IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 19097 of 2010(J)
1. C.M.CHERU, S/O.C.I,MATHEW, AGED 73 YEARS
... Petitioner
Vs
1. THE KUNNAMKULAM MUNICIPALITY,
... Respondent
2. THE CHIEF TOWN PLANNER, GOVERNMENT OF
3. THE STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.P.RAMACHANDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :13/07/2010
O R D E R
T.R. RAMACHANDRAN NAIR, J.
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W.P.(C) No.19097 OF 2010
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Dated this the 13th day of July, 2010.
J U D G M E N T
The petitioner herein owns a land having an extent of 30
cents and 37 sq. links within the Kunnamkulam Municipality. The
petitioner intends to construct a residential quarters as an
addition to another new construction. The 1st respondent
Municipality rejected the application for building permit submitted
by the petitioner.
2. The grievance raised in the writ petition is that the order
of rejection cannot be supported in the light of the judgments
passed in similar writ petitions by this Court as per Exhibits P8
and P9. In Exhibit P10, the main objection is that as per the
stipulations in the DTP scheme for central area part – 1, a road
having 21 metre breadth passes through the property. The said
aspect and the area earmarked for commercial purpose are not
included in the site plan. It is also pointed out that the judgment
Exhibit P8 cannot have any general application. The second
W.P.(C) No.19097/2010 2
objection is that for making an additional construction, a fresh
application is not necessary and a revised plan alone is sufficient.
3. It is submitted by the learned counsel for the petitioner
that in Exhibit P8 judgment in W.P.(C)No.5208/2010, the learned
Single Judge recorded the submission of the respondents therein
that the scheme has not been approved or notified by the
respondents. This Court took the view therein that the reason for
rejection of the application for building permit is not correct and
only when there is an approved and notified scheme, the
Municipality can reject an application on the ground of violation
of the scheme. Accordingly, this Court directed the Municipality
to consider the application on merits. In Exhibit P9 judgment
also, similar directions have been issued.
4. In that view of the matter, as the very same scheme
was considered by this Court in the above two judgments, the
reason now stated in Exhibit P10 that the judgment have no
general application cannot be accepted. When a proposed new
road is mentioned in the DTP scheme, it requires acquisition of
private properties also. It is settled by a decision of this Court in
W.P.(C) No.19097/2010 3
Padmini vs. State of Kerala(1999(3) KLT 465) that unless
there is a proposal for acquisition or proceedings under the Land
Acquisition Act, the application for building permit cannot be
refused. For that reason also, Exhibit P10 cannot be supported.
5. Learned counsel for the Municipality submitted that
there are other formalities to be complied with by the petitioner
going by Exhibit P10 itself. Learned counsel for the petitioner
submitted that the petitioner will cure the defects if any either
with regard to the plan submitted or other aspects pointed out by
the Municipality.
Therefore, this writ petition is allowed. Exhibit P10 so far as
it holds that the DTP scheme does not permit sanction of the
permit is quashed. The petitioner will cure the defects if any
required to be made by him. There will be a direction to the
Municipality to consider the application afresh in the light of the
findings rendered above and communicate the decision to the
petitioner within a period of one month from the date of receipt
of a copy of this judgment.
T.R. RAMACHANDRAN NAIR
JUDGE
smp