State of Kerala and Secretary to Government of Kerala, Department of Local Self Government v Dr. Prathap Kumar, Kollam Corporation and Town Planning Officer, Kollam Corporation

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 RP.No. 611 of 2008(G) --------------------AGAINST THE JUDGEMENT/ORDER IN WPC.37235/2007 Dated 15/02/2008 .................... REVIEW PETITIONER(S): ---------------------- - 1 .STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, TRIVANDRUM. BY GOVERNMENT PLEADER SRI.BASANT BALAJI RESPONDENT(S): --------------- 1. DR.PRATHAP KUMAR, CARDIOLOGIST, P..R.S. HOSPITAL, TRIVANDRUM, RESIDING AT SAMBHAVI, ASRAMOM, KOLLAM. . 2. KOLLAM CORPORATION, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, KOLLAM. 3. THE TOWN PLANNING OFFICER, KOLLAM CORPORATION, KOLLAM. ADV. SRI.K.B.PRADEEP SRI.C.UNNIKRISHNAN,SC,KOLLAM CORPORATIO FOR R2-3 SRI.B.PREMNATH, ADVOCATE COMMISSIONER THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 30/7/2008, THE COURT ON 14/10/2008 PASSED THE FOLLOWING: ## **PIUS.C.KURIAKOSE,J.** ## **-----------------------------------------------** ## **R.P. NO.611/2008 IN W.P.(C)No.** Dated this the 14[th] day of October, 2008 ## **O R D E R** The State and the Secretary to Government, respondents 1 and 2 in the Writ Petition are the petitioners in this Review Petition. The Writ Petition was filed by the first respondent, a Cardiologist complaining of inordinate delay on the part of the Government and the third respondent, the Kollam Corporation in sanctioning his application for building permit for construction of a Super Specialty Hospital Building on the ground that the land is situated in residential zone and therefore zonal exemption is necessary. The petitioner's grievance was that there is unnecessary and unreasonable delay on the part of the review petitioners in not finalising the draft notification of the new zoning regulations in development plan (master plan) for Kollam town published vide G.O.(MS)No.152/2007/LSGD dated 7.6.2007 though fresh zoning regulations for other Corporations were finalised much earlier. Ext.P1 in the Writ Petition was the building 2 R.P..No.611/2008 permit application submitted by the petitioner and his mother Subhadra Amma before the third respondent-Corporation for construction of Super Specialty Hospital Building with the plinth area of 17677.81 Sq. metres. Ext.P3 is copy of the letter issued by the 4[th] respondent, the Town Planning Officer of Kollam Corporation that zonal exemption was necessary for issuing building permit since the site on which the building is to be constructed is residential zone. The petitioner referred to the judgment of the Division Bench of this court in **Sayeesh Kumar v. State of Kerala** (2005(4) KLT 1027) wherein it was held that the Government has no power for granting individual zoning exemptions as per the Town Planning Act. According to the petitioner, because of the above regulation, the entire development activity in the State came to a standstill and the Government decided to bring forth new zoning regulations in development plans (master plans) for various Corporations in Kerala by pursuing the original procedure envisaged under the Town Planning Act. Ext.P4 is copy of the draft notification of the new zoning regulations in the master plan for Kollam Town directing the general public to submit their objections within R.P..No.611/2008 3 16.7.2007. The petitioner's grievance voiced in the Writ Petition is that Ext.P4 has not been finalised despite passage of considerable time. The petitioner claims in the Writ Petition that he would be able to get sanction for building permit for his proposed construction on the strength of general guidelines (i) in Ext.P4 once Ext.P4 is finalised. Due to non-finalisation of Ext.P4, the petitioner is unable to construct the Super Specialty Heart Hospital which is an extremely urgent need of the citizenry of the Kollam Corporation. He therefore filed the Writ Petition with the following prayers: 1. Issue a writ of mandamus directing respondents 1 and 2 to finalise Ext.P4 forthwith. 2. Issue a writ of mandamus directing respondents 3 and 4 to sanction Ext.P1 forthwith if the same is in accordance with Ext.P4. 3. Declare that the petitioner is entitled to proceed with his project covered by Ext.P1 notwithstanding the finalisation of Ext.P4. 