Padmaja Shashidharan v. State of Kerala and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **MONDAY, THE 13TH DAY OF FEBRUARY 2012/24TH MAGHA 1933** **WP(C).No. 32036 of 2009 (Y) ---------------------------** ## **PETITIONER :** **-------------** **DR.PADMAJA SHASHIDHARAN, W/O.DR.SHASHIDHARAN,RESIDING AT AH-55 (NEW OF AH-42),5TH STREET,ANNA NAGAR CHENNAI,NOW-AT PADMASREE,OPPOSITE TO RAJ BHAVAN,KOWDIAR,THIRUVANANTHAPURAM.** **BY ADVS.SRI.K.JAYAKUMAR (SR.)** **SRI.P.GOPALAKRISHNAN NAIR SRI.M.SREEKUMAR** **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY LOCAL SELF GOVERNMENT DEPART., SECRETARIAT THIRUVANANTHAPURAM.** **2. CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED ITS SECRETARY,CORPORATION OFFICE PALAYAM,THIRUVANANTHAPURAM.** **3. THE SECRETARY, CORPORATION OF THIRUVANANTHAPURAM CORPORATION OFFICE,THIRUVANANTHAPURAM.** **R1 BY GOVT. PLEADER SRI. P. JAYASANKAR R2 & R3 BY ADV.SRI.N.NANDAKUMARA MENON (SR.), SC SRI.P.K.MANOJKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** **WP(C).No. 32036 of 2009 (Y)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1 : COPY OF THE LETTER NO. TP8/BA/136/06 DATED 23.2.06. EXT.P2 : COPY OF THE NOTICE NO. TP8/BA/136/06 DATED 23.2.06. EXT.P3 : COPY OF THE CERTIFICATE NO. G1-5425/2006 DATED 15.6.06. EXT.P4 : COPY OF THE NO OBJECTION CERTIFICATE NO. AA1/M/O-23/NCC DATED 17.11.2006. EXT.P5 : COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 14.5.08. EXT.P6 : COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE CORPORATION COUNCIL THROUGH THE HON'BLE MAYOR OF CORPORATION DATED 11.6.08. EXT.P7 : COPY OF THE STOP MEMO DATED 6.4.09 ISSUED TO THE PETITIONER. EXT.P8 : COPY OF THE ORDER IN APPEAL NO. 332/09 OF THE TRIBUNAL FOR LOCAL SELF GOVRERNMENT INSTITUTIONS, TVM DATED 28.5.09. EXT.P9 : COPY OF THE JUDGMENT IN WP(C) NO.25473/08 DATED 14.8.09 OF THIS HON'BLE COURT. RESPONDENT'S EXHIBITS : NIL** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## C.K.ABDUL REHIM,J. ------------------------------WP(C).NO. 32036 of 2009 --------------------------------Dated this the 13th day of February, 2012 ## JUDGMENT An application for Building Permit submitted by the petitioner along with her co-owner, for construction of a multi storied apartment complex, within the limits of the 2[nd] respondent Corporation, was not granted, is the grievance. When the application was submitted Ext.P2 letter was issued requiring to rectify 3 specific defects pointed out therein. The first one is that, since the proposed construction is near to 'Killi River', zonal exemption is necessary. Further defects are that, NOCs from the Air Port Authority as well as from the authorities of Fire and Rescue Department is required. It is stated that the petitioner had obtained NOC from the Air Port authority as well as from the Fire and Rescue authority, as per Exts.P3 and P4. Thereafter the petitioner submitted Ext.P5 request for granting Building Permit. Ext.P6 is yet another representation submitted before the council of the 2[nd] respondent Corporation. But without considering such request Ext.P7 memo was issued directing the WP(C).32036 /2009 2 petitioner to stop the work. Petitioner challenged Ext.P7 before the Tribunal for Local Self Government Institutions. In Ext.P8 the Tribunal found that the stop memo was not issued in a valid manner and the appeal was allowed. According to the petitioner, though Tribunal had quashed the stop memo, no decision was taken on the question regarding granting of permit. Eventhough the petitioner is entitled to continue the work under the benefit of the deeming provision, the petitioner is seeking a direction for disposal of the application for Building Permit. With respect to the objection raised on the basis of zonal exemption, the petitioner had produced Ext.P9 judgment of this court in WP(C). No.25473/08, wherein similar reasoning mentioned for rejection of building permit was quashed. 2. In the counter affidavit filed by respondents 2 and 3 it is contended that the property wherein the construction is proposed situates on the side of the 'Killi River' and it is included in the 'green strip zone' as per the Town Planning Scheme notified, and unless zoning exemption is obtained from the Government the Corporation cannot permit building construction. WP(C).32036 /2009 3 3. Sri. Nandakumara Menon , learned counsel for respondents 2 and 3 contended that by virtue of Ext.P2 order the application for permit stands rejected as early as in 2006 and since the petitioner has not chosen to challenge that order, the relief now sought for cannot be granted. It is pointed out that by virtue of Ext.P8 the Tribunal had only quashed the stop memo. But fact remains that the rejection of building permit remains final. He further pointed out that, settled legal principle is to the effect that no permission can be granted in violation of the zoning regulation. He specifically pointed out that the decision which has been relied upon by this court in Ext.P9, **Nasar vs. Malappuram Municipality (2009(3) KLT 92)** has been reviewed subsequently in the decision which is reported in **Secretary to Government vs. Nazar (2010(1) KLT 286)** wherein it was clarified that, “any statement as to law contained in the decision Nasar vs. Malappuram Municipality (2009(3) KLT 92)would not apply to cases which do not involve acquisition of land for the purpose of a Town Planning Scheme”. 