Educational & Charitable Trust of Arch Diocese of Verapoly v Kalamassery Municipality and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 13[TH] DAY OF JUNE 2022 / 23RD JYAISHTA, 1944** **W.P.(C) NO.2992 OF 2022** ## **PETITIONER:** **EDUCATIONAL & CHARITABLE TRUST OF ARCH DIOCESE OF VERAPOLY,** **LATIN ARCH BISHOP'S HOUSE, BROADWAY, THRIKKANARVATTOM DESOM, ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN-682 031, REPRESENTED BY ITS TRUSTEE FATHER DENNY MATHEW PERINGATT.** **BY ADVS. STIYA SIVAN K.R.RENJU ANILA ANTONY SITHARA HAMZA KIZHAKOOT SREELAKSHMI A.** ## **RESPONDENTS:** - **1 KALAMASSERY MUNICIPALITY, B.P.O., CHANGAMPUZHA NAGAR, THIRUNILATH HOUSING COLONY, SOUTH KALAMASSERY, KALAMASSERY, ERNAKULAM-682 033, REPRESENTED BY ITS SECRETARY.** **2 SECRETARY, KALAMASSERY MUNICIPALITY, B.P.O., CHANGAMPUZHA NAGAR, THIRUNILATH HOUSING COLONY, SOUTH KALAMASSERY, KALAMASSERY, ERNAKULAM-682 033.** - **3 SENIOR TOWN PLANNER, COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM-682 030.** - **4 REGIONAL TOWN PLANNER, REGIONAL TOWN PLANNING OFFICE, KADAVANTHARA, ERNAKULAM-682 020.** - **5 CHIEF TOWN PLANNER SWARAJ BHAVAN, 2BD 3RD FLOOR, NANDTHANCODU, THIRUVANANTHAPURAM, KERALA-695 003.** -2- ## **W.P.(C) NO.2992 OF 2022** - **6 GREATER COCHIN DEVELOPMENT AUTHORITY (GCDA) REPRESENTED BY ITS SECRETARY, SAHODARAN AYYAPPAN ROAD, KADAVANTHRA, PB NO.2012, KOCHI-682 020.** **7 TAHSILDAR, KANAYANNUR TALUK, KANAYANNUR, PARK AVE, NEAR SUBASH PARK, MARINE DRIVE, KOCHI-682011.** **8 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM DISTRICT, PIN-695 001.** **R1 & R2 SRI.M.K.ABOOBACKER, STANDING COUNSEL** **R3,R4,R5, SMT.DEEPA NARAYANAN, SENIOR GOVERNMENT PLEADER R7 & R8** **R6 SRI. M.K. THANKAPPAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- ## **W.P.(C) NO.2992 OF 2022** ## **P.V.KUNHIKRISHNAN, J.** **------------------------------------------W.P.(C) No.2992 of 2022** **------------------------------------------Dated this the 13[th] day of June, 2022** ## **JUDGMENT** The above writ petition is filed with the following prayers:- “i) Set aside Exhibit P8 dated 28.10.2021 issued by the 3[rd] respondent; ii) to issue a writ of mandamus or any other writ, order or direction, directing the 3[rd] respondent to consider Exhibit P7 recommendation of the 1[st] respondent. iii) Set aside Exhibit P15 order dated 24.04.2022 issued by the 3[rd] respondent; iv) to issue a writ of mandamus or any other writ, order, or direction, directing the 3[rd] respondent to approve the layout plan by reconsidering the Exhibit P7 recommendation.” 2. The main prayer in the writ petition is against Ext.P8. Ext.P8 is the reply of the Senior Town Planner, Ernakulam to the Secretary, Kalamassery Municipality. Ext.P8 is a reply to Ext.P7. The contents of Ext.P8 is extracted herein:- -4- ## **W.P.(C) NO.2992 OF 2022** "പ�സ ത അപ�കയ�� അന�ബനങള�� �ര�പ��ധ�ചത�ൽ . ന�ന�� ത�ഴ� �റയ�ന ക�ര�ങൾ അറ�യ�ക�ന� ട� സല� അ�ഗ%ക&ത ഴക�ച� സ�റ� സ)പടക+ർ പ�ൻ പ�ക�ര� Ground and public open space zone (G1 & G2) ൽ ഉൾഴ0ട�ന�. ട� പസ�ണ�ൽ വ�ദ��ഭ��സ ഗണത�ല�ള ഴകട�ടങൾ uses permitted, uses permitted on appeal to competent authority എന�വയ�ൽഴ�ട�ന�ല. ആയത�ന�ൽ പ�സ) ത�ത ന�ർമ�ണ� ട� സലത� അന�വദന%യമ�യ� - ക�ണ�ന�ല�തത��, പല ഔട�ന) �ര�ഗണ�ക�വ�ൻ സ�ധ�ക�തത�മ�ണ) എന) അറ�യ�ക�ന�. സർക�ർ sanctioned Structure Plan for Central city of Kochi യ�ഴട ന�യപ=ണങള�ൽ ന�ന�� ഡ�സ)ഴ�ൻപസഷൻ/ പമ�ഡ�ഫ�പകഷൻ ലഭ�മ�ക�നത�ന� G.O.