Ibrahim Haji & Moosa Haji v. Kozhikode Corporation & Secretary to Government, Local Self Government Department, Government Secretariat, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN** **THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931** **WP(C).No. 19351 of 2009(L)** **--------------------------------------** ## **PETITIONER(S):** **----------------------** **1. IBRAHIM HAJI, S/O.MOIDU, NADUVILLA KANDY HOUSE, KARTHIKAPPALLY AMSOM, KURINCHALIYOD DESOM, BADAGARA TALUK, KOZHIKODE.** ## **2. MOOSA HAJI,** **CHARAPARAMBIL HOUSE, KACHERI AMSOM, KOZHIKODE TALUK, KOZHIKODE.** **BY ADV. MR.M.P.MADHAVANKUTTY** ## **RESPONDENT(S):** **-------------------------** **1. THE KOZHIKODE CORPORATION, REP.BY ITS SECRETARY, KOZHIKODE CORPORATION, KOZHIKODE.** **2. THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM.** **R2 BY GOVERNMENT PLEADER MR.V. MANU. R1 BY ADV. MR.K.D.BABU,SC,KOZHIKODE CORPORATION** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/08/2009, ALONG WITH WPC NO.23947 OF 2005 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO. 19351/2009-L** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE SALE DEED DATED 16/03/2006.** **EXT.P2: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS FOR BUILDING PERMIT.** **EXT.P3: COPY OF THE ORDER DATED 21/01/2009.** **EXT.P4: COPY OF THE ORDER DATED 08/05/2009.** **EXT.P5: COPY OF THE JUDGMENT IN WP(C) NO. 10657/2008 BEFORE THIS HONOURABLE COURT.** **RESPONDENT'S EXHIBITS: NIL** **//TRUE COPY//** **P.A. TO JUDGE** **rs.** ## **P.N.RAVINDRAN, J.** **--------------------------W.P.(C) No. 19351 OF 2009 -------------------------Dated this the 8[th ] day of December, 2010** ## **J U D G M E N T** The petitioners jointly own 20 cents of land situated in Resurvey No.516/1 of Kasaba Village, Kozhikode Taluk, Kozhikode District which they purchased as per sale deed dated 16.3.2006. With a view to put up a hotel building consisting of ground floor and four floors in that parcel of land, the petitioners applied to the Secretary of Kozhikode Corporation for a building permit. By Ext.P3 order passed on 21.1.2009, the said application was rejected on the ground that as per the Detailed Town Planning Scheme (hereinafter referred to as 'the DTP Scheme' for short) approved by the Government for Sector 8 of Ward No.5 of Kozhikode Corporation, the area where the petitioners' land is situate is ear marked for use as a residential area and therefore a hotel building cannot be put up in the land belonging to the petitioners. Yet another reason stated is that a No Objection Certificate issued by the Public Works Department has not WPC No.19351/09 2 been produced. The petitioners submit that after Ext.P3 order was passed rejecting their application for building permit, they have applied for and obtained the consent of the Public Works Department to put up a hotel building in their lands. Ext.P4 letter dated 8.5.2009 sent by the Executive Engineer, PWD Roads Division, Kozhikode to the petitioners, is relied on in support of the said plea. The petitioners also contend that the DTP Scheme does not prohibit the establishment of a hotel in their land and therefore the denial of building permit is arbitrary and illegal, 2. Pursuant to the directions issued by this Court, the Deputy Secretary to Government, Local Self Government Department has filed an affidavit dated 17.9.2010 and produced along with it as Ext.R2(a), G.O.(MS)No.20/88/LAD dated 6.2.1988 to prove the fact that the DTP Scheme for Sector 8 of Ward Nos. 5 and 3 (Part) of Calicut Corporation has been approved by the Government as required under sub section (3) of section 14 of the Madras Town Planning Act, 1920. The WPC No.19351/09 3 relevant portion of the DTP Scheme for Sector 8 of Ward No.5 of Kozhikode Corporation has been produced by the Kozhikode Corporation as Ext.R1(a). Relying on the DTP scheme, the Kozhikode Corporation and the State of Kerala contend that in view of the provisions therein, the petitioners cannot put up a non residential building in their land as the land has been ear marked for use as a residential area. Reliance is placed on the decision of this Court in **Sajeesh Kumar v. State of Kerala** (2005 (4) KLT 1027) in support of the said contention. 