Abraham Mathew and Others v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** ## **THURSDAY, THE 10TH DAY OF OCTOBER 2013/18TH ASWINA, 1935** **WP(C).No. 20484 of 2013 (I)** **---------------------------------------** ## **PETITIONER(S):** - **----------------------** ## **1. ABRAHAM MATHEW, AGED 59 YEARS** - **S/O. M.K. MATHEW, MODISSERIL, FLORICAN HILLS, MALAPPARAMBA.P.O., KOZHIKODE DISTRICT-673009.** **2. KARIATH KURIAN THOMAS, AGED 59 YEARS,** **S/O. K.K. THOMAS, B/16, SWAGAT CO-OPERATIVE HOUSING SOCIETY, JOGESHWARI-VIKHROLI LINK ROAD, POONAM NAGAR, ANDRI EAST, MUMBAI-400093.** ## **3. SUNITHA JACOB,** - **W/O. THOMAS JACOB, AGED 48 YEARS, 23, AMBADY RETREAT, C.C. 28/2360, CHILAVANNUR ROAD, KADAVANTHARA.P.O., ERNAKULAM DISTRICT-682020.** **BY ADVS.SRI.C.J.JOY** **SMT.VALSAMMA KURIAN JOSE** ## **RESPONDENT(S):** **-------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY THE PRINCIPAL SECRETARY-LOCAL ADMINISTRATION (M) DEPARTMENT, PIN-695001.** *** 2. THRIKKAKARA (GRAMA PANCHAYATH) CORRECTED REPRESENTED BY ITS SECRETARY, THRIKKAKARA. PIN-682030.** **CORRECTED AS “ MUNICIPALITY “ AS PER ORDER DATED 10/10/2013 IN IA.12522/2013.** ## **3. REGIONAL TOWN PLANNING OFFICER, ERNAKULAM-682520.** ## **4. GREATER COCHIN DEVELOPMENT AUTHORITY, REPRESENTED BY ITS SECRETARY, OFFICE OF GCDA KADAVANTHARA, KOCHI-682020.** **R1 & 3 BY GOVERNMENT PLEADER SRI.G.GOPAKUMAR R4 BY ADV. SMT.K.R.KRISHNAKUMARI, SC, GCDA R2 BY ADV. SRI.S.SHANAVAS KHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** **WP(C).No. 20484 of 2013 (I) -------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** - **P1. TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT SUBMITTED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT.** - **P1A TRUE COPY OF THE DRAWING OF THE PROPOSED CONSTRUCTION SUBMITTED BY THE PETITIONERS BEFORFE THE 2ND RESPONDENT.** - **P2. TRUE COPY OF THE NOTIFICATION DT. 31-5-2007 GO (MS) NO. 143/07/L. SGD ISSUED BY THE 1ST RESPONDENT.** - **P3. TRUE COPY OF THE NOTIFICATION DT. 31-5-2007 GO (MS) NO. 144/07/L. SGD ISSUED BY THE 1ST RESPONDENT.** - **P4. TRUE COPY OF THE FINALIZED STRUCTURAL PLAN FOR KOCHI ISSUED AS PER GO (MSP) 143/07/LSGD.** - **P5. TRUE COPY OF THE INFORMATION GATHERED UNDER THE RIGHT TO INFORMATION ACT FROM THE GCDA DT. 2-1-2008.** - **P5A. TRUE COPY OF THE INFORMATION GATHERED UNDER THE RIGHT TO INFORMATION ACT FROM THE THRIKKAKARA GRAMA PANCHAYATH. DT. 2-12008.** - **P6 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DTG. 3-72013.** - **P7. TRUE COPY OF THE GOVERNMENT NOTIFICATION G.O. (MS) NO. 103/91/LAD DT. 20-3-1991.** - **P8. TRUE COPY OF THE JUDGMENT DT. 18-3-2008 OF THIS HON'BLE COURT IN WPC NO. 24530 OF 2007.** - **P9. TRUE COPY OF THE JUDGMENT DT. 23-1-2007 OF THIS HON'BLE COURT IN W.A. NO. 80 OF 2007.** - **P10 TRUE COPY OF THE JUDGMENT DATED 12-12-11 IN WPC NO. 18312/2008 OF THIS HON'BLE COURT.** - **P11. TRUE COPY OF THE PHOTOGRAPH SHOWING THE CONSTRUCTION BEING CARRIED OURT IN THE LAND ADJACENT TO THE PETITIONERS LAND.** - **P11A TRUE COPY OF THE PHOTOGRAPH SHOWING THE CONSTRUCTION BEING CARRIED OURT IN THE LAND ADJACENT TO THE PETITIONERS LAND.** **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **NIL.** **/ TRUE COPY/** **P.S. TO JUDGE** **PJ** **K.SURENDRA MOHAN, J. ----------------------------------------------------W.P(c) No.20484 of 2013-I ---------------------------------------------------Dated this the 10[th] October, 2013** ## **J U D G M E N T** The petitioners have filed this Writ Petition challenging Ext.P6 order of the 2[nd] respondent by which an application for building permit submitted by them has been rejected. The reason stated in Ext.P6 is that, the site for the proposed construction is located within the agricultural zone as per the structural plan applicable to the Municipality and therefore, the application of the petitioners could not be considered. 2. Advocate C.J.Joy, who appears for the petitioners, attacks the reason stated in Ext.P6 by pointing out that the same is unsustainable in view of the various decisions of this Court on the point. It is also contended that, though the area has been designated as an agricultural zone, the same has undergone drastic transformation and change by the indiscriminate grant of building permits by respondents 1 and 2 permitting residential houses as well as apartment complexes to come up. Since the area is no longer one that could be identified as the area for which it has been set apart, it is submitted that, 2 **W.P(c) No.20484 of 2013-I** there are absolutely no grounds for rejecting the petitioners' application. Reliance is placed on Exts.P11 & P11(a) photographs to point out that multi storied apartment complexes are visible therein, which are under construction. Permission having been granted to such structures, it is contended that there is no justification for denying a similar permission to the petitioners. 3. Advocate Shanavas Khan appears for the 2[nd] respondent. According to the counsel, though the decision of this Court in **Sivaprasad v. State of Kerala** [2011(1) KLT 690] has held that the Town Planning Scheme has become redundant and inoperative, the said judgment has been stayed by a Division Bench of this Court in a Writ Appeal filed by the 1[st] respondent. Therefore, it is contended that the structural plan in respect of the Municipality is still in operation. 