Kerala High Court
The Kozhikode Municipal Corporation, ... vs C.M.Inayath Khan on 27 June, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 27TH DAY OF JUNE 2025 / 6TH ASHADHA, 1947
WP(C) NO. 17773 OF 2024
PETITIONER/S:
THE KOZHIKODE MUNICIPAL CORPORATION, REP. BY ITS
SECRETARY,
BEACH P.O., KOZHIKODE, PIN - 673032
BY ADV SRI.G.SANTHOSH KUMAR (P).
RESPONDENT/S:
1 C.M.INAYATH KHAN,
AGED 49 YEARS
S/O.ABDUL RAHIMAN, JAFFAR KHAN HOUSE, JAFFAR KHAN
COLONY, ERANHIPALAM P.O, KOZHIKODE, PIN - 673006
2 THE DISTRICT TOWN PLANNER,
OFFICE OF THE DISTRICT TOWN PLANNER LSGD PLANNING, IV
FLOOR, KUDFC BUILDING CHAKKORATHUKULAM, WEST HILL P.O.,
KOZHIKODE, PIN - 673005
3 THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS,
CHALAKUZHI ROAD, CHALAKUZHI, THIRUVANANTHAPURAM, PIN -
695011
4 C.M.SHOUKATH ALIKHAN,
S/O. LATE ABDUL RAHIMAN KAN, KHAN VILLA,
ERANHOLIPARAMBU, P.O. CHEVAYOOR, CALICUT. ( SOUGHT TO
BE IMPLEADED )
BY ADVS.
FOR R1 BY SHRI.T.C.GOVINDASWAMY
R4 BY SRI.P.R.VENKATESH
SMT.KALA T.GOPI
SHRI.KAILESH T. GOPI
SMT.NISHITHA BALACHANDRAN
SRI.SAJEEVAN KURUKKUTTIYULLATHIL
SHRI.RAHUL R.
SMT.ASHA P.KURIAKOSE
SMT.LAKSHMI MEENAKSHI P.R.
SMT. PREETHA K.K. SR. GOVT.PLEADER FOR THE STATE.
2025:KER:44856
WP(C) Nos.17773/2024 & Con.cases 2
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
17.03.2025, ALONG WITH WP(C)Nos.17792/2024 & 25340/2024, THE
COURT ON 27.06.2025 DELIVERED THE FOLLOWING:
2025:KER:44856
WP(C) Nos.17773/2024 & Con.cases 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 27TH DAY OF JUNE 2025 / 6TH ASHADHA, 1947
WP(C) NO. 17792 OF 2024
PETITIONER/S:
THE KOZHIKODE MUNICIPAL CORPORATION, REP. BY ITS
SECRETARY,
BEACH P.O., KOZHIKODE, PIN - 673032
BY ADV SRI.G.SANTHOSH KUMAR (P).
RESPONDENT/S:
1 MOHAMMED REGIL,
AGED 36 YEARS
S/O BEERAN KOYA, NASEEB, EXHIBITION ROAD,
PUTHIYANGADI, WEST HILL P.O, KOZHIKODE, PIN - 673005
2 THE DISTRICT TOWN PLANNER,
OFFICE OF THE DISTRICT TOWN PLANNER LSGD PLANNING, IV
FLOOR, KUDFC BUILDING CHAKKORATHUKULAM, WEST HILL
P.O., KOZHIKODE, PIN - 673005
3 THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS,
CHALAKUZHI ROAD, CHALAKUZHI,THIRUVANANTHAPURAM, PIN -
695011
SMT. PREETHI K.K., SR.GOVT. PLEADER FOR THE STATE.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
17.03.2025 ALONG WITH WP(C)NO.17773/2024 AND CONNECTED CASES,
THE COURT ON 27.06.2025 DELIVERED THE FOLLOWING:
2025:KER:44856
WP(C) Nos.17773/2024 & Con.cases 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 27TH DAY OF JUNE 2025 / 6TH ASHADHA, 1947
WP(C) NO. 25340 OF 2024
PETITIONER/S:
C.M. SHOUKATH ALIKHAN,
AGED 62 YEARS
S/O. LATE ABDUL RAHIMAN KAN, KHAN VILLA,
ERANHOLIPARAMBU, P.O. CHEVAYOOR, CALICUT, PIN -
670017
BY ADVS.
