Cordial Homes Pvt. Ltd. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 20[TH] DAY OF JULY 2022 / 29TH ASHADHA, 1944 WP(C) NO. 17639 OF 2022** ## **PETITIONERS:** - **1 CORDIAL HOMES PVT.LTD TC. NO. 22/1130, PIPINMOODU ROAD, SASTHAMANGALAM P.O, THIRUVANANTHAPURAM- 695 010, REPRESENTED BY ITS MANAGING DIRECTOR, N. DHANANJAYAN UNNITHAN, AGED 64, S/O. PARAMESWARAN NAIR** - **2 ABRAHAM JACOB EAPEN, AGED 47 YEARS S/O. JACOB EAPEN, RESIDING AT TC NO. 1/1481, MAYLANDS, PRRA-27, PAZHAYA ROAD, MEDICAL COLLEGE P.O, THIRUVANANTHAPURAM- 695 011.** - **3 JOHN JACOB EAPEN, AGED 56 YEARS S/O. JACOB EAPEN, RESIDING AT TC NO. 1/1481, MAYLANDS , PRRA-27, PAZHAYA ROAD, MEDICAL COLLEGE P.O, THIRUVANANTHAPURAM-695 014** **BY ADV J.HARIKUMAR** ## **RESPONDENTS:** - **1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** - **2 THE CORPORATION OF THIRUVANANTHAPURAM, CORPORATION BUILDINGS, PALAYAM, THIRUVANANTHAPURAM, PIN 695 034, REP. BY SECRETARY.** - **3 THE SECRETARY, CORPORATION OF THIRUVANANTHAPURAM, CORPORATION BUILDINGS, PALAYAM, THIRUVANANTHAPURAM, PIN 695 034,** W.P.(C) No.17639/2022 : 2 : **4 THE CHIEF TOWN PLANNER (PLANNING), O/O. THE CHIEF TOWN PLANNER, NANDANCODE THIRUVANANTHAPURAM, PIN 695 033.** **BY ADVS.** **SRI.N.NANDAKUMARA MENON (SR.) SHRI.P.K.MANOJKUMAR,TVPM CORPORATION SMT.SURYA BINOY B, SR.GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.17639/2022 : 3 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.17639 of 2022 ````````````````````````````````````````````````````````````` _Dated this the 20[th] day of July, 2022_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioners are before this Court seeking to set aside Exts.P11 and P22 and to direct the 3[rd] respondentSecretary to Thiruvananthapuram Corporation to consider Ext.P7 Completion Report and to issue Occupancy Certificate applied for the building constructed as per Ext.P1 Building Permit without further delay, finding that no further clarifications are required in the light of Exts.P12, P13, P18 and P21. 2. The 1[st] petitioner is a Construction Company represented by its Managing Director and petitioners 2 and 3 are owners of 12.40 Ares of property in Pattom Village. The W.P.(C) No.17639/2022 : 4 : petitioners, as a Joint Venture, applied for Building Permit and approved Building Plan, to construct a residential-cumcommercial building in the property. Applications were allowed and Ext.P1 Building Permit was issued which was valid up to 12.11.2021. The permit was to construct two basement floors for parking, ground and 1[st] floors for residential-cum-commercial purposes and floors 2 to 8 exclusively for residential purposes. 3. The Building Project was registered with the Kerala Real Estate Regulatory Authority. Due to Covid-19 pandemic, the construction could not be completed by 12.11.2021 and the validity of Building Permit was extended up to 31.12.2021 and then further up to 30.06.2022. The petitioners state that the construction was completed before 15.12.2021 and application for Occupancy Certificate was submitted on 17.12.2021. Ext.P7 is the Completion Certificate dated 15.12.2021 signed by the Architect and submitted by the petitioners. The Department of Fire and Rescue Services issued Ext.P9 NOC on 24.01.2022. W.P.(C) No.17639/2022 : 5 : 4. By Ext.P11 communication, the 3[rd] respondentSecretary informed the petitioners that the Building Permit was issued to the petitioners in an area marked as ‘Commercial’ as per G.O.(P) No.227/2014/LSGD dated 20.12.2014 and hence a clarification has been sought for from the 1[st] respondent-State of Kerala. The petitioners contend that clarification has been sought for by the Secretary without adverting to Ext.P12 Interim Development Order (IDO) dated 11.09.2017 and Ext.P13 Land Use Map attached to the IDO. In Ext.P12, the area in question comes under Mixed Residential Use-II. 5. Therefore, no clarification is required for issuing Occupancy Certificate to the Building Project completed by the petitioners as per the approved Building Permit and Plan. Ext.P22 letter dated 13.04.2022 dispatched on 29.04.2022 by the 3[rd] respondent-Secretary to Corporation, to the Government Secretary (Urban) states that the land in respect of which Building Permit was given is in Commercial Zone and as the Medical College Development Plan is still in W.P.