4. According to the 4[th] respondent, the structural plan in respect of the Municipality was sanctioned as per G.O(MS) No.103/91/LAD dt.20.03.1991. As per the said plan, the zoning regulations were being enforced. It was later on that the Panchayat had become the 2[nd] respondent Municipality. According to the learned counsel, the scheme had been notified **W.P(c) No.20484 of 2013-I** 3 under Section 53A of the Town Planning Act, 1908 (hereinafter referred to as `the Act' for short) after constituting a special development authority, in this case, the Greater Cochin Development Authority (GCDA). Thereafter, the GCDA has passed a resolution, which was considered by the Government in view of Section 7 of the Act and notified under Section 12. It is also pointed out that there is no total restriction against all construction activities in the agricultural zone. What is restricted is only the uses that are considered to be impermissible. Therefore, individual residential houses as well as farm houses and other structures that are permitted by the scheme can be constructed. Since there is no total ban on all construction activities, it is not necessary for the properties in the area to be acquired under the Land Acquisition Act. Reliance is placed on the decision of the apex court in **Friends Colony Development Committee v State of Orissa** [(2004) 8 SCC 733]. The clarification issued by this Court in **Secretary to Government v. Nazar** [2010 (1) KLT 286] is also relied upon to contend that in cases where land acquisition proceedings are not necessary to be initiated, restrictions on the basis of zonal classification could be enforced. 4 **W.P(c) No.20484 of 2013-I** 5. Heard. According to the learned counsel for the petitioners, the crucial aspect in relation to the factual scenario prevailing in the area has not been disputed or denied by any of the respondents. Though in para.10 of the Writ Petition, it has been specifically averred that the area has undergone a total change from what has been contemplated by the structural plan, the above aspect has not been disputed by the respondents. Therefore, it is contended that Ext.P6 is liable to be set aside. According to the learned Government Pleader, in the present case, the petitioners' application for permission to construct seven single storied residential buildings was one that had to be referred to the Chief Town Planner in view of Rule 53 of the Kerala Municipality Building Rules, 1999 (hereinafter referred to as the `Building Rules' for short). Therefore, even if the petitioners' application were to be considered, the 2[nd] respondent has no authority to consider the same. 6. As rightly contended by the learned counsel for the petitioners, though the specific case pleaded by the petitioners is that, the area where the petitioners' property is situate has ceased to be an agricultural zone in view of the constructions that have come up in the area with the permission of 5 **W.P(c) No.20484 of 2013-I** respondents 1 and 2, the above contention is not disputed by the respondents. Prima facie, the photographs produced, Exts.P11 and P11(a) show a multistoried building that is in the process of being construction, in the vicinity. Whether the area has undergone a change and transformation to a zone that is totally different from what was envisaged by the scheme is a matter that would have to be enquired into and ascertained by the authorities, by conducting an inspection of the site and the surrounding locality. If the area has undergone a transformation by the grant of permission to put up other multistoried constructions, then there is no justification for denying a similar permission to the petitioners. Ext.P6 does not show that any attempt to ascertain the above fact was made. It is also to be borne in mind that Rule 53 mandates an application like the one submitted by the petitioners, to be referred to the Chief Town Planner for consideration. The said procedure was also not adopted in the above case. Therefore, Ext.P6 is unsustainable. 7. The larger question as to whether the scheme that was launched in the year 1991 under the Act, has become redundant and unenforceable is a matter that is pending consideration of the Division Bench in a Writ Appeal filed by the **W.P(c) No.20484 of 2013-I** 6 1[st] respondent. Therefore, I refrain from considering the same. In this case, it is also not necessary for me to consider the same, in view of the fact that I have already found that Ext.P6 is unsustainable for other reasons. 8. For the above reasons, Ext.P6 is set aside. The 2[nd] respondent shall conduct an inspection of the proposed building site as well as the area that has been set apart as agricultural zone by the Town Planning Scheme and ascertain whether the predominant activity in the area has undergone a transformation as averred by the petitioners in para.10 of the Writ Petition and also ascertain the present condition of the property of the petitioners. If the locality has undergone a transformation, the application submitted by the petitioners shall be referred to the Chief Town Planner in accordance with Rule 53 of the Building Rules for processing further. This Writ Petition is disposed of with the above directions. Sd/- _**(K.SURENDRA MOHAN, JUDGE)**_ rtr/