SRI.P.R.VENKATESH
SMT.ASHA P.KURIAKOSE
SMT.LAKSHMI MEENAKSHI P.R.
RESPONDENT/S:
1 KOZHIKODE MUNICIPAL CORPORATION,
MUNICIPAL OFFICE,BEACH ROAD, KOZHIKODE, REPRESENTED
BY ITS SECRETARY, PIN - 673032
2 CHIEF TOWN PLANNER,
OFFICE OF THE CHIEF TOWN PLANNER, TOWN AND COUNTRY
PLANNING DEPARTMENT, THIRUVANANTHAPURAM, PIN - 695001
3 C.M. INAYATH KHAN,
S/O. ABDUL RAHMAN, JAFFAR KHAN HOUSE, JAFFAR KHAN
COLONY, ERANHIPALAM P.O., KOZHIKODE, PIN - 673006
4 THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS,
CONVENT RD, NEAR COURT JUNCTION, RISHIMANGALAM,
VANCHIYOOR, THIRUVANANTHAPURAM, KERALA,REP BY ITS
SECRETARY, PIN - 695035
2025:KER:44856
WP(C) Nos.17773/2024 & Con.cases 5
BY ADVS.
FOR R1 BY SRI.G.SANTHOSH KUMAR (P).
FOR R3 BY SHRI.T.C.GOVINDASWAMY
SRI.SAJEEVAN KURUKKUTTIYULLATHIL
SMT.KALA T.GOPI
SHRI.KAILESH T. GOPI
SHRI.RAHUL R.
SMT.MAMATHA S. ANILKUMAR
SHRI.G.SREEKUMAR (CHELUR)
SMT.PREETHA K.K., SR. GOVT.PLEADER FOR THE STATE.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
17.03.2025 ALONG WITH WP(C)NO.17773/2024 AND CONNECTED CASES,
THE COURT ON 27.06.2025 DELIVERED THE FOLLOWING:
2025:KER:44856
WP(C) Nos.17773/2024 & Con.cases 6
JUDGMENT
[WP(C) Nos.17773/2024, 17792/2024 & 25340/2024]
....
All these writ petitions are filed by the respective petitioners
challenging a common order passed by the Tribunal For Local Self
Government Institutions, Thiruvananthapuram in Appeal
Nos.328/2023 and 329/2023. The aforesaid appeals were filed by the
1st respondent in WP(C)No.17773/2024 and the 1 st respondent in
WP(C)No.17792/2024. Their grievances was that the applications
submitted by the said respondents for building permits were rejected
by the Kozhikode Municipal Corporation (hereinafter referred to as
'Corporation') mainly on two reasons. The first reason was that, the
area where the buildings are proposed to be constructed, is included
in the residential zone as per the DTP scheme now in existence, where
the commercial buildings only upto 150 sq. Meters alone are
permitted. As far as the buildings proposed to be constructed by the
said respondents are concerned, the same are having plinth area of
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more than 150 sq.meters and the nature of buildings are commercial.
Therefore, according to the Corporation, the permits could not be
granted. The 2nd reason mentioned is that in one of the cases, as per
revenue records, the property is included as Nanja and therefore no
construction can be carried out thereon.
2. After hearing all the parties concerned, the Tribunal for
Local Self Government Institutions allowed the said appeals by setting
aside the orders passed by the Corporation, rejecting the application
for permit. With regard to the objection raised, in connection with the
nature of the property as Nanja, the Tribunal took note of the fact
that, the applicant had already obtained necessary permission from
the authorities under the Kerala Conservation of Paddy Land and
Wetland Act,2008 and an amount of Rs.83,04,215/- has already
deposited as part of the same. Therefore, it was found that the
categorization of land cannot be treated as a ground for rejection for
permit.
