G. Vijayanath v. Kottayam Municipality and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC** **THURSDAY, THE 26TH DAY OF JULY 2012/4TH SRAVANA 1934** **WP(C).No. 762 of 2008 (N) -------------------------** ## **PETITIONER:** **-----------** **G.VIJAYANATH, S/O.LATE A.P.GOPALAN NAIR, AGED 57 YEARS, KUTTIKATTU HOUSE, TAGORE MARG, KOTTAYAM.** **BY ADV. SRI.K.GOPALAKRISHNA KURUP** **RESPONDENT(S):** - **--------------** **1. THE KOTTAYAM MUNICIPALITY REPRESENTED BY ITS SECRETARY, OFFICE OF THE KOTTAYAM MUNICIPALITY, KOTTAYAM.** **2. THE SECRETARY, KOTTAYAM MUNICIPALITY,** - **OFFICE OF THE KOTTAYAM MUNICIPALITY, KOTTAYAM.** **3. STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF LOCAL ADMINISTRATION, SECRETARIAT, THIRUVANANTHAPURAM.** **R1,R2 BY ADV. SRI.SIBY MATHEW BY ADV. SRI.A.A.MOHAMMED NAZIR R3 BY SRI.MOHAMMED SHAFI, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AS** ## **WP(C).No. 762 of 2008 (N)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE ORDER NO.PW7/BA/288/99-00 KM DATED 14/3/2000. EXT.P2: COPY OF THE NOTICE ISSUED TO THE PETITIONER BEARING NO. PW7/BA/288/99-00 DATED 17/7/2001. EXT.P3: COPY OF THE LETTER DATED 01/04/2002 ISSUED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT. EXT.P4: COPY OF THE REVISED PLAN. EXT.P5: COPY OF THE ORDER DATED 5/11/2004 ISSUED BY THE 2ND RESPONDENT NO. PW7/BA/288/99-00. EXT.P6: COPY OF THE ORDER NO. PW7/BA/288/99-00 DATED 11/3/2004. EXT.P7: COPY OF THE ORDER NO.7034/E3/02/LGS DATED 14/12/2004. EXT.P8: COPY OF THE JUDGMENT DATED 16/8/2006 IN WPC.NO.313/2006. EXT.P9: COPY OF THE ORDER DATED 10/8/2007 BY THE 3RD RESPONDENT. EXT.P10: COPY OF THE LETTER DATED 10/10/2007 OF THE 2ND RESPONDENT. EXT.P11: COPY OF THE CEVEAT O.P.NO.33/2007 OF THE SUB COURT, KOTTAYAM. EXT.P12: COPY OF THE ORDER DATED 12/12/2005 OF THE 3RD RESPONDENT. EXT.P13: COPY OF THE RESOLUTION OF THE 2ND RESPONDENT SUBMITTED BEFORE THE GOVERNMENT. EXT.P14: COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS 1 AND 2 IN WPC.NO.313/2006. EXT.P15: COPY OF THE ORDER DATED 8/10/2007.** ## **RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** ## **P.A.TO JUDGE** **AS** **===================** ## **ANTONY DOMINIC, J. ================ W.P.(C) NO. 762 OF 2008** ## **Dated this the 26[th] day of July, 2012** ## **J U D G M E N T** Heard the learned senior counsel for the petitioner, learned standing counsel for the Municipality and the learned Government Pleader appearing for the 3[rd] respondent. 2. The petitioner is the owner of 6.333 cents of land comprised in RS No.153 in Block No.105 of Kottayam Village. The property is situated on the side of Tagore road which is situated within a fully developed commercial area of Kottayam Town. On an application made by him, Ext.P1 building permit was issued by the Municipality for the construction of a residential building. However, on the allegation that on the strength of Ext.P1, petitioner proceeded to construct a commercial building, Ext.P2 stop memo was issued and he was called upon to demolish the construction. On receipt of Ext.P2, the petitioner represented the mater to the Government and the Government by Ext.P3 directed the Secretary to consider a revised plan to be submitted by the petitioner. Accordingly, petitioner submitted a revised plan for its approval. **WPC.No.762/08** **:2 :** 3. Meanwhile, Ext.P5 order under Section 406(1) of the Kerala Municipality Act was issued calling upon the petitioner to show cause why the structure shall not be demolished. Although the petitioner filed his reply, Ext.P5 was confirmed by Ext.P6 only on 11/3/05. In Ext.P6, the 2[nd] respondent relied on Ext.P7, a Government Order dated 14/12/2004 which was not disclosed to the petitioner. However, that Government Order was the one passed on the representation filed by the petitioner when Ext.P2 stop memo was served on him. 4. Since Ext.P6 was issued relying on a Government Order, petitioner challenged the Government Order and Ext.P6 order under Section 406(3) before this Court in WP(C) No. 313/2006. By Ext.P8 judgment, this court disposed of the writ petition setting aside Exts.P6 and P7 and directed reconsideration of the matter. Accordingly, the Government reconsidered Ext.P7 and rejected the petitioner's application by Ext.P9. In Ext.P9 order dated 10/8/07, two reasons are stated. The first reason stated is that as per the Zonal Regulations provided in the Town Planning Scheme, the area in question was a residential area and therefore revised plan for commercial building submitted by the **WPC.No.762/08** **:3 :** petitioner could not be sanctioned. 5. The second reason stated is that the petitioner had provided a set back of only 10.91 M and that the abutting road had a widening proposal to 25 M and therefore the set back should have been 15.5 M. On receipt of Ext.P9 order, the Municipality issued consequential order evidenced by Ext.P15. It is in these circumstances, challenging Exts.P9 and P15, this writ petition has been filed. 