High Court of KeralaSingle Judge2011-08-25Writ petition disposed of; Ext.P10’s Condition ...

Ideal Properties & Developers v. State of Kerala, Chief Town Planner, Thrissur Corporation and others

Case / Petition Number:WP(C).No.38731 of 2010(N)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Harun-ul-Rashid, J.
Judgment Date: 2011-08-25
Court Decision / Holding: The writ petition is disposed of as above. It is declared that the petitioner is entitled to construct building in terms of Ext.P7 building permit subject to the compliance of condition Nos.2 & 3 stipulated in paragraph 9 of Ext.P10 order. Ext.P10’s Condition 1 (requiring conformity to DTP Scheme zoning) is not sustained.
Final Disposition: Writ petition disposed of; Ext.P10’s Condition 1 is not sustained. The petitioner is entitled to construct in terms of Ext.P7, subject to Conditions 2 and 3 of Ext.P10. Clear that the ruling does not impede future schemes or acquisition for public purposes.

Parties to the Case

Appellants / Petitioners

Ideal Properties & Developers, by its partner, T.S. Harikrishnan

Respondents

State of Kerala, rep. by its Secretary, Local Self Government Department, Secretariat, Thiruvananthapuram
The Chief Town Planner, Local Self Government Institutions, Thiruvananthapuram
Thrissur Corporation, rep. by its Secretary, Corporation Office, Thrissur

Legal Representation & Advocates

Counsels for Petitioners

• S. Ramesh Babu

Counsels for Respondents

• K. P. Vijayan
• V. M. Syam Kumar
• Kripa Elizabeth Mathews
• V. N. Haridas
• G. Gopakumar

Case Synopsis & Summary

This Kerala High Court writ petition challenges Government Ext.P10, which directs that the building use conform to the zoning regulations of the District Town Planning (DTP) Scheme in the West Ring Road area. The petitioner, Ideal Properties & Developers, seeks to quash Ext.P10’s Paragraph 9, Condition 1, and obtain a declaration that the petitioner is entitled to construct as per Ext.P7 building permit for a 12-storeyed residential-cum-commercial building on land belonging to a partner, subject to other conditions. The history spans multiple proceedings: Ext.P2 interim order in W.P.C.8436/2006, Ext.P3 judgment in W.P.C.10506/2006 directing consideration of final orders, and Ext.P4 permitting construction subject to Kerala Municipal Building Rules (KMBR) 20(7) and 20(8) for adjoining-owner protection. The Tribunal (Ext.P6) and the common judgment (Ext.P8) were referenced, with Ext.P9 modifying Ext.P8 and directing a final decision by the Government. Ext.P10, issued by the Government, seeks conformity with DTP Scheme zoning, which the petitioner argues is irrelevant since the DTP Scheme sanctioned in 1992 has not been acquired or operationally implemented, and nearby high-rise development already differs from the scheme. The Court relies on constitutional and development-case authorities to strike down the contested condition and declare entitlement to construct per Ext.P7, subject to conditions 2 and 3.

Provisions of Law Cited

Kerala Municipal Building Rules, Rules 20(7) and 20(8)

Legal Doctrines & Maxims

Article 14 of the Constitution
Raju s. Jethmalani and others v. State of Maharashtra and others, (2005) 11 SCC 222 - private land included in development plan but cannot be denied right to use before acquisition
Nasar v. Malappuram Municipality, 2009 (3) KLT 92 - rider over title under pretext of a Town Planning Scheme not operational would be oppressive and not countenanced under Article 14
Padmini v. State of Kerala, 1999 (2) KLT 465 - change in ground reality may require Master Plan adjustments
Gopalakrishnan T.V. v. State of Kerala and others, 2011 (3) KHC 162 DB - if residential zone becomes heavily commercial, alter Master Plan to reflect ground reality

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Ext.P10, particularly Paragraph 9, Clause 1, improperly imposes a zoning rider on the petitioner’s building use, since the DTP Scheme for West Ring Road Area was sanctioned in 1992 but not acquired or operationalized. The plan approved by Ext.P7 permits a 12-storeyed structure, with most floors allotted for residential use and some for commercial use. The petitioner argues that the scheme’s non-implementation and lack of acquisition render the Ext.P10 condition unconstitutional, particularly in light of Article 14. Citing Raju s. Jethmalani, Nasar, Padmini, and Gopalakrishnan, the petitioner asserts that preventing development based on an unimplemented scheme would oppress property rights and conflict with ground reality. The petition seeks to declare entitlement to construct per Ext.P7, subject to the non-conflicting conditions in Ext.P10 (Nos. 2 and 3).

