C.J. Thomas v. Chalakudy Municipality and Secretary, Chalakudy Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **WEDNESDAY, THE 12TH DAY OF NOVEMBER 2014/21ST KARTHIKA, 1936** **WP(C).NO. 16791 OF 2014 (Y)** **----------------------------** **PETITIONER(S):** **--------------** **C.J.THOMAS, AGED 55 YEARS, S/O JOSEPH, CHENGINIMATTOM, CHALAKUDY P.O., THRISSUR DIST.** **BY ADVS.SRI.RANJITH THAMPAN (SR.) SMT.P.R.REENA** **RESPONDENT(S):** **--------------** **1. CHALAKUDY MUNICIPALITY, CHALAKUDY P.O., THRISSUR DISTRICT, PIN:680 307 REPRESENTED BY ITS SECRETARY.** **2. SECRETARY CHALAKUDY MUNICIPALITY, CHALAKUDY P.O. THRISSUR DISTRICT, PIN:680 307.** **R1-R2 BY ADV. SRI.SHEEJO CHACKO, S.C., (CHALAKUDY MUNICIPALITY)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** **WP(C).NO. 16791 OF 2014 (Y) --------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **-----------------------** **EXHIBIT P1: COPY OF THE TAX RECEIPT DATED 12.5.2014 ISSUED BY THE MUNICIPALITY.** **EXHIBIT P2: PHOTOGRAPH SHOWING THE COMMERCIAL BUILDINGS NEAR THE PETITIONER'S PROPERTY INCLUDING THE MUNICIPAL SHOPPING COMPLEX. EXHIBIT P2(a): PHOTOGRAPH SHOWING THE COMMERCIAL BUILDINGS NEAR THE PETITIONER'S PROPERTY INCLUDING THE MUNICIPAL SHOPPING COMPLEX. EXHIBIT P2(b): PHOTOGRAPH SHOWING THE COMMERCIAL BUILDING NEAR THE PETITIONER'S PROPERTY. EXHIBIT P2(c): PHOTOGRAPH SHOWING THE COMMERCIAL BUILDING NEAR THE PETITIONER'S PROPERTY.** **EXHIBIT P3: COPY OF THE BUILDING PERMIT GRANTED BY RESPONDENT ON 09.01.2013 IN APPLICATION DATED 7.4.2012 TO ONE THANKACHAN.** **EXHIBIT P3(a): COPY OF THE BUILDING PERMIT GRANTED BY RESPONDENT ON 09.1.2013 IN APPLICATION DATED 13.7.2012 TO ONE THANKACHAN.** **EXHIBIT P4: COPY OF THE SKETCH FILED BY THE PETITIONER BEFORE THE MUNICIPALITY. EXHIBIT P5: COPY OF THE INTIMATION DATED 17.6.2014 ISSUED BY THE MUNICIPALITY. EXHIBIT P6: PHOTOGRAPH SHOWING THE PROPERTY OF THE PETITIONER IN WHICH THE ROOFED SHEET IS ERECTED AND ADJACENT BUILDING. EXHIBIT P7: COPY OF THE JUDGMENT IN WPC NO.17322 OF 2012 DATED 17.9.2012. EXHIBIT P7(a): COPY OF THE DECISION REPORTED IN 2011(3) KLT 317. EXHIBIT P8: COPY OF THE DECISION REPORTED IN 2011(4) KHC 844. EXHIBIT P9: COPY OF DECISION REPORTED IN 2012(3) KHC 489.** **EXHIBIT P10 : COPY OF THE PROCEEDINGS DATED 18.09.2014 OF THE SECRETARY, OF THE MUNICIPALITY.** ## **RESPONDENT(S)' EXHIBITS :** **-----------------------EXHIBIT R1(a) : COPY OF THE COMPLAINT DATED 30.11.2013. EXHIBIT R1(b) : COPY OF THE JUDGMENT REPORTED IN 2005(4) KLT 1027. EXHIBIT R1(c) : COPY OF THE DECISION REPORTED IN 2014(2) KHC 220. / TRUE COPY /** **NS** **P.A. TO JUDGE** ## **K. SURENDRA MOHAN,J --------------------------------** ## **W.P.C. No.16791 of 2014** ## **-------------------------------Dated this the 12[th ] day of November 2014** ## **J U D G M E N T** The petitioner, owner in possession of an item of immovable property within the 1[st] respondent Municipality, has filed this writ petition aggrieved by Ext.P5 proceedings of the 2[nd] respondent by which, an application for building permit submitted by him has been rejected. Two reasons have been stated in Ext.P5. The first is that, the petitioner's property has been described as wet land in the Possession Certificate produced by him. The second reason is that, as per the Detailed Town Planning Scheme ( 'DTP Scheme' for short) approved for the Municipality, the particular land has been set apart for being acquired for industrial purpose, for the development of the market area. 2. According to Senior counsel Sri. Ranjith Thampan who appears for the petitioner, both the reasons stated in Ext.P15 are unsustainable. It is not the description of the land in the Possession Certificate that W.P.C. No.16791 of 2014 2 is decisive in determining whether a land is wet land or not. The 2[nd] respondent has not made any attempt to inspect the property or ascertain its physical condition. According to the learned Senior counsel, the DTP Scheme referred to in Ext.P5 is an antiquated scheme that is no longer in operation. The Municipality has granted building permits to other land owners in violation thereof. The Municipality itself has constructed a shopping complex very close to the petitioner's property. Therefore, for all practical purposes, the Scheme has not been implemented in the Municipality and the area has undergone transformation by the indiscriminate grant of building permits in violation of the said Scheme. The above being the possession, there is absolutely no justification for denying a building permit to the petitioner alone. Reliance is placed on the decisions of this Court, Exts.P7, P8 and P9. Learned counsel also places reliance on the judgment of this Court dated 17.11.2012 in W.P.