High Court of KeralaSingle Judge2013-12-09Writ petition allowed; costs.

Padmaja Shashidharan v. State of Kerala and Others

Case / Petition Number:WP(C).No. 29350 of 2012 (P)

Neutral Citation:,

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2013-12-09
Court Decision / Holding: The writ petition is allowed. The petitioner is directed to produce a revised plan for building permit within three weeks, and the application dated 13.1.2006 shall stand revised to the extent of the new plan submitted. The Corporation shall consider the revised plan in accordance with law and pass orders within two months from the date of production. The Corporation cannot rely on the Detailed Town Planning Scheme of 1971 to refuse the permit, and, if necessary, a site inspection shall be conducted as laid down by the Division Bench in Gopalakrishnan. Costs to be borne by the parties.
Final Disposition: Writ petition allowed; costs.

Parties to the Case

Appellants / Petitioners

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

Respondents

State of Kerala represented by its Secretary, Local Self Government Department, Secretariat, Thiruvananthapuram - 695001
Corporation of Thiruvananthapuram represented by its Secretary, Corporation Office, Palayam, Thiruvananthapuram - 695003
The Secretary, Corporation of Thiruvananthapuram, Corporation Office, Palayam, Thiruvananthapuram - 695003

Legal Representation & Advocates

Counsels for Petitioners

• Sri K. Jayakumar (Sr.)
• Sri M. Sreekumar

Counsels for Respondents

• Sri K.C. Vincent (Senior Government Pleader)
• Sri N. Nandakumar Menon (Sr.)
• Sri P.K. Manojkumar

Case Synopsis & Summary

The petitioner, Dr. Padmaja Shashidharan, seeks a building permit for a 55-cent property in Thycadu within the Thiruvananthapuram Corporation. She submitted an application on 13 January 2006, and the corporation promptly sought comments from Fire and Rescue and the Airport Authority of India, which issued a No Objection Certificate (Exts. P3-P4). Despite timely filing and the initial processing, the Corporation neither issued a permit nor formally rejected the application within the statutory timeframe, prompting the petitioner to construct under the deemed permission provisions of Section 392 of the Kerala Municipality Act, 1994 read with Rule 15 of the Kerala Municipality Building Rules, 1999. A stop memo followed, and the matter went to the Local Self Government Institutions Tribunal, which allowed the appeal and whose order (Ext. P8) attained finality. The Corporation later contended that the petitioner’s property lies in the Green Strip Zone under the Detailed Town Planning Scheme of 1971, and raised related objections by Exts. P11-P14. The Court, relying on precedents including Nasar v. Malappuram Municipality and judgments in WP(C) Nos. 25473/08 and 28205/09, held that Ext. P2 was not a rejection order and directed that the application be considered with a revised plan. The court ordered the petitioner to submit a revised plan within three weeks and required the Corporation to decide within two months, rejecting reliance on the 1971 scheme without site inspection as guided by Gopalakrishnan v. State of Kerala. The writ petition was allowed, with costs.

Provisions of Law Cited

Section 392, Kerala Municipality Act, 1994Rule 15, Kerala Municipality Building Rules, 1999

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Ext. P2 was merely a defect-cure communication and not a rejection of the application; the Corporation failed to issue a permit within the period, hence the deemed permission under Section 392 read with Rule 15. It relied on earlier Writ Petitions and decisions (W.P.(C) Nos. 25473/08, 28205/09) and Nasar v. Malappuram Municipality to show that Ext. P2 could not be treated as rejection. The petitioner is willing to revise the plan to comply with current rules and to undergo site inspection if required, challenging the Corporation’s reliance on the Green Strip Zone under the 1971 Detailed Town Planning Scheme; the Court should direct consideration of the application.

