Bharatiya Vidya Bhavan Kochi Kendra v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 16[TH] DAY OF MARCH 2022 / 25TH PHALGUNA, 1943** ## **WP(C) NO. 19164 OF 2021** ## **PETITIONER:** BHARATIYA VIDYA BHAVAN KOCHI KENDRA, T.D.ROAD, COCHIN -682011, REPRESENTED BY ITS DIRECTOR. BY ADVS. SRI.K.ANAND LATHA ANAND M.N.RADHAKRISHNA MENON K.R.PRAMOTH KUMAR S.VISHNU (ARIKKATTIL) RADHAKRISHNA PILLAI B SIDHARTH P.S. ROHITH MOHAN ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS, SECRETARIAT, THIRUVANANTHAPUM. 2 THRIKKAKARA MUNICIPALITY REPRESENTED BY ITS SECRETARY, THRIKKAKARA MUNCIPAL OFFICE, KAKKANAD.P.O, ERNAKULAM. 3 THE SECRETARY THRIKKAKARA MUNICIPALITY, THRIKKAKARA MUNICIPAL OFFICE, KAKKANAD.P.O, ERNAKULAM. 4 MUNICIPAL ENGINEER, THRIKKAKARA MUNICIPALITY, THRIKKAKARA MUNICIPAL OFFICE, KAKKANAD.P.O, WP(C) NO. 19164 OF 2021 2 ERNAKULAM. 5 SENIOR TOWN PANNING OFFICER, OFFICER OF THE TOWN PLANNING OFFICE, CIVIL STATION, KAKKANAD.P.O, ERNAKULAM. BY ADVS. SMT. DEEPA NARAYANAN, SENIOR GOVERNMENT PLEADER S.JAMAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 19164 OF 2021 3 ## **P.V.KUNHIKRISHNAN, J** ## **------------------------------W.P.(C)No. 19164 of 2021** **-------------------------------Dated this the 16[th] day of March, 2022** ## **JUDGMENT** The above writ petition is filed with the following prayers: _“(a) Call for the records leading to Exhibit P9 order issued by the 5[th] respondent and set aside the same;_ _(b) Issue a direction to the 2[nd] respondent to consider Exhibit P8 the application filed by the petitioner and issue building permit to the petitioner;_ _(c) To grant such other appropriate reliefs to the Petitioner as this Hon'ble Court may deem fit and proper in the interest of justice.”[SIC]_ 2. The petitioner is an educational institution. It is the case of the petitioner that, when there was an intention to construct an additional building for the School and when they approached the 2[nd] respondent Municipality with Ext.P3 application for building permit, the 5[th] respondent as per Ext.P4 rejected Ext.P3 application stating that the property belongs to the petitioner is included in the approved Kochi City WP(C) NO. 19164 OF 2021 4 Structural Plan of the Industrial Zone. According to the petitioner, 5[th] respondent rejected the application without considering the factual situation. Ext.P4 was challenged before this Court and as per Ext.P6 judgment, this Court set aside the impugned rejection order and directed the competent authority of the Municipality to reconsider the application, _de hors_ the stipulations in the Structural Plan and issue appropriate orders thereon. Based on the same, the Municipality issued permit and the building was constructed and classes started functioning in the building. Subsequently, when the petitioner wants some additional construction to the existing building, the petitioner submitted an application before the Municipality as evident by Ext.P8. But the Municipality rejected the same as evident by Ext.P9, in which the reason mentioned is the same reason mentioned in Ext.P4 application. Aggrieved by the same, this writ petition is filed. 3. Heard the learned Senior counsel Sri.K. Anand 5 WP(C) NO. 19164 OF 2021 as instructed by Smt. Latha Anand appearing for the petitioner. I also heard the learned counsel appearing for respondents 2 to 4 and the learned Government Pleader. 4. The Senior counsel appearing for the petitioner submitted that the reason in Ext.P9 is unsustainable because that reason was rejected by this Court in Ext.P6 judgment. The Senior counsel also submitted that, actually the present application is only for an extension to the existing building. Therefore the reason mentioned in Ext.P9 is unsustainable. 5. The learned Government Pleader on the other hand seriously opposed the submission. The Government Pleader relied on paragraphs 4 and 5 of the counter affidavit filed by the 5[th] respondent. 