Sivamohan and others v. Thiruvananthapuram Corporation and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **THURSDAY, THE 22ND DAY OF JUNE 2017/1ST ASHADHA, 1939** ## **WP(C).No. 13955 of 2016 (T)** **----------------------------** **PETITIONER(S): ----------------------** **1. SIVAMOHAN, AGED 49 YEARS, S/O. APPUKUTTAN, AMBADI, TC 43/252, MANAKKAD P.O., THIRUVANANTHAPURAM.** **2. S. SUNIL KUMAR,** - **AGED 50 YEARS, S/O. V.SUDHAKARAN, AVITTAM, CHEKKALAMUKKU, SREEKARYA P.O., THIRUVANANTHAPURAM.** **3. Y. JALEELKUTTY, AGED 54 YEARS, S/O. YUNUSKUNJU, KOTTAMKODU HOUSE, VILAKKUDI P.O., KOLLAM.** **4. NIZAR AHAMMED, MUNEER MANZIL, PERUNADU, KLAPPENA P.O., KARUNAGAPPALLY, KOLLAM DISTRICT.** **5. R.SINDHU, 'AMMU', TC 76/1935, ANAYARA P.O., THIRUVANANTHAPURAM.** **6. JAYAPRAKASH B., 'DEEPTHI', TC 29/37, PETTA P.O., THIRUVANANTHAPURAM.** **7. SREEKUMAR,** - **MAYOOKHAM, U.G.31/V, ULLUR GARDENS, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM.** **8. S. BABU,** - **AGED 62 YEARS, S/O. JOSEPH, SREEGADI COTTAGE, CHENGAMPUZHA NAGAR P.O., KALAMASSERY, ERNAKULAM DISTRICT.** ## **WP(C).No. 13955 of 2016 (T)** **9. DR. BHUVANENDU D.L., AGED 40 YEARS, D/O. DEVARAJAN, TC 68/1052, PACHALAM P.O., THIRUVANANTHAPURAM DISTRICT.** **10. BINU JACOB,** - **AGED 45 YEARS, S/O. M.T.CHACKO, TC NO.8/1631, BAPPUJI NAGAR, PONGUMOOD WARD, ULLOOR, THIRUVANANTHAPURAM DISTRICT.** **BY SRI.RENJITH THAMPAN, SENIOR ADVOCATE. ADVS. SMT.P.R.REENA SRI.C.P.PRADEEP** - **RESPONDENT(S): -------------------------** **1. THIRUVANANTHAPURAM CORPORATION, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, THIRUVANANTHAPURAM-695 033.** **2. SECRETARY, THIRUVANANTHAPURAM CORPORATION, CORPORATION OFFICE, THIRUVANANTHAPURAM-695 033.** **3. REGIONAL TOWN PLANNER, O/O REGIONAL TOWN PLANNER, HOUSING BOARD BUILDING, SANTHINAGAR, THIRUVANANTHAPURAM-695 001.** **R1 & R2 BY SRI.N.NANDAKUMARA MENON, SENIOR SC. SRI.P.K.MANOJKUMAR, SC. R3 BY GOVT. PLEADER SRI.RAVIKRISHNAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. ## **WP(C).No. 13955 of 2016 (T)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **P1 COPY OF THE BUILDING PERMIT ISSUED BY THE CORPORATION ON 27.04.2012 TO NIBIN JACOB.** - **P1(A) COPY OF THE BUILDING PERMIT ISSUED BY THE CORPORATION ON 16.11.2015 TO JACOB STEFENSON.** - **P1(B) COPY OF THE BUILDING PERMIT ISSUED BY THE CORPORATION ON 16.11.2015 TO DR.MAHESH.** - **P2 COPY OF THE CONCURRENCE GRANTED BY THE REGIONAL TOWN PLANNER AS REGARDS DR.MAHESH DTD.30.06.2015.** - **P3 COPY OF THE JUDGMENT IN WP(C).NO.23827/2015 DTD.06.08.2016.** - **P4 COPY OF THE JUDGMENT IN WP(C).NO.29716/2015 DTD.30.09.2015.** - **P5 COPY OF THE JUDGMENT IN WP(C).NO.29026/2015 DTD. 16.10.2015.** - **P6 COPY OF THE LETTER DTD. 23.03.2016 OF THE REGIONAL TOWN PLANNER TO THE 9TH PETITIONER.** - **P7 COPY OF THE JUDGMENT IN WP(C).NO.17639/2016 DTD. 20.07.2015.** - **P8 COPY OF THE CIRCULAR DTD. 06.02.2008 OF THE LOCAL SELF GOVERNMENT DEPARTMENT.** - **P9 COPY OF THE CIRCULAR DTD. 10.01.2011 OF THE LOCAL SELF GOVERNMENT DEPARTMENT.** ## **RESPONDENT'S EXHIBITS:NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** rs. ## K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 13955 of 2016 T - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22[nd] day of June, 2017 **==> picture [128 x 21] intentionally omitted <==** The petitioner is aggrieved with Ext.P6 order passed by the Regional Town Planner, the 3[rd] respondent herein which is with respect to the 9[th] petitioner, but would equally apply across the board to all the petitioners who are similarly situated. The petitioners are owners in possession of small extent of properties in Kadakampilly Village. The petitioners were aggrieved with the fact that the building permit application of the petitioners were not being considered. The petitioners also refer to Exts.P1 series which are said to be issued by the Corporation for nearby residents. Ext.P2 is also an order issued by the Regional Town Planner granting WPC.13955/2016 : 2 : concurrence to another nearby resident. 