Pankajakshan Nair and Others v. The State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 21[ST] DAY OF JULY 2022 / 30TH ASHADHA, 1944** ## **WP(C) NO. 14260 OF 2022** ## **PETITIONERS:** 1 PANKAJAKSHAN NAIR AGED 80 YEARS S/O LATE MADHAVAN PILLAI, PALAKKATTU HOUSE, RAJAGIRI VALLEY P.O., KAKKANAD VILLAGE, KANAYANNUR TALUK ERNAKULAM DISTRICT - 682 039 2 SARALA GOPINATHAN AGED 67 YEARS W/O GOPINATHAN NAIR, PALAKKATTU HOUSE KAKKANAD,KANAYANNUR TALUK ERNAKULAM DISTRICT - 682 039 3 RAVEENDRAN PILLAI AGED 73 YEARS S/O LATE MADHAVAN PILLAI, PALAKKATTUMADOM, KAKKANAD VILLAGE KANAYANNUR TALUK, ERNAKULAM DISTRICT - 682 039 4 PADMAVATHY GOPALAKRISHAN AGED 64 YEARS W/O GOPALAKRISHAN, MULAPPILLIL HOUSE, PUTHENCRUZ P.O PUTHENCRUZ VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRCT - 682 308 5 VANAJA MENON AGED 61 YEARS W/O NARAYANANKUTTY MENON, AMBALAPPATTU HOUSE, IRUMBANAM P.O THIRUVAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT - 682 309 6 PRAKASHINI VENUKUMAR AGED 57 YEARS W/O VENUKUMAR, LAKKSHMI VILASOM ASAMANNOOR P.O.,ASAMANNOOR VILLAGE KUNNATHUNADU TALUK, ERNAKULAM DISTRICT- 683 549 7 SREEDEVI K.M AGED 51 YEARS WP(C) NO. 14260 OF 2022 2 W/O UNNIKRISHNAN, PALAKKATTU HOUSE, KAKKANAD VILLAGE KANAYANNOOR TALUK, ERNAKULAM DISTRICT - 682 039 BY ADVS. S.SHANAVAS KHAN S.INDU ## **RESPONDENTS:** 1 THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695 001 2 THE SENIOR TOWN PLANNER OFFICE OF THE SENIOR TOWN PLANNER CIVIL STATION, KAKKANAD ERNAKULAM - 682 030 3 THE THRIKKAKARA MUNICIPALITY MUNICIPAL OFFICE THRIKKAKARA, KAKKANAD ERNAKULAM - 682 030 REPRESENTED BY ITS SECRETARY 4 THE SECRETARY THRIKKAKARA MUNICIPALITY, MUNICIPAL OFFICE THRIKKAKARA, KAKKANAD, ERNAKULAM - 682 030 5 THE MUNICIPAL ENGINEER LOCAL SELF GOVERNMENT DEPARTMENT THRIKKAKARA MUNICIPALITY, MUNICIPAL OFFICE THRIKKAKARA, KAKKANAD, ERNAKULAM - 682 030 BY ADV SRI.S.JAMAL, SC SMT.DEEPA NARAYANAN, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 14260 OF 2022 3 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------W.P.(C).No. 14260 of 2022** **---------------------------------------------Dated this the 21[st] day of July, 2022** # **JUDGMENT** The above writ petition is filed with the following prayers: _“(i) Call for the records leading to Exts. P9 and quash the same by issuing a Writ of Certiorari._ _(ii) Declare that petitioners are entitled to get building permit sought for by Exts. P6 and P7 for setting up an apartment project namely 'Confident Gateway' in the property having an extent of 71 ares situated in Block No.9 in Re. Survey Nos. 567/1-2 of Kakkanad Village, Kanayannur Taluk._ _(iii) Issue a Writ of mandamus or any other writ, order or direction directing the 4[th] respondent to re consider Ext. P9 without again referring to the objection raised therein and to issue permit as sought for and_ _(iv) Pass such other orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”[SIC]_ ## 2. Petitioners are the co-owners and in WP(C) NO. 14260 OF 2022 4 possession of 71 ares of landed property situated in Resurvey No.567/1-2 of Kakkanad Village in Kanayannoor Taluk. According to the petitioners, the entire property is a dry land as revealed from Exts.P2 and P3 and is not included in the Data Bank. The petitioners decided to construct a residential apartment project and they approached the 3[rd] respondent by submitting Exts.P6 and P7. But by virtue of Ext.P9, it was informed that, since the area in which the property is situated is included in the agricultural zone, building permit can not be granted for carrying out construction activities over and above 300 sq. mts. Hence it was directed to either obtain permission from the 2[nd] respondent or to submit a revised plan. Hence this writ petition is filed. 