Sathi Gopinath v. Corporation of Thiruvananthapuram & Ors.

W.P.(C)No.21323 OF 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **THURSDAY, THE 2[ND] DAY OF JUNE 2022 / 12TH JYAISHTA, 1944** ## **WP(C) NO. 21323 OF 2021** ## **PETITIONER:** SATHI GOPINATH, AGED 72 YEARS W/O. M. GOPINATHA KURUP, RESIDING AT T.C. 9/2576-1, SREESARANG, ELANKOM GARDENS, SASTHAMANGALAM P.O, THIRUVANANTHAPURAM 695 010., REPRESENTED BY HER POWER OF ATTORNEY HOLDER, M/S. ARCON HOME BUILDERS PRIVATE LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, DIG VIJAY SINGH, AGED 35 YEARS, S/O. RAM NIWAS SINGH, B-9, PILLAVEEDU NAGAR, KESAVADASAPURAM, PATTOM P.O, THIRUVANANTHAPURAM. BY ADVS. SRI V.N.GOPALAKRISHNAN NAIR SRI A.CHANDRA BABU SRI G.ARUN SRI G.VARUN ## **RESPONDENTS:** 1 CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, PALAYAM, THIRUVANANTHAPURAM-695 004 2 THE SECRETARY, CORPORATION OF THIRUVANANTHAPURAM CORPORATION OFFICE, PALAYAM, THIRUVANANTHAPURAM-695 004 **ADDL.R3 IMPLEADED:** ADDL.R3 THE DISTRICT TOWN PLANNER OFFICER OF THE TOWN PLANNER OFFICE, LOCAL SELF GOVERNMENT DEPARTMENT (PLANNING), HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM -695001 IS IMPLEADED AS ADDITIONAL R3 AS PER ORDER DATED 24.11.2021 IN I.A.1/2021 IN WPC 21323/2021. W.P.(C)No.21323 OF 2021 2 ## **ADDL.R4 IMPLEADED:** ADDL.R4 ADDL R4 REGIONAL TOWN PLANNER OFFICE OF THE TOWN PLANNER OFFICE, LOCAL SELF GOVERNMENT DEPARTMENT - (PLANNING), HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM IS IMPLEADED AS ADDITIONAL R4 AS PER ORDER DATED 03.02.2022 IN I.A.2/2021 IN WPC 21323/2021. BY ADVS. R1 &R2 BY SRI N.NANDAKUMARA MENON (SR.) SHRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION R3 & R4 BY SRI B.S.SYAMANTHAK, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.03.2022, THE COURT ON 2.6.2022 DELIVERED THE FOLLOWING: W.P.(C)No.21323 OF 2021 3 ## **T.R. RAVI, J.** **------------------------------------------------** ## **W.P.(C)No.21323 OF 2021** **-------------------------------------------------Dated this the 2[nd] day of June, 2022** ## **JUDGMENT** The petitioner is the owner of 7 Ares and 66 M[2] of property in Block No.20 in Re.Sy.No.7 of Sasthamangalam Village. The petitioner executed a registered irrevocable power of attorney in favour of Arcon Home Pvt. Ltd. with respect to the said property for constructing a multi-storeyed building in the property. Since the property had been categorised as paddy land in the revenue records, the petitioner had approached the Revenue Divisional Officer, for permission to put the land for other uses, since the land is not one included in the data bank. By Ext.P2 order, the petitioner was granted permission for using the land for construction of a building having 2698.16 M[2] on payment of a sum of Rs.55,73,566/-. Rs.28,62,500/- out of the said amount was an amount levied for the purpose of effecting the construction based on the W.P.(C)No.21323 OF 2021 4 square area. The petitioner paid the amount as directed which can be seen from Ext.P3 proceedings. Thereafter the petitioner submitted Ext.P4 application before the 1[st] respondent for issuance of a building permit. The 1[st] respondent rejected the application on the ground that the property has been categorised as “green strip” as per GO(Ms) No.144/07/LSGD dated 31.3.2007. The copy of the proceedings has been produced as Ext.P5. The petitioner has produced Ext.P6 photographs to show that on the southern side of the property of the petitioner, permission has been granted for construction of a multi storeyed building having 15 storeys. It is submitted that the property cannot be treated as green strip land any longer and that the judgments of this Court in **Corporation of Thrissur v. Kunjilakutty** reported in **[2014 KHC 2517]** and **Basheer v. Kozhikode Corporation & Ors.** reported in [ **2021 (4) KLT 82]** will apply in such situations. 2. The 1[st] respondent has filed a statement stating that since the Regional Town Planner has rejected the application, the 1[st] respondent cannot grant a building permit, since as per the sanctioned Master Plan, the property comes within the green strip area. Additional 3[rd] respondent who is the District W.P.