Deepu Divakar v. Municipal Corporation of Thiruvananthapuram & Ors.

W.P.(C) No.27576/2021 -1- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** ## **MONDAY, THE 22ND DAY OF MAY 2023 / 1ST JYAISHTA, 1945 WP(C) NO. 27576 OF 2021** ## **PETITIONER:** DEEPU DIVAKAR AGED 50 YEARS, S/O. K DIVAKAR, FLAT NO. 403, DEEPAKAM APARTMENTS, MAIN ROAD, PUTHUR, PALAKKAD DISTRICT, PIN 678 001 BY ADVS. JACOB SEBASTIAN K.V.WINSTON ANU JACOB ## **RESPONDENTS:** 1 MUNICIPAL CORPORATION OF THIRUVANANTHAPURAM VIKAS BHAVAN P.O, THIRUVANANTHAPURAM, PIN 695 033, REPRESENTED BY ITS SECRETARY 2 THE SECRETARY MUNICIPAL CORPORATION OF THIRUVANANTHAPURAM, VIKAS BHAVAN P.O, THIRUVANANTHAPURAM, PIN 695 033 3 THE REGIONAL TOWN PLANNER REGIONAL TOWN PLANNING OFFICE, THIRUVANANTHAPURAM, SANTHI NAGAR, PULIMOODU P.O, THIRUVANANTHAPURAM, PIN 695 001 4 THE REVENUE DIVISIONAL OFFICER THIRUVANANTHAPURAM, OFFICE OF THE REVENUE DIVISIONAL OFFICER, THIRUVANANTHAPURAM, PIN 695 001 5 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, W.P.(C) No.27576/2021 -2- THIRUVANANTHAPURAM, PIN 695 001 6 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, THIRUVANANTHAPURAM, PIN 695 001 7 THE STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM DISTRICT, PIN 695 001. BY ADVS. SRI.P.K.MANOJKUMAR, SC, TVPM CORPORATION SRI.N.NANDAKUMARA MENON (SR.) SMT.K.R.DEEPA, SPL.GOVT.PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.09.2022, THE COURT ON 22.05.2023 DELIVERED THE FOLLOWING: W.P.(C) No.27576/2021 -3- ## **T.R. RAVI, J. -------------------------------------------W.P.(C)No.27576 of 2021 -------------------------------------------Dated this the 22nd day of May, 2023** ## **JUDGMENT** The petitioner is the owner of an extent of 6 Ares in Sy.No.750/16 of Cheruvaikkal Village in Thiruvananthapuram Taluk, which lies within the limits of the first respondent Corporation. The property is stated to be abutting the main road and is bounded by residential and commercial buildings. The property, though described as ‘nilam’ in the revenue records, is not included in the data bank prepared in terms of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'the Act'). The 4[th] respondent, after obtaining a report from the Agricultural officer, has granted Ext.P2 permission to the petitioner, under Section 27A of the Act, to use the land for commercial purposes, on condition of payment of Rs.27.5 lakhs. The amount was remitted by the petitioner. The plot has thereafter been categorized as ‘converted land’ in revenue records. 2. The petitioner applied for a building permit to construct a commercial building. The application was rejected by the 2[nd] respondent on 09.11.2021 as per Ext.P3 stating that the plot is in an area reserved for agricultural use under the sanctioned Master Plan and DTP scheme for the Corporation and the petitioner can only construct a W.P.(C) No.27576/2021 -4- residential building below 300 sq.m. Ext.P4 is the sanctioned DTP scheme for the area. As per Ext.P4, the lands in Sy.No.750 of Cheruvaikkal Village are reserved for agricultural use. According to the petitioner, his property is situated in Sy.No.750/16 and is not reserved for agricultural use in the DTP scheme. It is further contended that under Section 27C of the Act, a new survey number or subdivision number is to be created for such extent for which orders of conversion are issued. It is contended that the DTP scheme was never implemented, and most of the buildings situated around the petitioner’s property are about 15 to 20 years old. Reliance is placed on the Division Bench judgment in **Gopalakrishnan T.V. v. State of Kerala & Ors. [2011(3) KHC 162]** , wherein this Court had directed the Secretary to conduct a local inspection and verify if there are commercial buildings near the property of the petitioner therein and to grant a permit for the construction of the commercial building, even though the area is identified for residential buildings. Reliance is also placed on the decisions in **Padmini Vs. State of Kerala [1999 (3) KLT 465], Raju Jethmalani & Ors. vs. State of Maharashtra & Ors. [(2005)11 SCC 222]** , **Basheer vs. Kozhikode Corporation & Ors. [2021 (3) KHC 578],** and **Municipal Corporation for City of Pune vs. Bharat Forge Co. Ltd [1995 KHC 836],** and it is contended that the Doctrine of desuetude will apply to the fact W.P.(C) No.27576/2021 -5- situation. 3. The 3[rd] respondent has filed a counter affidavit. It is stated that the petitioner's application was received on 29.07.2021 for constructing a multi-storeyed apartment of built-up area 1470.64 sq.m. in old Sy.No. 1005(Re.Sy.No. 750/16), that the old Sy.No was in the “Agricultural Use Zone” of the Master plan for Trivandrum Medical College area as per GO.(P)No.227/2014/LSGD dated 20.12.2014. It is submitted that as per the regulations, residential buildings with floor area up to 300 sq.m. can be permitted by the Secretary of the Corporation, with the concurrence of the District Town Planner. The petitioner’s application was hence returned to the Secretary as the area was not within the permissible limits. It is stated that though the agricultural use zone is envisaged, owing to the demand for development, allowances are made for permitting small constructions up to a floor area of 300 sq.m. considering the existing condition of the area and without affecting the sensitivity of the area. It is stated that the impact caused by the multi-storeyed apartment in such an area will be much higher compared to that of a single-family residential building. It is submitted that no violation of the Master Plan/Development Plan and Zoning Regulations can hence be permitted. 