IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 18^TH DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943 WP(C) NO.28737 OF 2021 PETITIONER :-

UMESH MOHANAN, AGED 39 YEARS S/O. G.MOHANAN, RESIDING AT DHANYA, 10/224, KINASSERY, KANNADI P.O., PALAKKAD DISTRICT, PIN-678 701.

BY ADVS.

JACOB SEBASTIAN K.V.WINSTON ANU JACOB RESPONDENTS :-

1 THE PALAKKAD MUNICIPALITY REPRESENTED BY IS SECRETARY, MUNICIPAL OFFICE, PALAKKAD DISTRICT, PIN-678 001.

2 THE SECRETARY, PALAKKAD MUNICIPALITY, MUNICIPAL OFFICE, PALAKKAD DISTRICT, PIN-678 001.

3 THE DISTRICT TOWN PLANNING OFFICER, PALAKKAD, CIVIL STATION, PALAKKAD DISTRICT, PIN-678 001.

4 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM, PIN-695 001.

BY ADVS.

SRI.BINOY VASUDEVAN, SC, PALAKKAD MUNICIPALITY SMT.PRINCY XAVIER, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Dated this the 18 ^th day of February, 2022 This writ petition is filed 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 referred to in Exhibit P2 and quash them in so far as it relates to the plot of the petitioner by the issue of a writ of certiorari.

(iii) Call for the records leading to issue of Exhibit P2 by the second respondent and quash it of a writ of certiorari or other appropriate writ or order.”

2. Heard the learned counsel for the petitioner and the learned Government Pleader as well as the learned Standing Counsel appearing for the 1^st respondent Municipality.

3. It is submitted that the petitioner has an extent of 63 cents of land in the jurisdiction of the 1^st respondent Municipality. It is submitted that the said plot is abutting the main road and is bounded by residential and commercial buildings. It is submitted that the petitioner had submitted an application for a building permit to construct a commercial building in the property. The application was rejected by the 2^nd respondent for the reason that the plot is located in a residential zone under the sanctioned Master Plan and DTP scheme for Palakkad Town.

4. The learned counsel for the petitioner submits that there is a published draft Master Plan prepared in respect of the Palakkad Municipality and the property in question is included as mixed zone in the said draft Master Plan. It is submitted that several commercial buildings have also come up in the vicinity and the refusal on the part of the respondents to consider the application for building permit for a commercial building is completely misconceived. It is further submitted that Exts.P3 and P4 judgments have been rendered in similar circumstances and that the respondents cannot prevent the petitioner from putting his property to use.

5. A statement has been filed on behalf of respondents 1 and 2. It is stated therein that the petitioner has an alternate remedy as against Ext.P2 before the Tribunal for Local Self Government Institutions. It is further stated that so long as the new Master Plan is not approved and notified by the Government, the petitioner cannot rely on the draft Master Plan to state that his property can be put to use disregarding the DTP Scheme in force.

6. A statement has also been placed on record by the 3^rd respondent. It is stated that Section 61 of the Kerala Town and Country Planning Ordinance Act, 2016 provides that a Master Plan will override the provisions of an earlier Master Plan and a Detailed Town Planning Scheme only once it is approved and published. It is stated that the petitioner can carry out only the permitted constructions in the stipulated zones.

7. I have considered the contentions advanced. This Court in Ext.P3 judgment had considered an identical situation with regard to the s