(Ms) No.305/2015/LSGD dated 29/09/2015 ഉതരവ), 18/02/2016 ഴല No.304282/RD2/15/LSGD ഗവ.സർക�ലർ എന�വ പ�ക�ര� Modification/Dispensation ന� സർക�ര�പലക) അപ�ക സമർ0�ക�വ�നത�ണ) എന�� .” അറ�യ�ക�ന� 3. It is the contention of the petitioner that the same issue is considered by this Court in several judgments as evident by Exts.P13, P14 and P16. The counsel also relied the latest judgment of this Court dated 06.06.2022 in W.P.(C) No.11970 of 2022. The counsel submitted that in the light of -5- **W.P.(C) NO.2992 OF 2022** these judgments, Ext.P8 is unsustainable. Ext.P15 order is the consequential order rejecting the approval of the lay out plan. 4. Heard both sides. 5. The counsel for the petitioner reiterated the contention. 6. The Government Pleader submitted that the counter affidavit is filed by the 3[rd] respondent. The Government Pleader takes me through paragraphs 4 and 5 of the counter affidavit filed by the 3[rd] respondent. Paragraphs 4 and 5 of the counter affidavit are extracted herein:- “4. It is submitted that above mentioned permit issued to the said buildings is already in violation of KMBR, 1999. Further the petitioner had made additional construction to the building even without applying for building permit. If the initial building application has been forwarded for layout approval of the District Town Planner as per KMBR Rules, it might have been intimated in the earlier stage itself, that the said property falls in the Ground and Public Open Space uses zone as per the Structure Plan (Master Plan) for Central City of Kochi and the said -6- ## **W.P.(C) NO.2992 OF 2022** construction was not permissible there. 5. It is submitted that the petitioner had submitted an application dated 06.11.2019 to the Senior Town Planner, Ernakulam on 07.11.2019 for getting approval for the usage of plot and layout of buildings for an educational Occupancy (Professional Education) building in a plot with an area of 12 acre in re-survey number 452/7 of Thrikkakra North Village in Kalamassery Municipality. The application was for regularising the additional constructions done on the existing buildings. The area of the existing building was 8823.83 sq.m and total area including the proposed building was 10167.73 sq.m. On Scrutiny, it was found that the said property falls in the Ground and Public Open Space uses zone as per the Structure Plan (Master Plan) for Central City of Kochi sanctioned by Govt. as per G.O.(Ms)103/91/LAD dated 20[th] March 1991. As per Table 4.8 of the zoning and sub division regulations (Part IV) of the structure Plan (varied vide G.O (Ms)143/07 LSGD dated 31[st] May2007), use regulations in Ground and Public Open Space uses zone, the proposed educational building of the petitioner is not permitted. Also, there was violation as per the submitted plan in access width required as per KMBR 1999. So the submitted plan violates Structure Plan provisions and also the required access width as per KMBR provisions. Hence Exhibit P6 application submitted by the petitioner was rejected. Later, Exhibit -7- ## **W.P.