2. Separate statements were filed in the Writ Petition by the Government Pleader as well as by the Standing Counsel for the R.P..No.611/2008 4 Kollam Corporation. The statement filed by the Government Pleader was to the effect that based on the publication of the draft notification and the objections received in response to that, a hearing was conducted and on the basis of such hearing the Chief Town Planner has furnished certain modifications to be effected to the draft scheme and that the Government is taking all steps for the early publication of the final notification. It was also stated that the final notification will be issued shortly. The statement filed by the Standing Counsel for the Kollam Corporation revealed that essentially there were five guidelines to be complied with by the petitioner as per the draft scheme. The first guideline was that the width of the road should be 12 metres or more either existing or proposed. It was noticed by me that the above guideline is fully satisfied. The second guideline was to the effect that depth of the land should be 50 metres from the road and that the above guideline was not satisfied since the total depth of the petitioner's land is 138 metres from the road margin. I accepted the argument of the counsel for the petitioner that the total depth of the plot is 138 metres is a plus point and not a minus point as meritorious and held that the second R.P..No.611/2008 5 guideline is satisfied. Regarding guidelines 3 and 4 which related to minimum extent of land and coverage, it was found that those two guidelines were also satisfied. The fifth guideline is regarding FAR. The contention was that the permitted FAR is only one but the FAR taken as per the plan is 1.65. As regards this, then counsel for the petitioner submitted that though as per the plan the proposal is to construct seven storied building including two underground floors, it will suffice if the petitioner is issued with permit for construction of five floors inclusive of the two underground floors. It was noticed that if construction of only five floors alone is permitted, the FAR will be one or even below one. Under the above circumstances, I disposed of the Writ Petition directing the Corporation to take an early decision on the petitioner's application for permit for construction of a Super Specialty Hospital in the light of the observations in my judgment. I also directed that permit need be granted for construction of five floors so that the guideline regarding FAR will not be violated and set a time frame of three weeks for complying with the judgment. 3. Review of my judgment is sought for by the Government R.P..No.611/2008 6 mainly on the ground that zoning regulations for Kollam Town have been sanctioned by the Government after considering the objections and suggestions to the draft notification as per G.O.(P) No.37/08/LSGD dated 8.2.2008 produced as Annexure-A in the R.P. It is urged that though the judgment was made on 15.2.2008 which is seven days after Annexure-A notification, the said fact could not be brought to the notice of this court. The writ petitioner had relied on the draft zoning regulations. But it is by incorporating the modifications in the said draft that zoning regulations have now been sanctioned. Under the sanctioned regulations construction of building can be permitted if it is within 100 metres depth from the road margin and 25 metres minimum frontage on the side of the road. It is pointed out that the petitioner's plot has depth of 132 metres from the road and the width of the plot abutting the road is 15.60 metres only and hence the proposed construction will be in violation of the zoning regulations as per G.O.(P)No.37/08/LSGD dated 8.2.2008. 4. When the R.P. was posted for admission, Mr.C.Rajendran took notice on behalf of the 1[st] respondent. In view of the submission of the learned Special Government Pleader that the R.P..No.611/2008 7 main hitch against the first respondent is general guideline No.(i) in Annexure-A, I directed Mr.Rajendran to seek instructions from his client as to whether he is prepared to submit a revised plan so that guideline No.(i) in Annexure-A will not be violated. Mr.Rajendran on receiving instructions submitted that on account of the nature of the plot belonging to his client, a revised plan in a manner as to confine constructions to a depth of 100 metres cannot be submitted. Accordingly, the 1[st] respondent was directed to file a statement incorporating necessary contentions and clarifications. Mr.Rajendran filed a statement pursuant to the above directions on 16.6.2008. It is stated therein that the 1[st] respondent's plot has a road frontage of 16.01 metres only and according to the interpretation given by the Chief Town Planner to the general guidelines in the new scheme, the property being residential zone, new construction could be permitted in land to a depth of 50 metres on either sides of the road having existing or proposed width of 12 metres or more and could be permitted upto a depth of 100 metres only if the plot has a road frontage of 25 metres. It is stated that construction of hospital within 50 metres from the road is impossible on the petitioner's plot on the R.P..No.611/2008 8 following reasons: 1. The width of the 1[st] respondent's plot upto a depth of 42 metres from the road is just 16.01 metres and therefore construction of a useful hospital building cannot be made upon that portion. This is why as per the plan the starting point of the construction is 53 metres from the road margin and ending point is 125 metres from the road margin. The total depth of the plot, it is pointed out is 190 metres. 