Fathima Beevi v. Aluva Municipality and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN`** ``` WEDNESDAY, THE 8[TH] DAY OF MARCH 2023 / 17TH PHALGUNA, 1944 ``` ``` WP(C) NO. 42333 OF 2022 ``` ## **`PETITIONER:`** ``` FATHIMA BEEVI, AGED 55 YEARS W/O. SAYED MUHAMMED, ALUNGAPARAMBIL HOUSE, CHARISHMA COTTAGE, CHEGGAMANAD VILLAGE, ALUVA, ERNAKULAM – 683585, REPRESENTED BY HER POWER OF ATTORNEY HOLDER, SRI.ABDUL NAZAR KA, AGED 57 YEARS, S/O. AHAMMED KUNJU, ANIKADU HOUSE, CHALACKAL KARA, MARAMBILLY P.O., ERNAKULAM -683105. ``` ``` BY ADVS. ``` ``` P.A.MOHAMMED SHAH RENOY VINCENT HELEN P.A. ARUN ROY SHAHIR SHOWKATH ALI ``` ## **`RESPONDENTS:`** - **`1 ALUVA MUNICIPALITY, ALUVA P.O., ERNAKULAM - 68301 REPRESENTED BY ITS SECRETARY.`** - **`2 SECRETARY, ALUVA MUNICIPALITY, ALUVA P.O., ERNAKULAM - 68301.`** - **`3 SENIOR TOWN PLANNER, DISTRICT PLANNING OFFICE, KAKKANAD, CIVIL STATION, ERNAKULAM - 682030.`** ``` K T THOMAS MATHEW BOB KURIAN(K/381/1991) SRI.APPU P.S. - GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ``` 08.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 42333 OF 2022 ``` ``` 2 ``` ## **ANU SIVARAMAN, J** **= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.42333 of 2022** **= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 8[th] day of March, 2023** ## **JUDGMENT** This writ petition is filed seeking the following prayer: _“i) To issue a writ of mandamus directing the Respondent No.2 to consider Exhibit P3 application and issue building permit to the petitioner de hors the DTP Scheme prepared for Thottakkattukara”_ 2. Heard the learned counsel for the petitioner, the learned standing counsel appearing for the Municipality as well as the learned Government Pleader. 3. The petitioner contends that she is the owner in possession of 2.83 Ares of property in Re-Survey No.7 of Aluva West Village in Aluva Taluk within the limits of the respondent-Municipality. The property was purchased in the year 2013 for the purpose of construction of a commercial building and Ext.P3 application for building permit dated 05.11.2022 was also submitted. However, the respondents are refusing to consider the application on the ground that ``` WP(C) NO. 42333 OF 2022 ``` ``` 3 ``` the property lies within a residential zone in the Detailed Town Planning Scheme for the Thottakkattukara area prepared in the year 1973. It is the specific case of the petitioner that after the coming into force of the scheme, several building permits have been granted for commercial buildings in the immediate vicinity of the petitioner’s property and therefore, the DTP Scheme has not been implemented in the area in question. It is submitted that there is a three storied commercial building directly opposite the petitioner’s property and that the entire area is surrounded by other commercial buildings as well. 4. The learned counsel for the petitioner places reliance on the decisions of this Court in **Basheer C.K. vs. The Kozhikode Corporation and Others** [2021 (3) KHC 578] and in **Purnima V. Desai and others vs. The State of Kerala and others** in MANU/KE/2535/2020 and contends that the application of the petitioner is liable to be considered, in accordance with law, without insisting on complying with the Zoning Regulations in the DTP Scheme. ``` WP(C) NO. 42333 OF 2022 ``` ``` 4 ``` 5. The learned Government Pleader submits that since a DTP Scheme is admittedly in force in view of the provisions of the Kerala Town and Country Planning Act, 2016, any application for building permit can be considered only in accordance with the terms of the Scheme. It is submitted that even in case a master plan has been prepared for the area, the DTP Scheme would not become obsolete or inapplicable and that it is only after getting specific exclusions from the Government as recommended by the Chief Town Planner that any further action can be taken in that regard. The learned Government Pleader places reliance on a decision of a Division Bench of this Court in **State of Kerala and another vs. Shareef V. and another** [2021 (2) KLT 338]. 