(C) No.17639/2022 : 6 : existence, the application for Occupancy Certificate cannot be considered. The petitioners would urge that Ext.P22 has been issued without application of mind. 6. Respondents 2 and 3 resisted the writ petition. The learned Senior Counsel assisted by the Standing Counsel for respondents 2 and 3 argued that the construction of the building has been completed by the petitioners in accordance with the Building Permit and the approved plan. The petitioners submitted an application dated 17.12.2021 for Occupancy Certificate. Since the construction of the building was completed by the petitioners in violation of the Zoning Regulation of the Detailed Town Planning Scheme of the Medical College Area Development, Ext.P22 letter dated 13.04.2022 was sent by the Secretary to the Corporation to the Secretary to Government, Local Administration Department, for clarification. The petitioners were also informed by the Secretary to the Corporation regarding the letter seeking clarification and that the Corporation can only grant UA number for the building. W.P.(C) No.17639/2022 : 7 : Since the construction of the building is completed contrary to the Zoning Regulations, the petitioners are not entitled to any deemed Occupancy Certificate. As soon as the clarification sought for by the Secretary to the Corporation as per Ext.P22 letter sent to the Government Secretary is received, appropriate steps will be taken by the Corporation on the application for Occupancy Certificate. 7. The 4[th] respondent-Chief Town Planner filed a Statement. According to the 4[th] respondent, the land in question is in Commercial Zone as per the Master Plan for Thiruvananthapuram Medical College area and in view of Zoning Regulations, residences with floor area of 300 square metres are only permissible. 8. On behalf of the 4[th] respondent, the Senior Government Pleader argued that as per the proviso to Section 36(12) of the Kerala Town and Country Planning Act, 2016, in cases where a Sanctioned Master Plan already exists, its provision shall only apply until the published master plan is sanctioned in accordance with this Act. As W.P.(C) No.17639/2022 : 8 : per the Note under Section 63 of the Act 'interim development' means development during the period between the date of notification of intention in the Gazette to prepare a plan and the date of publication of the draft plan in the official Gazette under this Act. Therefore, Interim Development Order cannot override a Sanctioned Master Plan. The Master Plan for Thiruvananthapuram Medical College area will prevail over the Interim Development Order. Any construction in the area shall be in conformity with the provisions of the prevailing town planning scheme in that area. 9. Rule 3(3) of the Kerala Municipality Building Rules, 2019 states that not withstanding anything contained in these rules, provisions or regulations in any Master Plan / Detailed Town Planning Scheme / Interim Development Order in force under the Kerala Town and Country Planning Act, 2016 (9 of 2016) shall prevail over the respective provisions of these rules wherever such Plan/Scheme/Order exists. Under the circumstances, any development has to W.P.(C) No.17639/2022 : 9 : comply with the Zoning Regulations of the prevailing Town Planning Scheme in that area, contended the Senior Government Pleader. 10. I have heard Sri. J. Harikumar, learned counsel for the petitioners, the learner Senior Government Pleader Smt. Surya Benoy representing respondents 1 and 4 and the learned Senior Counsel Sri. Nandakumara Menon assisted by Sri. P.K. Manojkumar, the learned Standing Counsel for respondents 2 and 3. 11. Certain facts are not in dispute in the writ petition. The petitioners have constructed and completed the Building Project in question after obtaining a valid Building Permit and as per a Plan approved by respondents 2 and 3. The land where the building is constructed falls in Re-Survey Nos.27/104, 27/76, 27/41 and 27/77 corresponding to Old Survey Nos.221/1-3-1, 221/1-3, 221/1-1-1 and 221/1-2 of Pattom Village. As per Ext.P13 Land Use Map attached to Ext.P12 Interim Development Order, Survey No.221 of Patton Village falls under Mixed Residential Zone-II. The W.P.