Kerala High Court
Bharathan vs State Of Kerala on 11 February, 2025
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WP(C) NO.15150 OF 2019 2025:KER:17409
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
TUESDAY, THE 11TH DAY OF FEBRUARY 2025 / 22ND MAGHA, 1946
WP(C) NO.15150 OF 2019
PETITIONER:
BHARATHAN
AGED 40 YEARS, S/O.BALAKRISHNAN,
MULLAPPILLY HOUSE, POONKUNNAM P.O.,
THRISSUR DISTRICT, PIN-680002.
BY ADV DINESH MATHEW J.MURICKEN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
LOCAL SELF GOVERNMENT DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPRUAM-695001.
2 THE SECRETARY,
LOCAL SELF GOVERNMENT DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
3 THE DISTRICT COMMITTEE FOR CONSIDERING THE
APPLICATIONS FOR REGULARISATION OF UNAUTHORISED
CONSTRUCTIONS, OFFICE OF THE DISTRICT TOWN PLANNER,
ASOOTHRANA BHAVAN, 2ND FLOOR, CIVIL STATION,
AYYANTHOLE P.O, THRISSUR DISTRICT, PIN-680003,
REPRESENTED BY ITS CONVENER.
4 THE DISTRICT TOWN PLANNER AND CONVENER,
OFFICE OF THE DISTRICT TOWN PLANNER,
ASOOTHRANA BHAVAN, 2ND FLOOR, CIVIL STATION,
AYYANTHOLE P.O, THRISSUR DISTRICT, PIN-680003.
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WP(C) NO.15150 OF 2019 2025:KER:17409
5 GURUVAYOOR MUNICIPALITY,
OUTER RING ROAD, KUPPAAYIL,
GURUVAYOOR P.O, THRISSUR DISTRICT,
PIN-680101, REP.BY ITS SECRETARY.
6 THE SECRETARY,
GURUVAYOOR MUNICIPALITY,
OUTER RING ROAD, KUPPAAYIL,
GURUVAYOOR P.O, THRISSUR DISTRICT, PIN-680101.
BY ADVS.
R1 TO 4 BY SRI.T.JAYAN, GOVERNMENT PLEADER
R5 AND R5 BY HARIDAS V N
SAIFUDEEN T.S(K/000746/2018)
PARVATHY S.R.(K/984/2012)
SRI.K.K.CHANDRAN PILLAI (SR.)
SMT.S.AMBILY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
11.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(C) NO.15150 OF 2019 2025:KER:17409
JUDGMENT
The petitioner sought for a building permit seeking
construction on a property owned by him, falling within the
jurisdiction of Guruvayoor Municipality. The Municipality did
not issue the building permit for the alleged reason that the
property wherein the construction was proposed was falling
under the master plan prepared. The petitioner, in such
circumstances, was before this Court by filing W.P.(C)
No.19946 of 2011. By Ext.P6 judgment, this Court found as
under:
"4. In such circumstances, in the light of the
decision of the Apex Court in Raju S. Jethmalani and
others v. State of Maharashtra and others (2005
(11) SCC 222) and the decision of this Court quoted
above, the decision of the Guruvayur Municipality
rejecting the petitioner's application for building permit
cannot be sustained. In the case referred above, the
Apex Court held that though land belonging to private
persons can be included in development plan, unless the
land is promptly acquired by State Government or the
WP(C) NO.15150 OF 2019 2025:KER:17409
Municipal Corporation to effectuate the said purpose, the
land owner cannot be denied the right to use the property
for any other purpose. I am therefore, constrained to
hold that Ext.P5 cannot be sustained.
5. In the result, Ext.P5 order passed by the
Municipality is quashed. The Secretary of the Municipality
is directed to reconsider the application for building
permit submitted by the petitioner and pass appropriate
order expeditiously as possible and in any event, within
a period of three month from the date of receipt of a copy
of this judgment. The petitioner shall produce a copy of
this judgment to the Secretary of the Municipality for
further action."