Contentions of Respondents

The respondents defend Ext.P10 and urge adherence to the DTP Scheme zoning as mandated by the Government and the Tribunal’s directions; they argue that development and zoning controls are necessary to protect adjoining owners and ensure planned development; Ext.P4 and Ext.P7/Ext.P9/Ext.P10 sequences reflect the proper application of KMBR provisions and the DTP Scheme’s zoning. The respondents emphasize that the total scheme and related regulations must be respected, even as prior orders are examined, and request that the Court uphold the conditions imposing conformity with zoning until the Scheme is effectively implemented.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Raju s. Jethmalani and others v. State of Maharashtra and others	(2005) 11 SCC 222	Positive	Used as supportive authority to show private land cannot be denied use prior to timely acquisition; supports the petitioner's claim that development rights should not be unduly restrained where acquisition has not occurred.
Nasar v. Malappuram Municipality	2009 (3) KLT 92	Positive	Cited for the principle that restricting property use under unoperational town planning schemes would be oppressive and violate Article 14.
Padmini v. State of Kerala	1999 (2) KLT 465	Positive	Cited for the view that changing ground realities may warrant revision of the master plan to align with actual development.
Gopalakrishnan T.V. v. State of Kerala and others	(2011) 3 KHC 162 DB	Positive	Cited for the proposition that if an area earmarked as residential becomes heavily commercial, the government should seek a master plan adjustment to reflect ground reality.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 WP(C).No. 38731 of 2010(N) -------------------------- PETITIONER: --------------- IDEAL PROPERTIES & DEVELOPERS,REP.BY ITS PARTNER, T.S.HARIKRISHNAN, 'SREE SEETHARAM', P & T QUARTERS ROAD, POOTHODE, THRISSUR. BY ADV. MR.S.RAMESH BABU RESPONDENTS: --------------- 1. STATE OF KERALA, REP.BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF TOWN PLANNER. LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. 3. THRISSUR CORPORATION REP.BY ITS SECRETARY,CORPORATION OFFICE,THRISSUR. ADV. MR.K.P.VIJAYAN FOR R3 MR.V.M.SYAM KUMAR FOR R3 MS.KRIPA ELIZABETH MATHEWS FOR R3 MR.V.N.HARIDAS FOR R3 GOVERNMENT PLEADER MR.G.GOPAKUMAR FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 38731 of 2010(N) ## APPENDIX ## PETITIONER'S EXHIBITS: - EXT.P1: JUDGMENT DTD. 6.8.2005 IN W.P.(C).NO.21790/2005. EXT.P2: INTERIM ORDER DTD. 13.10.2005 IN I.A.NO.8603/2005 IN O.S.NO.3123/2005 OF THE SUB COURT, THRISSUR. - EXT.P3: JUDGMENT DTD. 5.4.2006 IN W.P.(C).NO.10506/2006. EXT.P4: ORDER DTD. 9.5.2006 OF R3. EXT.P5: JUDGMENT IN W.P.(C).NO.10322/2006. EXT.P6: ORDER OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS IN APPEAL NO.246/2006 DTD. 16.8.2006. - EXT.P7: REVISED BUILDING PERMIT DTD. 28.10.2006. EXT.P8: JUDGMENT IN W.P.(C).NO.23109/2007 AND CONNECTED CASES DTD. 23.10.2008. - EXT.P9: JUDGMENT DTD. 23.5.2009 IN WRIT APPEAL NOS. 2301/2008, 2316/2008 AND 2319/2008. - EXT.P10: ORDER PASSED BY THE GOVERNMENT DTD/ 7.12.2009. EXT.P11: INFORMATION DTD. 27.8.2010 FROM THE OFFICE OF THE DISTRICT TOWN PLANNING UNIT THRISSUR. - EXT.P12: INFORMATION DTD. 12.8.2010 FROM THE OFFICE OF THE DISTRICT TOWN PLANNING UNIT THRISSUR. - EXT.P13: LIST OF 15 PERSONS WHO HAVE EXECUTED AGREEMENTS TO PURCHASE THE APARTMENTS. - EXT.P14: PHOTOGRAPH OF THE PETITIONER'S BUILDING AND ADJACENT BUILDINGS. RESPONDENTS' EXHIBITS: NIL // TRUE COPY // P.A TO JUDGE. ## **HARUN-UL-RASHID, J. -----------------------W.P.(C).No.38731 Of 2010 ---------------------Dated this the 25[th] day of August, 2011.** ## **J U D G M E N T** The writ petition is filed seeking to quash Ext.P10 order to the extent it directs that the use of the building shall confirm to the zoning regulations of the DTP Scheme, for a declaration that the petitioner is entitled to construct a building in terms of Ext.P7 building permit and for other incidental reliefs. 2. The petitioner is aggrieved by condition No.1 stated in paragraph 9 of Ext.P10 order stating that the use of the building shall confirm to the zoning regulations of the DTP Scheme. The petitioner submits that he is willing to comply with condition Nos. 2 & 3. 3. The petitioner submitted an application for building permit for construction of a 12 storied residential cum commercial building in the property owned by one of its partners. This Court disposed of W.P(C).No.8436/2006 filed by one Srinivasan, adjacent owner, on 21.3.2006. In W.P.(C). No.10506/2006 filed by the petitioner, this Court directed the Secretary of the Corporation to consider and pass final order by **::2::** ## **W.P.(C).No.38731 Of 2010** Ext.P3 judgment. The Secretary of the Corporation, pursuant to the directions in Ext.P2 interim order in W.P.(C).No.8436/2006 and Ext.P3 judgment in W.P.