Kerala High Court
Haris.E.P vs State Of Kerala on 10 October, 2025
Author: C.S.Dias
Bench: C.S.Dias
2025:KER:75557
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 10TH DAY OF OCTOBER 2025 / 18TH ASWINA, 1947
WP(C) NO. 38902 OF 2024
PETITIONER:
HARIS.E.P.,
AGED 53 YEARS
S/O. MOHAMMAD KOYA, 19/1504 C,
'GRACE', P.O.CHALAPPURAM, KOZHIKODE TALUK, KOZHIKODE
DISTRICT, PIN - 673002
BY ADVS.
SHRI.V.N.HARIDAS
SHRI.SAIFUDEEN T.S
SMT.B.SHAMEERA
SMT.NIMISHAMOL SASIDHARAN
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE PRINCIPLE SECRETARY,
LOCAL SELF GOVERNMENT DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 KOZHIKODE MUNICIPAL CORPORATION,
REPRESENTED BY ITS SECRETARY,
BEACH ROAD, KOZHIKODE, PIN - 673032
3 THE SECRETARY,
KOZHIKODE MUNICIPAL CORPORATION,
BEACH ROAD, KOZHIKODE, PIN - 673032
4 ASSISTANT EXECUTIVE ENGINEER,
KOZHIKODE MUNICIPAL CORPORATION,
BEACH ROAD, KOZHIKODE, PIN - 673032
5 REGIONAL TOWN PLANNER,
REGIONAL TOWN PLANNING OFFICE,
CHAKKORATHUKULAM, KOZHIKODE, PIN - 673011
BY ADV SRI.V.KRISHNA MENON
WP(C) NO. 38902 OF 2024 2
2025:KER:75557
OTHER PRESENT:
SPECIAL GOVERNMENT PLEADER- SMT.DEEPA K.R
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
10.10.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 38902 OF 2024 3
2025:KER:75557
Dated this the 10th day of October, 2025
JUDGMENT
The writ petition is filed to direct the second
respondent- Corporation to reconsider the application
submitted by the petitioner for a building permit.
2. The petitioner is the co-owner of a property
covered under Ext.P1 land tax receipt and situated
within the territorial limits of the second respondent-
Corporation. The entire area is fully developed into a
commercial area. The petitioner's siblings have
constructed commercial buildings adjacent to the
petitioner's property. Consequently, the petitioner
submitted an application for constructing a commercial
building, which is evidenced by Ext. P3 acknowledgment
receipt. The Detailed Town Planning ('DTP' for short)
Scheme of the Corporation has become obsolete. Even
though the petitioner's locality was originally classified
as a residential zone, there are numerous commercial
buildings constructed in the area, dis-regarding the
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obsolete DTP scheme. Though the petitioner had
submitted an application for a building permit, the same
was rejected by Ext. P4 order on the ground that the
property is situated within the residential zone. Ext. P4
order is illegal and arbitrary. Hence, the writ petition.
3. In the statement filed by the fifth respondent, it
is contended that the petitioner proposes to construct a
commercial building in the residential zone. As per Rule
3(3) of the Kerala Municipal Building Rules, 2019
('KMBR', for short), the Master Plan/DTP Scheme under
the Kerala Town and Country Planning Act, 2016, shall
prevail over the respective provisions of the rules. The
petitioner's contention that his property is situated in
Ward 5, Sector 9 of Kozhikode Corporation, developed as
a commercial zone, is incorrect. However, as per the
draft DTP Scheme that is being prepared, the petitioner's
property falls in a mixed use zone overlapping with a
transit-orientated development zone where both
commercial and residential buildings are permitted. The
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draft DTP Scheme is under revision. The draft of the
revised DTP Scheme has been published for public
objections and suggestions, and the matter is under
consideration before the Government. This Court has
categorically held that, public interest outweighs
individual interest. Therefore, the writ petition may be
dismissed.
4. The respondents 2 and 3 have filed a
statement, stating that the petitioner has submitted an
application for construction of a commercial building in
Ward 5, Sector 9 of the Corporation for a plinth area of
402.49 sq. meters. The petitioner has not shown the site
boundary; the ward is notified as a residential zone, and
in the said zone, construction of commercial buildings
beyond 150 m² is not permitted. The DTP Scheme is still
in existence.
5. The respondents 2 and 3 had filed an
additional statement dated 15.09.2025 stating that the
revised DTP Scheme shows that the petitioner's property
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falls within the mixed-use zone where both commercial
and residential buildings are permitted. Therefore,
appropriate orders may be passed in the writ petition.
6. Heard; the learned counsel for the petitioner,
the learned Special Government Pleader and the learned
Standing Counsel appearing for the Corporation.
7. When the writ petition came up for
consideration on 26.08.2025, the learned Standing
Counsel for the respondents 2 to 4 submitted that
certain corrections to the draft revised DTP Scheme
were already forwarded to the District Town Planner,
who in turn has forwarded them to the Government. It is
only after the Government notifies the Scheme, it can be
ascertained whether the petitioner's property falls within
the mixed use zone.
8. Today, when the writ petition is taken up for
consideration, the learned Special Government Pleader
submits that the Government has not notified the revised
DTP Scheme. It is only after the notification is published,
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it would be known whether the petitioner's property is
situated within the mixed zone as per the draft revised
DTP Scheme.
9. It is to be remembered that the petitioner
submitted the application as early as on 18.09.2024. The
additional statement filed by the respondents 2 and 3
shows that, in the revised draft DTP Scheme, the
petitioner's property falls within the mixed use zone, i.e.,
both commercial and residential buildings are permitted.
10. The learned Special Government Pleader is
not certain of the time period within which the revised
DTP Scheme would be notified.
11. On a consideration of the facts and materials
on record, particularly that, in the revised draft DTP
Scheme, the petitioner's property falls within the mixed
use zone and there is no certainty within what time the
revised DTP Scheme would be notified, I direct the third
respondent to consider the petitioner's application for
the building permit, on the basis of the revised DTP
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Scheme. However, if the revised DTP Scheme is not
published within one month, the third respondent shall
issue a provisional building permit to the petitioner
subject to the condition that he rectifies all the defects in
his application, other than for zoning.
The writ petition is ordered accordingly.
Sd/-
C.S.DIAS, JUDGE
mtk/10.10.25
2025:KER:75557
APPENDIX OF WP(C) 38902/2024
PETITIONER EXHIBITS
Exhibit.P1 A TRUE COPY OF THE TAX RECEIPT ISSUED BY
THE VILLAGE OFFICE, KASABA, DATED
02.05.2023
Exhibit.P2 A TRUE COPY OF THE POSSESSION CERTIFICATE
ISSUED BY THE KASABA VILLAGE OFFICE DATED
11.05.2023
Exhibit.P3 A TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT
ISSUED BY THE RESPONDENT CORPORATION
DATED 18.09.2024 EVIDENCING THE BUILDING
PERMIT APPLICATION
Exhibit.P4 A TRUE COPY OF THE REJECTION ORDER ISSUED
BY THE MUNICIPAL CORPORATION TAKEN
PRINTOUT FROM THE K SMART PORTAL OF THE
LSGD, DATED NIL