6. This Court considered the contentions of the petitioner and the respondents. This Court also perused Ext.P6 judgment. It will be better to extract the relevant portion of Ext.P6 judgment: _“The petitioner has approached this Court_ WP(C) NO. 19164 OF 2021 6 _impugning Ext.P4 communication issued by the 5[th] respondent, as per which, their application for building permit has been rejected for the reason that the property has been included in the Kochi City Structural Plan, as part of an “Industrial Zone”._ _2. The petitioner says that various other persons have approached this Court and obtained judgments, wherein, this Court has already found that the Structural Plan has not been implemented until now. The petitioner cites for support the judgment in State of Kerala v Earthspace Builders and Developers (Writ Appeal No.559/2016) and therefore, prays that Ext.P4 be set aside and Thrikkakkara Municipality be directed to reconsider their application for permit immediately._ _3. The learned standing counsel appearing for the Thrikkakkara Municipality submits that it is true that in the judgment in the afore cited Writ Appeal, it has been found that the Structural Plan for Kochi has not been implemented so far and that a number of schools, colleges, commercial establishments and residential houses have already been constructed in the said area. He confirms that the area covered by the said judgment is the same as one that is involved in this case._ _Taking note of the afore submissions and being guided by the judgment in Writ Appeal No.559/2016 as also Ext.P5 judgment, I allow this writ petition and set aside Ext.P4; and consequentially, direct the competent Authority of the Municipality to take up the petitioner's application and reconsider the same,_ WP(C) NO. 19164 OF 2021 7 _de hors the stipulations in the Structural Plan and issue appropriate orders thereon, as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment.”_ 7. Based on Ext.P6 judgment, the Municipality issued permit and the petitioner constructed the School building. A perusal Ext.P8 will show that the intention of the School authority is an extension of the same building. If that is the case, the reason mentioned in Ext.P9 may not stand. A perusal of Ext.P9 will show that the reason mentioned in Ext.P9 is the same reason mentioned in Ext.P4. The Government Pleader submitted that the Government is intended to file an appeal against Ext.P6 judgment. Ext.P6 is a judgment dated 19.11.2019. As on today, admittedly, there is no appeal filed. In such circumstances, such a contention can not be accepted at all. In the light of the fact that the present construction intended is only an extension of an existing building which was constructed based on the directions in Ext.P6 judgment, I think the reasons mentioned in Ext.P9 can not be accepted. WP(C) NO. 19164 OF 2021 **==> picture [7 x 10] intentionally omitted <==** Therefore, this writ petition is allowed in the ## following manner: - _i. Ext.P9 letter is quashed._ - _ii. The competent authority of the Municipality will take up Ext.P8 application submitted by the petitioner and reconsider the same, de hors the stipulations in the Structural Plan mentioned in Ext.P9 and issue appropriate orders thereon, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment._ Sd/- ## **P.V.KUNHIKRISHNAN** **JUDGE** DM WP(C) NO. 19164 OF 2021 9 ## **APPENDIX OF WP(C) 19164/2021** ## PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE APPLICATION FOR BUIDING PERMIT DATED 01.01.2019 EXHIBIT P2 TRUE COPY OF THE NOTICE DATED 06.02.2019 ISSUED BY THE 4TH RESPONDENT EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 09.04.2019 SUBMITTED BY THE PETITIONER EXHIBIT P4 TRUE COPY OF THE ORDER DATED 23.05.2019 ISSUED BY THE 5TH RESPONDENT EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 06.04.2016 IN W.P.(C)NO.2960/2016 EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 19.11.2019 IN W.P(C)NO.20055 OF 2019 EXHIBIT P7 TRUE COPY OF THE BUILDING PERMIT DATED 17/03/2020 ISSUED BY THE 2ND RESPONDENT EXHIBIT P8 TRUE COPY OF THE APPLICATION DATED 29/01/2021 ALONG WITH APPENDIX EXHIBIT P9 TRUE COPY OF LETTER DATED 06/08/2021 OF THE 5TH RESPONDENT ISSUED TO THE 3RD RESPONDENT. RESPONDENTS EXHIBITS : EXHIBIT R5(A) TRUE COPY OF THE EXTRACT OF THE ZONING REGULATION OF THE STRUCTURE PLAN FOR CENTRAL CITY KOCHI, FOR INDUSTRIAL ZONE. //TRUE COPY// PA TO JUDGE