2. The existing width of the road is 12 metres and the proposed width of the road is 20 metres. If 8 metres is to be acquired from the southern side of the road (the side where the 1[st] respondent's property is situated), the depth of the 1[st] respondent's plot will be reduced by 8 metres. A set back of at least 15 metres will have to be provided and once 23 metres (8 + 15) is left unconstructed, the remainder property available for construction on the interpretation of the CTP is the property between 23 metres from road margin upto 50 metres (just 27 metres). Constructing a Super Specialty Hospital Building on a site which has a depth of 27 metres alone is simply unworkable. The above statement was filed by the 1[st] respondent's then 9 R.P..No.611/2008 counsel Mr.C.Rajendran. Later the 1[st] respondent gave fresh engagement on Adv.Mr.K.B.Pradeep on 25.6.2008. I heard both sides. It was submitted that an application for issuance of commission is proposed to be filed. On that submission the case was adjourned. Accordingly, I.A.No.357 of 2008 was filed for issuance of commission. The above I.A. was allowed and Adv.Mr.B.Premnath was appointed as Commissioner for conducting a local inspection and submission of report on the various aspects mentioned in the application. Mr.Premnath filed his commission report on 8.7.2008 and later he filed an additional report on 14.7.2008 incorporating an aspect which was inadvertently omitted to be included in his earlier report. 5. The report of the commissioner can be summarised as follows; The petitioner's property has road frontage of 15.52 metres. The width of the road lying in front of the petitioner's property is 11.45 metres. The distance between the northern boundary wall of the petitioner's property to the site identified for carrying the construction is 15 metres and the commissioner has filed a rough sketch detailing all these aspects. Enquiries made by the R.P..No.611/2008 10 commissioner with local people revealed that the local public generally welcome the establishment of the proposed super specialty hospital. Answering the question as to the availability of residential houses on the lands neighbouring the petitioner's' property, the commissioner has reported that if percentage of land actually occupied by the houses is calculated, out of the entire extent of land including the vacant lands (1.80 1/2 acres) the same is 11.63%. To arrive at this percentage, the commissioner has taken into account as many as 9 houses and the extent of the plots whereupon those houses stand. Later through his additional report dated 14[th] July 2008, the Commissioner reported that upto the south east boundary of the property that boarders with plots of houses marked as IV and V in the rough sketch, the depth of the property is 138 metres and up to the south western boundary of the property that borders with the thodu on that side the depth of the property is 192 metres. 6. To the Commissioner's report, the Government has filed objections. It is contended therein that in view of the development plan ( master plan for Kollam Town) sanctioned R.P..No.611/2008 11 under Section 12 of the Town Planning Act 1108, vide G.O.(P) 37/08/LSGD dated 8.2.2008, the Government have varied the zoning regulations of the said scheme so as to make it compatible to the present development scenario. All developments in the scheme area have to be in conformity with the provisions of this new development plan. The petitioner's property falls within the residential zone. Nature of uses permitted, restricted and prohibited in residential zone are given in clause 6 of the zoning regulations. The varied zoning regulations take into account the demand for permitting the mixed uses along the sides of the major transportation corridors while protecting the interest of the residents in an area which is zoned for residential uses. It is contended that opinion of the local people regarding the establishment of the specialty hospital does not have any relevance in the matter. As per development plan, in the case of contiguous plots in residential zone which have a minimum frontage of 25 metres of road with a proposed width of 12 metres or more mixed use can be permitted to a depth of 100 metres. But, in this case road frontage of the property is 15.52 metres. Therefore, a hospital R.P..No.611/2008 12 is a prohibited use in the portion of the petitioner's plot lying beyond a depth of 50 metres from the central line of the abutting Kannanellur road. It is, therefore, contended that a detailed study regarding the use of nehighbouring lands for ascertaining whether the residential uses exceeds 50% or more is not warranted. Objecting to the commissioner's calculation of the percentage of use of neighbouring lands for residential purposes, it is contended that the Commissioner's calculation is not on the basis of any approved method of assessment. The maximum coverage allowed under Rule 31 of the Kerala Municipality Building Rules is 65% of the plot area and it is the option of the owner to build houses within the permitted coverage depending upon his requirements. It is also submitted that for determining the percentage, the commissioner has taken into account only the built up area as presently in existence and has not taken into account its