M. Ahnas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 20TH DAY OF AUGUST 2020 / 29TH SRAVANA, 1942** ## **WP(C).No.15876 OF 2020(H)** ## **PETITIONER/S:** **M.AHNAS AGED 50 YEARS** **S/O. LATE MUHAMAMD, IQUBAL, DIYA GARDENS, LAKE DARSHAN NAGAR 56, KOLLAM 691 001 (FROM AMHIL VIEW, KOTTAMUKKU, KOLLAM).** **BY ADVS. SRI.B.MOHANLAL SMT.P.S.PREETHA** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **2 THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT, DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **3 THE CHIEF TOWN PLANNER, GOVERNMENT OF KERALA NANDANCODE, THIRUVANANTHAPURAM 695 003.** - **4 THE DISTRICT TOWN PLANNER, CANTONMENT, KOLLAM, 691 001.** - **5 THE KOLLAM CORPORATION , REPRESENTED BY ITS SECRETARY, CORPORATION BUILDINGS, KOLLAM 691 001.** - **6 THE KOLLAM CORPORATION COUNCIL, REPRESENTED BY ITS MAYOR, CORPORATION BUILDINGS, KOLLAM 691 001.** - **7 THE TOWN PLANNING OFFICER, (EXECUTIVE ENGINEER), KOLLAM CORPORATION, CORPORATION BUILDINGS, KOLLAM 691 001.** **R5 BY SRI.M.K.CHANDRA MOHAN DAS,SC,KOLLAM MPT OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.15876 OF 2020(H) 2 # **ALEXANDER THOMAS, J.** ## **----------------------------------------W.P.(C.) No. 15876 of 2020** **----------------------------------------Dated this the 20[th] day of August, 2020** ## **JUDGMENT** ## The prayers in the Writ Petition (Civil) are as follows : _(i) “To issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P5 Order of the 7th Respondent and quash the same as illegal._ _(ii) To declare that the relaxations introduced to the Zoning Regulations in Ext.P3 Scheme as per Ext.P4 and Note of Ext.P11 Orders applies to the lands covered by Ext.P6 Scheme._ _(iii) To declare that the inclusion of 4.71 Ares of properties of the Petitioner comprised in Re-Sy.No:8/7 in Block No:163 of Kollam East Village under Industrial Zone as per Ext.P6 and P11 Scheme is illegal, arbitrary and unenforceable._ _(iv) To issue a writ of mandamus or any other appropriate writ, direction or order commanding the Respondents to issue the building permit sought for by the Petitioner in the application dated 18/05/2020 referred to in Ext.P5 order within a time limit to be prescribed by this Hon’ble Court in the light of the decisions rendered by this Hon’ble Court and the Hon’ble Apex Court._ _(v) To issue such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.”_ 2. Heard Sri.B. Mohanlal, learned counsel appearing for the petitioner, Sri.M.K.Chandramohandas, learned Standing Counsel for Kollam Municipal Corporation appearing for R4 to R7 and Sri.Saigi Jacob Palatty, learned senior Government Pleader appearing for respondents 1 to 3. WP(C).No.15876 OF 2020(H) 3 3. Sri.B.Mohanlal, learned counsel appearing for the petitioner has made submission in tune with the pleadings in this W.P.(C.). One of the main contentions urged by the petitioner is that the matter in issue is similar or almost identical to the case covered by Ext.P10 judgment dated 18.9.2009 rendered by this Court in W.P.(C.) No. 20070/2009 and in that regard, it is pointed out by the learned counsel appearing for the petitioner that the subject property covered by Ext.P10 judgment is also situated within the territorial limits of the respondent-Kollam Municipal Corporation and that therein also identical objections were raised and that there were lot of commercial buildings in existence in the vicinity of the subject property, which was otherwise termed as an industrial zone and that in this case also, any cursory enquiry would make it clear like the day light that the subject property is situated in a locality, wherein there are lot of commercial buildings already in existence and that the stand of the respondent-Kollam Municipal Corporation rejecting the application for building permit as per the impugned Ext.P5 order dated 18.6.2020 that the area is classified as industrial zone etc. is untenable and legally unsustainable. 4. The petitioner would also placed reliance on certain other judgments of this Court including that as per Exts.P8 and P9 judgments as well as in the judgment of this Court in _**Havva T.P. and others v. Tirur Municipality and anr**_ . [2015 (4)KHC 110] wherein this Court WP(C).No.15876 OF 2020(H) 4 held that the impugned order of the Municipality citing the proposed public purpose provided under the detailed Town Planning Scheme without the land being acquired by the State or Municipal authorities for the purpose notified under the scheme cannot be legally justified as it would amount to direct infringement and deprivation of the right to entire property as guaranteed in terms of Article 300A of the Constitution of India. 