High Court of KeralaSingle Judge2022-12-15Disposed of

Jose Varghese S/o Vargheze and Jagan Varghese S/o Vargheze v. Revenue Divisional Officer, Revenue Division, Fort Kochi Ernakulam; Tahasildar, Kanayannur Taluk; Kochi Municipal Corporation (represented by its Secretary); substituted Thrippunithura Municipality (represented by its Secretary); Chief Town Planner; District Town Planner; State of Kerala (represented by the Secretary to Government, Local Self Government Department)

Case / Petition Number:W.P.(C) No.23484 of 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Mr. Justice Murali Purushothaman
Judgment Date: 2022-12-15
Court Decision / Holding: Ext. P11 is set aside. The District Town Planner is directed to reconsider Ext. P10 taking into account Exts. P5 and P6 and the Court’s observations in W.P.(C).No.29765 of 2019, within six weeks from receipt of a certified copy of this judgment, after affording hearing to the petitioners.
Final Disposition: Disposed of

Parties to the Case

Appellants / Petitioners

Jose Varghese S/o Varghese
Jagan Varghese S/o Varghese

Respondents

Revenue Divisional Office, Fort Kochi, Ernakulam
Tahasildar, Kanayannur Taluk, Ernakulam
Kochi Municipal Corporation, represented by its Secretary
Thrippunithura Municipality, represented by its Secretary (substituted as per IA 2 dated 2022)
Chief Town Planner, Thiruvananthapuram
District Town Planner, Kunnumpuram, Padamughal, Vazhakala, Kakkanad, Ernakulam
State of Kerala, represented by the Secretary to Government, Local Self Government Department

Legal Representation & Advocates

Counsels for Petitioners

• T.P. Pradeep
• Minikumar M.V.
• P.K. Sateesh Kumar
• R.K. Prasanth

Counsels for Respondents

• C.V. Manuvilsan
• Syamanthak B.S.
• Advocate General Office Kerala

Case Synopsis & Summary

The petitioners, siblings who own property along the Thrippunithura–Refinery road, challenge Ext. P11, a communication by the District Town Planner (Ernakulam) rejecting Ext. P10, their application for layout approval and land use for an industrial building. The primary basis for rejection is that part of their land lies within a sanctioned DTPScheme area for the Thrippunithura–Karimugal Road and is listed in the ‘existing agriculture uses (paddy field) retained.’ The petition asserts that the DTP Scheme has become antiquated and obsolete, and Ext. P11 was issued without considering Ext. P5 (Kerala Land Utilization order) and the change of classification of land to dry land; they also rely on Ext. P14, stating the Municipality has not decided to adopt the DTP scheme. The respondent 6th is countering Ext. P11. The Court notes previous judgments on the same DTP Scheme (W.P.(C). No. 29765/2019; W.P.(C). No. 10236/2020) and directions in WP(C) 2054/2009. It ultimately finds Ext. P11 invalid, directs reconsideration of Ext. P10 considering Exts. P5 and P6, and the Court’s observations in 2019’s W.P.(C). No. 29765, within six weeks, after due hearing, thus permitting a reassessment contrary to the strict zoning posture in the extant scheme.

Provisions of Law Cited

Kerala Land Utilization OrderKerala Conservation of Paddy Land and Wetland ActPaddy Land ActTown Planning Scheme (DTP Scheme)/Master Plan for KochiData Bank under Paddy Land Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that Ext. P11 was issued without considering Exts. P5 (Kerala Land Utilization Order) and P6 (land-use change to dry land), and that the DTP Scheme has become antiquated and obsolete. They contended that their land was not merely agricultural (paddy) and that occupancy/industrial use was allowed by prior municipal directions; Ext. P14 shows the municipality had not adopted the DTP scheme, and Ext. P5 and P6 should be considered in Ext. P10. They relied on prior judgments (notably W.P.(C). No. 29765/2019) which held that strict zoning may be departed from where the land isn’t captured as paddy land in the Data Bank, directing reconsideration of occupancy outside the DTP zone. Respondents: The respondents maintained Ext. P11 is correct, the property lies in an agricultural zone per the DTP scheme, and Ext. P10 could not be allowed; they argued that the DTP scheme remains operative and must be adhered to. They supported the veracity of the scheme and zoning classification.

