Indroyal Property Developers (P) Ltd. v. State of Kerala & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **WEDNESDAY, THE 19TH DAY OF JUNE 2013/29TH JYAISHTA 1935** ## **WP(C).No. 27466 of 2011 (G)** ## **----------------------------** ## **PETITIONER(S):** ## **--------------------------** **1. INDROYAL PROPERTY DEVELOPERS(P)LTD., REPRESENTED BY ITS GENERAL MANAGER, N.SREENIVASAN, ROYAL PLAZA, PATTOM, THIRUVANANTHAPURAM-695 004.** ## **2. SRI.N.SREENIVASAN,** - **GENERAL MANAGER, INDROYAL PROPERTY DEVELOPERS(P) LTD. ROYAL PLAZA, PATTOM, THIRUVANANTHAPURAM. PIN-695 004.** **BY ADVS.SRI.ANIL THOMAS(T) SMT.K.V.RESHMI** **RESPONDENT(S):** **----------------------------** **1. THE STATE OF KERALA, REP.BY ITS CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** ## **2. THE SECRETARY,** - **LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **3. THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM-695 001.** ## **4. THE SECRETARY,** - **CORPORATION OF THIRUVANANTHAPURAM-695 001.** **R1 TO R3 BY GOVERNMENT PLEADER SRI RAMPRASAD UNNI R1 TO R3 BY ADV. SRI.K.A.JALEEL, ADDL. ADVOCATE GENERAL R4 BY ADVS. SRI.N.NANDAKUMARA MENON (SR.),SC CORPORATION** **SRI.P.K.MANOJKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 27466 of 2011 (G)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** |**EXT.P1**|**COPY OF THE SALE DEED NO.4763/2006, DATED 09.11.2006 - SHOWING**| |---|---| ||**THE PURCHASE OF PROPERTY BY THE COMPANY.**| |**EXT.P2**|**COPY OF THE APPLICATION WAS PREFERRED BY THE PETITIONER,**| ||**BEFORE THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM ON**| ||**13.12.2006.**| |**EXT.P3**|**COPY OF THE REPORT NO.F.5-2673 06/06 ON 26.12.2006 FROM THE**| ||**TAHSILDAR TO THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM.**| |**EXT.P4**|**COPY OF THE INTIMATION FROM THE OFFICE OF THE DISTRICT**| ||**COLLECTOR, TRIVANDRUM, NO.B7-88178/06,DATED 02.02.2007 TO THE**| ||**PETITIONER.**| |**EXT.P5**|**COPY OF THE AFFIDAVIT DATED 02.03.2007, FILED BEFORE THE 4TH**| ||**RESPONDENT BY THE PETITIONER.**| |**EXT.P6**|**COPY OF THE PERMIT HAVING BO.TP1/BA/503/07 DATED 09.03.2007**| ||**WAS ISSUED BY THE 4TH RESPONDENT FOR CONSTRUCTION OF THE**| ||**RETAINING/COMPOUND WALL IN THE PROPERTY OF THE PETITIONER.**| |**EXT.P7**|**COPY OF THE APPLICATION DATED 20.03.2007 BEFORE THE DISTRICT**| ||**COLLECTOR BY THE PETITIONER.**| |**EXT.P8**|**COPY OF THE AFFIDAVIT(UNDERTAKING) DATED 17.04.2007 TO THE**| ||**DISTRICT COLLECTOR, TRIVANDRUM BY THE PETITIONER COMPANY.**| |**EXT.P9**|**COPY OF THE LAND DEVELOPMENT PERMIT VIDE PERMIT**| ||**NO.TP4/BA/271/2007, DATED 17.07.2007 ISSUED BY THE 4TH**| ||**RESPONDENT.**| |**EXT.P10**|**COPY OF THE LETTER NO.G1457/2008/L.DIS, DATED 31.01.2008 FROM**| ||**THE REVENUE DIVISIONAL OFFICER, TRIVANDRUM TO THE DISTRICT**| ||**COLLECTOR, TRIVANDRUM.**| |**EXT.P11**|**COPY OF THE REPORT OF THE VILLAGE OFFICER, VANCHIYOOR ON**| ||**06.03.2008 TO THE OFFICE OF THE DISTRICT COLLECTOR (NO.55/08).**| |**EXT.P12**|**COPY OF THE PROCEEDINGS NO.B7-88178/06,DATED 22.07.2008 OF**| ||**THE DISTRICT COLLECTOR,TRIVANDRUM TO THE PETITIONER.**| |**EXT.P13**|**COPY OF THE CERTIFICATE NO.21-278/2008-IA.III, DATED 22.08.2008 OF**| ||**THE MINISTRY OF ENVIRONMENT & FORESTS, GOVT. OF INDIA.**| |**EXT.P14**|**COPY OF THE BUILDING PERMIT NO.TP7/BA/544/08, DATED 18.10.2008**| ||**ISSUED BY THE 4TH RESPONDENT.**| |**EXT.P14(a)**|**COPY OF THE APPLICATION FOR BUILDING PERMIT FILED BY THE**| ||**PETITIONER COMPANY DATED NIL,(WITHOUT ENCLOSURES)**| ||**(NO.544/08)**| |**EXT.P15**|**COPY OF THE NO OBJECTION CERTIFICATE FROM THE AIRPORT**| ||**AUTHORITY OF INDIA DATED 30.10.2008 (NO.AAI/SR/NOC/RHQ).