3. With regard to the objection of the Corporation in the light
of the DTP scheme now in existence, the Tribunal relied on the
judgment rendered by this Court in Basheer C.K. v. Kozhikode
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Corporation [2021(3) KHC 578] wherein, in respect of the very
same Corporation and also with respect to the very same DTP
Scheme, this Court found that, the objection is not sustainable. Thus,
the decision to set aside the orders passed by the Corporation to reject
the applications for permit submitted by the said respondents were
set aside by the Tribunal on that ground by a common order.
4. This order is challenged by the Kozhikode Municipal
Corporation, in WP(C)No.17773/2024 and WP(C)No.17792/2024.
5. WP(C)No.25340/2024 is filed by an individual challenging
the very same order passed in Appeal No.328/2023. The said
challenge is raised by the petitioner therein on the ground that, the
petitioner had already filed O.S.No.243/2013 before the Sub Court,
Kozhikode seeking partition of certain properties, which include the
property involved in Appeal No.328/2023. A preliminary decree was
already passed in O.S. No.243/2013 allotting 2/8 shares to the said
petitioner/plaintiff therein in respect of item Nos. 1 to 4 and in
respect of item Nos.5 to 7, the said petitioner/plaintiff was granted
20/32 shares. The appellant in Appeal No.328/2023, who is the 3 rd
respondent in WP(C)No.25340/2024 had already filed R.F.A.
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No.162/2016 before this court and passing of the final decree in the
said case has been stayed. The said appeal is now pending
consideration. Therefore, it was contended that, as the properties
covered by the suit have not been divided by metes and bounds, which
process is pending consideration, the attempt of the 3 rd respondent in
WP(C)No.25340/2024 to obtain a building permit was not proper. It
was in these circumstances, the said petitioner is challenging the
order passed in appeal.
6. I have heard Sri. Santhosh Kumar G., the learned counsel
appearing for the petitioner in WP(C)No.17773/2024 and
17792/2024, Sri. T.C. Govindaswamy, the learned counsel appearing
for the 1st respondent in WP(C) No.17773/2024 and 3 rd respondent in
WP(C)No.25340/2024 and Smt. Preetha K.K., Senior Govt. Pleader
appearing for the State.
7. The main contention raised by the Corporation while
challenging the order passed by the Tribunal which is Ext.P2 in
WP(C)No.17773/2024 and Ext.P1 in WP(C)No.17792/2024 is that
going by the DTP scheme, the area in which the proposed
constructions are to be made, is included in residential zone where
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commercial buildings upto 150 sq.meters alone is permitted.
8. In the statement filed by the 2 nd respondent, in
WP(C)No.17773/2024, the District Town Planner, the said
respondent supported the contentions raised by the Corporation by
placing reliance upon the observations made by this Court in
WP(C)No.22527/2023 (Andru P.P. v. Kozhikode
Corporation) which was passed after referring to the observations
made by this Court in Regional Town Planner v. Muhammed
Rasheed [2019(3) KLT 433]. It was contended that, as per Section
61 of the Kerala Town and Country Planning Act, wherever both the
master plan and DTP scheme are enforced, provisions of the DTP
scheme will have precedence.
9. On the other hand, the specific contention raised by the
respondents who are seeking permits for their respective properties is
that, the area in which the constructions are proposed, by nature of
the developments now occurred, no longer remains as a residential
area. It was pointed out that the Corporation itself has granted
permits to construct various commercial buildings with a plinth area
exceeding 150 square meters. Therefore, the authorities themselves
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failed to implement the DTP scheme and this was taken note of by this
Court in the case of Basheer C.K's case (supra).