6. In so far as the reasoning that the area in question is a residential zone as per the sanctioned development plan for Kottayam is concerned, admittedly the plot in question is situated within the most important commercial centre of Kottayam City. Even the Municipality does not have a case to the contrary. The specific case of the petitioner is that there is not even a single residential building in the whole area or atleast in the immediate neighbourhood. In para 6 of the writ petition, petitioner has stated the names of certain persons to whom permits have been granted for the construction of commercial buildings in the area in question. He also refers to Exts.P10 and P12, which also shows that further permits were issued to those persons. **WPC.No.762/08** **:4 :** 7. In addition to this, counsel also relied on the judgment of this Court in _**Gopalakrishnan v. State of Kerala**_ (2011 (3) KLT 317), where taking note of the fact that despite the zoning of the area as a residential one, the area was made use of for commercial purpose and constructions were permitted on that basis, this Court held as follows:- _“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_ .” 8. That apart, even the Municipality admits that the Town Planning Scheme in question has been framed in terms of the provisions contained in the Town Planning Act, 1939, which does not survive today in view of the 74[th] amendment to the Constitution as held by this Court in _**Shiva Prasad v. State of Kerala**_ (2011(1) KLT 690) and _**Abdul Kabeer v. Malappuram Municipality**_ (2012(3) KLT 106). 9. The facts of this case is exactly similar to the one dealt with by the Division Bench in _**Gopalakrishnan v. State of**_ **WPC.No.762/08** **:5 :** _**Kerala**_ (2011(3) KLT 317). That part, the principles laid down in _**Shiva Prasad's case**_ and _**Abdul Kabeer's case**_ are also applicable to the case in question, since the scheme in question has been framed under the Town Planning Act. If that be so, the scheme itself cannot survive, and at any rate, if a realistic approach is adopted, the area in question cannot be considered as a residential one. Therefore, the first reason stated by the Government in Ext.P9 is absolutely unacceptable. 10. Now what remains is the issue regarding the proposed width of the road in question. While in Ext.P9, the Government states that the proposed width is 25 M, the case of the petitioner is that the present proposal is only to have 15 M width. This contention of the petitioner is sought to be substantiated by referring to Ext.P12, GO(Rt) No.4970/2005/LSGD dated 12/12/2005, where an order of exemption has been granted in respect of an adjacent plot. One of the conditions mentioned in the said order is that the local body should ensure that necessary land for widening the post office road to 15 M is got surrendered free of cost from the applicant. The post office road mentioned therein is what is now known as Tagore road. That apart, Ext.P13 **WPC.No.762/08** **:6 :** also shows that the Municipality passed a resolution requesting the Government to fix the width of the road in question at 15 M. Further, Ext.P14 is the counter affidavit filed by the Municipality in WP(C) No. 313/06 where also it is stated that the suggestion made by the Municipality to reduce the width of the road from 18 M to 15 M was accepted by the Government. In the light of these materials, prima facie the conclusion of the Government in Ext.P9 that the proposed width of the road is 25 M does not appear to be correct. 11. Even apart from all this, in Ext.P8 judgment of this Court in WP(C) No. 313/06, this Court recorded the following undertaking of the petitioner:- “ _The Undertaking given by the writ petitioner in this Court to the effect that the land agreed to be surrendered by him for road widening will be surrendered by him is recorded and it is ordered that the Municipality will be entitled to enforce that undertaking, if it is seen that even as the neighbouring land owners surrender their lands for the same purpose, the petitioner is not prepared to make actual surrender_ .” 12. Therefore, it is for the Municipality to take a decision on the proposed width of the road providing necessary set back and also consider the request of the petitioner in the light of this **:7 :** ## **WPC.No.762/08** undertaking. 13. For all the aforesaid reasons, Exts.P9 and P15 are set aside. The Municipality will consider the revised plan submitted by the petitioner in the light of the above and pass orders thereon. Writ petition is disposed of as above. **ANTONY DOMINIC, JUDGE** Rp