Muhammed and Moideenkutty v. Manjeri Municipality and State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. T. Ravikumar
Judgment Date: 2014-06-20
Court Decision / Holding: Ext.P3 is set aside and the second respondent is directed to consider the petitioners’ application afresh in accordance with law, bearing in mind the decision referred to (supra) and the observations in this judgment, and to complete the process within six weeks from receipt of a copy of this judgment.
Final Disposition: Writ petition disposed of accordingly.

Parties to the Case

Appellants / Petitioners

Muhammed
Moideenkutty

Respondents

Manjeri Municipality
Secretary, Manjeri Municipality
State of Kerala represented by the District Collector, Malappuram

Legal Representation & Advocates

Counsels for Petitioners

• P. Venugopal

Counsels for Respondents

• K. Shibili Naha

Case Synopsis & Summary

Petitioners Muhammed and Moideenkutty sought a building permit to construct a commercial building on 52 cents in survey No.45/1, Manjeri village. Their application was rejected under Ext.P3 by the second respondent on the ground that the land lies in an area earmarked for public and semi-public occupancies under the Central area DTP scheme. The petitioners contend that the designation is inconsistent with the respondents’ own practice, since nearby properties have been granted permits for commercial development, including a cinema theatre and a multi-storeyed shopping complex. The respondents do not deny the existence of such nearby development in their statement, which strengthens the petitioners’ challenge to the blanket insistence on the residential-like designation. The court relies on the doctrine laid down in Gopalakrishnan TV v. State of Kerala (2011) 3 KLT 317, which holds that if nearby areas have already seen commercial development, designating the land strictly as a residential zone cannot be an impediment to permitting construction. Consequently, Ext.P3 is set aside and the matter is remitted for fresh consideration by the second respondent, to be completed expeditiously and in accordance with law, within six weeks from receipt of the judgment copy, taking into account the cited precedent and observations herein."

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioners submit that although the land lies in an area earmarked for public and semi-public occupancies under the Central area DTP scheme, the respondents themselves have issued permits for nearby commercial developments (cinema theatre and a multi-storeyed shopping complex). They argue that the designation cannot bar a fresh consideration of their building-permit application where nearby commercial activity exists, and rely on the ruling in Gopalakrishnan TV v. State of Kerala (2011) 3 KLT 317 to contend that the area cannot be treated strictly as residential when commercial use is evident nearby; a fresh, lawful grant should be considered.

Contentions of Respondents

Respondents contend that Ext.P3 correctly refuses the permit on account of the land lying in a zone reserved for public and semi-public occupancies under the Central area DTP scheme. They argue that this zoning designation remains controlling, and that prior nearby approvals do not alter the land’s designated use; the matter must be decided in accordance with the DTP scheme and orderly development.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Gopalakrishnan TV v. State of Kerala	2011 (3) KLT 317	Positive	The court relies on the dictum in Gopalakrishnan TV v. State of Kerala to hold that a land area cannot be strictly treated as residential if nearby commercial development exists and permits have been granted; accordingly, the petitioners’ fresh consideration is warranted.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR FRIDAY, THE 20TH DAY OF JUNE 2014/30TH JYAISHTA, 1936 WP(C).No. 26672 of 2013 (H) ---------------------------- PETITIONER(S): - --------------- 1. MUHAMMED, AGED 72 YEARS, - S/O.MOIDEENKUTTY, PERAPPURATH HOUSE, THURAKKAL P.O MANJERI, MALAPPURAM DISTRICT. 2. MOIDEENKUTTY, AGED 44 YEARS, S/O.MUHAMMED, PERAPPURATH HOUSE, THURAKKAL P.O MANJERI, MALAPPURAM DISTRICT BY ADV. SRI.P.VENUGOPAL (1086/92) RESPONDENT(S): ----------------- ## 1. MANJERI MUNICIPALITY MANJERI, MALAPPURAM DISTRICT REPRESENTED BY ITS SECRETARY 676 121. 2. SECRETARY MANJERI MUNICIPALITY, MANJERI MALAPPURAM DISTRICT. 676 121. ## 3. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR MALAPPURAM 686 505. ## BY SRI.K.SHIBILI NAHA, SC, MANJERI MUNICIPALITY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26672 of 2013 (H) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS --------------------------- EXHIBIT P1. COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, MANJERI IN FAVOUR OF THE PETITIONERS. EXHIBIT P2. COPY OF THE SITE PLAN SHOWING THE LIE OF THE PROPERTY OF THE PETITIONER. EXHIBIT P3. COPY OF THE NOTICE/ORDER VIDE NO.E3.14841/13 DATED 18.10.2013 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER. EXHIBIT P4. COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC NO.4303/2011 DATED 02.08.2011. EXHIBIT P5. COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC NO.3917/2012 DATED 16.02.2012. RESPONDENT(S)' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. dlk ## **C.T. RAVIKUMAR, J. ========================== W.P.(C). No.26672 OF 2013 ==========================** Dated this the 20[th] day of June, 2014 ## **JUDGMENT** The grievance of the petitioners is against the rejection of an application submitted by them for grant of building permit to construct a commercial building in a property having an extent of 52 cents comprised in survey No.45/1 of Manjeri village. The said application was rejected as per Ext.P3 assigning the reason that the land in question lies in an area earmarked as 'public and semi public area occupancies' under the Central area DTP scheme. Essentially, the contention of the petitioners is that despite the fact that the said area is reserved for 'public and semi public occupancies', the respondents themselves have granted permits for constructing buildings in the nearby properties. It is the further contention that a cinema theatre and multi storied shopping complex have been constructed in the nearby properties. Though such a specific contention has been taken **W.P.(C).26672/13** 2 by the petitioners the said fact is not disputed in the statement filed on behalf of the first respondent. Going by Ext.P3, the application for building permit was rejected assigning the reason that the land in question lies within an area earmarked as 'public and semi public occupancies' under the Central area DTP scheme. In view of the specific contention of the petitioners that in the nearby properties cinema theatre and shopping complex were already constructed and in the absence of any denial of the said fact in the statement, I am of the view that the respondents are bound to consider the application of the petitioners afresh. This is inevitable in the light of the decision of this Court in **GopalakrishnanT.V. v. State of Kerala [2011 (3) KLT 317]** . In that case, the application submitted by the petitioner for building permit to construct commercial building was rejected on the ground that the area in question was earmarked as a residential zone. Taking note of the fact that the respondents themselves granted permits for constructing commercial buildings, this Court held that the **W.P.(C).26672/13** 3 area in question could not be considered any further as an area reserved exactly as a residential zone. I am of the view that the same dictum will squarely apply in this case. If commercial buildings were already constructed in the same area, the respondents cannot reject the application submitted by the petitioners assigning the reason that the land in question lies in an area earmarked as 'public and semi public area occupancies' under the Central area DTP scheme and therefore, such constructions could not be permitted within the said area. In view of the above discussions, I am of the considered view that the application submitted by the petitioners requires a fresh consideration at the hands of the respondents. To enable the second respondent to consider the application afresh, Ext.P3 order is set aside. Consequently, there will be a direction to the second respondent to consider the application submitted by the petitioners afresh bearing in mind the decision referred (supra) and the observations made hereinbefore. This shall be done expeditiously and in accordance with **W.P.(C).26672/13** 4 law, at any rate, within a period of six weeks from the date of receipt of a copy of this judgment. Writ petition is disposed of accordingly. **Sd/C.T. RAVIKUMAR (JUDGE)** **spc/** **W.P.(C).26672/13** 5 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **W.P.(C).26672/13** 6