High Court of KeralaSingle Judge2015-12-08Writ petition disposed of; Ext.P6 set aside; 2n...

Irene Ann v. Thrikakkara Municipality and its Secretary

Case / Petition Number:WP(C).No. 36991 of 2015 (Y)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2015-12-08
Court Decision / Holding: Ext.P6 is set aside. The 2nd respondent Municipality is directed to conduct a site inspection to verify zonal regulations and ground reality and to pass a fresh decision within one month from the date a copy of this judgment is produced.
Final Disposition: Writ petition disposed of; Ext.P6 set aside; 2nd respondent to conduct site inspection and pass fresh order within one month.

Parties to the Case

Appellants / Petitioners

Irene Ann

Respondents

The Thrikakkara Municipality represented by its Secretary
The Secretary Thrikakkara Municipality

Legal Representation & Advocates

Counsels for Petitioners

• Sri. R. Rajesh

Counsels for Respondents

• Sri. S. Shanavas Khan, SC

Case Synopsis & Summary

The petitioner Irene Ann challenges Ext.P6, a decision of the 2nd respondent Municipality denying a building permit to construct a residential building on 25 cents of land in Re-Sy.No. 384/2, Kakkanad, Kanayannoor Taluk, Ernakulam. She claims ownership and possession of the land, which is described as dry land in Thandaper accounts and Basic Tax Register, and that she submitted Ext.P4 for a building permit. Ext.P6 rejects the permit by classifying the land as lying within an agricultural zone under the Central City structural plan for Kochi. The petitioner contends that the structural plan was never implemented by the 1st respondent Municipality and that no zonal restrictions were ever observed or enforced. She argues that the surrounding area already hosts substantial residential and commercial development, and excluding her project amounts to unfair discrimination and an arbitrary deprivation of her right to property and to housing. The petitioner cites several Kerala High Court decisions, including Padmini, Nasar, V. Shivaprasad, T.V. Gopalakrishnan, Abdul Kabeer, and Corporation of Thrissur, and the Supreme Court decision in Raju S. Jethmalani to argue that land cannot be included in a development plan without acquisition, and that a rider over title under an unimplemented Town Planning Scheme would violate Article 14. The respondent concedes the need to reconsider and agrees to a site inspection, subject to this Court's directions. The court remands for fresh consideration after inspection and orders the 2nd respondent to pass a new decision within one month.

Provisions of Law Cited

Article 14 of the Constitution of India

Legal Doctrines & Maxims

Discrimination in denial of building permits under non-operational zoning would violate Article 14.
Land cannot be deprived of beneficial use by a non-operational Town Planning Scheme; acquisition is required before inclusion in development plans.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the structural plan for the Central City of Kochi was never implemented in the 1st respondent Municipality and that no zonal restrictions were observed. She asserts that the surrounding area already contains substantial residential and commercial development, so denial of a permit constitutes discrimination and an arbitrary deprivation of her right to housing and to property. She relies on decisions including Padmini, Nasar, V. Shivaprasad, T.V. Gopalakrishnan, Abdul Kabeer, Corporation of Thrissur, and the Supreme Court’s decision in Raju S. Jethmalani to argue that land cannot be included in development plans without acquisition and that Article 14 prohibits oppressive riders over title under non-operational schemes.

Contentions of Respondents

The Municipality argues that Ext.P6 was a valid denial based on the land’s classification within an agricultural zone under the structural plan. It maintains that zonal restrictions must be observed and that building permits cannot be issued contrary to master plans unless such plans are modified. It notes that the decision can be reconsidered after a site inspection to verify whether zoning regulations have been observed and to assess ground realities.

Cited Precedents (11)

