High Court of KeralaSingle Judge2022-07-21Disposed of

S. Ananda Subramanian and Alga Rabeendranathan v. State of Kerala and others

Case / Petition Number:WP(C) NO. 19020 OF 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2022-07-21
Court Decision / Holding: Writ petition disposed of. The 4th respondent-Secretary to the Thrikkakara Municipality is directed to reconsider the Building Permit application in accordance with law, without insisting on the Structural Plan for the Central City of Kochi, keeping in mind the plot size (3 Cents) and the internal road, with a decision to be taken within one month.
Final Disposition: Disposed of

Parties to the Case

Appellants / Petitioners

S. Ananda Subramanian
Alga Rabeendranathan

Respondents

The State of Kerala, represented by its Principal Secretary to Government, Local Self Government Department, Government Secretariat, Thiruvananthapuram-695001.
The District Town Planner, Office of the Regional Town Planner, Town Planning Department, Civil Station, Kakkanad Ernakulam- 682 030.
The Thrikkakara Municipality, Municipal Office Thrikkakara, Kakkanad, Ernakulam - 682 030, represented by its Secretary.
The Secretary, Thrikkakara Municipality, Municipal Office, Kakkanad, Ernakulam - 682 030.
The Assistant Executive Engineer, Thrikkakara Municipality, Municipal Office, Kakkanad, Ernakulam - 682 030.

Legal Representation & Advocates

Counsels for Petitioners

• S. Shanavas Khan

Counsels for Respondents

• S. Jamal (for R3 to R5)
• SRI.SYAMANTHAK B S, GP

Case Synopsis & Summary

The petitioners, S. Ananda Subramanian and Alga Rabeendranathan, challenge Ext.P6 and seek reconsideration of Exts.P4 and P5 to obtain a Building Permit for construction on their 3-cent plot in Vazhakkala Village, Thrikkakara Municipality. They own 1.23 ares in the area and had submitted Ext.P4 (Building Plan) and Ext.P5 (Building Permit application). Ext.P6 notes non-compliances under Kerala Municipality Building Rules, including a proposed building coverage of 63% where the Structural Plan permits 50%, a 60 cm side-yard sunshade, and a septic tank setback of 1.50 metres from the road. Respondents contend that the construction contravenes the Structural Plan for the Central City of Kochi; the 60 cm sunshade violates Rule 26, Table 5; and the septic setback is inadequate. They also claim no proposal or plan was received from the Panchayat, and no Town Planner concurrence is required for 3 Cents. The Government Pleader for the Town Planner notes lack of need for concurrence. The Court observes the Structural Plan for the Central City of Kochi has become obsolete for Thrikkakara Municipality, citing WA No. 1973/2015 and Sivadasan v. State of Kerala (2011) and holds that the objection cannot be sustained. It directs the 4th respondent to reconsider the Building Permit in light of the small plot size and internal road, within one month, without rigid reliance on the obsolete plan.

Provisions of Law Cited

Kerala Municipality Building RulesRule 26, Table 5

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioners contend that Ext.P6’s objections are not binding on a small 3-cent plot and that the Structural Plan for the Central City of Kochi is not applicable to Thrikkakara Municipality; they propose to modify sunshade to comply with Building Rules and rely on exemptions for small plots. They request reconsideration of Ext.P5 without undue reference to Ext.P6.

Contentions of Respondents

Respondents argue that the proposed building violates the Central City Structural Plan, the 60 cm sunshade conflicts with Rule 26, Table 5, and the 1.50 m road setback is not met; they maintain no valid proposal or plan was received from the Panchayat and contend that the Town Planner’s concurrence is not required for 3 cents.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Writ Appeal No. 1973/2015	WA No.1973/2015	Positive	Structural Plan for Central City of Kochi held obsolete for Thrikkakara Municipality, supporting the petitioners’ challenge to the applicability of the central plan.
Sivadasan v. State of Kerala	2011 (1) KLT 690	Positive	Earlier finding confirming in principle that the central structural plan objections cannot sustain the case; cited to reinforce that the plan’s applicability is not binding in this context.