4. The 1[st] respondent has filed a statement. It says that in the BTR produced along with the application for a building permit W.P.(C) No.27576/2021 -6- submitted by the petitioner, the nature of the property is shown as Nilam and in the tax receipt, it is shown as converted land as purayidam. It is stated that the property is included in the Medical College Area Development Scheme as an agricultural zone, and a permit can be issued only with the concurrence of the Regional Town Planning Officer. It is stated that the petitioner has an effective remedy by way of appeal before the Tribunal for Local Self Government Institutions under the Kerala Municipality Act. 5. During the hearing, doubts arose regarding the survey numbers of the properties that are included in the scheme under the agricultural zone and this Court directed the Special Government Pleader to get the necessary details. Documents have been produced along with a Memo dated 13.6.2022. The survey sketch of old Sy.No.1005 and survey sketch of Sy.No.750/5 have been produced. It is seen that the survey sketch of Old Sy.No.1005 was prepared sometime in 1956 and that the sketch of Sy.No.750/5 was prepared sometime in 1987. The DTP scheme prepared in 2014 cannot be hence referring to the old survey numbers. As per Ext.P4, Sy.No.750/16 is not seen included in the Agricultural use zone. At the same time, Sy.No.750 Part is seen included. This would necessarily mean that the entire Sy.No.750 irrespective of subdivisions, has not been included as Agricultural use zone and only part of the survey number has been W.P.(C) No.27576/2021 -7- included. On facts, after noticing the developments in the area and after inspecting the land, the petitioner has been permitted to convert the land and put it to commercial use, upon making the required payments. When the Government issues such an order, it cannot be presumed that the same is issued without reference to the Zoning Regulations. When the Zoning Regulation does not identify the entire Survey No.750 as an agricultural zone, there can be no justification for denying the petitioner the benefit of the conversion order and the reclassification of the property as purayidom. 6. In the judgment dated 15.3.2022 in W.P.(c)No.24396 of 2021, this Court had taken note of the directions issued to the District Town Planners, stating that the Secretary of the Local Self Government Institutions, with the concurrence of the District Officer of the Department of Town and Country Planning, shall permit in lands in paddy lands/wetlands zone, such uses that are permissible in adjacent land use zone, if the particular land is not classified as Paddy land or water body as per revenue records. As such, there cannot be any justification in denying the petitioner a building permit, on the ground that the area had been included in the agricultural use zone. As already observed, Ext.P4 would not show that Sy.No.750/16 has been included in the agricultural use zone. Coupled with the fact that the petitioner was permitted conversion for use for commercial purposes, after W.P.(C) No.27576/2021 -8- payment of amounts that are applicable to commercial plots, the petitioner is entitled to succeed in this writ petition. 7. The writ petition is hence allowed. Ext.P3 is quashed. The 2[nd] respondent is directed to issue a building permit to the petitioner if the application is otherwise in order. The reason stated in Ext.P3 shall not be a reason to deny a building permit to the petitioner. It is declared that the restrictions in Ext.P4 will not apply to the property covered by Ext.P1 and situated in Sy.No.750/16, as the same is not included in Ext.P4 as coming under the agriculture zone. **==> picture [325 x 53] intentionally omitted <==** Sd/-/- **T.R. RAVI JUDGE** dsn W.P.(C) No.27576/2021 -9- ## **APPENDIX OF WP(C) 27576/2021** PETITIONER'S EXHIBITS Exhibit P1 A TRUE COPY OF THE BASIC TAX PAID RECEIPT DATED 20-02-2021 ISSUED BY THE VILLAGE OFFICER, CHERUVAIKKAL VILLAGE, THIRUVANANTHAPURAM DISTRICT Exhibit P2 A TRUE COPY OF THE ORDER DATED 30-11-2020 ISSUED BY THE FOURTH RESPONDENT. Exhibit P3 A TRUE COPY OF THE ORDER ISSUED BY THE SECOND RESPONDENT DATED 09-11-2021 Exhibit P4 A TRUE COPY OF THE SANCTIONED DTP SCHEME FOR THE AREA NAMELY TRIVANDRUM MEDICAL COLLEGE AREA DEVELOPMENT SCHEME DATED 2012-2014 RESPONDENTS' EXHIBITS DOCUMENTS TRUE COPY OF SURVEY SKETCH OF OLD SY NO. 1005 OF CHERUVAKKAL VILLAGE DOCUMENTS TRUE COPY OF RE-SURVEY SKETCH RE.SY NO 750/5 OF CHERUVAKKAL VILLAGE DOCUMENTS LAND USED MAP OF THIRUVANANTHAPURAM MEDICAL COLLEGE AREA DEVELOPMENT SCHEME (MASTER PLAN) DOCUMENTS TRUE COPY OF THE RELEVANT PAGES OF THE THIRUVANANTHAPURAM MEDICAL COLLEGE AREA DEVELOPMENT SCHEME AS PER G.O(P)NO.261/1976/LA AND SWD DATED 27-101976 (PAGE NOS. 1, 11, 13.16, 17, 18 AND 19)