Thaslim Kaja v. Palakkad Municipality and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 25TH DAY OF JUNE 2020 / 4TH ASHADHA, 1942** ## **WP(C).No.11533 OF 2020(N)** ## **PETITIONER:** ## **THASLIM KAJA** **S/O. M.A.KAJA MOIDEEN, KADEEJA MANZIL, NEAR MUSLIM PALLI, KODUMBU VILLAGE, KADAMKODE, KARINGARAPULLY AMSOM AND DESOM, KARINGARAPULLY P.O., PALAKKAD, PIN-678 551, REPRESENTED BY POWER OF ATTORNEY HOLDER, M.A.KAJA MOIDEEN, S/O. LATE M. AHAMED SAHIB, AGED 76 YEARS, KADEEJA MANZIL, NEAR MUSLIM PALLI, KODUMBU VILLAGE, KADAMKODE, KARINGARAPULLY AMSOM AND DESOM, KARINGARAPULLY P.O., PALAKKAD, PIN-678 551.** **BY ADVS. SRI.JACOB SEBASTIAN SRI.K.V.WINSTON SMT.ANU JACOB** ## **RESPONDENTS:** **1 THE PALAKKAD MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, PALAKKAD, PIN-678 001. 2 THE SECRETARY, PALAKKAD MUNICIPALITY, MUNICIPAL OFFICE, PALAKKAD, PIN-678 001.** **3 THE DISTRICT TOWN PLANNING OFFICER PALAKKAD, CIVIL STATION, PALAKKAD, PIN-678 001.** **BY ADV. SHRI.BINOY VASUDEVAN, SC, PALAKKAD MUNICIPALITY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.11533 of 2020 2 ## ALEXANDER THOMAS, J. -----------------------------------W.P(C) No. 11533 of 2020 -----------------------------------Dated this the 25[th] day June, 2020 ## **JUDGMENT** The case set up in this Writ petition (C) is as follows: _The petitioner owns a plot having an extent of 0.1024 hectors in Old Survey number 2405/1, Resurvey Block 28, Resurvey number 19 of Yakkara Village in Palakkad Taluk within the limits of the Palakkad Municipality. The said plot is situated in abutting the main road and is bounded by commercial buildings. The said plot is classified as dry land not included in the Land Data Bank prepared u/s 5 (4) (i) of the Kerala Conservation of Paddy Land and Wetland Act, 2008. Petitioner decided to construct a commercial building in the plot. He applied for a development permit and the Municipality issued it. Later the petitioner applied for a building permit to construct a commercial building. He applied for a building permit. But the second respondent rejected the application saying that area for the proposed building is located at a residential Zone under a DTP Scheme and a commercial building is impermissible. The reasons stated in Exhibit P3 cannot sustain. The respondents have no case that the property is included in the Land Data Bank. The regulations relied_ W.P(C) No.11533 of 2020 3 _on by the second respondent came into force in 1984. It has become obsolete and the same has not been implemented in full despite the lapse of several decades. All the surrounding properties consist of commercial buildings and the area is in the heart of the Palakkad town. Most of the buildings around the petitioner’s plot are about 15 to 20 years old. In fact the second respondent itself has issued building permit to construct buildings in the adjacent properties of the petitioner. The master plan referred to in Ext.P3 has so far remained only paper as a mere proposal without any implementation. In fact a new master plan for Palakkad town is being prepared and in the draft master plan currently available, this area is shown as a mixed zone and such restrictions are not there._ It is in the light of these averments and contentions that the petitioner has filed the instant Writ Petition (C) seeking the following reliefs: - (i) _Issue a writ in the nature of mandamus directing the second respondent to issue a building permit to the petitioner as applied for;_ - _(ii) Call for the Detailed Town Planning Scheme and approved Master plan of the first respondent and quash it in so far as it relates to the property of the petitioner by the issue of a writ of certiorari;_ - _(iii) Call for the records leading to issue of Ext.P3 by the second_ W.P(C) No.11533 of 2020 4 _respondent and quash it of a writ of certiorari or other appropriate writ or order; and_ - _(iv) Issue such other writ, order or direction as this Hon’ble Court deems fit and proper in the circumstances of the case._ 2. Heard Sri.Jacob Sebastian, learned counsel appearing for the petitioner, and Sri.Binoy Vasudevan, learned Standing Counsel for the Palakkad Municipality appearing for the respondents. 3. The petitioner is aggrieved by the impugned Ext.P3 order dated 01-06-2020 issued by the 2[nd] respondent Secretary of the Palakkad Municipality, whereby the application of the petitioner for grant of building permit has been rejected on the ground that the subject property where the proposed commercial building is proposed to be constructed, is classified as a residential zone as per the Town Planning norms and hence the application stand rejected. 4. The learned counsel for the petitioner would urge that so called detailed Town Planning Scheme relied on by the 2[nd] respondent in Ext.P3 is an antiquated and obsolete scheme, which has no practical relevance for the simple reason that lot of commercial buildings have come up within the vicinity though it was earlier classified as a residential zone as per the old DTP Scheme. Hence the petitioner would place reliance on the decisions of the W.P(C) No.11533 of 2020 5 Apex Court and this Court in cases as in _**Raju.S.Jethmalani and others v. State of Maharashtra and others [2005 (11) SCC 222]**_ , wherein it has been held by the Apex Court that in cases where the Local Municipal bodies concerned reject request for building permit on the ground by citing detailed town planning schemes, which has become practically antiquated or obsolete, then insistence on such antiquated and obsolete town planning schemes is would be illegal and ultra vires and would be violative of the right to property guaranteed to all citizens in terms of Article 300A of the Constitution of India and any such denial of the right to enjoy the property in the manner deem fit and proper by the land owner concerned, on the basis of such antiquated and obsolete town planning scheme cannot be said to be a procedure which is reasonable and fair and therefore would be unconstitutional etc,. 