10. After carefully going through the orders passed by the
Tribunal and also going through various decisions rendered by this
Court, I find merits in the submission made by the
respondents/appellants before the Tribunal. This is particularly
because, in Basheer C.K's case (supra), this Court specifically
considered the very same DTP scheme and took note of the fact that
the Master Plan or the Detailed Town Planning scheme has not been
revised by the Corporation in this case within the time stipulated in
Section 50(1) of the Kerala Town and Country Planning Act, 2016 and
accordingly, the reliefs were granted to the petitioner therein in
similar circumstances. Of course, the learned counsel for the
Corporation brought the attention of this Court to a decision rendered
by this Court in Unnikrishnan V. v. Kozhikode Municipal
Corporation [2023 KHC 9436], wherein, a contrary view was
taken by this Court, by upholding the supremacy of the DTP scheme,
with respect to the very same Corporation. However, in the said
decision, [Unnikrishnan V.'s case (supra)], the decision rendered
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by this Court in Basheer C.K's case (supra) was not considered and
the impact of lack of revision of DTP schemes within the period
stipulated in Section 50(1) of the Act was also not taken into account.
It is to be noted in Basheer C.K's case (supra) which was relied on
by the Tribunal, this Court specifically took note of the fact that, as the
authorities itself has granted permission to construct building against
the DTP schemes, thereby changing the development scenario in the
area in question, the doctrine of desuetude viz., the principle of non
use of the provision applies. It was in those circumstances, directions
were issued by this Court to the Corporation to grant relief to the
petitioner therein and also general directions to make timely revision
of the Master Plan and DTP scheme in tune with the development
trends in the areas concerned. Of course, it is true that, the aforesaid
judgment is now pending before the Division Bench in appeal.
However, that fact by itself cannot be a reason not to follow the
principles laid down in the said judgment. Moreover, I find no
illegality on the part of the Tribunal in following the said judgment, in
view of the fact that in this case also, the appellants before the
Tribunal have specifically pointed out certain instances where the
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constructions of commercial buildings beyond 150 sq.meters were
permitted by the authorities concerned in the locality, which has not
been denied. Therefore, I do not find any scope for interfering with
the order passed by the Tribunal.
11. As far as the contentions raised by the petitioner in
WP(C)No.25340/2024 is concerned, i.e., based on the rights which he
claims in the property, it is an admitted position that the dispute with
regard to the right of the said petitioner is now pending before this
Court in R.F.A. No.162/2016. Since the right of the petitioner in
WP(C)No.25340/2024 was not the ground on which an application
for building permit was rejected, I am of the view that, those
contentions need not be considered in this writ petition. It would be
suffice, if the petitioner in WP(C)No.25340/2024 is also given an
opportunity to be heard while considering the application for building
permit afresh.
In such circumstances, these writ petitions are dismissed.
However, it is clarified that, while re-considering the application for
building permit as directed by the Tribunal in the impugned
judgment, in respect of the application of the appellant in appeal
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No.328/2023 and before granting the same, the petitioner in
WP(C)No.25340/2024 shall also be heard.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE
pkk
2025:KER:44856
APPENDIX OF WP(C) 17792/2024
PETITIONER EXHIBITS
EXHIBIT-P1 TRUE COPY OF THE REJECTION ORDER DATED
25/05/2023 ISSUED BY THE PETITIONER.
EXHIBIT-P2 CERTIFIED COPY OF THE ORDER DATED
02/02/2024 IN APPEAL NO.329/2023 PASSED BY
THE TRIBUNAL FOR LOCAL SELF GOVERNMENT
INSTITUTIONS, THIRUVANANTHAPURAM.
2025:KER:44856
APPENDIX OF WP(C) 25340/2024
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF PLAINT IN OS NO. 243/2013
DATED 30.3.2013
EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 18.12.2015
IN OS NO. 243/2013 BEFORE THE SUB COURT,
KOZHIKODE
EXHIBIT P3 TRUE COPY OF THE DECREE DATED 18.12.2015 IN
OS NO. 243/2013 BEFORE THE SUB COURT,
KOZHIKODE
EXHIBIT P4 TRUE COPY OF CROSS OBJECTION ALONG WITH
DELAY CONDONATION PETITION DATED 3.7.2024
IN R.F.A. NO. 162 OF 2016
EXHIBIT P5 TRUE COPY OF THE LAWYER NOTICE DATED
3.4.2023 ISSUED TO THE SECRETARY AND TOWN
PLANNING OFFICER
EXHIBIT P6 TRUE COPY OF THE REPLY DATED 25.5.2023
REJECTING THE PRAYER OF THE 3RD RESPONDENT
BY THE CALICUT CORPORATION
EXHIBIT P7 TRUE COPY OF THE COMMON ORDER DATED
2.2.2024 IN APPEAL NO. 328/2023 AND NO.
EXHIBIT P8 TRUE COPY OF THE WRITTEN STATEMENT FILED BY
KOZHIKODE CORPORATION IN APPEAL NO.