Contentions of Respondents

The respondents contended that the Green Strip Zone under the Detailed Town Planning Scheme 1971 could justify refusal or conditional permit. They argued Ext. P2 could reflect the authority’s position under the scheme, and the petitioner's plan remained subject to amendments and site verification. They relied on post-2006 rule changes and urged the Court to permit the Corporation to act in accordance with law, including potential site inspections as per Gopalakrishnan to prevent permissive construction under Green Strip assumptions.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Nasar v. Malappuram Municipality	2009 (3) KLT 92	Positive	Cited to support the proposition that Ext. P2 was not a rejection and to direct consideration of the permit application.
Gopalakrishnan v. State of Kerala	2011 (3) KLT 317	Positive	Directed site inspection and cautioned against reliance on the 1971 DTP scheme alone; used to justify inspection before rejecting an application.
WP(C) No.25473/08	WP(C) No.25473/08	Positive	Established binding precedent that Ext. P2 is not a rejection order and supported consideration of the permit.
WP(C) No.28205/09	WP(C) No.28205/09	Positive	Similar line of precedents followed; supports review of the permit application rather than outright rejection.
WP(C) No.32036/09	WP(C) No.32036/09	Positive	Judgment used to reinforce the approach of evaluating the permit with current rules and possible site inspection; later cited as Ext.P11.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **MONDAY, THE 9TH DAY OF DECEMBER 2013/18TH AGRAHAYANA, 1935** ## **WP(C).No. 29350 of 2012 (P)** **---------------------------------------** **PETITIONER(S):** **----------------------** **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.M.SREEKUMAR** **RESPONDENT(S):** **-------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, PALAYAM, THIRUVANANTHAPURAM - 695 003.** **3. THE SECRETARY, CORPORATION OF THIRUVANANTHAPURAM, CORPORATION OFFICE, PALAYAM, THIRUVANANTHAPURAM - 695 003.** **R1 BY SENIOR GOVERNMENT PLEADER SRI.K.C.VINCENT R2,R3 BY ADVS. SRI.N.NANDAKUMARA MENON (SR.) SRI.P.K.MANOJKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 29350 of 2012 (P)** ## **---------------------------------------** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** ## **------------------------------------** - **EXHIBIT P1. TRUE COPY OF THE LETTER NO.TP8/BA/136/06 DATED 23.02.06.** - **EXHIBIT P2. TRUE COPY OF THE NOTICE NO.TP8/BA/136/06 DATED 23.02.2006 ISSUED BY THE 2ND RESPONDENT TO PETITIONER.** - **EXHIBIT P3. TRUE COPY OF THE CERTIFICATE NO.G1-5425/2006 DATED 15.06.2006 ISSUED BY FIRE & RESCUE DEPARTMENT.** - **EXHIBIT P4. TRUE COPY OF THE NO OBJECTION CERTIFICATE NO.AAI/M/0-23/NCC DATED 17.11.06 ISSUED BY AIRPOPRTS AUTHORITY OF INDIA.** - **EXHIBIT P5. TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 14.05.08.** - **EXHIBIT P6. TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE CORPORATION COUNCIL THROUGH THE HON'BLE MAYOR OF CORPORATION DATED 11.06.08.** - **EXHIBIT P7. TRUE COPY OF THE STOP MEMO DATED 06.04.09 ISSUED TO THE PETITIONER.** - **EXHIBIT P8. TRUE COPY OF THE ORDER IN APPEAL NO.332/09 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, TVM. DATED 28.05.09.** - **EXHIBIT P9. TRUE COPY OF THE JUDGMENT IN WP(C)NO.25473/08 DATED 14.08.09 OF THIS HON'BLE COURT.** - **EXHIBIT P10. TRUE COPY OF THE JUDGMENT IN WP(C)NO.28205/09 DATED 26.07.2011 OF THIS HON'BLE COURT.** - **EXHIBIT P11. TRUE COPY OF THE JUDGMENT IN WP(C)NO.32036/09 DATED 13.02.2012 OF THIS HON'BLE COURT.** - **EXHIBIT P12. TRUE OF THE NOTICE NO.TP.E8/TP8/136/06 DATED 25.09.2012 ISSUED BY THE TOWN PLANNING OFFICER OF 2ND RESPONDENT TO PETITIONER.** - **EXHIBIT P13. TRUE COPY OF REPLY LETTER FROM PETITIONER TO THE TOWN PLANNING OFFICER OF 2ND RESPONDENT DATED 28.09.2012,** - **EXHIBIT P14. TRUE COPY OF THE ORDER NO.E8/TP8/BA/148/06 DATED 22.10.2012 OF THIS HON'BLE COURT.** **PJ** **....2/-** **..2..