Shaji John and Lisa John v The State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **THURSDAY, THE 25TH DAY OF JUNE 2020 / 4TH ASHADHA, 1942** ## **WP(C).No.12457 OF 2020(F)** ## **PETITIONERS:** |**1**|**SHAJI JOHN,**| |---|---| ||**AGED 65 YEARS**| ||**S/O. JOHN, PAREKATTU HOUSE, PANAYAKAZHIPPU**| ||**KARA, MUTTAMBALAM VILLAGE, KOTTAYAM, NOW**| ||**RESIDING AT THEJUS, SECTOR NO.56/3,**| ||**'DHANWANTHARI COLONY, NEAR STELLA MARIS SCHOOL,**| ||**PUNE-14**| |**2**|**LISA JOHN**| ||**AGED 65 YEARS**| ||**W/O.SHAJI JOHN, PAREKATTU HOUSE,**| ||**PANAYAKAZHIPPU KARA, MUTTAMBALAM VILLAGE,**| ||**KOTTAYAM, NOW RESIDING AT THEJUS, SECTOR**| ||**NO.56/3, 'DHANWANTHARI COLONY,**| ||**NEAR STELLA MARIS SCHOOL, PUNE-14**| ||**BY ADVS.**| ||**SRI.S.SHANAVAS KHAN**| ||**SMT.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**| W.P(C) No.12457 of 2020 2 - **4 THE SECRETARY THRIKKAKARA MUNICIPALITY, MUNICIPAL OFFICE, THRIKKAKARA, KAKKANAD, ERNAKULAM-682 030** **5 THE MUNICIPAL ENGINEER, LOCAL SELF GOVERNMENT DEPARTMENT,THRIKKAKARA MUNICIPALITY, THRIKKAKARA, KAKKANAD, ERNAKULAM-682 030** **BY ADVS. SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER, SRI.G.G.MANOJ,SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.12457 of 2020 3 ## ALEXANDER THOMAS, J. -----------------------------------W.P(C) No. 12457 of 2020 -----------------------------------Dated this the 25[th] day June, 2020 ## **JUDGMENT** The case set up in this Writ petition (C) is as follows: _The petitioners are the absolute owners and in possession 10.64 Ares of landed properties situated in Kakkanad Village in Re.Survey No. 567/24, 567/2-4-2, 567/2-4-3, 567/2-4-4 in Ward No. XI of Thrikkakara Municipality. The property is classified as dry land in the revenue records and Exts.P1 to P4 would reveal the said fact. Petitioners were granted building permit by Ext.P5 for constructing a residential building. However when Ext.P6 revised plan was submitted for additional construction the same was rejected by Ext.P7 communication stating that the property comes under the area earmarked as agricultural zone by virtue of structural plan for Central City of Kochi and hence constructions beyond 300 sq.mts. is not permissible. As a matter of fact the issue is covered in favour of the petitioners by Ext.P10 and various other judgments of this Court._ The main contentions urged by the petitioners are as follows: _i) The respondents 3 to 5 cannot rely on the provisions of_ W.P(C) No.12457 of 2020 4 _Structural Plan for Central City of Kochi since the same was not adopted by the Municipality or erstwhile Panchayat at any point of time._ _ii) Exts.P8 to P15 judgments are on the very same issue and rendered against the very same Municipality and despite that they are rejecting the building permit applications on the very same ground._ It is in the light of these averments and contentions that the petitioners have filed the instant Writ Petition (C) seeking the following reliefs: - _“i) Call for the records leading to Ext. P7 and quash the same by issuing a Writ of certiorari._ - _ii) Declare that petitioners are entitled to get building permit as sought for by Ext. P6 for constructing a residential building in the property situated in Re.Survey No. 567/24, 567/2-4-2, 567/2-4-3, 567/2-4-4 in Ward No. XI of Thrikkakara Municipality._ - _iii) Issue a Writ of mandamus or any other writ, order or direction directing the 3[rd] respondent to reconsider Ext. P6 without again referring to the objections in Ext. P7 and in the light of Exts. P8 to P15 judgments and to grant building permit as sought for._ - _iv) Pass such other orders or directions as may be deemed necessary in the facts and circumstances of the case and in the interests of justice.”_ 2. Heard Sri.S.Shanavas Khan, learned counsel appearing for the petitioners, Sri.Saigi Jacob Palatty, learned Senior Government W.P(C) No.12457 of 2020 5 Pleader appearing for R1 and R2 (State of Kerala) and Sri.G.G.Manoj, learned Standing Counsel for Thrikkakkara Municipality appearing for R3 to R5. 