**| |**EXT.P16**|**COPY OF THE NO OBJECTION CERTIFICATE DATED 31.12.2009 FROM**| ||**THE POLLUTION CONTROL BOARD (C.NO.PCB/HO/TVM/ICE/46/2009)**| |**EXT.P16(a)**|**COPY OF THE CERTIFICATE DATED 09.05.2008 FROM THE FIRE &**| ||**RESCUE SERVICES HEAD QUARTERS (NO.G1-4441/08).**| |**EXT.P17**|**COPY OF THE REPOLY FURNISHED BY THE PETITIONER COMPANY TO**| ||**THE DISTRICT COLLECTOR, TRIVANDRUM ON 27.02.2009.**| ## **WP(C).No. 27466 of 2011 (G)** - **EXT.P18 COPY OF THE APPLICATION FOR EXTENSION OF THE BUILDING PERMIT, DATED 02.05.2011 BEFORE THE 4TH RESPONDENT (WITHOUT ENCLOSURES)** - **EXT.P19 COPY OF THE NOTICE BY NO.E11/56567/011, DATED 02.06.2011 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER COMPANY.** - **EXT.P20 COPY OF THE REPRESENTATION DATED 09.06.2011 BEFORE THE 4TH RESPONDENT BY THE PETITIONER (WITHOUT ENCLOSURES)** - **EXT.P21 COPY OF THE NOTICE DATED 12.07.2011, NO.E11/56567/011 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER COMPANY.** - **EXT.P22 COPY OF THE LETTER OF REQUEST DATED 13.07.2011 SENT TO THE 4TH RESPONDENT FOR ADJOURNING THE HEARING ON 15.07.2011.** - **EXT.P23 COPY OF THE DETAILED REPRESENTATION FILED BEFORE THE 4TH RESPONDENT ON 15.07.2011.** - **EXT.P24 COPY OF THE CANCELLATION ORDER OF EXT.P14 BUILDING PERMIT ISSUED BY THE 4TH RESPONDENT ON 15.07.2011 (NO.E11/56567/11)** - **EXT.P25 COPY OF THE REPRESENTATION DATED 16.08.2011, (WITHOUT ANNEXURES) FILED BEFORE THE 2ND RESPONDENT.** - **EXT.P26 COPPY OF THE MAP PREPARED DURING THE MONTH OF SEPTEMBER 2011.** - **EXT.P26(a) COPY OF THE PROPOSED LAND USE MAP OF THE MASTER PLAN FOR TRIVANDRUM CITY, ENVISAGED FOR THE YEAR 1986.** - **EXT.P27 COPY OF THE URBAN POLICY AND ACTION PLAN FOR KERALA, FORMED BY THE GOVERNMENT OF KERALA IN JULY 2002.** - **EXT.P28 COPY OF THE REPRESENTATION DATED 04.10.2011 (WITHOUT ENCLOSURES(), FILED BEFORE THE 2ND RESPONDENT BY THE PETITIONER/** - **EXT.P28(a) COPY OF THE COVERING LETTER DATED 07.10.2011 (WITHOUT DOCUMENTS ECNCLOSED) SUBMITTED BEFORE THE 4TH RESPONDENT FILED BY THE PETITIONER)** ## **RESPONDENT'S EXHIBITS: NIL** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **LSN** ## **A.M. SHAFFIQUE, J** ## **---------------------------------------** ## **W.P.(C). NO. 27466 OF 2011** **----------------------------------------** Dated this the 19[th ] day of June, 2013 ## **JUDGMENT** The petitioners challenge Ext. P24 order passed by the Secretary, Corporation of Thiruvananthapuram cancelling the building permit No. TP7 BA/NA/544/08 dated 18.10.2008 granted in favour of the petitioners. 2. The facts as disclosed from the writ petition would show that the petitioners had obtained a building permit for construction of a multi-storied complex in the property having an extent of 2.33 acres in respect of Sy. Nos. 2413/B1, 2414/1, 2415, 2413/B, 2413/A and 2414 in Vanchiyoor village, Thiruvananthapuram Taluk. Though the building permit was in force, the petitioners could make only certain development works in the property. They have stored some materials for construction of the building. On account of recession the petitioners were unable to start the project as such within the time stipulated in the building W.P.(C). NO. 27466 OF 2011 **2** permit. However before the expiry of the period of building permit by Ext. P18 dated 02.05.2011, petitioners requested for extending the building permit for a further period of three years as per the Kerala Municipality Building Rules, 1999 (hereinafter referred to as the 'KMBR'). On receipt of Ext. P18, the Secretary of the Corporation issued Ext. P19 informing the petitioners that the property in which the building permit was issued is in the 'green strip area' as shown in the master plan of Thiruvananthapuram City and therefore petitioners were called upon to show cause why the building permit should not be cancelled. Petitioners submitted Ext. P20 reply and thereafter the petitioners were called for a hearing on 15.07.2011 in terms of Ext. P21 notice. Petitioners again requested for certain information on the basis of Ext. P22 which was not granted. Ext. P23 is another representation submitted by the petitioners before the Secretary and finally Ext. P24 came to be passed stating that, a portion of the property is situated in the 'green strip area' of the master plan of Thiruvananthapuram City and W.P.