Allowed

Firos Thampi v. State of Kerala

Kerala HC5 Jun 2017WP(C)/4855/2016

Case brief

AI extract

What is this about?

Single judge set aside an order rejecting a building permit application on grounds of a pending Development Town Planning Scheme, holding that the area is now classified as residential cum commercial, mandating fresh consideration by authorities.

What did the court decide?

Exhibit P13 order set aside; Town Planner directed to consider application afresh with notice within two months; Municipality directed to consider building permit application.

Firos Thampi Vs State of Kerala — Municipal and Town Planning | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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MONDAY, THE 5TH DAY OF JUNE 2017/15TH JYAISHTA, 1939

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WP(C).No. 4855 of 2016 (F)

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PETITIONER(S):

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FIROS THAMPI, S/O.THAMPI RAWTHER, BEENA COTTAGE, THOLICODE P.O., PUNALUR, KOLLAM DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, M.NAJEEB, S/O.ABU MUHAMMED, RESIDENT OF PAVITHRAM, ALAPURAM ROAD, THIRUMALA, TRIVANDRUM.

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BY ADV. SRI.M.SREEKUMAR

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2. DISTRICT TOWN PLANNER, KOLLAM-691 001.

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3. PUNALUR MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, PUNALUR, KOLLAM DISTRICT-691 305.

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4. SECRETARY, PUNALUR MUNICIPALITY, MUNICIPAL OFFICE, PUNALUR, KOLLAM DISTRICT-691 305.

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R1-R2 BY GOVERNMENT PLEADER SRI.RAVI KRISHNAN R3 & R4 BY ADV. SRI.B.KRISHNA MANI

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SKG

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WP(C).No. 4855 of 2016 (F)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 : TRUE COPY OF SALE DEED NO.2106/07 DT 29-5-07 OF SUB REGISTRY OFFICE, PUNALUR.

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P2 : TRUE COPY OF SALE DEED NO.2120/07 DT 1-6-07 OF SUB REGISTRY OFFICE, PUNALUR.

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P3 : TRUE COPY OF ORDER NO.K.DIS. 6388/07/A DT 17-10-2007 OF THE REVENUE DIVISIONAL OFFICER, KOLLAM.

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P4 : TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER & HIS WIFE DT 13-2-2012 BEFORE THE 4TH RESPONDENT.

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P5 : TRUE COPY OF ORDER BA NO.600/11-12 DT 20-9-14.

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P6 : TRUE COPY OF THE ORDER IN APPEAL NO.1275/2014 DT 6-52015 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.

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P7 : TRUE COPY OF LETTER DT 14-7-2015 FROM THE PETITIONER TO THE 4TH RESPONDENT.

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P8 : TRUE COPY OF LETTER NO.E-2/2515/12 DT 28-7-2015 FROM THE 4TH RESPONDENT TO THE CHIEF TOWN PLANNER.

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P9 : TRUE COPY OF APPLICATION FILED BY THE PETITIONER BEFORE THE PUBLIC INFORMATION OFFICER OF 3RD RESPONDENT DT 5-12-15.

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P10 : TRUE COPY OF LETTER NO.E2-26239/15 DT 8-12-15 FROM THE PUBLIC INFORMATION OFFICER OF 3RD RESPONDENT TO PETITIONER.

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P11 : TRUE COPY OF APPLICATION FILED BY THE PETITIONER BEFORE PUBLIC INFORMATION OFFICER OF 2ND RESPONDENT DT 10-12-15.

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SKG

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WP(C).No. 4855 of 2016 (F)

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P12 : TRUE COPY OF LETTER NO.A-2220/2015 DT 29-12-15 FROM THE PUBLIC INFORMATION OFFICER OF 2ND RESPONDENT TO PETITIONER.

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P13 : TRUE COPY OF THE ORDER NO.C/1415/2015/K.DIS. DATED 14.1.2016 OF THE 2ND RESPONDENT

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P14 : TRUE COPY OF APPLICATION FILED BY THE PETITIONER BEFORE THE PUBLIC INFORMATION OFFICER OF 3RD RESPONDENT DT 4-1-16.