3. I have considered the submissions made at the Bar by Sri. M.P.Madhavankutty, learned counsel appearing for the petitioners, Sri. K.D.Babu, learned standing counsel appearing for the Kozhikode Corporation and Sri. C.M.Suresh Babu, learned Special Government Pleader appearing for the State of Kerala. It is evident from Ext.P3 that the petitioners application for building permit has been rejected only on two grounds. The first ground is that in view of the provisions of the DTP Scheme, a hotel building cannot be put up in the area ear WPC No.19351/09 4 marked for residential use. The second reason stated is that a No Objection Certificate from the PWD has not been produced. It is not in dispute that the petitioners have after Ext.P3 order was passed, applied for and obtained a No Objection Certificate from the PWD authorities. Ext.P4 establishes the said fact. In Ext.P4 it is stated that if the petitioners leave a clear off set of 15 metres between the centre of the road and the proposed building line, the PWD would have no objection to the construction of the building. Then the only question is whether by virtue of the DTP Scheme the petitioners' application for building permit was liable to be rejected. 4. The relevant portion of Ext.R1(a) DTP Scheme relating to Sector 8 of Ward No.5 reads as follows: “10. (c) All future developments in respect of lands within the scheme area shall conform to the zoning regulations given below. Any uses not mentioned, therein shall be deemed to be prohibited. - (i) Residential use zone:- ## (a) Uses permitted: All residences, hostels, professional offices and studies of the residents, community halls, clubs, parks WPC No.19351/09 5 and play grounds incidental to the residential uses, public utility buildings such as water supply, drainage and electric installations of a minor nature, small service industries of a non-nuisance character engaging not more than 3 workers with power limited to 3 HP or 6 workers without power, convenience shops such as vegetable shops, groceries, pan shops etc. ## (b) The following uses shall be permitted by the responsible authority with the approval of the Chief Town Planner. Minor educational buildings, police and fire stations, small post offices, telegraph offices, boarding houses, commercial offices, petrol filling stations, small auto garages engaging not more than 5 workers and other non-nuisance type of service industries engaging on 20 workers without power and new areas as buildings for religious uses.” (emphasis supplied) 5. As per the DTP Scheme, residences, hostels, professional offices and studies of the residents, community halls, clubs, parks and play grounds incidental to the residential uses, public utility buildings such as water supply, drainage and electrical installations of a minor nature, small service industries of a non-nuisance character engaging not more than 3 workers with power limited to 3 HP or 6 workers without power, WPC No.19351/09 6 convenience shops such as vegetable shops, groceries, pan shops etc, can be established. It is also provided that minor educational buildings, police and fire stations, small post offices, telegraph offices, boarding houses, commercial offices, petrol filling stations, small auto garages engaging not more than 5 workers and other non-nuisance type of service industries engaging 20 workers without power and new areas as buildings for religious uses shall also be permitted by the responsible authority with the approval of the Chief Town Planner. In other words, apart from permitted uses, lands governed by the DTP Scheme can be put to use for the purposes mentioned in clause 10(c)(i)(b) with the approval of the Chief Town Planner. One among the purposes for which lands covered by the DTP Scheme can be put to use is for putting up a boarding house. While the learned counsel for the petitioners contend that the term boarding house would include a hotel also, the learned standing counsel and the learned Government Pleader disputed the same and contended that it is for the Chief Town Planner to WPC No.19351/09 7 decide whether a hotel would fall within the meaning of the term 'boarding house'. 