Damac Holdings Pvt. Ltd. v Thrikkakara Municipality and others (WP(C).No. 14530 of 2013 (M))

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN THURSDAY, THE 25TH DAY OF JULY 2013/3RD SRAVANA, 1935 WP(C).No. 14530 of 2013 (M) ---------------------------- PETITIONERS: --------------- 1. M/S.DAMAC HOLDINGS PVT. LTD. 32/2241A, CIVIL LANE ROAD, PALARIVATTOM ERNAKULAM 682025 REPRESENTED BY ITS DIRECTOR-C.BALASUBRAMONIAM 2. NOOR MOHAMMED NOORISHA, KALLIATH HOUSE, MAMANGALAM, PALARIVATTOM ERNAKULAM 682 025 BY ADVS.SRI.K.I.MAYANKUTTY MATHER SRI.P.RAHUL RESPONDENTS: -------------- 1. THRIKKAKARA MUNICIPALITY REPRESENTED BY ITS SECRETARY, THRIKKAKARA 682 030 2. SECRETARY, THRIKKAKARA MUNICIPALITY, THRIKKAKARA 682 030 3. STATE OF KERALA REPRESENTED BY ITS SECRETARY LOCAL ADMINISTRATION(M) DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM 695001 4. REGIONAL TOWN PLANNING OFFICER, ERNAKULAM 682030 R1,R2 BY ADV. SRI.S.SHANAVAS KHAN R3 & 4 BY SPL. GOVERNMENT PLEADER SHRI.P.JAYASANKAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 14530 of 2013 (M) ## ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------- EXHIBIT P1 TRUE COPY OF THE APPLICATION NFOR PERMIT SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED NIL EXHIBIT P1(A) TRUE COPY OF THE DRAWING OF THE PROPOSED CONSTRUCTION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RSPONDENT DATED NIL EXHIBIT P1(B) TRUE COPY OF THE DRAWING OF THE PROPOSED CONSTRUCTION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED NIL EXHIBIT P1(C) TRUE COPY OF THE DRAWING OF THE PROPOSED CONSTRUCTION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED NIL EXHIBIT P1(D) TRUE COPY OF THE DRAWING OF THE PROPOSED CONSTRUCTION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED NIL EXHIBIT P1(E) TRUE COPY OF THE DRAWING OF THE PROPOSED CONSTRUCTION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED NIL EXHIBIT P1(F) TRUE COPY OF THE DRAWING OF THE PROPOSED CONSTRUCTION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED NIL EXHIBIT P2 TRUE COPY OF THE RELEVANT EXTRACT OF THE DATA BANK DETAILS DATED NIL EXHIBIT P2(A) TRUE COPY OF THE REPORT OF THE ADDITIONBAL TAHSILDAR KANAYANNUR TALUK DATED 10-05-2013 EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 22-05-2013 EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN WPC NO 18312/2008 OF THIS HON'BLE COURT DATED 12-12-2011 RESPONDENT(S)' EXHIBITS NIL ------------------------- JJ /TRUE COPY/ P.S.TO JUDGE ## K. SURENDRA MOHAN,J ------------------------------W.P(C) NO: 14530 OF 2013 ---------------------------------Dated this the 25[th] July, 2013. ## JUDGMENT The petitioners have filed this writ petition challenging Ext.P3 proceedings of the second respondent rejecting an application for building permit submitted by them. The application was for the issue of a building permit to construct a multi storied apartment complex. The application of the petitioners has been rejected for the reason that as per the structural plan the property is included in the agricultural zone. Therefore, no construction of a commercial building is permissible in the said property. 2. According to Adv.K.I.Mayankutty Mather who appears for the petitioners the ground on which Ext.P3 has been issued is unsustainable. It is submitted that as per Ext.P4 judgment this Court has set aside a similar order rejecting an application for building permit in respect of the property just adjacent to WPC 14530/2013 2 that of the petitioners. It has been held that the reason stated in the said order based on the applicability of the structural plan was unsustainable. Therefore, the matter has been directed to be reconsidered. It is also submitted by the counsel that pursuant to such reconsideration building permit has been granted to the owner of the said property and the construction is progressing. The counsel draws my attention to Ext.P2 data bank published under the provisions of Act 28/2008 to contend that the property of the petitioners though described in the Revenue records as paddy land is at present a fully developed dry land, having been converted long before the coming into force of the said enactment. Reliance is also placed on Ext.P2(a) proceedings of the Tahsildar, Kanayannur. Even assuming that the area is earmarked for agricultural purposes only, according to counsel, if other commercial buildings have been permitted to be constructed, then the second respondent ought to have granted permit to the petitioners also. The above aspect not having been considered in Ext.P3, it is contended that Ext.P3 is WPC 14530/2013 3 unsustainable for the said reason also. Various decisions of this Court in which similar orders have been set aside are also relied upon by the counsel. 3. A counter affidavit has been filed on behalf of respondents 3 and 4. According to Shri. P.Jayasankar, Special Govt. Pleader, the structural plan (General Town Planning Scheme) for central city of Kochi 2001 was sanctioned by Government order dated 20.3.1991. The Thrikkakara Panchayat is included in the said structural plan. Since the area has been set apart as agricultural zone, variation of the said scheme is impermissible as held by a Division Bench of this Court in the decision reported in Sayeesh Kumar v. State of Kerala {2005(4) KLT 1027} , it is submitted. Reliance is also placed on the decision of the Apex Court in M.P.Special Police Establishment v. State of M.P and others {2004(8) SCC 788} to point out that it is permissible for lands to be included in zoning regulations for the purpose of ensuring the planned development of urban areas. It is contended that it is not open to the individual land owners to complain of restrictions WPC 14530/2013 4 which are imposed by properly enacted legislations. It is therefore contended that the rejection of the building permit as per Ext.P3 on the ground of violation of zoning regulations is perfectly justified, according to the counsel. 