Niyas and John Kennady v Palakkad Municipality and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 20TH DAY OF APRIL 2021 / 30TH CHAITHRA, 1943** ## **WP(C).No.7481 OF 2021(I)** ## **PETITIONERS:** - **1 NIYAS AGED 38 YEARS S/O. GANESH KUMAR, PENSION STREET, HOUSE NO. 39/630, KOPPAM P.O, PALAKKAD DISTRICT, PIN 678 001** - **2 JOHN KENNADY, AGED 39 YEARS S/O. LATE AMBROSE, MANIYAKARAR HOUSE, PAMPAMPALLAM P.O, ATTAPALLAM, PALAKKAD DISTRICT, PIN 678 621** **BY ADVS. SRI.JACOB SEBASTIAN SRI.K.V.WINSTON SMT.ANU JACOB** ## **RESPONDENTS:** - **1 THE PALAKKAD MUNICIPALITY REPRESENTED BY ITS SECRETARY,MUNICIPAL OFFICE, PALAKKAD DISTRICY,PIN 678 001** - **2 THE SECRETARY, PALAKKAD MUNICIPALITY, MUNICIPAL OFFICE, PALAKKAD DISTRICT, PIN 678 001** - **3 THE DISTRICT TOWN PLANNING OFFICER, PALAKKAD, CIVIL STATION, PALAKKAD DISTRICT, PIN-678 001.** - **4 THE REVENUE DIVISIONAL OFFICER, OFFICE OF THE REVENUE DIVISIONAL OFFICE, COLLEGE ROAD, PALAKKAD DISTRICT, PIN 678 001** **R1-2 BY ADV. SHRI.BINOY VASUDEVAN, SC, PALAKKAD MUNICIPALITY R3 & R4 BY GOVT.PLEADER SMT.VINITHA B.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.7481 of 2021 -2- ## **T.R. RAVI, J.** **-----------------------------------------------W.P.(C)No.7481 of 2021** **--------------------------------------------------** ## **Dated this the 20[th] day of April, 2021 JUDGMENT** The petitioners are owners of a commercial plot having an extent of 0.0652 hectares in old Sy. No. 1189/17, 1201/7 and 1203/5 in Resurvey Block 2/28 of Palakkad-2 Village in Palakkad Taluk, within the limits of the Palakkad Municipality. The plot was previously included in the data bank prepared under the Kerala Consideration of Paddy land and Wetland Act, 2008 (hereinafter referred to as the Act). By order dated 17.11.2019, the said entry was deleted from the data bank. The petitioners had submitted an application before the 4[th] respondent under Section 27A of the Act, requesting for orders enabling the use of the land for other purposes. On 27.1.2021, the 4[th] respondent issued Exhibit P2 order under Section 27A(3) directing the petitioners to pay the requisite fee in terms of Rule 12(9) of the Paddy and W.P.(C)No.7481 of 2021 -3- Wetland Conservation Rules. 2. The petitioner has thereafter applied for a building permit to construct a commercial building, on 23.2.2021, which was rejected by the 2[nd] respondent by Ext.P3 order, for the reason that the plot is located in a paddy zone under the sanctioned master plan for Palakkad town. The Writ petition has been filed challenging Ext.P3 order on the ground that this Court has held in Exts.P4 and P5 judgments that in cases where a draft Master plan is available, the consideration of an application for building permit shall be under the draft master plan and that the same cannot be under a previously issued obsolete master plan. It is a case of the petitioner that as far the Palakkad town was concerned, the sanctioned master plan prepared by the Town and Country Planning Department of Kerala in 1986 with the horizon upto 2001 was the sanctioned plan available. It is submitted that the Municipal Council had taken a resolution on 2.5.2006 to revise the master plan and a draft master plan was prepared as per GO(MS) No. 280/08/LSGD dated 25.10.2008. It is further submitted that the sanctioned master plan of the year 1986 was W.P.(C)No.7481 of 2021 -4- revised by GO(MS) No.210/09/LSGD dated 11.11.2009, which permitted construction of commercial buildings to a depth of 50m on the side of roads having a width of 15m or more. It is further stated that even in paddy zones construction was permitted subject to certain restrictions. 