3. Heard counsel appearing for the petitioners and the Standing counsel appearing for respondents 3 to 5. I also heard the learned Government Pleader who appeared for respondents 1 and 2. WP(C) NO. 14260 OF 2022 5 4. Counsel for the petitioners submitted that the point raised by the petitioners is found in favour of the petitioners in Exts.P12 to P16 judgments. The counsel also relied on the judgment of this Court dated 16.03.2022 in W.P.(C)No.19164/2021. The Standing counsel on the other hand submitted that there is nothing to interfere with the impugned order and the Municipality considered the matter in detail and thereafter passed the impugned order. The Government Pleader on the other hand takes me through paragraph 7 of the counter affidavit filed by the 2[nd] respondent. 5. This Court considered the contention of the petitioners and the respondents. It will be better to extract paragraph 7 of the counter affidavit filed by the ## 2[nd] respondent: _“7. As per clause 4.13(iii)(6) of the zoning and sub division regulations (Part IV) of the Structure Plan (varied vide G.O. (Ms) 63/2016/LSGD dated 21[st] May 2016), For info park Express Highway from Seaport-Airport road to the boundary of Info park_ WP(C) NO. 14260 OF 2022 6 _(SEZ) 'all uses permitted in the residential and commercial use zones may also be permitted on either side of road up to a depth of 150m from the boundary of the road.”_ 6. This Court perused paragraph 3 of Ext.P14 judgment. After considering the above judgment, this Court in W.P.(C)No.19164/2021 entertained a similar writ petition. It will be better to extract the relevant portion of the above judgment. _“6. This Court considered the contentions of the petitioner and the respondents. This Court also perused Ext.P6 judgment. It will be better to extract the relevant portion of Ext.P6 judgment:_ _“The petitioner has approached this Court impugning Ext.P4 communication issued by the 5th respondent, as per which, their application for building permit has been rejected for the reason that the property has been included in the Kochi City Structural Plan, as part of an “Industrial Zone”._ _2. The petitioner says that various other persons have approached this Court and obtained judgments, wherein, this Court has already found that the Structural Plan has not been implemented until now. The petitioner cites for support the judgment in State of Kerala v Earthspace Builders and Developers (Writ Appeal No.559/2016) and therefore, prays that Ext.P4 be set aside and_ WP(C) NO. 14260 OF 2022 7 _Thrikkakkara Municipality be directed to reconsider their application for permit immediately._ _3. The learned standing counsel appearing for the Thrikkakkara Municipality submits that it is true that in the judgment in the afore cited Writ Appeal, it has been found that the Structural Plan for Kochi has not been implemented so far and that a number of schools, colleges, commercial establishments and residential houses have already been constructed in the said area. He confirms that the area covered by the said judgment is the same as one that is involved in this case._ _Taking note of the afore submissions and being guided by the judgment in Writ Appeal No.559/2016 as also Ext.P5 judgment, I allow this writ petition and set aside Ext.P4; and consequentially, direct the competent Authority of the Municipality to take up the petitioner's application and reconsider the same, de hors the stipulations in the Structural Plan and issue appropriate orders thereon, as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment.”