Joseph Peter P. v. The Corporation of Kochi & The Town Planning Officer & E. R. George

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 16TH DECEMBER 2011 / 25TH AGRAHAYANA 1933** **WP(C).No. 24342 of 2011(P)** **--------------------------** ## **PETITIONER(S):** **---------------------** **JOSEPH PETER. P, S/O. PETER PAUL, PRESENTLY RESIDING AT PALLATH HOUSE, C-2, GALAXY APARTMENTS, THAMMANAM.P.O, ERNAKULAM DISTRICT PRESENTLY R/AT SJRRA - 41, ST. JOHN BAPTIST ROAD, PALLINADA, PALARIVATTOM. P. O., KOCHI - 682 025.** **BY ADVS. SRI. N.SUBRAMANIAM SRI. M. S. NARAYANAN SRI. P. T. GIRIJAN** ## **RESPONDENT(S):** **-------------------------** **1. THE CORPORATION OF KOCHI, REPRESENTED BY ITS SECRETARY, OFFICE OF THE CORPORATION OF KOCHI, NEAR BOAT JETTY, ERNAKULAM – 682 011.** **2. THE TOWN PLANNING OFFICER, CORPORATION OF KOCHI, ERNAKULAM – 682 011.** ## **ADDITIONAL R3 IMPLEADED** **3. E. R. GEORGE, ELANTHATTIL HOUSE, NANTHANATH KOCHACKO ROAD, THAMMANAM P.O., KOCHI – 682 032.** - **ADDITIONAL R3 IS IMPLEADED AS PER ORDER DATED 12.12.2011 IN I.A. NO. 18249/11.** **R1 & R2 BY ADV. SRI. V. E. ABDUL GAFOOR,SC,COCHIN CORPORATION R3 BY ADV. SRI. SAIBY JOSE KIDANGOOR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PN** ## **WP(C).No. 24342 of 2011(P)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT. P1COPY OF THE APPROVED SITE PLAN DT. 30.07.1992. EXT. P2COPY OF THE APPROVED BUILDING PLAN DT. 30.07.1992. EXT. P3COPY OF THE APPROVED SITE PLAN DT. 28.02.2008. EXT. P4COPY OF THE APPROVED BUILDING PLAN DT. 28.02.2008. EXT. P5COPY OF THE BUILDING PERMIT DT. 28.02.2008. EXT. P6COPY OF THE APPLICATION DT. 17.02.2011. EXT. P7COPY OF THE APPLICATION DT. 01.06.2011. EXT. P8COPY OF THE REPLY DT. 28.06.2011. EXT. P9COPY OF THE APPLICATION DT. 04.07.2011. EXT. P10COPY OF THE IMPUGNED ORDER DT. 04.03.2011 EXT. P11COPY OF THE ORDER OF TRIBUNAL DT. 29.07.2009. EXT. P12COPY OF THE ROUGH SKETCH DT. NIL. EXT. P13COPY OF THE ROUGH SKETCH DT. NIL. EXT. P14COPY OF THE REPLY OF VILLAGE OFFICER DT. 19.01.2010. EXT. P15COPY OF THE ORDER OF TRIBUNAL DT. 29.10.2009. EXT. P16COPY OF THE ORDER OF TRIBUNAL DT. 21.07.2010.** ## **RESPONDANT'S EXHIBITS** - **EXT. R3ACOPY OF THE REPRESENTATION PREFERRED BY PETITIONER DATED 31.05.2008.** - **EXT. R3B COPY OF THE REPORT NO. 134/2008 DATED 17.06.2008.** - **EXT. R3C COPY OF THE COMMUNICATION NO. 3814/08 DATED 25.08.2008 ISSUED FROM THE 2ND RESPONDENT TO THE 5TH RESPONDENT.** - **EXT. R3D COPY OF THE JUDGMENT IN WP(C) NO. 37734/08 DATED 17.03.2009.** - **EXT. R3E COPY OF THE ORDER (CANCELLATION OF BUILDING PERMIT) NO. EYPI67/09(G) DATED 02.06.2009.** ## **WP(C).No. 24342 of 2011(P)** |**EXT.**|**R3F**|**COPY OF THE ORDER DATED 12.03.2009 ISSUED BY THE VILLAGE**| |---|---|---| |||**OFFICER**| |**EXT.**|**R3G**|**COPY OF THE ORDER (CANCELLATION OF BUILDING PERMIT) NO. EYPI-**| |||**67/09(G) DATED 19.09.2009.**| |**EXT.**|**R3H**|**COPY OF THE ORDER (CANCELLATION OF BUILDING PERMIT) NO. EYPI-**| |||**67/09(G) DATED 29.03.2010.**| **/TRUE COPY/ P. A. TO JUDGE** **PN** ## **HARUN-UL-RASHID, J. -----------------------W.P.(C).No.24342 Of 2011 ---------------------Dated this the 16[th] day of December, 2011.** ## **J U D G M E N T** The writ petition is filed seeking to quash Ext.P10 order and for a direction commanding respondents 1 & 2 to renew Ext.P5 building permit for a further period of three years. 2. The petitioner is aggrieved by Ext.P10 order passed by the 2[nd] respondent refusing to renew the building permit issued to the petitioner. The petitioner had applied to the 1[st] respondent in 1992 for permission to construct a residential building in the property owned by him in survey Nos.39/9, 39/7 and 39/11 of Edappally South Village. The 1[st] respondent granted permission as sought for. Exts.P1 & P2 are the approved site plan and building plan respectively. However, the petitioner did not carry out the constructions as per Exts.P1 & P2. In the year 2008, the petitioner again applied for construction. The officials of the Corporation inspected the site and found that the site is fit for construction and accordingly, approved the site plan and building plan. Exts.P3 & P4 are the copies of approved site plan and **::2::** ## **W.P.