High Court of KeralaSingle Judge2015-08-13Petition allowed

Shina Sonnet v. The Pala Municipality

Case / Petition Number:WP(C).No. 23740 of 2015 (N)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. V. Ramakrishna Pillai
Judgment Date: 2015-08-13
Court Decision / Holding: Writ petition allowed. Ext.P1 is set aside and the respondent municipality is directed to reconsider the petitioner's application for a building permit within one month from receipt of a copy of this judgment, in the light of the observations above and allowing the petitioner to cure other defects.
Final Disposition: Petition allowed

Parties to the Case

Appellants / Petitioners

Shina Sonnet

Respondents

The Pala Municipality represented by its Secretary, Municipal Office Pala 686 575.
Secretary, The Pala Municipality, Municipal Office, Pala 686 575.

Legal Representation & Advocates

Counsels for Petitioners

• Sri Mathew John (K)
• Sri Domson J. Vattakuzhy

Counsels for Respondents

• Sri V. M. Kurian

Case Synopsis & Summary

The petitioner challenges the denial of a building permit by the Pala Municipality for a commercial complex, claiming there is no valid master plan in force for Pala and that Ext.P1’s reasons (inadequate road setback and parking deficiency) are untenable since the master plan or Town Planning Scheme has not been properly published post-2013. The petitioner asserts readiness to amend the plan to provide adequate parking as required under the Kerala Municipality Building Rules (KMBR) and argues that prior judgments of this Court—particularly W.P.C. No. 8656/2008 and the common judgment in W.P.C. Nos. 28706, 28724, and 29139 of 2012—demonstrate that there is no ongoing valid standstill on master plans that would permit arbitrary refusals. He also relies on Padmini v. State of Kerala (1999) (3 KLT 465) and Raju S. Jethmalani v. State of Maharashtra (2005) to contend that permits cannot be refused on mere proposals to acquire land in future or on obsolete DTP schemes. After hearing the parties, the Court agrees that the petition has merit in the backdrop of these authorities and directs reconsideration of the application within a month, with the petitioner allowed to cure remaining defects. Ext.P1 is quashed to the extent of directing this reconsideration.

Provisions of Law Cited

Kerala Municipality Building Rules (KMBR)Kerala Town and Country Planning Ordinance, 2013Section 42 of the Kerala Town Planning Ordinance, 2013

Legal Doctrines & Maxims

No building permit can be refused to any person because there is a proposal to acquire the land in future.
Refusing to grant permits relying on obsolete DTP schemes is a clear violation of the Constitution.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argued that there is no valid master plan in force for Pala Municipality. Ext.P1's grounds (setback and parking) are not sustainable given that the master plan has not been validly published post-2013, and past court decisions have recognized necessary principles against denying permits on future land acquisition or on obsolete DTP schemes. He is willing to cure defects and seeks quashing of Ext.P1 so the permit can be reconsidered under proper planning norms, citing Padmini v. State of Kerala and Raju S. Jethmalani v. State of Maharashtra to support a broad interpretation of permit issuance rather than discretionary refusals.