3. The petitioners have already secured Ext.P5 building permit dated 28-06-2019 issued by the competent official of the respondent Thrikkakkara Municipality for constructing a residential building in the subject property of the petitioners and the construction work in relation to the said permit is now going on. The petitioners later submitted Ext.P6 revised plan dated 15-05-2020 before the respondent Thrikkakka Municipality for making certain additional constructions in the existing building structure already permitted by Ext.P5, in their old age the petitioners wanted their daughter and son-in-law also to settle and reside with them. The said Ext.P6 revised plan given on 15-05-2020 has been rejected by the 4[th] respondent Secretary of the Thrikkakkara Municipality as per the impugned Ext.P7 order on the ground that the subject property in which the proposed construction is sought to be made as per Ext.P6 is an agricultural zone going by the zonal classification under the structural plan for Kochi framed under the detailed Town Planning W.P(C) No.12457 of 2020 6 Scheme issued under the old Town Planning Act. It is this order at Ext.P7 that is under challenge in the W.P(C). 4. The main ground of the petitioners is to effect that the respondent Municipal authorities are estopped from taking such a ground in Ext.P7 for the simple reason that they have already issued building permit for the original building as per Ext.P5 on 28-06-2019 without raising any such objections and the building work thereon pursuant to Ext.P5 is already going on and what is involved in Ext.P6 revised plan is only for certain additional construction so as to have more rooms in the said residential building. Therefore it is contended by the petitioners that the respondent Municipal authorities are legally estopped from taking such a stand as per Ext.P7. Secondly, it is pointed out that the structural plan relied on by the respondent Municipality said to be framed under the old DTP scheme, has become obsolete and antiquated for the simple reason that which has been already found by this Court in respect of the same agricultural zoning issues in the same respondent Thrikkakkara Municipality in a series of judgments as per Exts.P8 to P15 judgments of this Court, both that of the learned Single Judge as well W.P(C) No.12457 of 2020 7 as that of the Division Bench is that, such a structural plan framed under the old DTP scheme has become practically obsolete and antiquated for the simple reason that the ground realities would clearly show that lot of commercial buildings, residential buildings, schools, public institutions etc., have already come within the said area though it has been classified as agricultural zone as per the old DTP scheme. Apart from this, petitioners are also right in contending that after having issued Ext.P5 building permit to the petitioners in respect of the very same subject property, in the very same zone, the respondent Municipal authorities are legally estopped from taking a stand as the one in Ext.P7 rejection order for rejecting the building permit for the additional construction proposed for the construction already approved by Ext.P5 building permit, more particularly, as the said construction as per Ext.P5 is already going on. 5. Therefore going by the dictum laid down by the Apex Court in cases as in _**Raju.S.Jethmalani and others v. State of Maharashtra and others [2005 (11) SCC 222]**_ , has held that placing reliance on such antiquated DTP scheme for rejecting W.P(C) No.12457 of 2020 8 building permit application of property owners, would be violative of the right to enjoy the property guaranteed under Article 300A of the Constitution of India inasmuch as such a rejection on a ground of such antiquated Town Planning Scheme cannot be said to be a procedure which is fair and reasonable as inbuilt in Article 300A of the Constitution of India etc., and therefore such rejection order based on such antiquated town planning schemes would be illegal and unconstitutional. Detailed consideration in that regard has already been rendered by this Court in a series of judgments as borne out from Exts.P8 to P15 and this Court is fully in respectful, concurrence