Sheena Sunny v. Thrissur Corporation and The Assistant Engineer, Thrissur Corporation Office

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** ## **TUESDAY, THE 15TH DAY OF JULY 2014/24TH ASHADHA, 1936** ## **WP(C).No. 7919 of 2014 (L)** **--------------------------------------** ## **PETITIONER(S): ----------------------** **SHEENA SUNNY, AGED 46 YEARS, D/O. YOHANNAN, ERAVOONGARAN HOUSE, CHEMBUKKAVU, THRISSUR DISTRICT.** **BY ADVS.SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA SRI.K.D.SREEVISAKH** ## **RESPONDENT(S):** **-------------------------** **1. THRISSUR CORPORATION, REPRESENTED BY IS SECRETARY, CORPORATION OFFICE THRISSUR-680001.** **2. THE ASSISTANT ENGINEER, THRISSUR CORPORATION OFFICE, THRISSUR-680001.** **R1 BY ADVS. SRI.K.P.VIJAYAN SRI.V.N.HARIDAS SMT.KRIPA ELIZABETH MATHEWS SMT.C.B.SUMA DEVI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 7919 of 2014 (L)** **--------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **EXHIBIT P1TRUE COPY OF THE SALE DEED DATED 30-3-2005.** - **EXHIBIT P2TRUE COPY OF THE PROPOSED SITE PLAN OF THE PETITONER** **EXHIBIT P3TRUE COPY OF THE NOTICE DATED 28-2-14 ISSUED BY 2ND RESPONDENT.** **EXHIBIT P4PHOTOGRAPHS OF THE PROPERTY SHOWN AS PARAMBA.** **EXHIBIT P5- TRUE COPY OF THE JUDGMENT IN WPC NO. 17489/13 DATED 16-8-13 OF THIS HON'BLE COURT.** **RESPONDENT(S)' EXHIBITS** **---------------------------------------** ## **NIL.** **/ TRUE COPY /** ## **P.S. TO JUDGE** **PJ** **A.V. RAMAKRISHNA PILLAI, J. -------------------------------------------------W.P.(C) No. 7919 of 2014 -------------------------------------------------Dated this the 15[th] day of July, 2014** ## **J U D G M E N T** Aggrieved by Ext.P3 notice, rejecting the petitioner's application for building permit, the petitioner has come up before this Court. 2. The petitioner purchased a property as per Ext.P1 sale deed within the local limits of the respondent Corporation. She submitted an application for building permit along with necessary site plan and other details before the 1[st] respondent for starting an Automobile Wash Stall and Office, which was rejected by Ext.P3 notice stating that the property comes under 'Paddy Zone' as per Master Plan and as per G.O. (MS) No.123/08/LSGD dated 28.04.2008, in such areas, permission can be granted only for single family residential buildings up to floor area of 200 square meters. The petitioner alleges that the property has been lying as a 'paramba' for past many W.P.(C) No. 7919 of 2014 **==> picture [20 x 8] intentionally omitted <==** years. She produced Ext.P4 photographs in support of her claim. According to the petitioner, the said property is lying contiguously with the adjacent property under the common ownership of her predecessor-in-interest; and in that property, the 1[st] respondent had granted permission to construct an Old Age Home pursuant to the direction of this Court in a writ petition filed challenging the order of the 1[st] respondent refusing to grant building permit. She further alleges that later, permit was granted for construction of another building pursuant to the directions contained in WP(C) No.17481/2013. Therefore, according to the petitioner, there is no justification in rejecting the application of the petitioner for constructing a building in her property for the reason that the said property falls under 'Paddy Zone'. It is with this background, the petitioner has come up before this Court. 3. The respondent Corporation filed a counter affidavit stating that the property of the petitioner was of W.P.(C) No. 7919 of 2014 **==> picture [20 x 8] intentionally omitted <==** the paddy zone as per the approved master plan sanctioned vide G.O.(MS) No.232/85 dated 31.10.1985 and therefore, as per the guideline VII in the G.O.(MS) No.123/08/LSGD dated 28.04.2008, only single family residential buildings not exceeding an area of 200 m[2] is permissible in the paddy zone subject to the sanction of the Paddy Committee and the District Town Planner. It is contended that the permit for construction was for housing a hazardous unit as mentioned in Group I(1) in the Rule 30 of the Kerala Building Rules, 1999; and therefore, the petitioner's application was rejected as it violates all the norms and statutory provisions. 4. The petitioner filed reply affidavit to the counter affidavit, alleging that the 1[st] respondent has not cared to visit the property of the petitioner to see whether the nature of the property is wet land or not. According to the petitioner, her property is lying at a distance of 50 metres from Chembukkavu - Cheroor Road and there are workshops by the side of the said road and W.P.(C) No. 7919 of 2014 **==> picture [20 x 8] intentionally omitted <==** there is a margin free supermarket also within a distance of around 100 metres of the petitioner's property. She further alleges that there is a tile factory at a distance of around 200 metres from said the property by the side of the Chembukkavu - Cheroor road and a canal is situated on the southern side of the property and the adjacent properties are lying as garden land. According to the petitioner, the service centre proposed to be run in the property is a non-polluting industry. 5. Arguments have been heard. 6. The decision of this Court in **Mohammed Abdul Basheer C.P.** V **State of Kerala and another** (2012(3) KLT 86) lays down the principle that the present position of the land has to be taken into consideration and on ascertaining these facts, permission can be granted for construction. 7. The learned counsel for the petitioner invited my attention to a Division Bench decision of this Court in **Padmini** v. **State of Kerala** [1999 (3) KLT 465] wherein W.P.(C) No. 7919 of 2014 **==> picture [20 x 8] intentionally omitted <==** it was held that no building permit can be refused to any person because there is a proposal to acquire the land in future. Reliance was also placed to the decision of the apex court in **Raju S. Jethmalani** v. **State of Maharastra** [(2005) 11 SCC 222], wherein it was held that refusing to grant permits relying on obsolete DTP schemes is a clear violation of the provisions of the Constitution. ## 8. In **Jalaja Dileep** v **Revenue Divisional Officer** (2012(3) KLT 333), this Court observed that the description in the title deed or in revenue records will not be crucial if the property is reclaimed already. The aforesaid legal positions settled by this Court, escaped the attention of the authorities while rejecting the petitioner's application. Therefore, this writ petition is allowed. Ext.P3 is quashed. The respondent Corporation is directed to conduct a local inspection of the property regarding the present lie W.P.(C) No. 7919 of 2014 **==> picture [20 x 8] intentionally omitted <==** as well as the condition of the property of the petitioner and surrounding properties and to inspect the realities, whether there are any commercial buildings in the locality. The respondents are also directed to consider the application and pass appropriate orders, after affording the petitioner an opportunity of being heard. This shall be done within a period of two months from the date of receipt of a copy of this judgment. Sd/- **A.V. RAMAKRISHNA PILLAI, JUDGE** bka/-