_ _7. Based on Ext.P6 judgment, the Municipality issued permit and the petitioner constructed the School building. A perusal Ext.P8 will show that the intention of the School authority is an extension of the same building. If that is the case, the reason mentioned in Ext.P9 may not stand. A perusal of Ext.P9 will show that the reason mentioned in Ext.P9 is the same reason mentioned in Ext.P4. The Government Pleader submitted that the Government_ WP(C) NO. 14260 OF 2022 8 _is intended to file an appeal against Ext.P6 judgment. Ext.P6 is a judgment dated 19.11.2019. As on today, admittedly, there is no appeal filed. In such circumstances, such a contention can not be accepted at all. In the light of the fact that the present construction intended is only an extension of an existing building which was constructed based on the directions in Ext.P6 judgment, I think the reasons mentioned in Ext.P9 can not be accepted.”_ 7. In the light of the same, according to me, the impugned order will not stand. In such circumstances, this writ petition has to be allowed and the impugned order can be set aside and the matter can be remitted back for reconsideration in the light of the judgment of this Court _de hors_ the reasoning mentioned in Ext.P9, if it is otherwise in order. Therefore, this writ petition is allowed in the following manner: _i. Ext.P9 is set aside._ _ii. Respondents 3 to 5 are directed to reconsider the matter de hors the reasoning mentioned in Ext.P9, if the application is otherwise_ WP(C) NO. 14260 OF 2022 9 _in order._ _iii. The above exercise should be completed by the respondents, as expeditiously as possible, at any rate, with in a period of two months from the date of receipt of a copy of this judgment._ DM Sd/- **P.V.KUNHIKRISHNAN JUDGE** WP(C) NO. 14260 OF 2022 10 ## **APPENDIX OF WP(C) 14260/2022** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PARTITION - DEED NO. 1369/2020 DATED 17/07/2020 OF THRIKKAKARA SUB REGISTRY OFFICE. EXHIBIT P2 TRUE COPY OF THE LAND TAX RECEIPT DATED 15/02/2022 ISSUED BY VILLAGE OFFICER, KAKKANAD IN RESPECT OF LAND HELD BY PETITIONERS I AND 2. EXHIBIT P3 TRUE COPY OF THE LAND TAX RECEIPT DATED 15/02/2022 ISSUED BY VILLAGE OFFICER, KAKKANAD IN RESPECT OF LAND HELD BY PETITIONERS 3 TO 7. EXHIBIT P4 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 15/02/2022 ISSUED BY THE VILLAGE OFFICER, KAKKANAD IN RESPECT PETITIONERS 1 AND 2. EXHIBIT P5 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 15/02/2022 ISSUED BY THE VILLAGE OFFICER, KAKKAND IN RESPECT OF PETITIONERS 3 TO 7. EXHIBIT P6 TRUE COPY OF THE PLAN SUBMITTED BEFORE THE 3RD RESPONDENT. EXHIBIT P7 TRUE COPY OF THE BUILDING PERMIT APPLICATION DATED 10/02/2022 SUBMITTED BEFORE THE 3RD RESPONDENT. EXHIBIT P8 TRUE COPY OF THE RECEIPT DATED 15/02/2022 EVIDENCING THE ACCEPTANCE OF EXT. P7. EXHIBIT P9 TRUE COPY OF THE NOTICE DATED 25/02/2022 ISSUED TO THE PETITIONERS. EXHIBIT P10 TRUE COPY OF THE SELF PREPARED SKETCH EVIDENCING THE LIE OF WP(C) NO. 14260 OF 2022 11 PETITIONERS' PROPERTY. EXHIBIT P11 TRUE COPY OF THE SKETCH DATED 23/02/2022 PREPARED BY VILLAGE OFFICER, KAKKANAD. EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 27/05/2015 IN W.P (C) NO.15551 OF 2015 OF THIS HON'BLE COURT. EXHIBIT P13 TRUE COPY OF THE JUDGMENT DATED 26/10/2016 IN WRIT APPEAL NO.559/2016 OF THE DIVISION BENCH OF THIS HON'BLE COURT. EXHIBIT P14 TRUE COPY OF THE JUDGMENT DATED 23/03/2020 IN W.P (C) NO.9057 OF 2020 OF THIS HON'BLE COURT. EXHIBIT P15 TRUE COPY OF THE JUDGMENT DATED 06/11/2019 IN W.P. (C) NO29637/2019 OF THIS HON'BLE COURT. EXHIBIT P16 TRUE COPY OF THE JUDGMENT DATED 05/09/2013 IN W.P(C) NO.16121/2013 OF THIS HON'BLE COURT IN M/S. CONFIDENT PROJECTS INDIA PVT.LTD. VS. THE THRIKKAKARA MUNICIPALITY AND OTHERS. EXHIBIT P17 TRUE COPY OF THE JUDGMENT DATED 29/05/2014 IN W.PIC) NO.9024 OF 2014 OF THIS HON'BLE COURT IN M/S. CONFIDENT PROJECTS INDIA PVT.LTD. VS. THE STATE OF KERALA AND OTHERS. EXHIBIT P18 TRUE COPY OF THE JUDGMENT DATED 27/09/2016 IN W.A. NO. 1973/2015 AND OTHER CONNECTED MATTERS. RESPONDENT'S EXHIBITS: //TRUE COPY// PA TO JUDGE