Cochin Security Press Private Limited v. Elloor Municipality and Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE N.NAGARESH ``` ``` MONDAY, THE 21[ST] DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944 ``` ``` WP(C) NO. 25392 OF 2022 ``` ## `PETITIONER` ``` COCHIN SECURITY PRESS PRIVATE LIMITED REGISTERED OFFICE AT 4/307 E, VISHNUPURAM CHERANELLOOR P.O. ERNAKULAM -682 034 REPRESENTED BY ITS MANAGING DIRECTOR MR. NISHAD V.M. AGED 48 YEARS, S/O V.A. MUHAMMNED BY ADVS. N.S.MOHAMMED USMAN A.S.BENOY C.HARIKUMAR SANDRA SUNNY ARUN KUMAR M.A K.T.POULOSE (KORATTY) ``` ## `RESPONDENTS` ``` 1ELOOR MUNICIPALITY 37GV+27Q, ELOOR FERRY ROAD, UDYOGAMANDAL, ELOOR, ERNAKULAM- 683 501 REPRESENTED BY ITS SECRETARY 2SENIOR TOWN PLANNER LOCAL SELF DEPARTMENT ,PLANNING DISTRICT TOWN PLANNING OFFICE, 4TH FLOOR, CIVIL STATION, KAKKANAD ,ERNAKULAM- 682 030 3STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANTHAPURAM -695 001 BY ADV SHRI.K.S.ARUNKUMAR, SC, ELOOR MUNICIPALITY ``` 2 W.P(C) No.25392 of 2022 ## `OTHER PRESENT:` ``` SMT.DEEPA NARAYANAN SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P(C) No.25392 of 2022 3 ## **J U D G M E N T** Dated this the 21[st] day of November, 2022 The petitioner, a Company incorporated under the Companies Act and holding 16.07 Ares of property comprised in Re-Survey No.2 of Eloor Village, has approached this Court seeking to direct the respondents to renew Ext.P3 Building Permit in the light of the application preferred by the petitioner. 2. According to the petitioner, the predecessor-in-interest of the property applied for Building Permit and a Building Permit was issued on 25.10.2014. The petitioner thereafter purchased the property along with the Building Permit. The properties were mutated in the name of the petitioner. 3. The petitioner states that the land of the petitioner is lying as a dry land for more than 25 years. However, the land was described as wetland in the Village records. The petitioner applied for changing the nature of the land as Purayidam. Ext.P5 order was passed permitting the petitioner to convert W.P(C) No.25392 of 2022 4 the land. The petitioner was required to remit an amount of ₹28,00,037/- which is 20% of the market value of the property. 4. On payment of amounts, the nature of the land was changed. To the surprise and predicament of the petitioner, when the petitioner submitted an application for renewal of Building Permit, Exts.P8 and P9 were issued informing the petitioner that the application for renewal of Building Permit cannot be allowed in view of the fact that the petitioner’s land falls under the Cochin Central City Structural Plan. It is aggrieved by Exts.P8 and P9 that the petitioner is before this Court. 5. The petitioner would contend that Exts.P8 and P9 are illegal and unsustainable as there is no land acquisition proceeding initiated by the revenue authorities to keep the same as Agricultural Zone as per the Master Plan. The title deed of the petitioner’s property described the land as wetland and in Revenue records, the land is described as Nilam. The land in fact is a Purayidam. It is in such circumstances that W.P(C) No.25392 of 2022 5 the petitioner applied for appropriate classification of the property in Revenue records. The Revenue records are now corrected and the petitioner’s land is described as purayidam pursuant to Ext.P7. Ext.P8 order therefore cannot stand the scrutiny of law, contended the petitioner. 6. The 1[st] respondent filed a counter affidavit and resisted the writ petition. The 1[st] respondent submitted that the Building Permit was issued to one Mr. E.K. Muraleedharan and Smt.Shaija to construct a commercial building. The petitioner submitted an application for renewing the Permit and also preferred an application for changing the ownership. The Principal Overseer noted that the land is shown as Nilam in the Basic Tax Register. 7. The 1[st] respondent further submitted that while processing the application of the petitioner, it was noted that the land is included in the Agricultural Zone under the General Town Planning Scheme dated 31.05.2017, which is known as Cochin Central City Structural Plan. In the Structural Plan, the W.P(C) No.25392 of 2022 6 land falls under the Agricultural Zone. Therefore, a Building Permit for construction of a commercial building cannot be issued. The Standing Counsel further submitted that the petitioner has not advanced any tangible reasons to set aside Ext.P8 order. 8. I have heard the learned counsel for the petitioner and the learned Standing Counsel representing the 1[st] respondent. 9. The petitioner has purchased the property after 25.10.2014. On 25.10.2014, a Building Permit was issued to the predecessor-in-interest of the property of the petitioner. Noticing that the land is described as wetland, the petitioner moved the Authorities. The petitioner has obtained orders under the Kerala Land Utilisation Order for using the land for non-agricultural purposes. 