(C)No.21323 OF 2021 5 Town Planner has also filed a counter-affidavit reiterating the above aspect and stating that when there is a Master Plan in place, there cannot be a construction of a building in violation of the Master Plan. 3. In **Haneefa v. Municipal Secretary (W.P. (C)No.14778 of 2020)** , this Court had occasion to consider a similar situation where an application was rejected on the ground that the property comes within paddy zone and no construction of a commercial building can be allowed. This Court noticed the fact that the property is not included in the data bank and that the petitioner therein had been granted permission under the Kerala Land Utilisation Order to utilize the land for other purposes. Thereafter, this Court held that if the land cannot be classified as a paddy land, it cannot be retained as a paddy field under a Town Planning Scheme and that the Scheme can apply only if the land is having the characteristics to be retained as a paddy land. In **Basheer (supra)** , this Court had taken note of the fact that enormous delay in revising existing Master Plans and detailed Town Planning Scheme including the developments in the area cannot affect the rights of persons and that periodic revision is required. W.P.(C)No.21323 OF 2021 6 4. On the facts of this case, the contentions put forward by the petitioner are fully justified. There is no case that the petitioner’s property is a paddy land under the Kerala Conservation of Paddy Land and Wetland Act, 2008. It is also admitted that the authorities under the Act had granted permission for user of the land for other purposes after levying the huge fee of Rs.55,73,500/-. Since the property is not a paddy land and cannot be used for the purpose of paddy cultivation, the reason stated that the property comes within the green strip in the sanctioned Master Plan and that construction cannot be permitted for an area of 2698.16 M[2] cannot be sustained. The Government cannot be heard to say differently in different Departments; that a property is not a paddy land under the 2008 Act and quite contrarily, that it should not be used for any other purpose other than as paddy land as per provisions of the Town Planning Act. It is totally unfair to reject permission for construction on such a ground after having found categorically that the property is not a paddy land and can be used for other purposes and that too on payment of a huge fee. The petitioner is entitled to succeed in this writ petition. W.P.(C)No.21323 OF 2021 7 5. In the result, the writ petition allowed. Ext.P5 order is quashed. The respondents 1 and 2 are directed to reconsider Ext.P4 application submitted by the petitioner for a building permit and to grant the same if the petitioner is otherwise entitled. That the property is included in the green strip/paddy zone shall not be a reason for rejecting the application. Necessary orders shall be issued within one month from the date of receipt of a copy of this judgment. Sd/- **T.R. RAVI JUDGE** dsn W.P.(C)No.21323 OF 2021 8 ## **APPENDIX OF WP(C) 21323/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE POWER OF ATTORNEY DATED 18.02.2021. Exhibit P2 TRUE COPY OF THE DEMAND NOTICE VIDE FILE NO. RDOTVM/2091/2019-1 DATED 02.09.2019 ISSUED BY SUB COLLECTOR, THIRUVANANTHAPURAM. Exhibit P3 TRUE COPY OF THE PROCEEDINGS IN FILE NO. RDOTVM/2091/2019-1 DATED 05.11.2019 OF THE SUB COLLECTOR OF THIRUVANANTHAPURAM. Exhibit P4 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER FOR PERMIT FOR THE PROPOSED CONSTRUCTION BEFORE THE CORPORATION OF THIRUVANANTHAPURAM DATED 03.03.2021. - Exhibit P5 TRUE COPY OF THE PROCEEDINGS DATED 17.09.2021 ISSUED BY THE CORPORATION OF THIRUVANANTHAPURAM ALONG WITH PROCEEDINGS OF TOWN PLANER. - Exhibit P6 TRUE COPY OF THE PHOTO SHOWING PROPERTY OF THE PETITIONERS. - Exhibit P7 TRUE COPY OF THE GO NO. (GENERAL) NO. 1166/2021 DATED 25.02.2021 ISSUED BY GOVERNMENT OF KERALA.