(C) NO.2992 OF 2022** P7 application was re-submitted by the Municipality and the same was again rejected as per Exhibit P8. **In Exhibit P8 the petitioner was also intimated to apply for getting dispensation/modification of the provision of the Master Plan as permitted vide G.O.(Ms)No:305/2015/LSGD dated Thiruvanthapuram, 29[th] September 2015 and Circular No: 304282/RD2/15/LSGD dated Thiruthapuram, 18[th] February 2016.** The Petitioner instead of applying for said modification/dispensation has apporached this Honourable High Court.” 7. The counsel for the Municipality submitted that Ext.P15 order is passed consequent to Ext.P8. This Court considered the contention of the petitioner and the respondents. This Court considered similar issues in several judgments. It will be better to extract the judgment in Ext.P13:- “The petitioner has approached this Court impugning Ext.P4 communication issued by the 5[th] respondent, as per which, their application for building permit has been rejected for the reason that the property has been included in the Kochi City Structural Plan, as part of an “Industrial Zone”. 2. The petitioner says that various other persons have approached this Court and obtained -8- ## **W.P.(C) NO.2992 OF 2022** judgments, wherein, this Court has already found that the Structural Plan has not been implemented until now. The petitioner cites for support the judgment in **State of Kerala v. Earthspace Builders and Developers** (Writ Appeal No.559/2016) and therefore, prays that Ext.P4 be set aside and Thrikkakkara Municipality be directed to reconsider their application for permit immediately. 3. The learned standing counsel appearing for the Thrikkakkara Municipality submits that it is true that in the judgment in the afore cited Writ Appeal, it has been found that the Structural Plan for Kochi has not been implemented so far and that a number of schools, colleges, commercial establishments and residential houses have already been constructed in the said area. He confirms that the area covered by the said judgment is the same as one that is involved in this case. Taking note of the afore submissions and being guided by the judgment in Writ Appeal No.559/2016 as also Ext.P5 judgment, I allow this writ petition and set aside Ext.P4; and consequentially, direct the competent Authority of the Municipality to take up the petitioner's application and reconsider the same, de hors the stipulations in the Structural Plan and issue appropriate orders thereon, as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment.” -9- ## **W.P.(C) NO.2992 OF 2022** 8. This judgment is rendered by this Court relying Ext.P14 judgment of the Division Bench. In the light of Exts.P13, P14 and P16 and also the judgment dated 06.06.2022 in W.P.(C) No.11970 of 2022, the prayers in this writ petition is to be allowed. Therefore, this writ petition is allowed with the following manner:- i) Exts.P8 and P15 are set aside. ii) The 3[rd] respondent is directed to consider the application to approve lay out plan by considering Ext.P7 recommendation as expeditiously as possible, at any rate, within a period of two weeks from the date of receipt of a copy of this judgment. iii) The Municipality is directed to consider the matter afresh based on the decision by the 3[rd] respondent. Sd/- **P.V. KUNHIKRISHNAN JUDGE** bpr -10- ## **W.P.