5. So also the petitioner would also place reliance on judgment of this Court as in Ext.P4 judgment dated 11-10-2019 in W.P(C) No.3077/2019, wherein the respondent Municipality is none other than the present Palakkad Municipality and in which this Court has unequivocally held that where subsequently a draft master plan is published under the new Town and Country Planning Act, 2016, then W.P(C) No.11533 of 2020 6 the consideration of application for building permit by the local bodies shall be in accordance with such a draft master plan till such master plan is sanctioned and finalised in the manner known to law. It is the case of the petitioner therein that in the draft plan, the area wherein the property of the petitioner therein is situated is demarcated as residential zone and therefore this Court held that the application of the said party for grant of building permit for constructing a residential building in a residential zone could be considered in accordance with the draft master plan, even though the said area happened to be classified as commercial zone as per the old DTP Scheme framed under the previous enactment. In the instant case, the petitioner would assert that though the area in question where the commercial building is proposed to be constructed was classified as residential zone as per the old DTP scheme framed under the previous enactment, now a draft master plan has been published under the new Act in which the present location is in mixed zone and even though the said draft plan has not been finalised or approved by the Governmental authorities, the application for building permit will have to be considered in terms of the draft master plan so long as the draft master plan is invoked and not on the basis of the antiquated W.P(C) No.11533 of 2020 7 DTP scheme framed under the old Act. 6. This Court had requested the learned Standing Counsel for the Palakkad Municipality appearing for the respondents to furnish instructions. This Court has specifically queried as to whether the area where the commercial building is proposed to be constructed by the petitioner as per the abovesaid building permit application in this case is now shown as a residential zone or commercial zone or mixed zone etc, Sri Binoy Vasudevan, learned Standing Counsel appearing for the respondent Municipal authorities would submit on the basis of instructions that as per the draft master plan, the area in question would come within mixed zone and that the draft master plan has not so far been finalised and approved by the Governmental authorities and it is only at the stage of draft master plan. If that be so, petitioner is entitled to succeed in respect of the challenge as against the impugned Ext.P3 rejection order in view of the dictum laid down by the Apex Court in _**Raju.S.Jethmalani’s case**_ (supra) [2005 (11) SCC 222] and also in view of the legal principles laid down by this Court in decisions as in Ext.P4 judgment dated 11-10-2019 in W.P(C) No.3077/2019. In the instant case it is beyond any dispute that petitioner intends to construct a commercial building in the area, W.P(C) No.11533 of 2020 8 which was earlier classified as a residential zone as per the old DTP scheme, but is now classified as a mixed zone as per the draft master plan issued under the new Town and Country Planning Act, 2016. If that be so, it is goes without saying that even if the draft master plan is yet to be finalised, till such finalisation the draft master plan has to be invoked and since the area is a mixed zone, both constructions of residential as well as commercial types could be permitted and therefore the grounds for rejection cited in Ext.P3 are not legally correct and proper. 7. In that view of the matter it is ordered that the impugned Ext.P3 rejection order dated 01-06-2020 will stand set aside and consequently the application of the petitioner submitted for construction of commercial building on 14-10-2019 referred to in Ext.P3 will stand remitted to the 2[nd] respondent Secretary of the Palakkad Municipality for consideration and decision afresh. The 2[nd] respondent Secretary of the Palakkad Municipality will immediately process the said application dated 14-10-2019 and may issue necessary memo or letter to the petitioner calling upon the petitioner to produce any other supporting documents or materials. In case, the application is not accompanied by such vital documents and W.P(C) No.11533 of 2020 9 thereafter should also invite the petitioner for a personal hearing and after affording reasonable opportunity of being heard to the petitioner should take a considered decision on the said application submitted by the petitioner on 14-10-2019 for grant of building permit, strictly in terms of the provisions contained in the applicable statutory Municipality Building rules, without much delay preferable within a period of six weeks from the date of production of a certified copy of this judgment. 8. The petitioner will produce a certified copy of the judgment along with copy of the memorandum of W.P(C) with all the Exhibits before the 2[nd] respondent Secretary of the Palakkad Municipality for necessary information and further action. With these observations and directions the above Writ Petition (Civil) will stand disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** KAS W.P(C) No.11533 of 2020 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE POSSESSION CERTIFICATE DATED JANUARY 26, 2020 ISSUED BY THE VILLAGE OFFICER, YAKKARA VILLAGE.** **EXHIBIT P2** **A TRUE COPY OF THE DEVELOPMENT PERMIT DATED JANUARY 14, 2020 ISSUED BY THE FIRST RESPONDENT.** **EXHIBIT P3** **A TRUE COPY OF THE ORDER DATED 1 JUNE 2020 ISSUED BY THE SECOND RESPONDENT.** **EXHIBIT P4** **A TRUE COPY OF THE JUDGEMENT DATED OCTOBER 11, 2019 IN WP(C) NO.3077 OF 2019 THIS HONOURABLE COURT.**