The court quashed an order not considering a building permit application due to an unnotified Town Planning Scheme, directing the Municipality to consider the application afresh.
Extended Prayer to Adjourn
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
MONDAY, THE 18TH DAY OF DECEMBER 2017/27TH AGRAHAYANA, 1939
WP(C).No. 38332 of 2017 (N)
PETITIONER(S):
JOSH ARCADE, THODUPUZHA, A REGISTERED PARTNERSHIP FIRM REPRESENTED BY ITS MANAGING PARTNER MS. SHIJY JOY, W/O. JOY, AGED 46 YEARS, CHEMAPARATHICKAL HOUSE, MUTHALAKODAM KARA P.O, THODUPUZHA VILLAGE.
BY ADV. SRI.T.J.MICHAEL
RESPONDENT(S):
1. THODUPUZHA MUNICIPALITY, MUNICIPAL OFFICE, THODUPUZHA-685584, REPRESENTED BY ITS SECRETARY.
2. THE SECRETARY, THODUPUZHA MUNICIPALITY, MUNICIPAL OFFICE, THODUPUZHA-685584.
3. THE ASSISTANT ENGINEER, THODUPUZHA MUNICIPALITY, THODUPUZHA-685584.
4. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.
5. THE CHIEF TOWN PLANNER, SECRETARIAT, THIRUVANANTHAPURAM-695001.
R1 TO R3 BY SRI.P.B.KRISHNAN R4 R5 BY GOVERNMENT PLEADER SRI.MANU RAJ
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
TS
WP(C).No. 38332 of 2017 (N)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT-P8 TRUE COPY OF THE JUDGMENT IN W.P(C) 33530/2016 DATED 28/02/2017 OF THIS HON'BLE COURT.
RESPONDENT(S)' EXHIBITS - NIL
---------------------------------------- --------
/TRUE COPY/
PS TO JUDGE
TS
A.K.JAYASANKARAN NAMBIAR, J.
................................................................... W.P.(C).No.38332 Of 2017 (N)
..................................................................... Dated this the 18th day of December, 2017
J U D G M E N T
The petitioner is stated to be in ownership and possession of 12.96 Ares of land in Sy.No.311/7 of Thodupuzha west village, is aggrieved by Ext.P7 letter issued to him by the Assistant Engineer of the respondent Municipality stating that an application for building permit cannot be considered since there is a Town Planning Scheme in operation in the area. The learned Standing counsel for the respondent Municipality would submit that there is a notified Town Planning Scheme only for the eastern area of the Thodupuzha Municipality and not for the western area where the petitioners property is situated. Taking note of the said submission of the learned Standing counsel for the respondent Municipality, and finding that, the decisions of the Supreme Court in Raju S.Jethmalani and Others v. State of Maharashtra and Others [(2005) 11 SCC 222] and decision of this Court in Padmini v. State of Kerala [(1999) 3 KLT 465] would come to the aid of the petitioner in contending that the mere inclusion of the property in a draft scheme, which has not been duly notified, cannot stand in the
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W.P.(C).No.38332 Of 2017 (N)
way of the respondent Municipality in considering an application submitted by the petitioner, for building permit, on merits, I quash Ext.P7 application and direct the respondent Municipality to consider the Ext.P6 application submitted by the petitioner for building permit afresh without reference to any Draft Town Planing Scheme. The respondent Municipality shall pass fresh orders in the matter within a period of one month from the date of receipt of a copy of this judgment, after hearing the petitioner. The petitioner shall produce a copy of this judgement, together with a copy of the writ petition before the respondent Municipality for further action.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE
mns/18.12.17
2 issues framed by the court
Whether an application for building permit can be rejected solely because the property is included in a draft Town Planning Scheme that has not been duly notified.
Whether the petitioner can be directed to submit his building permit application for fresh consideration on merits without reference to the unnotified Draft Town Plan.
Colour shows how this judgement treated each authority
Raju S. Jethmalani and Others v. State of Maharashtra and OthersApplied¶1
Raju S. Jethmalani and Others v. State of Maharashtra and Others [(2005) 11 SCC 222] · Who else cites this
Padmini v. State of KeralaApplied¶38
Padmini v. State of Kerala [(1999) 3 KLT 465]
Josh Arcade, Thodupuzha
Thodupuzha Municipality
State of Kerala
A.K. Jayasankaran Nambiar
As recorded by the court registry
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