M. Sathyadas v. Palakkad Municipality and District Town Planner

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN TUESDAY, THE 1ST DAY OF OCTOBER 2013/9TH ASWINA, 1935 ## WP(C).No. 19204 of 2013 (A) ---------------------------- PETITIONER: ------------------ M. SATHYADAS AGED 43 YEARS S/O.MADHAVAN NAIR, 'SAJISHNA', PUTHOOR PALAKKAD DISTRICT BY ADV. SRI.BABU S. NAIR RESPONDENT(S): ------------------------- ## 1. THE PALAKKAD MUNICIPALITY - REPRESENTED BY ITS SECRETARY PALAKKAD, PALAKKAD DISTRICT PIN 678 001 ## 2. THE DISTRICT TOWN PLANNER, PALAKKAD PIN 678 001 R1 BY ADV. SRI.T.C.SURESH MENON R1 BY ADV. SRI.P.S.APPU R1 BY ADV. SRI.A.R.NIMOD R2 BY GOVERNMENT PLEADER SRI RINNY STEPHEN CHAMAPARAMBIL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 19204 of 2013 (A) ---------------------------- ## **APPENDIX** ## PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT P1 TRUE COPY OF THE ORDER DATED 5-07-2012 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER AS EJBR/1140/11-12/PW5 EXHIBIT P2 TRUE COPY OF THE ORDER OF THE ASSISTANT COLLECTOR,PALAKKAD DATED 24-02-1986 AS NO D.DIS 1423/86 EXHIBIT P3 TRUE COPY OF THE ORDER OF THE REVENUE DIVISIONAL OFFICER,PALAKKAD DATED 19-06-2006 AS NO D.DIS M 2445/04 EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 25-07-2012 OF THIS COURT IN WPC NPO 16090/2012 EXHIBIT P5 TRUE COPY OF THE COMMUNICATION BY THE 2ND RESPONDENT TO THE FIRST RESPONDENT DATED 09-10-2012 - EXHIBIT P6 TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 12-10-2012 - EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 1-1-2013 OF THIS COURT IN WPC 26160/2012 - EXHIBIT P8 TRUE COPY OF THE PROCEEDINGS OF BY THE 2ND RESPONDENT DATED 16-07-2013 AS NO.C/2020/2012 EXHIBIT P9 TRUE COPY OF THE GOVERNMENT NOTIFICATION NO G.O(MS) NO 128/2010/LSGD DATED 21-06-2010 - EXHIBIT P10 TRUE COPY OF THE GOVERNMENT NOTIFICATION NO G.O(MS) NO 46/2013/LSGD DATED 1-2-2013 - EXHIBIT P11 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT AS NO C/2020/2012 DATED 18-07-2013 - EXHIBIT P12 TRUE COPY OF THE PHOTOGRAPHS OF THE PROPERTIES OF THE PETITIONER ## **RESPONDENT(S)' EXHIBITS: NIL** TRUE COPY P.A.TO JUDGE dsn ## **K.SURENDRA MOHAN** , **J.** **-------------------------------------------------W.P.(C)No.19204 Of 2013** **-------------------------------------------------DATED THIS THE 1[st] DAY OF OCTOBER, 2013** ## **JUDGMENT** The petitioner has filed this Writ Petition seeking the following reliefs: - “(i) Call for the entire records leading up to Exhibits P8 and P11 and quash the same by the issuance of a writ of certiorari or any other appropriate writs, orders or directions; - (ii) Issue a writ of mandamus or any other appropriate writs, orders or directions commanding the respondents to issue building permit as applied for by the petitioner.” 2. The case of the petitioner in brief is that he is the owner of an item of property within the territorial limits of the 1[st] respondentMunicipality. He has submitted an application for the grant of a building permit to construct an apartment complex. The Municipality had approved the plan and issued the building permit. The initial plan was for a building having a ground floor and two upper floors. Subsequently, the petitioner submitted a revised plan. As per the revised plan, the petitioner had sought for the grant of a building permit to construct an apartment complex with ground floor and WPC.No.19204/13 -2- eight upper floors having number of independent apartments. As per Exhibit P1, the petitioner's revised plan was not approved and his original plan was also cancelled. The petitioner had approached this Court challenging the said action. By Exhibit P4 judgment, the order Exhibit P1 was quashed and the application was directed to be reconsidered. Upon reconsideration, the matter was referred to the District Town Planner, Palakkad, who rejected the application of the petitioner by Exhibit P5. The said order was communicated to the petitioner vide Exhibit P6. 3. The petitioner again approached this Court challenging Exhibits P5 and P6. By Exhibit P7, the said proceedings were set aside and respondents were directed to consider the petitioner's application for building permit afresh, in the light of the exemption orders granted under the Kerala Land Utilisation Order. Accordingly, the matter was considered again and by Exhibits P8 and P11, the petitioner's application was rejected. The petitioner is aggrieved by the said proceedings. My attention is drawn to Exhibit P12 photographs to point out that the land at present is a perfect dry land and not a paddy field. It is also contended that the authorities have gone wrong WPC.No.19204/13 -3- in rejecting the petitioner's application on the same grounds, despite repeated directions of this Court to consider the matter afresh. 4. According to Sri Babu S.Nair, who appears for the petitioner, Exhibits P2 and P3 are exemption orders granted under the Kerala Land Utilisation Order to the petitioner's predecessor in title. Since the benefit of the said order is available to the petitioner also, it is contended that there is absolutely no justification for rejecting his application, as done by Exhibits P8 and P11. It is contended that the present condition of the land clearly shows that the same is unfit for paddy cultivation. Therefore, there is no point in refusing the building permit to the petitioner and retaining the same in its present condition. Since a building permit had been granted to the petitioner earlier, there is no justification for denying the building permit to him, when he seeks sanction for a revised plan. It is also pointed out that he has already constructed a substantial portion of the building acting on the strength of the initial building permit that was issued to him. The present stand of the Municipality that no construction is permissible on the land WPC.No.19204/13 -4- is, therefore, absolutely unjustified. Reliance is placed on the decision reported in **Heera Constructions(P)Ltd.** v. **Corporation of Trivandrum (2008(3)KLT 553).