(C). No.27577 of 2009 to point out that, this Court had granted permission to construct a commercial building in an adjacent property of the W.P.C. No.16791 of 2014 3 petitioner. Learned Senior counsel also places reliance on the judgment of this Court dated 25.07.2014 in W.P.(C). No.16668 of 2013 to contend that, the Kerala Town and Country Planning Ordinance, 2013 (Ordinance No.51 of 2013) also cannot save the DTP Scheme relied upon by the respondents for the reason that, the Scheme has ceased to be effective in operation. 3. A counter affidavit has been filed on behalf of the respondents. 4. Adv. Sheejo Chacko appears for the respondents. According to the learned counsel, the petitioner has constructed a commercial building in another portion of his property, in violation of a Stop Memo issued by the Municipality. The said Stop Memo had been challenged before the Tribunal for Local Self Government Institutions. The Tribunal directed the matter to be reconsidered, pursuant to which, Ext.P10 order has been passed. Without demolishing the said construction, which is unauthorized, no further construction is permissible on the petitioner's land. It is also contended that, the DTP Scheme applicable to the W.P.C. No.16791 of 2014 4 Municipality has been saved by Ordinance No.51 of 2013 and therefore, the contentions of the petitioner that the Scheme is not applicable cannot be countenanced. According to the learned counsel, the DTP Scheme has not lapsed and continues to be in operation. For the above reasons, it is contended that no interference with Ext.P5 is called for. 5. Heard. As already noticed above, the reasons for rejection of the petitioner's application mentioned in Ext.P5 are that, the same has been described as wet land in the Possession Certificate and that, as per the DTP Scheme, the land is required for development of the market area. It has been held by this Court in **Gopalakrishnan T.V. v. State of Kerala and Others [ 2011 (3) KHC 162], Kalpetta Municipality v. M. Mohandas and Others [2011 (4) KHC 844], Mohammed Abdul Basheer C.P. v. State of Kerala and Another [2012 (3) KHC 489]** that, it is not the description of the land in the records that is crucial in the matter of deciding whether a particular land is a paddy W.P.C. No.16791 of 2014 5 land or not. This is for the reason that, a land described as paddy land could have been filled up and converted into dry land, years back. Therefore, it is necessary for the present condition of the land to be ascertained by physical inspection before a building permit is rejected. It has been held in **Padmini V. State of Kerala [1999 (3) KLT 465]** by this Court following the decision of the apex Court in **Raju S. Jethmalani and others v. State of Maharashtra and others [2005 (11) SEC 222]** that, unless Town Development Schemes are promptly implemented by follow up land acquisition proceedings, no restriction could be placed on the use of any land included in such a scheme, by the landlord. In the light of the dicta referred to above, neither of the reasons stated in Ext.P5 is unsustainable. 6. It is true that the counsel for the respondents has raised a contention that the petitioner has made some unauthorised construction that has been directed to be demolished and that unless the same is regularised, his application could not be considered. I refrain from W.P.C. No.16791 of 2014 6 considering the above contention for the reason that no such reason has been stated in Ext.P5. Though, Ext.P10 has been produced by the petitioner, the petitioner is left to challenge the same in separate proceedings, invoking his statutory remedy against the same. 7. For the above reasons, Ext.P5 is held to be unsustainable and it is set aside. The 2[nd] respondent is directed to consider the application submitted by the petitioner afresh, in the light of the dicta laid down by this Court in the various decisions on the point and to pass appropriate orders thereon, after conducting an inspection of the property and ascertaining its present physical condition. Orders as indicated above shall be passed as expeditiously as possible and at any rate, within a period of one month of the date of receipt of a copy of the judgment. ## Sd/- ## **K. SURENDRA MOHAN JUDGE** / True Copy / NS P.A. To Judge