(C) No.17639/2022 : 10 : building constructed by the petitioners is in Survey No.221 and is permissible in Mixed Residential Zones-II. 12. According to respondents 2 and 3, the Occupancy Certificate application of the petitioners is not processed pending a clarification from the Government, since the property falls under Commercial Zone as per the Medical College Development Plan. It is not in dispute that the Medical College Development Plan was of the year 2014 and Ext.P12 Interim Development Order is of the year 2017. 13. Section 63 of the Kerala Town and Country Planning Act, 2016 reads as follows: **63. Interim Development Orders and the restrictions after notifying the intention to prepare Plans** - (1) Notwithstanding anything contained in this Act, with the general object of controlling interim development of land included in any planning area in respect of which a decision has been taken by a resolution to prepare a plan or notified for preparing Detailed Town Planning Scheme under this Act the Municipal Corporation, Municipal Council Town Panchayat, Village Panchayat or Joint Planning Committee, as the case may be may prepare Interim Development Orders and forward the same to the Government for sanction. **Note:** - For the purpose of this section, the expression 'interim development' means development during the period between the date of W.P.(C) No.17639/2022 : 11 : decision taken to prepare a Plan under this Act and the date of coming into operation of the Plan in the case of Master Plan and in the case of Detailed Town Planning Scheme the period between the date of notification of intention to prepare the Plan under this Act and the date of coming into operation of the Plan. (2) Government may, in consultation with the Chief Town Planner, approve the Interim Development Orders forwarded to it under subsection (1) with or without modifications. (3) The main intention of the Plan shall be stated clearly in the, Interim Development Orders and it may also provide for all or any of the following, namely:- (a) circulation network and building lines; (b) space standards; (c) prohibiting the erection or re-erection of any building or construction of any road or making of any excavation or permitting development of land either unconditionally or subject to any condition specified in the order; (d) limiting the number of buildings, regulating the size, height, design and external appearance of buildings; (e) restricting the manner in which buildings may be used; and (f) prohibiting building operations or regulating such operations in respect of such matters as may be prescribed. (4) The restrictions imposed by the Interim Development Orders shall cease to operate with the coming into operation of the Plan: Provided that the Interim Development Orders shall cease to operate in the event of failure to publish the Plan within the time limit prescribed for publication of the Plan under this Act: Provided further that the Interim Development Orders shall cease to operate in the W.P.(C) No.17639/2022 : 12 : event of failure to sanction the published Plan within the time limit prescribed for the purpose under this Act and thereafter the use and development of land in the area shall be governed by the provisions of the published draft Plan: Provided also that where no such interim development orders are issued, use and development of land in the area shall be governed by the provisions of the published draft Plan from the date of publication of the notice in the Official Gazette inviting objections and suggestions, if any, thereon under the provisions of this Act: Provided also that in the case of a Master Plan or a Detailed Town Planning Scheme deemed to have been published under this Act provided in section 113, Government may, in consultation with the Chief Town Planner and the Local Self Government Institution concerned, by order, issue Interim Development Orders for the purpose of controlling use and development of land in the area. It is clear from Section 63(1) that with the object of controlling interim development of land included in any planning area in respect of which a decision has been taken by a resolution to prepare a plan or notified for preparing Detailed Town Planning Scheme, the Municipal Corporation may prepare Interim Development Orders and forward the same to the Government for sanction. 