10. The respondents also have issued Building Permit to the petitioner. When the petitioner sought renewal of Building Permit, the respondents have taken a stand that the land falls under Agricultural Zone as per the Cochin Central City W.P(C) No.25392 of 2022 7 Structural Plan and therefore a commercial building cannot be permitted. ## 11. This Court considered a similar issue in the judgment in **Surathmaja v. Thiruvananthapuram Corporation** [2021 ## (1) KLT 283]. In the said judgment this Court held as follows; “14. I am afraid that I cannot accede to this contention because, when an area has been reserved as a “Green Strip” ares, it really means that the owner of the property is divested of any entitlement to make any construction thereon or to deal with in any manner. This is in contra-distinction to zoning requirements which stipulate the development of an area in a particular manner, namely, “residential”, “commercial”, “mixed-use” etc., whereby the right of an owner to deal with his/her property is not taken away but only prescribes certain restrictions for it in larger public interest. The requirement in the Master Plan to preserve an area or property as a “green Strip” for all times is a permanent inhibition on an owner’s right to use the said property and it thus falls foul of the provisions of Art.300A of the Constitution of India. Any permanent prohibition or inhibition against the right of an owner with respect to a property owned by him/her cannot obtain the imprimatur of this Court, being guided by the constitutional imperatives; and I am certainly of the view that when such an inhibition is brought in, either through the Master Plan or through a Detailed Town Planning Scheme, it operates perpetually; and therefore that the land becomes compulsorily acquirable, if the zonal requirements in such manner has to be maintained. 15. Therefore, when an area thus becomes compulsorily acquirable under the Master Plan, the owner of the property obviously gets a concomitant right to issue a purchase notice under S.67 of the Kerala Town W.P(C) No.25392 of 2022 8 and Country Planning Act and if the same is rejected or not considered by the Corporation within the statutory period stipulated, then he/she gets entitled to have his/her application for building permit considered de hors the stipulations in the Master Plan. This position of law has been ineluctably declared by this Court in **Regional Town Planner & Anr. V. Muhammed Rasheed & Ors.** [2019 (3) KLT 433 = [2019 (3) KHC 987] and **District Town Planner, Malappuram & Ors. v. Vinod & Ors.** [2019 (3) KLT 154 = 2019 (3) KHC 673]. 12 **.** The learned Single Judge gave liberty to the petitioner therein to give Purchase Notice to the authorities invoking Section 67 of the Kerala Town and Country Planning Act, 2016. 13. As this writ petition is based on similar set of facts, I deem it appropriate to dispose of this writ petition following the said judgment in _**Surathmaja v. Thiruvananthapuram Corporation**_ (supra). Resultantly, I order this writ petition and leave liberty to the petitioner to issue to the 1[st] respondentMunicipality an appropriate Purchase Notice under Section 67 of the Kerala Town and Country Planning Act; and if this is done within a period of two weeks from the date of receipt of copy of this judgment, the competent authority of the W.P(C) No.25392 of 2022 9 Corporation will consider the same and issue appropriate orders thereon within the statutory period specified. 14. Needless to say, if the Purchase Notice of the petitioner is either rejected or not answered by the competent authority of the Municipality within the time frame fixed under the Kerala Town and Country Planning Act, then the Secretary of the Municipality will be obligated to consider the petitioner’s application for Building Permit and issue appropriate orders thereon dehors the stipulations of the Master Plan, as expeditiously as possible, but within one month from the date on which the statutory period for consideration of the petitioner’s application, under Section 67 of the Kerala Town and Country Planning Act expires. Ordered accordingly. Sd/- ## **N. NAGARESH, JUDGE** smm W.P(C) No.25392 of 2022 10 ## `APPENDIX OF WP(C) 25392/2022` ## `PETITIONER EXHIBITS` |`Exhibit P1`|`THE TRUE COPY OF SALE DEED NO 4862 OF`| |---|---| ||`2014 OF SRO ALANGAD`| |`Exhibit P2`|`THE TRUE COPY OF SALE DEED NO 4877 OF`| ||`2014 OF SRO ALANGAD`| |`Exhibit P3`|`THE TRUE COPY OF THE BUILDING PERMIT NO`| ||`PW-1-TBA (4162)/2014 ISSUED BY THE`| ||`LOCAL AUTHORITY, ELOOR MUNICIPALITY`| ||`DATED 25.10.2014`| |`Exhibit P4`|`THE TRUE COPY OF THE BASIC TAX RECEIPT`| ||`NO KL07031304495/2020 ISSUED FROM ELOOR`| ||`VILLAGE DATED 25.08.2020`| |`Exhibit P5`|`THE TRUE COPY OF THE ORDER OF SUB`| ||`COLLECTOR, FORT KOCHI NO K`| ||`4-1261/19/KDIS DATED 13.07.2020`| |`Exhibit P6`|`THE TRUE COPY OF THE ORDER ISSUED BY`| ||`THE TAHSILDAR PARAVUR DATED 08.09.2020`| |`Exhibit P7`|`THE TRUE COPY OF THE CERTIFICATE DATED`| ||`11.01.2021 ALONG WITH THE FRESH BASIC`| ||`TAX RECEIPT ISSUED FROM ELOOR VILLAGE`| ||`OFFICE DATED 25.08.2020`| |`Exhibit P8`|`THE TRUE COPY OF THE LETTER ISSUED BY`| ||`THE 1ST RESPONDENT DATED 25.01.2021`| |`Exhibit P9`|`THE TRUE COPY OF THE LETTER ISSUED BY`| ||`THE 1ST RESPONDENT DATED 20.05.2022`| ||`ALONG WITH THE LETTER OF THE SENIOR`| ||`TOWN PLANNER ISSUED BY THE 1ST`| ||`RESPONDENT TO THE PETITIONER DATED`| ||`02.02.2022`| |`RESPONDENT EXHIBITS`|| |`Exhibit R1A`|`A TRUE COPY OF THE LETTER DATED`| ||`10/12/2020 ISSUED BY THE 2ND`| ||`RESPONDENT.`| |`Exhibit R1 B`|`A TRUE COPY OF THE LETTER DATED`| ||`2/6/2021 ISSUED BY THIS RESPONDENT TO`| ||`THE PETITIONER.`|