Case Name	Citation	Treatment	Explanation
Padmini v. State of Kerala	1999 (3) KLT 465	Positive	Cited by petitioner; relied upon in prior decisions to challenge zoning-based permit refusals and to support the approach that non-implementation of plans should not bar reasonable development.
Nasar v. Malappuram Municipality	2009 (3) KLT 92	Positive	Cited to emphasize Article 14 and the unconstitutionality of riders over property rights under non-operational schemes.
V. Shivaprasad v. State of Kerala and Others	2011 (1) KLT 690	Positive	Cited as authority reinforcing protection of owner’s rights against arbitrary zoning restrictions.
T.V. Gopalakrishnan v. State of Kerala and Others	2011 (3) KLT 317	Positive	Cited to support the view that zoning/ master plan compliance must reflect ground realities.
Abdul Kabeer v. Malappuram Municipality	2012 (3) KLT 106	Positive	Cited as authority in similar contexts of development restrictions and non-implementation of plans.
Corporation of Thrissur v. Kunjilakutty	2014 (1) KLT 188	Positive	Cited to reinforce the trend of remitting matters for reconsideration where zoning issues are involved.
Raju S. Jethmalani v. State of Maharashtra and Others	(2005) 11 SCC 222	Positive	Held that land cannot be included in development plans without acquisition; supports protection of private landowners’ rights.
W.P(C) No.6747/2015	6747/2015	Positive	Referenced as a prior decision of this Court relying on the above authorities; supports remand in similar fact pattern.
W.P(C) No.3648/2015	3648/2015	Positive	Referenced as a prior decision of this Court relying on the above authorities.
W.P(C) No.2512/2015	2512/2015	Positive	Referenced as a prior decision of this Court relying on the above authorities.
W.P(C) No.22153/2013	22153/2013	Positive	Referenced as a prior decision of this Court relying on the above authorities.