328/2013 BEFORE THE 4TH RESPONDENT TRIBUNAL
RESPONDENT EXHIBITS
EXHIBIT-R3(A) A TRUE COPY OF THE INTERIM ORDER PASSED BY
THIS HON'BLE COURT IN THE RFA NO.162/2016
DATED 15.03.2016.
EXHIBIT-R3(B) A TRUE COPY OF THE CASE DETAILS IN RESPECT
OF WRIT PETITION(C) NO.17773/2024,
DOWNLOADED FROM THE WEBSITE OF THE HON'BLE
HIGH COURT ON 21.07.2024
EXHIBIT-R3(C) A TRUE COPY OF THE I.A. NO.1/2024 IN WRIT
PETITION(C) NO.17773/2024 DATED 01.07.2024
EXHIBIT-R3(D) A TRUE COPY OF THE CROSS OBJECTION
NO.77/2024 DOWNLOADED FROM THE WEBSITE OF
THE HON'BLE HIGH COURT OF KERALA AT 2.32
P.M. ON 21.07.2024
2025:KER:44856
APPENDIX OF WP(C) 17773/2024
PETITIONER EXHIBITS
EXHIBIT-P1 TTRUE COPY OF THE REJECTION ORDER DATED
25/05/2023 ISSUED BY THE PETITIONER.
EXHIBIT-P2 CERTIFIED COPY OF THE ORDER DATED
02/02/2024 IN APPEAL NO.328/2023 PASSED BY
THE TRIBUNAL FOR LOCAL SELF GOVERNMENT
INSTITUTIONS, THIRUVANANTHAPURAM.
RESPONDENT EXHIBITS
EXHIBIT-R1(A) A TRUE COPY OF THE LETTER BEARING
NO.LSGD/JD/KKD/3328/2024-D4 DATED
14.05.2024, ISSUED BY THE JOINT DIRECTOR,
LOCAL SELF GOVERNMENT, KOZHIKODE
EXHIBIT-R1(B)(1) TRUE COPY OF THE PHOTOGRAPHS OF THE
BUILDINGS OPPOSITE TO THE PROPERTY OF THIS
RESPONDENT.
EXHIBIT-R1(B)(2) TRUE COPY OF THE PHOTOGRAPHS OF THE
BUILDINGS OPPOSITE TO THE PROPERTY OF THIS
RESPONDENT.
EXHIBIT-R1(C) A TRUE COPY OF THE BUILDING PERMIT DATED
02/05/2018 ISSUED BY THE SUPERINTENDING
ENGINEER OF THE CORPORATION OF KOZHIKODE.
EXHIBIT-R1(F) A TRUE COPY OF WRITTEN STATEMENT DATED
18.12.2023 FILED BY THE PETITIONER-
CORPORATION BEFORE THE LEARNED TRIBUNAL
EXHIBIT-R1(G) A TRUE COPY OF THE RELEVANT PAGES OF 9, 10
AND 11 OF THE MASTER PLAN FOR KOZHIKODE
CORPORATION, REFERRED TO BY THE PETITIONER
IN THE WRIT PETITION.
EXHIBIT-R1(H) A TRUE COPY OF THE RECEIPT OF TAX
REMITTANCE BEARING NO.KL11011507097/2023
DATED 01.08.2023.
EXHIBIT-R1(E) A TRUE COPY OF THE APPEAL NO.328/2023 DATED
12.06.2023 SUBMITTED BY THE PETITIONER
BEFORE LEARNED TRIBUNAL.
EXHIBIT-R1(D) A TRUE COPY OF THE BUILDING PERMIT DATED
08/12/2021 ISSUED BY THE SUPERINTENDING
ENGINEER OF THE CORPORATION OF KOZHIKODE.