** ## **WP(C).No. 29350 of 2012 (P)** **---------------------------------------** **EXHIBIT P15. TRUE COPY OF THE APPLICATION DATED 12.11.2012 FILED BY BROTHER-IN-LAW OF PETITIONER BEFORE THE RIGHT TO INFORMATION OFFICER OF 2ND RESPONDENT.** **EXHIBIT P16. TRUE COPY OF LETTER NO.E8/JSK/RIA/147237/12 DATED 20.11.2012 OF THE PUBLIC INFORMATION OFFICER OF 2ND RESPONDENT ALONG WITH LEGAL OPINION OF THE STANDING COUNSEL AND THE FILE PROCEEDINGS OF EXT.P14.** **EXHIBIT P17. TRUE COPY OF THE NOTICE NO.TP2/BA/2238/08 DATED 15.12.2008 OF THE 3RD RESPONDENT.** - **EXHIBIT P18. TRUE COPY OF THE ORDER NO.E5/TP2/BA/2238/2008 DATED 14.06.2012 OF THE 3RD RESPONDENT.** **EXHIBIT P19. TRUE COPY OF THE JUDGMENT IN WP(C)NO.15561/2012 DATED 02.11.2012 OF THIS HON'BLE COURT.** ## **RESPONDENTS' EXHIBITS** **--------------------------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 29350 of 2012 P** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 9[th] day of December, 2013** ## **J U D G M E N T** The petitioner is in possession of 55 cents of property in Thycadu Village coming within the area of jurisdiction of 2[nd] respondent Corporation. The petitioner had been unsuccessfully trying to get a multi-storeyed building constructed in the said property, right from2006 onwards. The petitioner was also before this Court earlier, with the very same prayer challenging the action of the Municipality, in some how trying to stultify the attempt for construction of a multi-storeyed building. Despite the orders issued from this Court, the Corporation still holds on to its earlier contention, is the grievance. 2. Admittedly, the petitioner had submitted an application as early as on 13.1.2006, which is evident from Ext.P2 which refers to her application dated 13.1.2006. The 2[nd] respondent Corporation has also taken proceedings on the same immediately on the filing of an application as is evidenced by Ext.P1 and Ext.P2. In Ext.P2, the petitioner was WPC.29350/2012 : 2 : asked to rectify some defects which was noticed in the plan, one of which, was the No Objection Certificate to be received from the Fire Force. Evidently, on the very same day the Corporation themselves by Ext.P1, had transmitted the application from the Fire Force, for issuance of No Objection Certificate. The Fire and Rescue Service (Head Quarters) issued a No Objection Certificate by Ext.P3 and a similar certificate was also issued by the Air Port Authority of India by Ext.P4. 3. The Petitioner having submitted its application in time, and the respondent Corporation having not issued a permit or rejected the application within the period stipulated, the petitioner commenced construction, on a deemed permission, as is provided under Section 392 of the Kerala Municipality Act,1994 read with Rule 15 of the Kerala Municipality Building Rules, 1999. Then a stop memo was issued by the respondent Corporation which was challenged before the Local Self Government Institutions Tribunal. The appeal filed by the petitioner was allowed. It is also pertinent that Ext.P8 order of the Tribunal has not challenged and the WPC.29350/2012 : 3 : same was acquired finality. But on an abandon caution, the petitioner did not continue with her construction. 4. When the Municipality took no action, despite the Tribunal allowing the appeal, petitioner was before this Court in W.P(C) 32036/09 wherein the petitioner sought for a positive direction to the 2[nd] respondent for issuance of building permit. Before this Court, in that writ petition the respondent Corporation took up a contention that the petitioners property comes within the Green Strip Zone as has been contemplated and detailed in the Detailed Town Planning Scheme of 1971 for Thiruvananthapuram. The respondent Corporation also contended that the petitioners application stood rejected by Ext.P2. This Court by judgment dated 13.2.2012, produced as Ext.P11, considered the rival contentions and held that going by Ext.P2 it cannot be said that the same was a rejection order. Ext.P2 only sought for curing of defects noticed in the application and did not finally reject the application filed by the petitioner. As was noticed herein above also, on the very same date of Ext.P2, Ext.P1 was issued by the Corporation to the Fire and Rescue WPC.29350/2012 : 4 : Department for issuance of NOC. if Ext.P2 were the rejection order then there was no purpose in forwarding the application to the Fire and Rescue service. In any event, the fact that Ext.P2 was not a rejection order, stands confirmed by Ext.P11 judgment. 