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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 K.HARILAL** ## **TUESDAY, THE 8TH DAY OF DECEMBER 2015/17TH AGRAHAYANA, 1937** ## **WP(C).No. 36991 of 2015 (Y)** ## **----------------------------** ## **PETITIONER :** **---------------------** **IRENE ANN AGED 28 YEARS, D/O. JAISON JOSEPH KUZHAKKEDATH HOUSE 20, MEKKADAMBU, KODATHY ERNAKULAM DISTRICT – 682 316.** ## **BY ADV. SRI.R.RAJESH** **RESPONDENT(S) :** - **----------------------------** **1. THE THRIKKAKARA MUNICIPALITY REPRESENTED BY ITS SECRETARY THRIKKAKARA – 682 030 ERNAKULAM.** **2. THE SECRETARY THRIKKAKARA MUNICIPALITY THRIKKAKARA – 682 030 ERNAKULAM.** **R1 & R2 BY ADV. SRI.S.SHANAVAS KHAN, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08-12-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **WP(C).No. 36991 of 2015 (Y)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **EXT.P1 : COPY OF THE WILL DATED 19/6/2009.** **EXT.P2 COPY OF THE TAX RECEIPT DATED 10/9/2015 ISSUED BY THE VILLAGE OFFICER, KAKKANAD.** **EXT.P3 COPY OF THE POSSESSION CERTIFICATE DATED 16/9/2015 ISSUED FROM THE VILLAGE OFFICE, KAKKANAD.** **EXT.P4 COPY OF THE PLAN SUBMITTED BEFORE THE 2ND RESPONDENT.** **EXT.P5 COPY OF THE RECEIPT ISSUED FROM THE OFFICE OF THE FIRST RESPONDENT EVIDENCING THE RECEIPT OF BUILDING PERMIT APPLICATION.** **EXT.P6 COPY OF THE NOTICE DATED 31/10/2015 ISSUED BY THE 2ND RESPONDENT.** **EXT.P7 COPY OF THE JUDGMENT DATED 4/3/2015 IN WP(C) NO. 6747 OF 2015 OF THIS HON'BLE COURT.** **EXT.P8 COPY OF THE JUDGMENT DATED 5/2/2015 IN WP(C) NO. 3648 OF 2015 OF THIS HON'BLE COURT.** **EXT.P9 COPY OF THE JUDGMENT DATED 27/1/2015 IN WP(C) NO. 2512 OF 2015 OF THIS HON'BLE COURT.** **EXT.P10 COPY OF THE JUDGMENT DATED 22/9/2014 IN WP(C) NO. 22153 OF 2013 OF THIS HON'BLE COURT.** ## **RESPONDENT'S EXHIBITS : NIL** **//TRUE COPY//** **P.A. TO JUDGE** **Mn** ## K.HARILAL, J. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ## W.P.(C) No.36991 of 2015 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dated this the 8[th] day of December, 2015. ## JUDGMENT The petitioner, in this writ petition, seeks to challenge Ext.P6 proceedings of the 2[nd] respondent, by which the request of the petitioner to grant building permit for constructing a residential building in her property having an extent of 25 cents stands rejected. According to the petitioner, she is the owner in possession of 25 cents of land comprised in Re-Sy.No. 384/2 of Kakkanad Village in Kanayannoor Taluk by virtue of Ext.P1 and the said land is a pucca garden land and the same is recorded as dry land in the Thandaper account and the Basic Tax Register maintained by the Revenue Authorities. The petitioner, being desirous of constructing a residential building, submitted an application for building permit with Ext.P4 plan before the 2[nd] respondent. Surprisingly, the 2[nd] respondent rejected WP(C).36991/15-Y **:2:** the application for building permit, by Ext.P6, on the ground that the land, where the construction is sought to be made, lies within the area ear-marked as agricultural zone, by virtue of the structural plan for Central City of Kochi. The legality and propriety of the reason, by which building permit is denied to the petitioner, are under challenge in this writ petition. 2. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent Municipality. 3. The sum and substance of the arguments advanced by the learned counsel for the petitioner is that the structural plan for the Central City of Kochi was never implemented in the 1[st] respondent Municipality. As a matter of fact, the 1[st] respondent Municipality has never observed any kind of zonal restrictions, in the matter of granting building permits. The entire surrounding area in and around the disputed property is covered by huge residential and commercial buildings and the petitioner is discriminated by denying the right to construct a WP(C).36991/15-Y **:3:** residential house. 4. The learned counsel for the petitioner drew my attention to the decisions reported in Padmini v. State of Kerala [1999 (3) KLT 465], Nasar v. Malappuram Municipality [2009 (3) KLT 92], V.Shivaprasad v. State of Kerala and Others [2011 (1) KLT 690], T.V.Gopalakrishnan v. State of Kerala and Others [2011 (3) KLT 317], Abdul Kabeer v. Malappuram Municipality [2012 (3) KLT 106], Corporation of Thrissur v. Kunjilakutty [2014 (1) KLT 188] and Raju S. Jethmalani v. State of Maharashtra and Others[(2005) 11 SCC 222] and the decisions, rendered by this Court relying on the above decisions, in W.P(C) No.6747/2015, W.P(C)No.3648/2015, W.P(C)No.2512/2015, and W.P(C)No.22153/2013. 5. Considering the fact involved in this writ petition, the decision laid down by the Supreme Court in Raju S. Jethmalani v. State of Maharashtra and Others [2005 (11) SCC 222] assumes significance and relevancy. In the above decision, the Apex Court held that the land belonging to private individuals cannot be included in development plans, unless a land is WP(C).36991/15-Y **:4:** acquired by the State Government or the Municipal Corporation. The State Government cannot deprive the land owner of beneficially using his property, under the guise of DTP scheme, when no steps have been taken to actually implement the Scheme. Further, in Nazar v. Malappuram Municipality(2009 (3) KLT 92), this court held as follows: “If 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 of India”. In W.A. No.1731/2008 dated 14/6/2011 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.” 6. Going by the decisions laid down by this Court in W.P(C)No.6747/2015, W.P(C)No.3648/2015, W.P(C) No.2512/2015, and W.P(C)No.22153/2013, it is seen that, in WP(C).36991/15-Y **:5:** the same facts and circumstances, this Court remitted back the matter to the concerned Municipalities to reconsider the applications for building permit, which were rejected on the basis of zonal regulations, for fresh consideration and to pass order afresh. I do not find any reason to take a different view in this case also. Needless to say, it is incumbent upon the 2[nd] respondent to conduct a site inspection to ascertain as to whether the zonal regulations have been observed in that locality and whether the petitioner alone is discriminated by depriving her from exercising her right to construct a residential house. 7. The learned Standing Counsel for the respondent, on instruction, fairly submitted that, in the light of the judgment passed by this Court, the respondent Municipality is ready to reconsider the application seeking building permit filed by the petitioner after conducting the site inspection. 8. Hence Ext.P6 will stand set aside. The 2[nd] respondent is directed to conduct a site inspection so as to ascertain whether zonal regulations have been WP(C).36991/15-Y **:6:** observed in that area and to assess the ground reality, notwithstanding the classification of zones. After inspection, the 2[nd] respondent will pass order afresh within a period of one month from the date of production of a copy of this judgment. This writ petition is disposed of accordingly. K. HARILAL, JUDGE okb.