14. As per GO (MS) No.107/2013/LSGD dated 10.03.2013, Government had granted sanctioned for the W.P.(C) No.17639/2022 : 13 : publication Thiruvananthapuram Master Plan, 2031. Though the Draft Master Plan prepared in pursuance thereof was enforced with effect from 23.04.2013, the Draft Master Plan was frozen as per GO (MS) No.53/14/LSGD dated 26.02.2014. Later, the GO (MS) dated 26.02.2014 was modified to the effect that residential, commercial and industrial uses and other permissible projects shall be permitted as per the provisions of the published Master Plan for Thiruvananthapuram. 15. On 26.11.2016, it was decided that a new Master Plan for Thiruvananthapuram shall be prepared and published. It was also decided that an Interim Development Order shall be prepared by the Corporation of Thiruvananthapuram. Accordingly, an Interim Development Order was approved by the Corporation, which was approved by the Government also under Section 63(4) of the Kerala Town and Country Planning Act, 2016, as per Ext.P12 Government Order. In Ext.P12, it was made clear that the Proposed Land Use–2031 Map attached to the IDO will W.P.(C) No.17639/2022 : 14 : replace the Proposed Land Use–2031 Map already published. As per the revised/new Land Use–2031 Map attached to the IDO, Survey No.221 of Pattom Village falls in Mixed Residential Zone-II. The Residential-cum-Commercial building constructed by the petitioners is permissible in a Mixed Residential Zone-II. 16. Clause 3.5 of Ext.P12 Interim Development Order states that the Government approved Thiruvananthapuram Medical College Master Plan and any changes made thereto, would also apply to its planning area. The respondents would argue that in view of Clause 3.5 to Ext.P12, the area where the construction is made should be treated as Commercial area as the same is classified as Commercial area in the Thiruvananthapuram Medical College Master Plan and consequently, residential buildings with floor area of 300 square metres alone can be permitted. The petitioners’ construction exceeds the said limit. 17. There indeed is a conflict because the Medical College Master Plan classifies petitioners' land as within W.P.(C) No.17639/2022 : 15 : Commercial Zone, whereas as per the Interim Development Order, the land is in Mixed Residential Zone-II. This Court is of the considered view that when the 2014 Medical College Master Plan classifies the area in question as Commercial Zone and the subsequent 2017 Interim Development Order classifies the area as Mixed Commercial-II, the Interim Development Order should prevail over the Medical College Master Plan since the interim Development Order is subsequent one. Provisions of the Medical College Master Plan and any changes made to it can continue to operate as contemplated in Clause 3.5 of Ext.P12 IDO only in respect of those matters for which the Interim Development Order has not made any specific provision. 18. The petitioners have a further case that even assuming that the provisions of the 2014 Medical College Master Plan will prevail, still the property where the building has been constructed is beyond the areas to which the Medical College Master Plan would extend and hence there is no justification for delaying issuance of Occupancy W.P.(C) No.17639/2022 : 16 : Certificate. The issue whether the property is beyond the area of the Medical College Master Plan being a question of fact which can be subjected to dispute, this Court do not propose to arrive at any finding as to the applicability of the Medical College Master Plan to the area. 19. A Division Bench of this Court considered the applicability of the Interim Development Order of Thiruvananthapuram Corporation in _**Subbalekshmy S. v. Corporation of Thiruvananthapuram and others** 2021 (4) KLT 581]._ The Division Bench considered the question, whether the 1971 Master Plan 'or any other subsequent Master Plan' holds the field after the framing of the Interim Development Order and held that the intention of framing an Interim Development Order is clearly spelt out under Section 63(3) of the Kerala Town and Country Planning Act, 2016 and the Interim Development Order shall remain in force until the coming into operation of the Master Plan. Ext.P18 communication of the Additional Chief Secretary to Government of Kerala also clarifies that the provisions of the W.P.