In the light of the afore the 5th respondent Municipality
considered the application filed by the petitioner and issued
Ext.P1 building permit.
2. On the basis of the building permit so issued, the
petitioner carried out the construction; however, committing
as many as three violations as under:
(i) as against the area of 1048.65 square meters
permitted to be constructed, admittedly, the
construction was for 12068.69 square meters.
WP(C) NO.15150 OF 2019 2025:KER:17409
(ii) as regards the requirement for seven car parks,
the petitioner only provided four car parks.
(iii) as regards the permitted coverage - 65% - the
petitioner went up to 65.69%
3. In the afore circumstances, the petitioner sought
for regularisation by submitting Ext.P2 application dated
18.05.2018. The District Town Planning Committee again
rejected the afore application making a reference to the
master plan and the property wherein the building was
constructed, falling under the master plan referred to earlier.
4. It is in the afore circumstances that the petitioner
has filed the captioned writ petition.
5. I have heard Sri.Dinesh Mathew J. Murikan, learned
counsel for the petitioner, Sri.T.Jayan, learned Government
Pleader for respondents 1 to 4 and Sri.V.N.Haridas, learned
Standing Counsel for the Guruvayoor Municipality.
6. This Court notices that the only reason stated in
WP(C) NO.15150 OF 2019 2025:KER:17409
Ext.P3 for rejecting the regularisation is the master plan, with
reference to the 5th respondent Municipality. This Court,
further notices that, in Ext.P6 judgment dated 22.09.2011,
the provisions of the master plan and the inclusion of the
property in question in the afore master plan were specifically
considered and it is on that basis the building permit was
directed to be issued. When such a building permit is issued,
I find no reason for making reference to the master plan,
again, when an application for regularisation is sought for. In
such circumstances, the regularisation application ought to
be considered with reference to the norms/stipulation for
regularisation under the regularisation Rules.
7. This Court also notices the counter affidavit filed by
the District Town Planner dated 30.09.2019, to the effect that
an appeal ought to have been filed against Ext.P6 judgment.
However, the fact remains that Ext.P6 has been accepted, and
no appeal has been filed as well, as on date.
WP(C) NO.15150 OF 2019 2025:KER:17409
In such circumstances, this writ petition would stand
disposed of as under:
(i) Ext.P3, issued by the 6th respondent is set aside.
(ii) Respondents are directed to consider the
regularisation application at Ext.P2, strictly in
accordance with the regularisation Rules and pass
appropriate orders within a period of one month
from the date of receipt of a copy of this judgment.
Sd/-
HARISANKAR V. MENON
JUDGE
Skk//03.03.2025
WP(C) NO.15150 OF 2019 2025:KER:17409
APPENDIX OF WP(C) NO.15150 OF 2019
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY FOR THE BUILDING PERMIT ISSUED
FROM THE 5TH RESPONDENT DATED 01.05.2012.
EXHIBIT P2 TRUE COPY OF THE APPLICATION FOR
REGULARISATION SUBMITTED BY THE PETITIONER
BEFORE THE 6TH RESPONDENT DATED 18.05.2018.
EXHIBIT P3 TRUE COPY OF THE ORDER NO.E2-8588/18 ISSUED
BY THE 6TH RESPONDENT DATED 20.12.2018.
EXHIBIT P4 TRUE COPY OF THE REVISION PETITION FILED BY
THE PETITIONER BEFORE THE 1ST RESPONDENT
DATED 28.01.2019.
EXHIBIT P5 TRUE COPY OF THE COMMUNICATION ISSUED BY
THE 1ST RESPONDENT REJECTING REVIEW
PETITION DATED 03.04.2019.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN WPC
NO.19946/2011 PASSED BY THIS HONOURABLE
COURT DATED 22.09.2011.
RESPONDENTS' EXHIBITS:
EXHIBIT R4A TRUE COPY OF THE CIRCULAR NO
56164/RD2/12/LSGD DATED 15.5.2013