6. A statement has been placed on record by the respondentMunicipality stating that the Municipality had forwarded the application of the petitioner along with location sketch to the Senior Town Planner for getting clarification as to whether the particular survey number is included in the DTP Scheme for Thottakkattukara in the Aluva Municipality. The Senior Town Planner vide letter dated ``` WP(C) NO. 42333 OF 2022 ``` ``` 5 ``` 30.11.2022 intimated that Town Block No.10, Re-Survey No.7 comes under the residential zone as the DTP Scheme for per Thottakkattukara and hence, commercial use is not permissible. It is submitted that the Municipality has preferred an application before the Government for modification/dispensation of the Scheme in terms of G.O.(M.S.) No.306/2015 LSGD dated 29.09.2015 and Circular dated 18.02.2016. However, no reply is received from the Government till date. It is further submitted that Rule 3(3) of the Kerala Municipality Building Rules, 2019 lays down that provisions in any Master Plan/Detailed Town Planning Scheme/Interim Development Order shall prevail over the respective provisions of the Building Rules, wherever such Plan/Scheme/Order exist. 7. Having considered the contentions advanced, I notice that the petitioner’s application for building permit is not being considered on account of the fact that the DTP Scheme provides that the property in question is a residential area. The petitioner has a specific contention that the property in question is surrounded by commercial buildings and that there is a commercial building existing right opposite the ``` WP(C) NO. 42333 OF 2022 ``` ``` 6 ``` petitioner’s plot. The fact as stated by the petitioner that the area is not a residential area, at present, also seems to be borne out by the statement filed on behalf of the Municipality. Though the learned Government Pleader submits that it is only after modification of the DTP Scheme that the application of the petitioner can be considered, I am of the opinion that since the petitioner has purchased the property taking note of the commercial viability of the same, the right of the petitioner to put up a building in the premises cannot be thwarted by the respondents on the ground that there is a DTP Scheme in force even though it has not been implemented in the area. In view of the fact that the Municipality has itself approached the Government seeking a variation of the DTP Scheme, which was notified in the year 1973, I am of the opinion that the petitioner cannot be asked to wait indefinitely till a decision is taken by the Government in the matter. 8. There will, accordingly, be a direction to the respondents to consider the application submitted by the petitioner for building permit, taking note of the specific contention that there are commercial buildings in the vicinity of the property. This shall be ``` WP(C) NO. 42333 OF 2022 ``` ``` 7 ``` done without insisting on orders being obtained from the Government on the request for variation of the Scheme. Appropriate steps for the consideration of the application submitted by the petitioner for building permit shall be taken by the 2[nd] respondent in terms of the Kerala Municipality Building Rules, 2019, within a period of one month from the date of receipt of a copy of this judgment. This writ petition ordered accordingly. Sd/- **ANU SIVARAMAN JUDGE** NP ``` WP(C) NO. 42333 OF 2022 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 42333/2022`** ``` PETITIONER’S EXHIBITS Exhibit P1THE TRUE COPY OF THE GENERAL POWER OF ATTORNEY EXECUTED BY THE PETITIONER DATED 11.11.2021. Exhibit P2THE TRUE COPY OF THE LAND TAX RECEIPT ISSUED TO THE PETITIONER DATED 13.07.2022. Exhibit P3THE TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT SUBMITTED BY THE PETITIONER. Exhibit P4THE TRUE COPY OF THE FEE RECEIPT ISSUED TO THE PETITIONER BY THE RESPONDENT NO.1 DATED 05.11.2022. Exhibit P5THE TRUE COPY OF THE ACKNOWLEDGMENT SLIP ISSUED TO THE PETITIONER BY THE RESPONDENT NO.1 DATED 05.11.2022. Exhibit P6THE PHOTOGRAPHS OF THE PETITIONER'S PROPERTY. RESPONDENTS’ EXHIBITS: NIL ```