(C).No.24342 Of 2011** building plan. The endorsement in Exts.P3 & P4 plans reads as follows: _“Inspected the site and measurements in the plan are found correct.”_ Exts.P4 approved building plan is dated 28.2.2008. Ext.P5 is the copy of the building permit dated 28.2.2008. The plan and permit is valid for a period of three years from 28.2.2008. Subsequently, the petitioner submitted Ext.P6 application dated 17.2.2011 requesting to renew the building permit for a period of three years. Ext.P6 application was submitted before the expiry of Ext.P5 building permit. Subsequently, the petitioner came to know that an order has been passed rejecting the application for renewal. Ext.P10 is the copy of the order. In Ext.P10 the reasons stated for non-renewal of the building permit is that the permit (Ext.P5) has been cancelled as per order dated 2.6.2009. The petitioner submits that the order dated 2.6.2009 cancelling the building permit issued to the petitioner has been passed by the Corporation without considering the factual situation and that the reason stated that the site where the building permit is given **::3::** ## **W.P.(C).No.24342 Of 2011** were actually paddy field and that the filling of the land is causing problems to the people in the locality are incorrect. The petitioner challenged the order dated 2.6.2009 cancelling the building permit before the Tribunal for Local Self Government Institutions in Appeal No.537/2009. The Tribunal, by order dated 29.7.2009 marked as Ext.P11, allowed the Appeal and set aside the order dated 2.6.2009. In Ext.P11 order the Tribunal directed the Secretary of the Corporation to initiate fresh proceedings, if there are any reasons to do so. 3. The petitioner contend that the property of the petitioner wherein he intends to construct the building is not a paddy field and that the entire area is constructed with buildings, both residential and non-residential. Ext.P12 is the copy of the rough sketch showing the entire area of the buildings constructed in the adjacent and neighbouring plots. The petitioner pointed out that apart from the residential and commercial buildings surrounding the property of the petitioner, there are also two apartment blocks adjacent to the property of the petitioner on its eastern side. The said buildings constructed are located in **::4::** ## **W.P.(C).No.24342 Of 2011** survey Nos.39/7, 39/8, 39/9, 39/11, 39/13 etc. 4. Respondents 1 & 2 and additional 3[rd] respondent filed counter affidavits denying the averments in the writ petition and prayed for dismissal of the writ petition. 5. After Ext.P11 order passed by the Tribunal, the Corporation issued an order dated 19.9.2009 directing the petitioner to stop the construction and demolish the unauthorised construction. The petitioner challenged the said order before the Tribunal by filing Appeal No.810/2009. By Ext.P15 order dated 29.10.2009, the Tribunal allowed the appeal and set aside the order dated 19.9.2009. Subsequently, the 1[st] respondent issued order dated 29.3.2010 revoking the building permit. The petitioner again challenged the order before the Tribunal by filing Appeal No.498/2010. The Tribunal allowed the appeal and set aside the order dated 29.3.2010. Ext.P16 is the copy of the order dated 21.7.2010 passed by the Tribunal. 6. Thus, the petitioner produced Exts.P11, P15 and P16 orders passed by the Tribunal setting aside the orders passed by the Corporation revoking the building permit. The reason stated **::5::** ## **W.P.