and agreement with the said considered views rendered in the said series of judgments of this Court and that too, in respect of the very same issue of residential zoning in the respondent Thrikkakkara Municipality. Hence following the reasonings and conclusions of various judgments of this Court including that of Exts.P8 to P15 as well as the principles laid down by the Apex Court in _**Raju.S.Jethmalani’s case**_ (supra) [2005 (11) SCC 222] it is only to be ordered that the impugned rejection order as per Ext.P7 is illegal and ultra vires and therefore Ext.P7 will stand quashed and set W.P(C) No.12457 of 2020 9 aside. Consequently it is ordered that Ext.P6 revised plan dated 1505-2020 submitted by the petitioners and as referred to in Ext.P7 will stand remitted to the 4[th] respondent Secretary of the Thrikkakkara Municipality for consideration and decision afresh. 6. The 4[th] respondent Secretary of the Thrikkakkara Municipality will immediately process Ext.P6 revised plan submitted by the petitioners dated 15-05-2020 and may issue necessary memo/letters calling upon the petitioners to produce any additional documents or materials, which are lacking in the present application and the petitioners should be given necessary time to produce such additional documents if any, and thereafter the 4[th] respondent Secretary of the Thrikkakkara Municipality will afford reasonable opportunity of being heard to the petitioners through their authorised representative or counsel if any, and then should take a considered decision on the request made by the petitioners in Ext.P6 revised plan dated 15-05-2020, strictly in terms of the provisions contained in the applicable statutory Municipality Building rules, without much delay preferably within a period of one month from the date of production of a certified copy of this judgment. W.P(C) No.12457 of 2020 10 7. The petitioners will produce a certified copy of the judgment along with copy of the memorandum of W.P(C) with all the Exhibits before the 4[th] respondent Secretary of the Thrikkakkara Municipality for necessary information and further action. With these observations and directions the above Writ Petition (Civil) will stand disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** KAS W.P(C) No.12457 of 2020 11 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LAND TAX RECEIPT DATED 25.05.2019 IN RESPECT OF PROPERTIES COMPRISED IN SURVEY NO.567/2-4-3 IN THE NAME OF FIRST PETITIONER** **EXHIBIT P2 TRUE COPY OF THE LAND TAX RECEIPT DATED 25.05.2019 IN RESPECT OF PROPERTIES COMPRISED IN SURVEY NO.567/2-4 IN THE NAME OF FIRST PETITIONER EXHIBIT P3 TRUE COPY OF THE LAND TAX RECEIPT DATED 25.05.2019 IN REPEAT OF PROPERTY SITUATED IN SURVEY NO.567/2-4-4 IN THE NAME OF SECOND PETITIONER** - **EXHIBIT P4 TRUE COPY OF THE LAND TAX RECEIPT DATED 25.05.2019 IN REPEAT OF PROPERTY SITUATED IN SURVEY NO.567/2-4-2 IN THE NAME OF SECOND PETITIONER** **EXHIBIT P5 TRUE COPY OF BUILDING PERMIT DATED 28.06.2019 ISSUED BY THE 5TH RESPONDENT EXHIBIT P6 TRUE COPY OF REVISED PLAN SUBMITTED BY PETITIONER BEFORE 3RD RESPONDENT EXHIBIT P7 TRUE COPY OF COMMUNICATION DATED NIL FROM THE 4TH RESPONDENT** **EXHIBIT P8 TRUE COPY JUDGMENT DATED 27.05.2015 IN W.P.(C) NO.1551 OF 2015 OF THIS HON'BLE COURT** **EXHIBIT P9 TRUE COPY OF JUDGMENT DATED 26.10.2016 IN WRIT APPEAL NO.559/2016 OF HE DIVISION BENCH OF THIS HON'BLE COURT EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 23.03.2020 IN W.P(C) NO.9057 OF 2020 OF THIS HON'BLE COURT** W.P(C) No.12457 of 2020 12 |**EXHIBIT P11**|**TRUE COPY OF THE JUDGMENT DATED**| |---|---| ||**06.11.2019 IN W.P(C) NO.29637/2019 OF**| ||**THIS HON'BLE COURT**| |**EXHIBIT P12**|**TRUE COPY OF THE JUDGMENT DATED**| ||**14.06.2011 IN W.A.NO.1731 OF 2008 OF**| ||**THE DIVISION BENCH OF THIS HON'BLE**| ||**COURT**| |**EXHIBIT P13**|**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 P14**|**TRUE COPY OF THE JUDGMENT DATED**| ||**29.05.2014 IN W.P(C) 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 P15**|**TRUE COPY OF THE JUDGMENT DATED**| ||**27.09.2016 IN W.A.NO.1973/2015 AND**| ||**OTHER CONNECTED MATTERS**|