4. Adv.S.Shanavas Khan appears for respondents 1 and 2. According to the counsel, in view of the structural plan that has designated the area as the agricultural zone, it is impermissible to grant permit for the construction of any commercial building. The proposed apartment complex is nothing but a commercial activity, according to the counsel. 5. Heard. I had heard this writ petition on 18.6.2013 and had dictated my judgment. Thereafter, upon being mentioned by the learned Special Govt. Pleader, the matter has been posted before me today for being 'spoken to'. The matter has been heard again. 6. A perusal of Ext.P3 shows that there are two reasons stated therein. The first reason is that the property of the petitioners is included in the agricultural zone as per the structural plan. The second reason stated is that the proposed WPC 14530/2013 5 construction is in violation of the KLU Act, 2008 as well as the zoning regulations. It is worth noticing immediately that there is no Act by name, KLU Act, 2008. The reference obviously is to Act 28/2008, the Kerala Paddy Land and Wet Land Act, 2008. Before coming into force of the said Act it was the Kerala Land Utilisation order that was in force. The authority has made the said statement in Ext.P3 obviously confusing the above laws. 7. As rightly pointed out by the counsel for the petitioners Ext.P2(a) proceedings of the Tahsildar, Kanayannur shows that the property that is described as paddy land in the Revenue records, was reclaimed before 2008 and that the same is a filled up land at present. Ext.P2 is the draft data bank prepared under the provisions of Act 28/2008. Ext.P2 also shows the property of the petitioners as a filled up land. Therefore, prima facie there does not appear to be any violation of the provisions of Act 28/2008. Ext.P3 order does not indicate that any attempt was made by the second respondent to ascertain the present condition of the land by WPC 14530/2013 6 conducting a site inspection thereof. Therefore, the said ground is unsustainable. 8. The second ground is that as per the structural plan, the land comes within the agricultural zone. A reference to Ext.P2(a) shows that the Tahsildar, Kanayannur has noticed construction activities progressing in the neighbouring properties at the time of inspection. It is also admitted by the counsel for respondents 1 and 2, that the judgment P4 related to an adjacent property with respect to which an application for building permit is pending consideration. It is no doubt true that the State has the power under the Town Planning Act to impose zoning restrictions. It is also worth noticing that Rule 3A of the Kerala Municipality Building Rules provides that the regulations in any town planning scheme in force under the town planning acts shall prevail over the provisions of the Kerala Municipality Building Rules, 1999. However, this Court has held in Gopalakrishnan v. State of Kerala {2011(3) KLT 317} that where constructions have been permitted in violation of the zoning regulations it is necessary WPC 14530/2013 7 to adopt a practical approach while considering applications of building permit. C.N.Ramachandran Nair, J has made the following observations, in the above context:- “If the photographs produced before us represent the true state of affairs of the locality, then the area can be legitimately called as a commercial zone and it can no longer be regarded as a residential zone. In our view, it would not be healthy for the people to live in such a busy commercial area surrounded by shops, hotels and where massive number of vehicles are running on the road. If in an area earmarked as a residential zone large number of constructions for commercial purposes were permitted whether under orders issued by the Government or not, then the only sensible thing for the Corporation to do is to take a realistic approach by not regarding the area any longer as a residential zone and request the Government to make suitable change in the Master Plan to make it in conformity with ground reality” WPC 14530/2013 8 Ext.P3 does not indicate whether any attempt to ascertain the above position was made by the second respondent before issuing Ext.P3. Therefore Ext.P3 is unsustainable. For the above reasons, this writ petition is allowed. Ext.P3 is set aside. The second respondent is directed to consider the application for building permit submitted by the petitioners, to verify and ascertain the present nature of land as well as the nature of the activities that have been permitted in the locality despite the same being designated as an agricultural zone and thereafter to pass appropriate orders on the application in accordance with law, as expeditiously as possible and at any rate within a period of one month of the date of receipt of a copy of this judgment. Sd/- K. SURENDRA MOHAN Judge jj /True copy/ P.S.to Judge WPC 14530/2013 9