(C) NO.2992 OF 2022** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 TRUE COPIES OF THE DEED OF TRANSFER NO.P7/2010/2942 DATED 15.07.2010 OF EDAPALLY S R O.** **EXHIBIT P1(A) TRUE COPIES OF THE DEED OF TRANSFER NO.P8/2010/2943 DATED 15.07.2010 OF EDAPPALLY S R O. EXHIBIT P1(B) TRUE COPIES OF THE DEED OF TRANSFER NO.P9/2010/2944 DATED 15.07.2010 OF EDAPPALLY S. R.O.** **EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT NO.BA 612/10 DATED 17.12.2010 FOR BLOCK A ISSUED BY 1ST RESPONDENT MUNICIPALITY TO THE PETITIONER. EXHIBIT P2(A) TRUE COPY OF THE APPROVED PLAN ISSUED BY 1ST RESPONDENT MUNICIPALITY IN BUILDING APPLICATION NO.BA.781/12 DATED 09.11.2012. EXHIBIT P2(B) TRUE COPY OF THE APPROVED PLAN ISSUED BY 1ST RESPONDENT MUNICIPALITY IN BUILDING APPLICATION NO.BA.875/12 DATED 28.11.2012. EXHIBIT P2(C) TRUE COPY OF THE APPROVED PLAN ISSUED BY 1ST RESPONDENT MUNICIPALITY IN BUILDING APPLICATION NO.BA.779/12 DATED 09.11.2012. EXHIBIT P3 TRUE COPY OF THE LOCATION PLAN. EXHIBIT P4 TRUE COPY OF THE TAX RECEIPTS NO.42101 DATED 19.02.2020 (BLOCK-D) ISSUED BY KALAMASSERY MUNICIPALITY TO THE PETITIONER. EXHIBIT P4(A) TRUE COPY OF THE TAX RECEIPTS NO.42102 DATED 19.02.2020 (BLOCK-E) ISSUED BY KALAMASSERY MUNICIPALITY TO THE PETITIONER.** -11- ## **W.P.(C) NO.2992 OF 2022** **EXHIBIT P4(B) TRUE COPY OF THE TAX RECEIPTS NO.14835 DATED 31.12.2020 (BLOCK-A) ISSUED BY KALAMASSERY MUNICIPALITY TO THE PETITIONER.** - **EXHIBIT P5 TRUE COPY OF LETTER NO.BA-350/2018 DATED 06.11.2019 SENT BY THE SECRETARY OF THE 1ST RESPONDENT TO THE DISTRICT TOWN PLANNER.** - **EXHIBIT P6 TRUE COPY OF THE LETTER DATED 07.12.2019 SENT BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE LETTER DATED 06.09.2021 SENT BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT.** - **EXHIBIT P8 A TRUE COPY OF THE COMMUNICATION DATED 28.10.2021 SENT BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT.** - **EXHIBIT P9 A TRUE COPY OF THE APPLICATION DATED 31.12.2019 SUBMITTED BY MR.VIVEK KUMAR TO THE PUBLIC INFORMATION OFFICER, KALAMASSERY MUNICIPALITY UNDER RIGHT TO INFORMATION ACT, 2005.** - **EXHIBIT P10 A TRUE COPY OF THE REPLY DATED 10.02.2020 GIVEN BY THE PUBLIC INFORMATION OFFICER, KALAMASSERY MUNICIPALITY.** **EXHIBIT P11 A TRUE COPY OF THE LAND USE CERTIFICATE A4-25971/10(1) DATED 19.01.2011 ISSUED BY 7TH RESPONDENT, TAHSILDAR, KANAYANNUR TALUK.** **EXHIBIT P12 A TRUE COPY OF THE ORDER OF APPROVAL NO.D/3000/18D-DIS DATED 11/07/2019 ISSUED BY 3RD RESPONDENT TO THE REGISTRAR OF COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY. EXHIBIT P13 A TRUE COPY OF THE JUDGMENT DATED 19.11.2019 OF THIS HON'BLE COURT IN WPC NO.20055 OF 2019 (F).** -12- **W.P.(C) NO.2992 OF 2022** **EXHIBIT P14 A TRUE COPY OF THE JUDGMENT DATED 26.10.2016 OF THIS HON'BLE COURT IN W A NO.559 OF 2016 IN WPC NO.15551/2015. EXHIBIT P15 TRUE COPY OF THE ORDER NO. TCPEKM/805/2021D.DIS DATED 24.04.2022 ISSUED BY THE 3RD RESPONDENT EXHIBIT P16 A TRUE COPY OF THE JUDGMENT DATED 16.03.2022 OF THIS HON'BLE COURT IN W.P.(C) NO.19164/2021.**