5. After hearing both sides and after going through the pleadings and materials on records and more particularly, after a reading of the impugned Ext.P5 order dated 18.6.2020, it is seen that the abovesaid crucial aspects canvassed by the petitioner have not been taken into consideration by the respondent-Municipal Corporation authorities. Moreover, it is seen that the impugned Ext.P5 rejection order has been passed by the 7[th] respondent-Town Planning Officer (of the rank of Executive Engineer attached to the Kollam Municipal Corporation). Since various legal issues involving subtle nuances and dimensions in a matter like this, the matter should have been decided by the Secretary of the 5[th] respondent- Kollam Municipal Corporation instead of the matter being decided by a delegate of the said Secretary. Since all relevant aspects of the matter are not seen taken into consideration, this Court is of the considered view that the matter would require serious re-consideration at the hands of the 5[th] respondent-Secretary of the Kollam Municipal Corporation for WP(C).No.15876 OF 2020(H) 5 consideration and decision afresh. For effectuating such a remit, it is ordered that the impugned Ext.P5 rejection order dated 18.6.2020 rejecting the application of the petitioner for grant of building permit will stand quashed and set aside. Consequently, the application dated 18.5.2020 submitted by the petitioner for grant of building permit (referred to in Ext.P5) will stand remitted to the 5[th] respondent-Secretary of the Kollam Municipal Corporation for consideration and decision afresh. 6. In that regard, it is borne in mind that the orders should be passed afresh in this matter in the abovesaid application dated 18.5.2020 for grant of building permit by the Secretary of the 1[st] respondentMunicipal Corporation and not by any officer, who may have been delegated to exercise the powers of the Secretary. The 5[th] respondentSecretary of the Municipal Corporation will ascertain as to whether the subject property covered by the building permit of the application is broadly similar to the subject property involved in Ext.P10 judgment and if necessary, an inspection may be conducted by a competent official of the respondent-Municipal Corporation with due prior notice to the petitioner to ascertain the fact that there are lot of commercial buildings already in existence near to the subject property, which is the subject matter of the building permit. In that regard, the correctness or otherwise of the factual aspects canvassed by the petitioner based on the scenario projected on the basis of Ext.P7 may also be ascertained. So also, the inspecting officer may WP(C).No.15876 OF 2020(H) 6 ascertain the details of the subject property covered by Ext.P10 and also as to whether building permit was also granted to the party concerned, in pursuance of Ext.P10 judgment and also as to whether the subject property covered by Ext.P10 is broadly similar to the subject property covered in the present case. The copy of the inspection report should be given to the petitioner in advance. The abovesaid process of inspection should be duly completed within 3 weeks from the date of receipt of a certified copy of this judgment. 7. Thereafter, the 5[th] respondent- Secretary of the Municipal Corporation will afford reasonable opportunity of being heard to the petitioner, through authorised representative/counsel, if any and then should take a considered decision so as to pass orders on the said application dated 18.5.2020 submitted by the petitioner for grant of building permit, after duly adverting to the abovesaid submissions of the petitioner and also in the light of the dictum laid down by this Court in Ext.P10 judgment etc. without much delay, preferably within a period of 6 weeks from the date on which the inspection report is received. The petitioner will be at liberty to furnish his written submissions in the matter at the time of personal hearing. 8. The petitioner will forward certified copy of this judgment along with the copy of the memorandum of this W.P.(C.) with all the exhibits before the 5[th] respondent-Secretary of the Kollam Municipal Corporation WP(C).No.15876 OF 2020(H) 7 for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** **SKS** WP(C).No.15876 OF 2020(H) 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE TAX RECEIPT FOR THE YEAR 2019-2020 ISSUED BY THE VILLAGE OFFICE, KOLLAM EAST VILLAGE TO THE PETITIONER DT. 4.10.2019.** **EXHIBIT P2 THE TRUE COPY OF THE POSSESSION CERTIFICATE AND LOCATION CERTIFICATE NO 1315/2018 DATED 05/09/2018 ISSUED BY THE VILLAGE OFFICER, KOLLAM EAST VILLAGE, TO THE PETITIONER.** **EXHIBIT P3 THE TRUE COPY OF THE TOWN PLANNING SCHEME OF KOLLAM TOWN DATED NIL ISSUED BY THE QUILON DEVELOPMENT AUTHORITY.** **EXHIBIT P4 THE TRUE COPY OF THE G.O.(P) NO. 37/08/LSGD DATED 08/02/2008 ISSUED BY THE GOVERNMENT.** - **EXHIBIT P5 THE TRUE COPY OF ORDER NO. TP3/BA.06/2021 DATED 18/06/2020 ISSUED BY THE 7TH RESPONDENT.** - **EXHIBIT P6 THE TRUE COPY OF THE TOWN PLANNING SCHEME IN G.O.(MS) NO. 63/88/LAD DATED 04.07.1988 ISSUED BY THE GOVERNMENT.** - **EXHIBIT P7 THE TRUE COPY OF THE PHOTOGRAPHS OF THE LAND OF THE PETITIONER AND THE ADJACENT LAND AND THE BUILDING IN RESPECT OF THE PROPERTY PROPOSED FOR CONSTRUCTION OF THE COMMERCIAL BUILDING.** **EXHIBIT P8 THE TRUE COPY OF THE JUDGMENT IN WPC NO. 10166/2008 DATED 04/04/2008 OF THIS HONBLE COURT. EXHIBIT P9 THE TRUE COPY OF THE JUDGMENT IN WPC NO. 92/2007 DATED 29/10/2007 OF THIS HONBLE COURT. EXHIBIT P10 THE TRUE COPY OF THE JUDGMENT DATED 18/08/2009 IN WPC NO. 20070/2009 OF THIS HONBLE COURT.** **EXHIBIT P11 THE TRUE COPY OF THE G.O.(MS0 NO. 69/2010/LSGD DATED 06/04/2010 ISSUED BY THE GOVERNMENT.**