5. With respect to the contention of the petitioners property being in the Green Strip Zone, this Court relied upon Ext.P9 and P10 judgments wherein 2 different properties said to be constituted in the very same Green Strip Zone was granted permission for construction. That too came under the same DTP scheme but was granted permission by this Court to carry on construction. After noticing the binding precedents in W.P(C)25473/08 dated 14.8.2009 W.P(C) 28205/2009 dated 26.7.2011 as also **Nasar v. Malappuram Municipality (2009 (3) KLT 92)** this Court, by Ext.P11 declared that Ext.P2 is not a rejection order and directed consideration of the petitioners application for building permit as filed on 13.1.2006. This Court also took note of a decision of the Division Bench reported in **Gopalakrishnan v. State of Kerala (2011 (3) KLT 317)** which directed inspection of WPC.29350/2012 : 5 : the property, to understand the ground realities before an application for building permit is rejected, merely relying on a Town Planning Scheme of 1971 which was never proceeded with or implemented in the City. 6. On purported compliance of Ext.P11 respondent Corporation issued Ext.P12 again pointing out certain defects. It is the contention of the learned Senior Counsel appearing for the petitioner that such defects could not have been raised against the application filed by the petitioner on 30.1.2006; since the defects are with respect to amendments brought into the Kerala Municipality Building Rules, after the date of application. The petitioner hence filed a reply to Ext.P12 raising the said contention as is evident from Ext.P13. At that point of time the respondent Corporation resiled from Ext.P12 and issued Ext.P14 again contending that it comes within the Green Strip Zone as contemplated in the detailed Town Planning Scheme. This could not have been done by the respondent Corporation, since the said contention was considered and held against the Corporation in Ext.P11 judgment. Even now, the petitioners application has not been WPC.29350/2012 : 6 : considered and that necessitated the filing of the present writ petition. 7. In fact, the Corporation has not filed any appeal from Ext.P11 judgment and so is the case of the order of the Tribunal produced as Ext.P8, and they have achieved finality and is binding inter-parties. It is not possible for the respondent Corporation now, to take a stand that the building permit cannot be considered for reason of the petitioners property being included in the Green Strip Zone as contemplated in the Detailed Town Planning Scheme of 1971. In any event the Senior Counsel appearing for the petitioner fairly submits that the petitioner is ready to give a revised plan in accordance with the building rules as is in existence on today. 8. In such circumstance the petitioner is directed to produce a revised plan for building permit, within three weeks from today complying with the specifications of the Rules and regulations as it exists today and the application dated 13.1.2006 shall stand revised to the extend of the new plan submitted. The respondent Corporation shall consider the WPC.29350/2012 : 7 : same in accordance with law and pass orders within a period of two months from the date of production of the revised plan. Needless to say that the respondent Corporation cannot rely on the DTP Scheme 1971 to refuse grant of permit and if necessary, the competent authority shall make a site inspection as laid down by the Division Bench of this Court, in **Gopalakrishnan (supra)** . The writ petition hence stand allowed. Parties are left to suffer their costs. Sd/- ## **(K. VINOD CHANDRAN, JUDGE)** jma. ( true copy )