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P15 : TRUE COPY OF LETTER NO.E2-252/16 DT 5-1-16 FROM THE PUBLIC INFORMATION OFFICER OF 3RD RESPONDENT TO PETITIONER.

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RESPONDENT(S)' EXHIBITS

NIL

/TRUE COPY/

P.S. TO JUDGE

SKG

K. Vinod Chandran, J ---------------------------------------W.P.(C).No.4855 of 2016-F

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----------------------------------------Dated this the 05^th day of June, 2017

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JUDGMENT

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The petitioner impugn Exhibit P13 order passed by the

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Town Planner, Kollam, rejecting the application for building a commercial-cum-residential building, citing the inclusion of the area in which the petitioner's property is situated under the Detailed Town Planning Scheme [Chenmanthur Area] (for brevity “DTP Scheme”) as Public and Semi-Public Zone.

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The petitioner purchased the property, having an extent of 21.44 Ares, comprised in various sub-divisions of Survey No.407 of Punalur Village by way of Exhibits P1 and P2 title deeds. Exhibit P3 is the order passed by the Revenue Divisional Officer [for brevity “RDO”] under Clause 6 of the Kerala Land Utilization Order, 1967 [for brevity "KLU Order"], which is dated 17.10.2007, prior to the implementation of the Kerala Conservation of Paddy Land and Wetland Act, 2008. The petitioner, armed with the conversion order, approached the Municipality with Exhibit P4 application for building

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WP(C) No.4855 of 2016 - 2 -

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permit, which is dated 08.02.2012. This was forwarded to the Town Planner and by communication at Exhibit P5, the petitioner was informed that the area in which the petitioner intends to make the construction is included in the DTP Scheme, as Public and Semi-Public Zone.

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The petitioner approached the Tribunal for Local Self Government Institutions [for brevity “the Tribunal”] against the said order, which allowed Exhibit P6 appeal. The Tribunal directed the Secretary of the Municipality to consider the application and permit the construction, if the application itself is in order. The petitioner had been seeking consideration before the various authorities, repeatedly, as evidenced by Exhibits P7 to P12. Eventually, the Town Planner, Kollam declined the application by Exhibit P13 on the very same ground. The Town Planner again relied on the DTP Scheme and found that since he was not a party to the appeal before the Tribunal, he is not bound by the orders passed.

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A Division Bench of this Court in Padmini v. State of Kerala [1999 (3) KLT 465] and the Hon'ble Supreme Court in Raju S . Jethmalani v. State of Maharastra [ (2005) 11 SCC 222] have found

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WP(C) No.4855 of 2016 - 3 -

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that the full enjoyment of a property cannot be denied to its holders merely for reason of draft DTP Schemes which are pending implementation for long and have been rendered obsolete. In any event, in the present case it is the submission of the petitioner that the draft DTP Scheme has no more effect on the coming into force of the Kerala Town and Country Planning Act, 2016.

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The Municipality is said to have framed a Master Plan under the said Act and the draft has been prepared and sent to the Government for approval. The Municipality's decision to send the draft Master Plan for approval is dated 05.08.2015 on the basis of the Ordinance issued prior to the enactment. This is accepted by the Municipality in its counter affidavit in paragraph 5. It is also admitted by the Municipality that now the area in which the petitioner's property falls is classified as “residential cum commercial zone”. In such circumstance, there could be no impediment in the consideration of the application by the Municipality and the Town Planner.

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Considering the new Master Plan framed for the Chenmanthur Area, Exhibit P13 is set aside. The Town Planner, Kollam is directed to consider the application of the petitioner afresh,

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WP(C) No.4855 of 2016 - 4 -

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after issuing notice and hearing him. The same shall be done within a period of two months from the date of receipt of a certified copy of this judgment. In accordance with the decision of the Town Planner, the Municipality shall also consider the application for building permit submitted by the petitioner.

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The writ petition is disposed of as above. No costs.

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Sd/- K.Vinod Chandran Judge.

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vku/-

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[ true copy ]

Firos Thampi v. State of Kerala

Case brief

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Firos Thampi v. State of Kerala

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