2. Some of the petitioners had approached this Court with a writ petition to direct the Corporation to forward their applications for concurrence to the Regional Town Planner. Exts.P3 is a judgment in which such directions were issued. Exts.P4 and P5 also were of identical nature. However, the Regional Town Planner issued Ext.P6 refusing concurrence to one of the persons. The person who was granted concurrence at Ext.P2 had obtained the same after judgment at Ext.P7. The petitioners also rely on Exts.P8 and P9 circulars to contend that all the petitioners have submitted application to build residential buildings having less than 300 M[2] plinth area and hence the Town Planner has to necessarily grant concurrence as per the Circulars at Exts.P8 and P9. 3. The learned Senior Counsel appearing on behalf WPC.13955/2016 : 3 : of the Corporation submits that Exts.P8 and P9 are mere circulars and it cannot interfere with the statutory rules as found in the Kerala Municipality Building Rules, 1999, which speaks of a development permit for sub devision of property having a larger extent. It is also submitted that Ext.P1 series are permits issued either under orders of this Court or Tribunals or after having received concurrence from the Regional Town Planner. The learned Government Pleader also seeks to sustain Ext.P6 order. 4. Admittedly, Ext.P1 series and Ext.P2 are with respect to the properties in the vicinity itself. There could be no difference of opinion with respect to the fact that the Circular cannot interfere with the statutory powers . But however, the Government thought it fit to direct its officers; that is those under the Town Planning Department to grant WPC.13955/2016 : 4 : concurrence with respect to small residential houses having less than 300 M[2] plinth area without looking at whether there was a development plan. Be that as it may, Ext.P6 does not speak about the concurrence having been declined for reason only of there being no development plan. Ext.P6 proceeds on the premise that the area in which the petitioner seeks construction is one earmarked for green strip under the DTP Scheme. The scheme obviously has not been implemented despite it pending from the year 1971 onwards. 5. With respect to such obsolete development schemes, this Court in Padmini v. State of Kerala [1999 (3) KLT 465] and the Hon'ble Supreme Court in Raju S. Jethmalani v. State of Maharastra [(2005) 11 SCC 222] has spoken consistently that such schemes cannot interdict the enjoyment of property which includes making constructions WPC.13955/2016 : 5 : thereon. Obviously, the DTP Scheme has not been implemented for long years and as of now, the DTP Scheme as designed under the earlier enactment have been set aside by this Court. In such circumstances, it is only proper that the Regional Town Planner issue concurrence without looking at the DTP Scheme and even in the absence of development plan; as is directed by the Government in Exts.P8 and P9 circulars. Ext.P6 is set aside. 6. The individual applications of the petitioners if forwarded to the 3[rd] respondent, the concurrence shall be issued within a period of one month from the date of receipt of a certified copy of this judgment. If any of the applications have not been forwarded, the Corporation shall forward the same within a period of three weeks and the 3[rd ] respondent shall issue the concurrence within a period of one month thereafter. After the concurrence is obtained, the WPC.13955/2016 : 6 : building permit application will be considered by the Corporation in accordance with the Kerala Municipality Building Rules, 1999 without insisting for a development plan. Writ petition is disposed of. No costs. Sd/- jma (K. VINOD CHANDRAN, JUDGE) //true copy// P.A to Judge