Secretary can conduct an inspection of the site to
find out whether the buildings constructed in and around land
and nearby area consists mostly of commercial buildings than
residential, then Secretary can allow commercial construction
subject to approval of building plan. The learned counsel also
relies on the judgment of this Court in W.P.(C) No.26246 of 2023
dated 21.06.2024 which held that in cases where the respondents
had allowed several buildings to come up in violation of the
scheme, preventing an individual, based on the Master Plan
which was all along flouted, cannot be justified. It is also noticed
that the authorities had only themselves to blame and nobody
else for the situation in which they were placed. The said
judgment was confirmed in W. A No.1099 of 2024 by judgment
dated 30.09.2024.
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3. The learned counsel for the Corporation brings
to my notice a judgment in Unnikrishnan V. v. Kozhikode
Municipal Corporation [2023 KHC 9436] wherein this Court held
that though in various judgments, before coming into force of the
Act of 2016, this Court had referred to the redundancy of DTP
Schemes and permitted constructions to come up despite the
existence of the DTP Scheme, those judgments cannot be relied
upon after the coming into force of the Act. In the instant case,
the contentions of the petitioners are that several commercial
buildings have been allowed to come up in the DTP scheme,
which is not even denied.
4. Under such circumstances, the Corporation
cannot be allowed to reject the application preferred by the
petitioners citing that the properties are included in the DTP
Scheme which is being followed by the Corporation itself. Given
the judgments mentioned above, including two judgments of the
Division Bench, I do not think that the stand of the Corporation in
Ext.P5 order can be sustained.
5. Accordingly, Ext.P5 is quashed. There will be a
direction to respondents to reconsider the application for
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building permit submitted by the petitioners dehors the defect
based on the DTP Scheme and pass fresh orders within six weeks
in accordance with law, from the date of receipt of the copy of
this judgment. It is made clear that the petitioners will have to
comply with all the other provisions of the relevant building
Rules to get the permit sought. Needless to say that the
application of the petitioners has been considered in the light of
the Master Plan in force. However, the same objection made as
serial No.1 in Ext.P5 cannot be relied upon to refuse the
application for building permit submitted by the petitioners.
The impugned order is quashed and the writ petition is allowed.
Sd/-
MOHAMMED NIAS C.P.
JUDGE
Anu
2024:KER:78615
APPENDIX OF WP(C) 22636/2023
PETITIONER EXHIBITS
THE TRUE COPY OF THE SITE PLAN ATTACHED
ALONG WITH THE APPLICATION FOR BUILDING
Exhibit-P1
PERMIT.
PHOTOGRAPH NO. 1 RELATING TO THE
PETITIONERS' PROPERTY AND ITS
Exhibit-P2
SURROUNDING AREA.
PHOTOGRAPH NO. 2 RELATING TO THE
PETITIONERS' PROPERTY AND ITS
Exhibit-P3
SURROUNDING AREA.
PHOTOGRAPH NO. 3 RELATING TO THE
PETITIONERS' PROPERTY AND ITS
Exhibit-P4
SURROUNDING AREA.
TRUE COPY OF THE ORDER DATED 02/11/2022
ISSUED BY THE 2ND RESPONDENT REJECTING
Exhibit -P5
THE APPLICATION FOR BUILDING PERMIT.