Contentions of Respondents

The Municipality contends that the land lies within a scheme and that there are prevailing defects in the applicant’s proposal, including road distance as per the proposed master plan and parking deficiencies. It maintains that there exists a master plan framework and that the petition’s challenge cannot obstruct the proper planning process; it relies on prior judgments and statutory provisions to justify the need for additional compliance before granting a building permit.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Padmini v. State of Kerala	1999 (3) KLT 465	Positive	Division Bench held that no building permit can be refused on the basis of future land acquisition proposals, supporting a more permissive interpretation in favor of grant of permits.
Raju S. Jethmalani v. State of Maharashtra	(2005) 11 SCC 222	Positive	Held that denying permits due to obsolete DTP schemes violates constitutional principles, reinforcing the petitioner's argument against reliance on outdated schemes.
W.P.C. No. 8656 of 2008	W.P.C. No. 8656 of 2008	Positive	Held validity of master plan for Pala Municipality, cited to support the context of master plan in force.
W.P.C. No. 28706, 28724 and 29139 of 2012	W.P.C. Nos. 28706, 28724, 29139 of 2012	Positive	Common judgment following Ext.P2 judgment, referenced to establish consistent stance on master plan issues.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **THURSDAY, THE 13TH DAY OF AUGUST 2015/22ND SRAVANA, 1937** **WP(C).No. 23740 of 2015 (N) ----------------------------** **PETITIONER:** **-----------** **SHINA SONNET, AGED 45 YEARS KATTIKANAL, PALA.** **BY ADVS.SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** **RESPONDENTS:** **-------------** **1. THE PALA MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE PALA 686 575.** ## **2. SECRETARY** **THE PALA MUNICIPALITY, MUNICIPAL OFFICE, PALA 686 575.** **R BY SRI.V.M.KURIAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13-08-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 23740 of 2015 (N)** **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **------------------------** **EXHIBIT P1. A TRUE COPY OF THE NOTICE DATED 31.7.15 BY THE ASSISTANT ENGINEER.** **EXHIBIT P2. A TRUE COPY OF THE JUDGMENT DATED 31.7.08 IN WPC 8656/08.** **EXHIBIT P3. A TRUE COPY OF THE COMMON JUDGMENT DATED 21.1.13 IN WPC 28706,28724 AND 29139 OF 2012.** **EXHIBIT P4. COPY OF THE JUDGMENT DATED 25.7.14 IN WPC 2170/14.** **RESPONDENT'S EXHIBITS: NIL** **----------------------** **TRUE COPY** **PA TO JUDGE** Scl. ## **A.V. RAMAKRISHNA PILLAI, J.** ## **-------------------------------------** W.P.(C) No. 23740 of 2015 -------------------------------------Dated this the 13[th] day of August, 2015. ## **JUDGMENT** The petitioner is aggrieved by the rejection of the petitioner's application for building permit by the respondent municipality on the ground that the petitioner's property is an area covered by a master plan and also for other reasons. 2. The petitioner alleges that his application dated 28.07.2015 for grant of a building permit for the construction of a commercial complex has been rejected by the 2[nd] respondent as per Ext.P1 notice. A reference to Ext.P1 would show that two reasons assigned by the Asst. Engineer in Ext.P1. The 1[st] reason is that the property building does not provide adequate distance from the road as per the proposed master plan for the Pala Municipality. The second reason in Ext.P1 is that there is deficiency in parking area as per the plan submitted by the petitioner. The petitioner further alleges that he immediately took leave to submit that in respect of the W.P.(C) No. 23740 of 2015 -2- second reason the petitioner undertakes to make necessary amendments to the plan providing for adequate parking space as provided under the Kerala Municipality Building Rules (hereinafter referred to as KMBR for brevity). As regards the first reason namely, that the petitioner has not provided enough distance from the road to the building as provided under the Master Plan, the petitioner points out the following facts. 3. The question as to whether there is a valid master plan for Pala Municipality is no more r _es-integ_ ra in the light of the judgment of this Court in W.P.C. No. 8656 of 2008 dated 31.07.2008. This is more so in the light of the subsequent judgments of this Court including the common judgment in W.P.C.No. 28706, 28724 and 29139 of 2012 dated 21.01.2013 which followed Ext.P2 judgment. The petitioner also takes leave to submit that after the date of Ext.P3 namely, 21.01.2013 no scheme under the provisions of the Town Planning Act has been published for the Pala Municipality. W.P.(C) No. 23740 of 2015 -3- Therefore it is transparently evident that there is no valid master plan in force for Pala Municipality as on date; it is alleged. In this connection it is also pointed out that in the context of the Kerala Town and Country Planning Ordinance, 2013 the respondent municipality contended that the draft plan published by the Municipality earlier would be deemed to be Town Planning Scheme published in terms of Section 42 of the afore said ordinance. This question was also pointedly considered by this Court in a batch of writ petitions and vide its judgment dated 25.07.2014, this Court in unambiguous term held that the provisions of the Ordinance would not come to the rescue of the respondent municipality to save the draft master plan. Therefore, according to the petitioner, Ext.P1 is liable to be quashed and the petitioner's application dated 28.07.2015 is entitled to be considered for grant of building permit. It is with this background, the petitioner has come up before this court. 4. I have heard the learned counsel for the petitioner W.P.(C) No. 23740 of 2015 -4- and the learned standing counsel for the respondent municipality in the matter. 5. The learned standing counsel for the respondent municipality on instructions submitted that apart from the fact that the property is within the scheme covered area, there are other defects also in the petitioner's application. 6. In answer to the said submission, the learned counsel for the petitioner submits that the petitioner is ready to cure the other defects pointed out by the respondent municipality. 7. The learned counsel for the petitioner invited my attention to a Division Bench decision of this Court in **Padmini** v. **State of Kerala** [1999 (3) KLT 465], wherein it was held that no building permit can be refused to any person because there is a proposal to acquire the land in future. Reliance was also placed to the decision of the apex court in **Raju S. Jethmalani** v. **State of Maharastra** [(2005) 11 SCC 222], wherein it was held that refusing to grant permits relying on W.P.(C) No. 23740 of 2015 -5- obsolete DTP schemes is a clear violation of the provisions of the Constitution. Viewed in that profile, this Court is of the view that the petitioners are entitled to get the reliefs prayed for. 8. It shall be open to the petitioner to cure the other defects within a time prescribed by the respondent municipality. Therefore, the writ petition is allowed. Ext.P1 is set aside and the respondent municipality is directed to reconsider petitioner's application for building permit within a period of one month from the date of receipt of a copy of this judgment in the light of what has been stated above. **Sd/A.V. RAMAKRISHNA PILLAI JUDGE** W.P.(C) No. 23740 of 2015 -6- Scl.