(C) No.17639/2022 : 17 : Interim Development Order would be applicable to Thiruvananthapuram Corporation. For the reasons stated above, the petitioners are entitled to get relief. The writ petition is therefore disposed of setting aside Exts.P11 and P22 and directing respondents 2 and 3 to issue Occupancy Certificate to the building of the petitioners expeditiously and at any rate, within a period of two weeks, if the petitioners’ building is otherwise eligible for Occupancy Certificate. Sd/- **N. NAGARESH, JUDGE** aks/19.07.2022 W.P.(C) No.17639/2022 ## : 18 : ## **APPENDIX OF WP(C) 17639/2022** ## **PETITIONER'S EXHIBITS** |**Exhibit P1**|**A TRUE COPY OF THE PERMIT **|**NO.**| |---|---|---| ||**E10/BA/74963/18 DATED 13.11.2018.**|| |**Exhibit P2**|**A TRUE COPY OF THE POKKUVARAVU**|| ||**CERTIFICATE**<br>**NO.**<br>**225/21,**|**DATED**| ||**18.08.2021.**|| |**Exhibit P3**|**A TRUE COPY OF THE CERTIFICATE OF**|| ||**REGISTRATION ISSUED BY THE KERALA**|**REAL**| ||**ESTATE REGULATORY AUTHORITY.**|| |**Exhibit P4**|**A TRUE COPY OF THE NOTICE **|**DATED**| ||**10.11.2020 FORM THE 2ND RESPONDENT.**|| |**Exhibit P5**|**A TRUE COPY OF THE REPLY **|**DATED**| ||**07.12.2020 SUBMITTED BY THE **|**FIRST**| ||**PETITIONER TO EXHIBIT P4.**|| |**Exhibit P6**|**A TRUE COPY OF THE CIRCULAR **|**NO.**| ||**RAI/25/2022 DATED 12.02.2022 OF THE**|| ||**LOCAL SELF GOVT. DEPARTMENT.**|| |**Exhibit P7**|**A TRUE COPY OF THE COMPLETION**|| ||**CERTIFICATE/REPORT SIGNED IN **|**THE**| ||**PRESCRIBED FORMAT AND COUNTERSIGNED BY**|| ||**THE ARCHITECT DATED 15.12.2021.**|| |**Exhibit P8**|**A TRUE COPY OF THE ACKNOWLEDGMENT**|| ||**ISSUED BY THE 1ND RESPONDENT**|**DATED**| ||**17.12.2021.**|| |**Exhibit P9**|**A TRUE COPY OF THE NO OBJECTION**|| ||**CERTIFICATE DATED 24.01.2022 ISSUED BY**|| ||**THE DIRECTOR OF THE DEPARTMENT OF**|**FIRE**| ||**AND RESCUE SERVICES, GOVT. OF KERALA.**|| |**Exhibit P10**|**A TRUE COPY OF THE LETTER **|**DATED**| ||**04.05.2022**<br>**SUBMITTED**<br>**BY**|**THE**| ||**PETITIONERS TO THE 3RD RESPONDENT.**|| |**Exhibit P11**|**A TRUE COPY OF THE LETTER **|**DATED**| ||**12.05.2022 FROM THE 3RD RESPONDENT IN**|| ||**REPLY TO EXHIBIT P10.**|| |**Exhibit P12**|**TRUE COPY OF THE G.O(MS) **|**NO.**| ||**180/2017/LSGD DATED 11.09.2017 **|**WITH**| ||**THE ATTACHMENTS.**|| W.P.(C) No.17639/2022 ## : 19 : |**Exhibit P13**|**A TRUE COPY OF THE LAND USE MAP**| |---|---| ||**AVAILABLE FOR REFERENCE ALONG WITH**| ||**EXHIBIT P12.**| |**Exhibit P14**|**A TRUE COPY OF THE CERTIFICATE NO.**| ||**888/22 DATED 25.05.2022 SHOWING THE**| ||**LAND COMPRISED IN RESURVEY NO. 27.104**| ||**AND SURVEY NO. 221/1-3-1 ARE ONE AND**| ||**THE SAME.**| |**Exhibit P15**|**A TRUE COPY OF THE CERTIFICATE NO.**| ||**891/22 DATED 25.05.2022 SHOWING THE**| ||**LAND COMPRISED IN RESURVEY NO. 27/76**| ||**AND SURVEY NO. 221/1-3 ARE ONE AND THE**| ||**SAME.**| |**Exhibit P16**|**A TRUE COPY OF THE NO. 890/22 DATED**| ||**25.05.2022 SHOWING THAT THE LAND**| ||**COMPRISED IN RESURVEY NO. 27/41 AND**| ||**SURVEY NO. 221/1-1-1 ARE ONE AND THE**| ||**SAME.**| |**Exhibit P17**|**A TRUE COPY OF THE NO. 889/22 DATED**| ||**25.05.2022 SHOWING THAT THE HAND**| ||**COMPRISED IN RESURVEY NO. 27/77 AND**| ||**SURVEY NO. 221/1-2 ARE ONE AND THE**| ||**SAME.**| |**Exhibit P18**|**A TRUE COPY OF THE CIRCULAR NO.**| ||**RD2/71/2016 LSGD DATED 06.10.2021**| ||**ISSUED BY THE ADDITIONAL CHIEF**| ||**SECRETARY ON BEHALF OF THE GOVT. OF**| ||**KERALA.**| |**Exhibit P19**|**A TRUE COPY OF THE JUDGMENT OF THIS**| ||**HON'BLE COURT IN W.P.C NO. 4306 OF**| ||**2016 DATED 05.10.2018.**| |**Exhibit P20**|**A TRUE COPY OF THE JUDGMENT OF THIS**| ||**HON'BLE COURT IN W.P.C NO. 1548 OF**| ||**2021 DATED 15.09.2021.**| |**Exhibit P21**|**A TRUE COPY OF THE CIRCULAR NO.**| ||**CSI.2022 DATED 21.02.2022 ISSUED BY**| ||**THE 3RD RESPONDENT.**| |**Exhibit P22**|**A TRUE COPY OF THE LETTER NO.**| ||**E10/92268/2021 FORM THE 3RD RESPONDENT**| ||**TO THE FIRST RESPONDENT, DATED**| ||**13.04.2022.**| ## W.P.(C) No.17639/2022 : 20 : **Exhibit P23** **A TRUE COPY OF THE APPLICATION FOR THE PERMIT SUBMITTED BY THE PETITIONERS AND THE NOTES FILE THEREON LEADING TO THE ISSUANCE OF EXHIBIT P1, OBTAINED UNDER THE RIGHT TO INFORMATION ACT.**