(C).No.24342 Of 2011** in Ext.P10 order for rejecting the application for renewal is that the Corporation has cancelled the building permit issued to the petitioner as per its order dated 2.6.2009. In fact, the order dated 2.6.2009 passed by the corporation cancelling the building permit issued to the petitioner was set aside by the Tribunal by Ext.P11 order dated 29.7.2009 which has been further confirmed by the Tribunal by Exts.P15 & P16 orders. It is evident that respondents 1 & 2 have not applied their mind in passing Ext.P10 order. The petitioner contend that Ext.P1 evidences that the building site of the petitioner had been inspected and approved by the officials of the Corporation way back in 1992. The original permit was granted in 1992 by the Corporation after they being convinced of the fact that the property is fit for building construction. The building was not constructed in accordance with Exts.P1 and P2 plans. The petitioner again applied for permit in 2008. Exts.P3 & P4 are the building plan and permit respectively. It is pointed out that the officials again visited and inspected the site in 2008 and approved the site as evidenced by Ext.P3. The petitioner submits that the property lost its **::6::** ## **W.P.(C).No.24342 Of 2011** character as paddy field at least in 1992 and that the mere description of the property as paddy filed is not sufficient to hold that it is a paddy field. 7. A Division Bench of this Court in _**Praveen v. Land Revenue Commissioner**_ (2010 (2) KLT 617) held that the nature of the property recorded in the village office as paddy land is not a reason for rejecting the application for permit and that the ground reality has to be considered before passing an order on the application for building permit. Similar view was taken by this Court in the decision reported in _**Shahanaz Shukkoor v. Chelannur Grama Panchayath**_ (2009 (3) KLT 899). Therefore it is contended that the reasons stated for cencellation of the permit is illegal and was rightly set aside by the Tribunal. 8. The reason for rejecting the application for renewal of the permit stated in Ext.P10 is that the Corporation has cancelled the building permit issued to the petitioner as per its order dated 2.6.2009. Ext.R3(e) is the order dated 2.6.2009. The reason stated in Ext.P10 order is not sustainable, since the order has been set aside by the Tribunal by Ext.P11 order which was ## **::7::** ## **W.P.(C).No.24342 Of 2011** further confirmed by the Tribunal by Exts.P15 & P16 orders. The orders passed by the Tribunal attained finality. Going by the decision taken by the Tribunal as discernible from Exts.P11, P5 and P16 orders, respondents 1 & 2 ought not have rejected the application stating the reason that the permit was cancelled as per its order dated 2.6.2009 which was subsequently set aside. 9. Rule 15A (1) & (2) of the Kerala Municipality building Rules reads as follows: ## - **15A. Extension and renewal of periods of permits:** _1) A development permit or a building permit issued under these Rules shall be valid for three years from the date of issue._ _2) The Secretary shall, on application submitted within the valid period of the permit, grant extension twice, for further periods of three years each._ ” 10. The application for renewal of the permit was submitted on 17.2.2011, i.e., before the expiry period of the building permit. Ext.P6 is the copy of the said application. Ext.P10 order dated 4.3.2011 was served on the petitioner on 3.8.2011. **::8::** ## **W.P.(C).No.24342 Of 2011** 11. Since the reason stated in Ext.P10 cannot stand in view of Exts.P11, P5 & P16 orders passed by the appellate authority revoking the cancellation of the building permit, the petitioner is entitled to get the building permit renewed for a further period of three years. Accordingly, Ext.P10 order is quashed. Respondents 1 & 2 are directed to renew Ext.P5 building permit for a period of three years. The order shall be passed within a period of one month from the date of receipt of a copy of this judgment. **HARUN-UL-RASHID, Judge.** bkn/-