Contentions of Respondents

The respondents argued that Ext. P11 correctly classifies the land as agricultural under the DTP scheme, and that Ext. P10 could not be approved given the compliance with the master plan and zoning; they emphasized that the DTP Scheme remains in force and must be observed, notwithstanding changes to land use recognized elsewhere.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Parthasaradhy Vaishnavam Apartment Investor's Association v. State of Kerala and others	W.P. (C) No.29765 of 2019	Positive	The Court cites this decision to support a departure from strict DTP zoning where land is not included as paddy land in the Data Bank, directing consideration of occupancy dehors zoning in similar circumstances.
W.P.(C).No.10236 of 2020	W.P.(C).No.10236 of 2020	Mentioned Only	Referenced as a related decision on the DTP scheme but without elaboration of its ratio in the present judgment.
W.P.(C) No.2054/2009	WP (C) No.2054/2009	Mentioned Only	Cited for the proposition that directions given by this Court influenced grant of building permits in the present case.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Jose Varghese S/o Vargheze and Jagan Varghese S/o Vargheze v. Revenue Divisional Officer, Revenue Division, Fort Kochi Ernakulam; Tahasildar, Kanayannur Taluk; Kochi Municipal Corporation (represented by its Secretary); substituted Thrippunithura Municipality (represented by its Secretary); Chief Town Planner; District Town Planner; State of Kerala (represented by the Secretary to Government, Local Self Government Department) and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** ## **THURSDAY, THE 15[TH] DAY OF DECEMBER 2022 / 24TH AGRAHAYANA, 1944** ## **WP(C) NO. 23484 OF 2022** ## **PETITIONER:** - 1 JOSE VARGHESE S/O VARGHESE, MUKKADACKAL HOUSE, CHITHRAPPUZHA, IRRUMPANAM P.O, ERNAKULAM - 682 039 - 2 JAGAN VARGHESE, S/O VARGHESE, MUKKADACKAL HOUSE, CHITHRAPPUZHA, IRRUMPANAM P.O, ERNAKULAM - 682 039 BY ADVS. T.P.PRADEEP MINIKUMARY M.V. P.K.SATHEES KUMAR R.K.PRASANTH ## **RESPONDENTS:** - 1 THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE FORT KOCHI, ERNAKULAM-682 001 - 2 THE TAHASILDAR, TALUK OFFICE, KANAYANNUR TALUK, ERNAKULAM. - 682 011, - 3 KOCHI MUNICIPAL CORPORATION REPRESENTED BY IT'S SECRETARY, CORPORATION OFFICE, KOCHI682011 **SUBSTITUTED** THRIPPUNITHURA MUNICIPALITY REPRESENTED BY IT'S SECRETARY, MUNICIPAL OFFICE, THRIPPUNITHURA, ERNAKULAM-682 301. - 4 THE SECRETARY, KOCHI MUNICIPAL CORPORATION, CORPORATION OFFICE, KOCHI682011 ** SUBSTITUTED** " THE SECRETARY, THRIPPUNITHURA MUNICIPALITY, MUNICIPAL OFFICE, THRIPPUNITHURA, ERNAKULAM-682 301." (R3 & R4 SUBSTITUTED AS PER ORDER DATED 20-07-2022 IN IA 2 ## W.P.(C) No.23484 of 2022. NO.1/2022) - 5 THE CHIEF TOWN PLANNER CHIEF TOWN PLANNING OFFICE, SWARAJ BHAVAN, NANTHANCODU, THIRUVANANTHAPURAM-695003 - 6 THE DISTRICT TOWN PLANNER, KUNNUMPURAM, PADAMUGHAL, VAZHAKKALA, KAKKANAD, ERNAKULAM- 682030 - 7 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 033. BY ADVS. C.V.MANUVILSAN B.S.SYAMANTHAK ADVOCATE GENERAL OFFICE KERALA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 3 W.P.(C) No.23484 of 2022. ## **JUDGMENT** **Dated this the 15th day of December, 2022 .