6. The short question that arises for consideration in this case is whether a hotel can be said to be a boarding house so as to attract the stipulations in the DTP Scheme. The term “boarding house” is not defined in the DTP Scheme. In any case, no definition of the said term was brought to my notice by the learned standing counsel or the learned Government Pleader. The Apex Court has in **Commissioner of Income Tax, West Bengal v. Benoy Kumar Sahas Roy** (AIR 1957 SC 768) and **Amrendra Pratap Singh v. Tej Bahadur Prajapati** (2004 (10) SCC 65) that where a term is not defined in the relevant statutes, it may be permissible to look to the dictionary meaning of the said term. This Court can therefore adopt and apply the meaning of the term “boarding house” given in the dictionaries. In **Blacks Law Dictionary, 6th Edition** , the term “Board” is defined to mean lodging, food and entertainment, furnished to a guest at an inn or boarding house. As a verb, the WPC No.19351/09 8 said term means, to receive food for a reasonable compensation, either with or without lodging. In **Websters II New Riverside University Dictionary** , the term “boarding house” is defined to mean a house providing lodging and meals. In **Oxford Advanced Learners Dictionary** , the meaning given to the term “boarding house” is “a private house where people can pay for accommodation and meals”. In **Oxford Advanced Learners Dictionary** , the meaning given to the term “hotel” is “a building where people stay usually for a short time paying for their rooms and meals”. It is thus evident from the dictionary meaning of the term “boarding house” that a hotel where people stay for a short time paying for their rooms and meals is a boarding house. The DTP Scheme contemplates boarding houses even in areas where land is set apart for residential purposes. As a matter of fact, in order to cater to the needs of the people residing in the locality, the scheme permits hostels, professional offices and studies of the residents, community halls, clubs, parks and play grounds incidental to the residential WPC No.19351/09 9 uses, public utility buildings such as water supply and electrical installations of a minor nature, small service industries of a nonnuisance character engaging not more than 3 workers with power limited to 3 HP or 6 workers without power, convenience shops such as vegetable shops, groceries, pan shops etc to be established. I am therefore persuaded to hold that the stand taken by the respondents that a boarding house cannot be put up in an area reserved for residential use cannot be sustained. As per the DTP Scheme, the Secretary of the local authority namely of the Kozhikode Corporation is the authority responsible for its implementation. Under the provisions of the Scheme referred to above, the land can be put to use for running a boarding house only with the approval of the Chief Town Planner. In the view that I have taken, I am of the opinion that the Secretary of Kozhikode Corporation should have forwarded the petitioners' application for building permit to construct a hotel to the Chief Town Planner, Thiruvananthapuram for his approval. I accordingly hold that the stand taken by the first WPC No.19351/09 10 respondent in Ext.P3 cannot be sustained. Ext.P3 order rejecting the petitioners application for building permit was passed on 21.1.2009. The Kerala Municipality Building Rules, 1999 were amended thereafter. In such circumstances, notwithstanding the finding that Ext.P3 cannot be sustained, I am of the opinion that the petitioner should submit a fresh application for building permit along with a plan of the proposed building prepared in accordance with the rules presently in force. A building permit can be granted only if the plan is in accordance with the law in force on the date of consideration. Therefore this Court cannot direct that the application which was rejected by Ext.P3 order should be reconsidered. In the result, I allow the writ petition quash Ext.P3 and direct that in the event of the petitioners submitting a fresh application for building permit to construct a hotel together with a plan of the proposed building, the Secretary, Kozhikode Corporation shall forward it to the Chief Town Planner for necessary approval by treating the proposed building as a WPC No.19351/09 11 boarding house. This shall be done within two weeks from the date on which the petitioners submit the application accompanied by a plan and the receipt evidencing payment of fee and the original of Ext.P4 No Objection Certificate. The Chief Town Planner shall within one month from the date of receipt of the papers from the Secretary of Kozhikode Corporation examine the question whether the approval sought can be granted and shall inform the petitioner and the Secretary of the local authority of his decision. The Secretary shall thereupon consider the petitioners' application for building permit and take a final decision thereon expeditiously and in any case within two weeks from the date of receipt of the decision of the Chief Town Planner. **P.N.RAVINDRAN, (JUDGE)** vps WPC No.19351/09 12 WPC No.19351/09 13 WPC No.19351/09 14 WPC No.19351/09 15