** 5. According to the learned Government Pleader, who appears for the 2[nd] respondent, the petitioner's property was originally a paddy field as per Exhibits P2 and P3. Permission had been granted for the limited purpose of constructing a residential building. The said permission was granted to the owner of the property at that time. The permission was subject to the condition that the property would not be sold. However, in violation of the terms of Exhibits P2 and P3, the property was transferred to the petitioner. It is contended that the petitioner is not entitled to the benefit of Exhibits P2 and P3 and to contend that he is entitled to construct a building therein. 6. Advocate Sri T.C.Suresh Menon appears for the 1[st] respondent-Municipality. According to the learned counsel, the documents Exhibits P2 and P3 had not been noticed while issuing the initial building permit. The same was considered only subsequently. When the petitioner applied for construction of a multi-storied apartment complex, the request was rejected for WPC.No.19204/13 -5- the reason that the proposed construction was in an area designated as paddy field zone by the Master Plan. Since the initial proposal was only for a smaller building with a ground floor and two upper floors, the same was not got approved by the District Town Planner. The revised plan was sent for approval of the District Town Planner and it was only thereafter that Exhibit P8 was passed. It was contended that the impugned orders Exhibits P8 and P11 are perfectly legal and therefore the reliefs sought for by the petitioner may not be granted. 7. Heard. 8. It is not in dispute that the petitioner's initial application for the construction of the building having a ground floor and two upper floors was sanctioned and a building permit was also issued to him as, No.EJBR/1140/11-12/PW5 dated 13.4.2012. It is also not in dispute that on the strength of the building permit, the petitioner had started construction of his building, which has progressed substantially. Therefore, on the basis of Exhibits P8 and P11, to deny permission to the petitioner to make any construction cannot be justified. The petitioner, has acting on the strength of the initial permit WPC.No.19204/13 -6- granted to him, expended money and has proceeded with the construction. Any rejection of the said permit would put the petitioner to needless financial loss, which is totally unwarranted. Therefore, whatever be the ground that is put forward for denial of the application for building permit, the construction made by the petitioner on the basis of the initial building permit issued to him has to be sustained as legal and permissible. 9. A problem appears to have arisen, when the petitioner wanted approval for a revised plan, which is for a building having a ground floor and 8 upper floors. Since the matter required the permission of the 2[nd] respondent, the same was referred to him and the matter has now culminated in Exhibits P8 and P11. It has been found in Exhibit P11 that the exemption orders granted to the petitioner's predecessor in title cannot enure to the benefit of the petitioner, for the reason that the specific terms of the said order have been violated. Exhibits P2 and P3 are the exemption orders. A perusal thereof shows that the exemption orders were granted for the purpose of construction of a residential building subject to the condition that WPC.No.19204/13 -7- “the field to field irrigation should not be obstructed due to conversion, that the land should be utilised for the purpose which it is granted and that the land should not be sold to other person, as permission is granted for his own use only as house site.” Exhibit P3 also contains a similar stipulation. A perusal of the above stipulations show that the exemption order was granted to the person, who had made the application, namely, the predecessor in title of the petitioner in this case. The permission was granted only for the purpose of utilisation of the land as his own site, with a condition that the property should not be sold. The learned counsel for the petitioner has a contention that the said stipulations are illegal and unenforceable. However, I refrain from considering the said contention, for the reason that the sustainability of the said orders is not an issue in these proceedings. The person who had obtained the said permission had no grievance about the same and is not even before me in these proceedings. Since the exemption orders Exhibits P2 and P3 had been granted personally to the persons who were the title holders at the time of issue of the permission, the petitioner has no right to take the WPC.No.19204/13 -8- benefit of the said exemption. The petitioner ought to have sought for permission afresh in his own personal capacity, for the construction that he has proposed. He has not done so. Therefore, it is not open to the petitioner to take shelter under Exhibits P2 and P3 to claim that he has a right to make any construction in the property as deemed fit by him. 10. As already found above, since the petitioner had been issued with a building permit, rightly or wrongly by the 1[st] respondent-Municipality and in view of the fact that the petitioner has proceeded with the construction on the strength of the said building permit investing money, it is not open to the 1[st] respondent-Municipality to maintain that the permit was not liable to be granted and therefore, it was liable to be cancelled. The cancellation of the building permit is therefore found to be without any justification. The petitioner shall be within his rights to complete the construction on the basis of the original building permit issued to him. 11. With respect to the revised plan that has been rejected by Exhibits P8 and P11, it is held that the rejection is in order, since it is not open to the petitioner to claim the benefit of WPC.No.19204/13 -9- Exhibits P2 and P3. It is made clear that the observations made above shall not foreclose any other remedy available to the petitioner in law against Exhibits P2 and P3. In the result, this Writ Petition is allowed to the limited extent of restoring building permit No.EJBR/1140/11-12/PW5 dated 13.4.2012. Sd/-( **K.SURENDRA MOHAN) JUDGE** . dsn