** The petitioners, who are siblings and own property on the side of Thrippunithura-Refinery road, have filed this writ petition challenging Ext.P11 communication issued by the District Town Planner, Ernakulam rejecting Ext. P10 application submitted by them for approval of lay out and usage of plot for an industrial building in the said property. Ext. P10 application has been rejected stating that the portion of their land abutting the aforesaid road falls in the Sanctioned DTP Scheme for Trippunithura - Karimugal Road and is included in the ‘existing agriculture uses (paddy field) retained’. The petitioners state that the scheme referred to in Ext.P11 has become redundant and obsolete and Ext.P11 has 4 W.P.(C) No.23484 of 2022. been issued without taking into account Ext.P5 order passed by the 2[nd] respondent under the Kerala Land Utilization order and change of classification of land to dry land. The petitioners also rely on Ext. P14 information issued by the Trippunithura Municipality and state that the Municipality has not taken any decision to adopt or implement the aforesaid DTP scheme. 2. A Counter affidavit is filed by the 6[th] respondent reiterating the stand taken in Ext. P11 communication. 3. Heard Sri. T.P. Pradeep, the learned counsel for the petitioners, Sri. C.V. Manuvilsan, the learned Standing Counsel for respondents 3 and 4 and Sri. Syamanthak B.S, the learned Government Pleader for the other respondents. 4. Sri. Manuvilsan brought to my notice the judgments of this Court in W.P. (C).No.29765 of 2019 and 5 W.P.(C) No.23484 of 2022. in W.P.(C).No.10236 of 2020 in respect of the same DTP scheme. In W.P. (C) No.29765/2019 (Parthasaradhy Vaishnavam Apartment Investor's Association v. State of Kerala and others), this Court considered the challenge made against the denial of occupancy on the ground that the property therein comes under the agricultural zone as per the structure plan notified under the general town planning scheme for Kochi and held that, since the land area was not included as paddy land in the Data Bank prepared under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, the rigour of DTP Scheme/Master plan with respect to zonal considerations of the area concerned cannot apply to the property of the petitioner and directed the local authority to consider the application for occupancy certificate dehors the finding rendered in zonal classification. Paragraph 6 of the judgment in W.P. (C).No.29765 of 2019 is extracted 6 W.P.(C) No.23484 of 2022. ## below:- 6. As regards the 4[th] condition in Ext.P11 is concerned, the Secretary has notified the petitioner that the property involved is included in an 'Agricultural Zone' as per the DTP scheme. Even when I find favour with the submissions of the learned Government Pleader that merely because the DTP scheme has become antiquated, it cannot automatically construed to be not in operation, the fact remains that in this particular case, the property involved cannot be used as an agricultural one since, concededly, it has not been even included as a 'paddy land' in the Data Bank prepared under the provisions of the Paddy Land Act. I am, therefore, of the view that the rigor of the DTP scheme/Master Plan with respect to the zonal considerations of the area concerned cannot apply to the property of the petitioner. This is more so because, it is admitted by all sides that the Building 7 ## W.P.