(C). NO. 27466 OF 2011 **3** therefore the building permit should be cancelled. 3. It is the contention of the petitioners that the master plan which is said to be in force has no application to the property in question as the property belonging to the petitioners and in which the building permit had been granted was not a paddy field nor an agricultural property and it is not part of any master plan as stated by the respondents. It is also contended that if at all a master plan is in force by virtue of judgment in **Shivaprasad v. State of Kerala [2011 (1) KLT 690]** the master plan prepared under Madras Town Planning Act and other Town Planning Acts is null and void. It is also contended that Ext. P24 had been issued in gross violation of natural justice and there is no proper consideration of the materials placed before the Secretary of the Corporation. 4. Counter affidavit is filed by the Corporation supporting the stand taken in the impugned order and contending that a portion of property is treated as green strip to be formed by paddy field and other low lying areas W.P.(C). NO. 27466 OF 2011 **4** as per sanctioned master plan and the 4[th] respondent has the power to invoke Rule 16 of the KMBR as the permit originally issued was by way of a mistake and without noticing the fact that this portion of property forms part of the green strip in the master plan prepared for Thiruvananthapuram City. 5. The learned Government Pleader appearing on behalf of the 1[st] respondent supports the stand taken by the Corporation in this regard. 6. The short question to be considered in this writ petition is validity of Ext P24 order. Prima facie as held by this Court in **Shivaprasad's case** (supra), it is clear that the town planning schemes now proposed by the Government is not in force. The learned Government Pleader however submits that the Division Bench of this Court in W.A. No. 1023/2011 had stayed the operation of the judgment in **Shivaprasad's case** (supra) and there was a direction to the Secretary of the Corporation to consider the application for approval of building permit. In other W.P.(C). NO. 27466 OF 2011 **5** words, it is contended that since the judgment in **Shivaprasad's case** (supra) had been stayed, the town planning schemes still is in force and can be made applicable and for that reason, Ext. P24 is a justifiable order. Still further it is argued by the learned Senior Counsel appearing for the Corporation that the Secretary had exercised his power under Rule 16 which cannot be faulted with as admittedly the property is situated in a green zone area as shown in the master plan and therefore unless there is any variation in the same, the Secretary has no authority to grant the building permit. 7. The main grievance of the petitioners is that Rule 16 has no application to the facts in the issue. Rule 16 of the KMBR reads as under:- **“R.16. Suspension and Revocation of permit.** - The Secretary shall suspend or revoke any permit issued under these rules if it is satisfied that the permit was issued by mistake or that a patent error has crept in it or that the permit was happened to be issued on misrepresentation of fact or law or that the construction if carried on will be a threat to life or property: W.P.