(C).No.10506/201, passed Ext.P4 order stating that the petitioner can commence construction in terms of the sanctioned plan subject to satisfying Rules 20(7) and 20(8) of the Kerala Municipal Building Rules regarding protection of the interest of the adjoining owner. Srinivasan challenged Ext.P4 order before the Tribunal for Local Self Government Institutions in Appeal No.246/2006. The Tribunal disposed of the appeal directing the petitioner that he should ensure that the construction was strictly on the basis of the permit issued. Ext.P6 is the order passed by the Tribunal.Ext.P6 order passed by the Tribunal was challenged by Srinivasan in W.P.(C).No.28045/2006. Interim order of stay granted on 26.10.2006 was subsequently modified by order dated 31.10.2006. This Court permitted the petitioner to construct building in terms of the building permit. Ext.P7 dated 28.10.2006 is the revised building permit issued by the Corporation. As per Ext.P7, floor Nos.3 to 10 were to be residential and 1[st] and 2[nd] floors commercial. The grant of Ext.P7 **::3::** ## **W.P.(C).No.38731 Of 2010** permit was challenged by Srinivasan in W.P.(C).No.14868/2007. The said writ petition and W.P.(C).Nos.23109/2007 & 28045/2006 filed by the petitioner were disposed of by this Court by Ext.P8 common judgment dated 23.10.2008. W.P.(C). No.28045/2006 was dismissed and other two writ petitions were disposed of by issuing directions to the Corporation to conduct an enquiry with notice to the petitioner and Srinivasan to consider the entire issue including the validity of Ext.P7 permit and pass final orders. In the writ appeals filed challenging Ext.P8 common judgment, the Division Bench by Ext.P9 judgment modified Ext.P8 judgment by directing the Secretary to Government, Local Self Government Institutions, to take a final decision on the dispute with regard to the alleged violation with notice to all the parties and Chief Town Planner. In compliance with the directions issued by this Court in Ext.P9 judgment, Government examined the matter and passed Ext.P10 order. Ext.P10 to the extent it directs that the use of the building shall confirm to the zoning regulations of the DTP Scheme is under challenge. 4. The petitioner submits that DTP Scheme relating to West Ring Road Area was sanctioned in 1992 and that no land **::4::** ## **W.P.(C).No.38731 Of 2010** has been acquired pursuant to the said scheme. It is pointed out that there are several high rise residential apartments in the vicinity of the petitioner’s property. The petitioner submits that the DTP Scheme formulated on 27.5.1992 has become irrelevant and otiose. Photographs showing the location of the commercial buildings are produced and marked as Ext.P14. Ext.P14 photographs show that several residential apartments are situated very near to the petitioner’s property. The photographs also show that the construction site is located in an important part of Thrissur town and is surrounded by a number of buildings, both commercial and residential. It is pointed out that the Corporation and Government have issued sanction orders for the construction of several commercial buildings and residential building in the locality and therefore there is no justifiable reason for passing Ext.P10 order to the extent it directs that the use of the building shall confirm to the zoning regulations as shown in the DTP Scheme. The learned counsel for the petitioner also pointed out that there is no proposal for implementation of the Scheme. **::5::** ## **W.P.(C).No.38731 Of 2010** 5. The Apex Court, in the decision reported in _**Raju s. Jethmalani and others v. State of Maharashtra and others**_ (2005 (11) SCC 222), held that though land belonging to private persons can be included in development plan, unless the land is promptly acquired by State Government or the Municipal Corporation to effectuate the said purpose, the land owner cannot be denied the right to use the property for any other purpose. This Court in the decision reported in _**Nasar v. Malappuram Municipality**_ (2009 (3) KLT 92) held that “ _any demand to create a rider over the title of the owner of the property under the pretext of a Town Planning Scheme which has not become operational by acquisition would, essentially be oppressive and would not be countenanced on the face of Article 14 of the Constitution”_ . A similar view was taken by this Court in _**Padmini v. State of Kerala**_ (1999 (2) KLT 465). The learned counsel for the petitioner also referred to the decision reported in _**Gopalakrishnan T.V. v. State of Kerala and others**_ (2011 (3) KHC 162 DB). This Court held that “if in an area, earmarked as a residential zone, large number of constructions for commercial purposes were permitted, whether under orders issued by the **::6::** ## **W.P.(C).No.38731 Of 2010** 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”. Therefore, I am constrained to hold that condition No.1 in paragraph 9 of Ext.P10 order cannot be sustained. 6. It is declared that the petitioner is entitled to construct building in terms of Ext.P7 building permit subject to the compliance of condition Nos.2 & 3 stipulated in paragraph 9 of Ext.P10 order. The writ petition is disposed of as above. It is made clear that the judgment passed by this Court does not stand in the way of implementation of any Scheme or to acquire the property for any public purpose in future. **HARUN-UL-RASHID, Judge.** bkn/-