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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 N.NAGARESH** **THURSDAY, THE 21[ST] DAY OF JULY 2022 / 30TH ASHADHA, 1944** # **WP(C) NO. 19020 OF 2022** ## **PETITIONER/S:** - **1 S. ANANDA SUBRAMANIAN, AGED 43 YEARS S/O SANKARAN RAMAN, 612F, DD GOLDEN GATE, PALACHUVADU, KAKKANAD, ERNAKULAM- 682 030.** - **2 ALGA RABEENDRANATHAN, AGED 46 YEARS, W/O ANANDA SUBRAMANIAN, 612F, DD GOLDEN GATE, PALACHUVADU, KAKKANAD, ERNAKULAM- 682 030.** ## **BY ADV S.SHANAVAS KHAN** ## **RESPONDENTS:** - **1 THE STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DISTRICT TOWN PLANNER, OFFICE OF THE REGIONAL TOWN PLANNER, TOWN PLANNING DEPARTMENT, 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, KAKKANAD, ERNAKULAM - 682 030.** - **5 THE ASSISTANT EXECUTIVE ENGINEER, THRIKKAKARA MUNICIPALITY, MUNICIPAL OFFICE, KAKKANAD, ERNAKULAM - 682 030.** **BY ADV S.JAMAL-R3 TO R5** **SRI.SYAMANTHAK B S, 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. 19020 OF 2022** **2** ## **JUDGMENT** Dated this the 21[st] day of July, 2022 The petitioners, who own 1.23 Ares of landed property in the territorial limits of Vazhakkala Village in Thrikkakara Municipality, have approached this Court seeking to set aside Ext.P6 and to direct respondents 3 to 5 to reconsider Exts.P4 and P5 and to issue Building Permit as sought for, without again referring to the objections in Ext.P6. 2. The petitioners state that they are owners of 1.23 Ares of landed property in Vazhakkala Village of Ernakulam District. The petitioners wanted to construct a residential building and submitted an application for Building Permit. Ext.P4 is the Building Plan and Ext.P5 is the application for Building Permit submitted by the petitioners. 3. The Panchayat Authorities issued Ext.P6 note sheet, wherein it was stated that there are non-compliances of the **WP(C) NO. 19020 OF 2022** **3** provisions of the Kerala Municipality Building Rules. As per the Structural Plan, the maximum permissible coverage is 50%, but the proposed building coverage is 63%. It was stated that 60 Centimetres sunshade is provided on the side yard with 60 Centimetres setback. It was further stated that a septic tank needed 1.50 Metre setback from the road side, which is not available in the construction of the petitioners. 4. Standing Counsel representing respondents 3 to 5 submitted that in view of the Structural Plan for Central City of Kochi, the construction as proposed by the petitioners is impermissible. Furthermore, the sunshade constructed by the petitioners has a 60 Centimetre length. As per Rule 26, Table 5, such construction of 60 Centimetre sunshade is illegal. It is liable to be removed. The Standing Counsel further submitted that the septic tank needed 1.50 Metre setback from the road side, which is not available in the case of the construction of the petitioners' building. In view of the above, a Building Permit is not liable to be granted to the petitioners. **WP(C) NO. 19020 OF 2022** **4** 5. The Government Pleader representing the Town Planner submitted that no proposal or plan has been received from the Panchayat or the petitioners. The petitioners would submit that no concurrence of the Town Planner is required as the construction is in 3 Cents of land. 6. I have heard the learned counsel for the petitioners, the learned Government Pleader representing respondents 1 and 2 and the learned Standing Counsel representing respondents 3 to 5. 7. The petitioners have submitted Ext.P5 application for Building Permit. The extent of land possessed by the petitioners is 3 Cents, which is less than 1.25 Square Metre. Application for Building Permit submitted by the petitioners is not entertained on the ground that the permissible coverage is 50% as per the Structural Plan and the petitioners have proposed to construct a building with a coverage of 63%. Furthermore, the petitioners have constructed sunshade in the **WP(C) NO. 19020 OF 2022** **5** side yard, having a length of 60 Centimetres, which is in violation of the Building Rules. Similarly, the septic tank of the petitioners needs 1.50 set back from the road side. 8. As far as the objection raised by the respondents on non-compliance of Structural Plan, the applicability of Structural Plan for Central City of Kochi has been considered by a Division Bench of this Court in WA No.1973/2015. This Court has categorically held that the Structural Plan for Central City of Kochi has become obsolete and redundant in so far as it applies to Thrikkakara Municipality. In view of the findings of the Single Bench of this Court in _**Sivadasan v. State of Kerala** [2011 (1) KLT 690]_ confirmed by a Division Bench of this Court, the objection of the respondent-Municipality based on the Structural Plan cannot be sustained. 9. As far as the objection regarding 60 Centimetres of sunshade, the petitioners would submit that the petitioners are willing to reduce the size of the sunshade and bring it in **WP(C) NO. 19020 OF 2022** **6** conformity with the Kerala Municipal Building Rules. As far as construction of septic tank is concerned, it is to be noted that the plot of the petitioners is hardly of 3 Cents of land and the Kerala Municipal Building Rules provide for certain exemptions from Building Rules for construction of buildings in land of 3 Cents. 10. In view of the facts as stated above, this Court is of the view that the 4[th] respondent-Secretary to the Municipality shall reconsider the application for Building Permit submitted by the petitioners in accordance with law. The writ petition is therefore disposed of directing the 4[th] respondent-Secretary to the Municipality to consider the application for Building Permit submitted by the petitioners without insisting for compliance of Structural Plan for Central City of Kochi. While considering the application for Building Permit, the 4[th] respondent shall keep in mind that the construction is in a plot of 3 Cents of land and the road in front **WP(C) NO. 19020 OF 2022** **7** of the house of the petitioners is stated to be an internal road. A decision in this regard shall be taken, within a period of one month. **Sd/-** **N.NAGARESH JUDGE** spk **WP(C) NO. 19020 OF 2022** ## **8** ## **APPENDIX OF WP(C) 19020/2022** **PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SALE DEED NO. 2462/1/2021 DATED 15/11/2021 OF THRIKKAKARA SUB REGISTRY OFFICE. Exhibit P2 TRUE COPY OF THE TAX RECEIPT DATED 06/01/2022 ISSUED FROM VILLAGE OFFICE, VAZHAKKALA. Exhibit P3 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 08.01.2022 ISSUED BY THE VILLAGE OFFICE, VAZHAKKALA., Exhibit P4 TRUE COPY OF THE PLAN OF THE BUILDING. Exhibit P5 TRUE COPY OF THE BUILDING PERMIT APPLICATION DATED 12/04/2022. Exhibit P6 TRUE COPY OF THE NOTE SHEET DATED NIL ISSUED BY THE 3RD RESPONDENT MUNICIPALITY. Exhibit P7 TRUE COPY OF THE PHOTOGRAPH OF THE ONGOING CONSTRUCTION IN NEIGHBOURING PLOTS.** **RESPONDENT'S/S EXHIBITS : NIL**