4. Contradicting the contentions raised on behalf of the WP(C).32036 /2009 4 respondent Corporation, Sri.K.Jayakumar learned senior counsel appearing on behalf of the petitioner pointed out that Ext.P2 is not an order rejecting the application. On the other hand it is clearly evident from Ext.P2 that only certain defects have been pointed out and the petitioner was required only to rectify those defects. Therefore it is contended that the application for Building Permit need be considered and disposed of by the 3[rd] respondent. He points out that, the fact situation is that so many other residential apartments have been constructed in and around the property in question and that there is no substance in rejecting the application on the basis of the 'green strip zone' under the Town Planning Scheme. In Ext.P9 judgment, on an identical situation, this court held that respondents 2 and 3 are not entitled to reject the application for Building Permit for the reason that the property is included in the green strip zone under the Town Planning Scheme. He also pointed out another judgment of this court, in WP(C).No.28205/09 dt. 26.7.2011, wherein a similar view has been taken by this court and the rejection ordered on the very same ground has been set aside. WP(C).32036 /2009 5 According to the petitioner, he is entitled for consideration of the matter and a similar treatment in par with those cases in which the respondent Corporation had already sanctioned Building Permit. It is further pointed out that the scheme formulated in 1971 had been modified subsequently in the year 1975 and further in the year 2007. Sri.Jayakumar contended that, going by the provisions contained in the amended scheme of the proposed plan will not violate its regulation and therefore there is no impediment in granting the Building Permit. 5. Sri.P.Jayasankar, learned Special Government Pleader for Local Self Government Department, contended that there is no power vested in the Government to grant exemption in the matter of zoning regulations under the Town Planning Scheme, as held by this court in **Sayeesh Kumar vs. State of Kerala (2005(4) KLT 1027).** It is argued that the zonal classification is introduced for effective implementation of development activities under the Town Planning Scheme and permit if any granted violating the Town Planning Regulations will cause prejudice to the development activities proposed under the WP(C).32036 /2009 6 extensive Town Planning Scheme. 6. Considering the rival contentions, I am of the view that, pursuant to Ext.P2 the petitioner had obtained and produced NOCs from the Air Port authorities and the Fire and Rescue authorities. Thereafter she was pursuing challenge against Ext.P7 stop memo before the Tribunal for Local Self Government Institutions. It is pertinent to note that, even before the Tribunal respondents 2 and 3 have not taken any stand that the permit application stands already rejected. On the other hand, the Tribunal had quashed the stop memo, presumably on the premise that the application for building permit is pending disposal and taking note of the deeming provisions contained in the relevant statute. There is a discrepancy in Ext.P2, between the printed portion and the defects specifically endorsed therein. However, even the sub heading under which the defects are endorsed indicates only that, those are defects which need to be rectified. Therefore I am of the view that the stand taken by respondent Corporation that the permit application already stands rejected by virtue of WP(C).32036 /2009 7 Ext.P2, cannot be accepted. 7. However, I am not going into merits of the dispute regarding the zonal classification . The petitioner's contention is that in Ext.P9 (judgment in WP(C).25473/08 dt. 14.8.2009) and in the judgment in WP(C).No.28205/09 dt. 26.7.2011, similar reasonings mentioned for rejection of the building permit applications has been set aside by this court and the respondent Corporation had already granted Building Permit. Therefore the petitioner seeks a similar treatment contending that otherwise it will result in discrimination. Another contention of the petitioner is that, even going by details of the revised Town Planning Scheme notified in the year 2007, there is no violation of the zoning regulation. Hence the application need be reconsidered. It is also contended that the respondents should take note of the fact that, large number of commercial buildings have already been constructed in the area and it no longer remains as green strip zone. In this regard the counsel relied on a recent decision of the Division Bench of this court, in **Gopalakrishnan vs. State of Kerala (2011 (3) KLT 317).** WP(C).32036 /2009 8 8. Considering all the above aspects, I am of the view that a direction to the 3[rd] respondent to consider and dispose of the application for building permit will suffice ends of justice. Accordingly, the writ petition is disposed of directing the 3[rd] respondent to consider the application for building permit submitted by the petitioner dt. 13.1.2006 and to take appropriate decision considering the observations contained hereinabove, at the earliest possible, at any rate within two months from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM,JUDGE pmn/ WP(C).32036 /2009 9