(C) No.23484 of 2022. Permit for the construction in question had been issued by the Municipality consequent to the directions of this Court in WP (C) No.2054/2009, wherein these aspects were also considered. 5. As rightly pointed out by Sri. Pradeep, the Town Planner, while considering Ext. P10 application with respect to the zonal considerations of the area concerned ought to have considered the fact that the petitioners’ property was allowed to be used for purposes other than agricultural activities and that the classification of land was changed to dry land. These factors ought to have been relevant in considering Ext. P10 application. Accordingly, Ext.P11 shall stand set aside. There will be a direction to the District Town Planner, Ernakulam to reconsider Ext.P10 application taking into account Exts.P5 and P6 and the observations of this Court in the judgment in W.P. (C).No.29765 of 2019, within a period of 8 W.P.(C) No.23484 of 2022. six weeks from the date of receipt of a copy of this judgment after affording an opportunity of being heard to the petitioners. The petitioners shall produce the copy of the aforesaid judgments and the documents referred to herein, before the District Town Planner along with the certified copy of this judgment. The writ petition is disposed of with the said direction. **Sd/MURALI PURUSHOTHAMAN JUDGE** Raj. 15.12.2022. 9 W.P.(C) No.23484 of 2022. ## **`APPENDIX OF WP(C) 23484/2022`** - `PETITIONER EXHIBITS` - `Exhibit P1 TRUE COPY OF THE PHOTOGRAPHS OF THE PETITIONERS LAND AND SURROUNDING, BUILDINGS.` - `Exhibit P2 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 09/08/2018` - `Exhibit P3 TRUE COPY OF THE JUDGEMENT IN W.P. (C) NO. 41524/18 DATED 27.6.2019` - `Exhibit P4 TRUE COPY OF THE JUDGEMENT IN W.P. (C) NO. 30372/2019 DATED 12.11.2019` - `Exhibit P5 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 17.07.2020` - `Exhibit P6 TRUE COPY OF THE TAX RECEIPT DATED 12.04.2021 ISSUED FROM THE VILLAGE OFFICE, THRIRUVANKULAM` - `Exhibit P7 TRUE COPY OF THE NO OBJECTION CERTIFICATE OBTAINED FROM THE DEPARTMENT OF FIRE AND RESCUE SERVICE DATED 21.03.2022` - `Exhibit P8 TRUE COPY OF THE CONSENT TO ESTABLISH OBTAINED FROM THE KERALA STATE POLLUTION CONTROL BOARD VALID UP TO 16.11.2026` - `Exhibit P9 TRUE COPY OF THE FACTORY PLAN APPROVAL ORDER DATED 04.05.2022` - `Exhibit P10` - `TRUE COPY OF THE APPLICATION FOR THE` 10 ## W.P.(C) No.23484 of 2022. ``` LAYOUT APPROVAL AND USAGE OF PLOT/CONCURRENCE DATED 09.05.2022 SUBMITTED BEFORE THE 4TH RESPONDENT ``` - `Exhibit P11` - `TRUE COPY OF THE COMMUNICATION ISSUED BY THE 6TH RESPONDENT DATED 01.07.2022 TO THE 4TH RESPONDENT` - `Exhibit P12` - `TRUE COPY OF THE DRAFT T.P.SCHEME FOR THRIPPUNITHURA-KARIMUGAL ROAD` - `Exhibit P13 TRUE COPY OF THE SITE APPROVAL & BUILDING PERMIT DATED 06.07.2021 ISSUED BY THE 4TH RESPONDENT` - `Exhibit P14 TRUE COPY OF THE INFORMATION OBTAINED UNDER RIGHT TO INFORMATION ACT DATED 03/08/2022` - `Exhibit P15 TRUE COPY OF THE PHOTOGRAPHS OF THE COMMERCIAL BUILDINGS AT THE EASTERN AND WESTERN BOUNDARY OF PETITIONER'S LAND.` - `Exhibit P16 TRUE COPY OF THE PHOTOGRAPHS OF THE COMMERCIAL BUILDINGS AT THE OPPOSITE SIDE OF THE ROAD OF THE PETITIONER'S LAND.` - `Exhibit P17 TRUE COPY OF THE PHOTOGRAPHS OF THE INDUSTRIAL UNIT NAMELY KUMMANCHERRY STEELS.`