(C). NO. 27466 OF 2011 **6** Provided that before revoking permit, the owner of the permit shall be given sufficient opportunity to explain and the explanation shall be duly considered by the Secretary.” 8. It cannot be disputed that if there is a mistake or mis-representation at the time when the building permit is issued, the Secretary will have the power to suspend or cancel the building permit. In this case, the Secretary had relied upon the fact that as per the master plan of Thiruvananthapuram City a portion of this property comes under the green zone and therefore there is a mistake in granting the building permit. The documents produced by the petitioners especially the replies given to the Secretary would show that this fact is totally incorrect. The respondent has a case that this area is not in green strip zone. That apart they have called upon the Secretary to give the particulars regarding the green strip area which according to the Secretary forms part of the master plan which is also not produced. Still further it is argued that the Secretary has not considered the objections raised by the petitioners in W.P.(C). NO. 27466 OF 2011 **7** accordance with the procedure prescribed. The learned counsel for the petitioners relies upon the following facts:- i) that the master plan is not in force in view of the judgment in **Shivaprasad's case** (supra). ii) that if at all it is in force there no material to indicate that this property comes within the 'green strip area' of the master plan. iii) if at all the Secretary is to consider the matter, the same has not been considered following the principles of natural justice. 9. It is true that, as contended by the learned Government Pleader, there is a stay of proceedings in **Shivaprasad's case** (supra). But that does not mean that I am bound to wait till a decision is taken in **Shivaprasad's case** (supra). Going by the decision laid down by the learned Single Judge of this Court in **Shivaprasad's case** (supra), I am also of the view that the said judgment can be made applicable to the case on hand. The learned Senior Counsel appearing for the Corporation relies upon the W.P.(C). NO. 27466 OF 2011 **8** notification of 2007 for the purpose of proving that a portion of the property comes within the 'green strip area'. There is no material to show that this property forms part of green strip area as per the 2007 plan as it cannot be categorised as paddy field. The documents produced by the petitioners show that it is a dry land. What was the position of the property as on the date when the building permit was issued is the material fact to be considered to find out whether it is a paddy field or a property used for agricultural purposes. No such enquiry is seen done. That apart the Secretary has not considered the matter on the basis of the objections raised by the petitioners in respect of the factual aspects involved in the matter. 10. Having regard to the aforesaid factual circumstances, I am of the view that Ext. P24 is liable to be set aside and the Secretary of the Corporation has to consider the application submitted by the petitioners for renewal of the permit in accordance with the procedure prescribed. W.P.(C). NO. 27466 OF 2011 **9** 11. In the result, this writ petition is allowed as follows:- i) Ext. P24 is quashed. ii) The Secretary of the Corporation shall consider Ext. P18 in accordance with law and without reference to the master plan, on account of the judgment in **Shivaprasad's case** (supra) and pass appropriate orders on Ext. P18 within a period of three months from the date of receipt of a copy of this judgment. Sd/- **A.M. SHAFFIQUE JUDGE** DCS