3. Heard Sri Jacob Sebastian, counsel for the petitioner, Sri Binoy Vasudevan Standing counsel appearing for respondents 1 and 2 and the Government Pleader appearing for respondents 3 and 4. The counsel for the petitioner submitted that the issue is covered by Exhibits P4 and P5 judgments of this Court, which had become final. The counsel for the Palakkad Municipality fairly submitted that Exts.P4 and P5 judgments have not been appealed against. In Exhibit P4, the petitioner therein had challenged an order of the Secretary of the Palakkad Municipality, rejecting building permit on the ground that the property was classified as a residential zone in the Town Planning Scheme which had been issued in 1986. Relying on the judgment in **Raju.S. Jethmalani and others vs. State of Maharashtra and others** reported in **[(2005)11 SCC 222]** and the judgment W.P.(C)No.7481 of 2021 -5- dated 11.10.2019 in W.P.(C) No. 3077 of 2019, relating to the very same Municipality, this Court in Ext.P4 judgment held that where there is a change in the classification of the area in the draft master plan issued in 2016, even if the draft master plan is yet to be finalised, the building permit cannot be rejected on the basis of the zoning under the earlier master plan. In Ext.P5 judgment, this Court was considering the challenge to an order issued by the Secretary of the Palakkad Municipality, in a case where the construction was sought to be made in an area which was a paddy zone under the earlier master plan, as in the present case. This Court allowed the Writ petition and directed the 1[st] respondent therein to consider the application submitted by the petitioner for grant of building permit by referring to the draft master plan. I do not find any reason to take a different view than the one which has been taken in Exts.P4 and P5 judgments of this Court. 4. In the above circumstances, Exhibit P3 order is quashed. The respondents are directed to reconsider the application for building permit submitted by the petitioner in accordance with W.P.(C)No.7481 of 2021 -6- the draft master plan which has been prepared as per GO(MS) No.280/08/LSGD dated 25.10.2008 and GO(MS) No. 210/09/ LSGD dated 11.11.2009, and pass fresh orders within a period of one month from the date of receipt of a certified copy of the judgment. The Writ petition is disposed of as above. **T.R. RAVI JUDGE** dsn Paragraph 4 of the judgment dated 20.04.2021 in W.P. (C)No.7481/2021 is recalled and the same is replaced by the following paragraph as per order dated 11.05.2021 in W.P. (C)No.7481/2021 read with order dated 11.05.2021 in R.P.No.356/2021 in W.P.(C)No.7481/2021(I). "4. In the above circumstances, Ext.P3 order is quashed. The respondents are directed to reconsider the application for building permit submitted by the petitioner in accordance with W.P.(C)No.7481 of 2021 -7- the draft master plan prepared in terms of the Kerala Town and Country Planning Act, 2016 and pass fresh orders within a period of one month from the date of receipt of a certified copy of the judgment." Sd/- 15.6.2021 Deputy Registrar W.P.(C)No.7481 of 2021 -8- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE POSSESSION CERTIFICATE DATED 31-01-2021 ISSUED BY THE VILLAGE OFFICER, PALAKKAD 2 VILLAGE** **EXHIBIT P2** **A TRUE COPY OF THE ORDER DATED 27-012021 ISSUED BY THE FOURTH RESPONDENT.** **EXHIBIT P3** **A TRUE COPY OF THE ORDER ISSUED BY THE SECOND RESPONDENT ON THE APPLICATION SUBMITTED BY THE PETITIONER DATED 1603-2021** **EXHIBIT P4 A TRUE COPY OF THE JUDGMENT DATED 2506-2020 IN WP(C) NO 11533 OF 2020 OF THIS HONOURABLE COURT.** **EXHIBIT P5** **A TRUE COPY OF THE JUDGMENT DATED 0510-2020 IN W.P(C) NO. 17881/2020 OF THIS HONOURABLE COURT.**