mandatory open space. It is pointed out that the commissioner has not found out any use other than residential use adjacent to the site in question. It is also stated in the objection that the commissioner has not taken into consideration the houses on the eastern side of the said R.P..No.611/2008 13 road on the east. 7. Noticing the objection that the commissioner has not reported the houses on the eastern side of the road on the east, I directed the commissioner to be present in court on 30/7/2008. Accordingly, the commissioner was present in court on that date. The commissioner was asked as to why in the rough sketch submitted by him along with his report he has not chosen to mark the position of the houses situated on the eastern side of 4.5 metres wide road in the sketch. The commissioner answered that there were 4 to 5 houses of more or less same size as the houses shown in the sketch. Since the houses were situated beyond the road, it did not occur to him that houses are also relevant. He submitted that neither of the parties requested him to mark those houses. Sri.C.M.Suresh Babu the special Government Pleader would submit that exact number of houses on the eastern side of the road is 6 and he conceded that the houses were small houses situated on small plots. 8. Sri. C.M.Suresh Babu, the learned special Government Pleader and Sri.K.B.Pradeep, the learned counsel for the writ petitioner addressed me in detail on the basis of the pleadings R.P..No.611/2008 14 raised by their respective parties and the materials available on records. Sri.Suresh Babu referred to the advocate commissioner's report, Rule 31 (1) and 31 (2) of the Kerala Municipality Buildings Rules and also the Rule 2(u) of those Rules. Drawing my attention to the general guidelines in Annexure – A notification sanctioning new zoning regulations for Kollam Town under sub section (3_ of Section 12 of the Town Planning Act 1108, Sri.Suresh Babu submitted that construction of hospital as proposed by the writ petitioner was simply impermissible. Resisting the submissions of Sri.Suresh Babu, Mr.K.B.Pradeep submitted that Rule 31 of the Kerala Municipality Building Rules cannot be of any assistance in resolving the issue arising in this case. Sri.Pradeep would rely much on the commissioner's report and would submit that on the reasons stated in the judgment sought to be reviewed and on a correct interpretation of the guidelines, it is possible to permit the construction of the hospital proposed by the petitioner. In reply, the learned special Government Pleader would place reliance on the judgment of the Division Bench in Sayeesh Kumar's case and argue that the development scheme has been enacted on R.P..No.611/2008 15 considerations of health, environment, sanitation and ecology of the locality and the Division Bench has clearly ruled that even the Government, the highest executive authority, is not entitled to tinker with the same and grant permission for construction of non residential building in a residential area. 9. The contention of the Government is that the writ petitioner is seeking to construct a hospital building in a residential zone. Normally, the construction and establishment of hospital is permitted only in public and semi public zone. General guidelines provided in Annexure-A at page 9 thereof assumes importance on the facts of this case. Guideline No. 1 stipulates that in a land to a depth of 15 metres on either side of the road having an existing or proposed width of 12 metres or more, uses permitted in residential, commercial and public and semi public zone may also be permitted by the executive authority if such uses are not allowable otherwise in zonal regulations. Five essential guidelines are to be complied with by the writ petitioner, as noted in my judgment dated 15/2/2008. As regards the 2[nd] guideline, which is to the effect that the depth of the land should be 50 metres of the road, the R.P..No.611/2008 16 Government's argument was at that time also that the above guideline is not satisfied since the total depth of the petitioner's plot is 138 metres from the road margin. I considered that argument and found that the situation that the total depth is 138 metres is a plus point for the petitioner and not a minus point. Accordingly, I held that the 2[nd] guideline should be taken as satisfied in the case of the petitioner. I had rejected the Government's contention interpreting the guidelines that construction is impermissible beyond a depth of 50 metres. If the Government feels that I was wrong, the remedy available to the Government is not to seek a review. 10. The second limb of the guideline No.(i) in Annexure A stipulates that in case of contiguous plot, in residential zone, which have a frontage of 25 metres on such roads also, mixed use as above may be permitted to a depth of 100 metres. But, this limb of guideline No.(i) cannot apply to the petitioner's case since the same deals with contiguous plots and not to single compact plot. Further, this limb also deals with permission to construct buildings for mixed uses. Thus limb No. 2 creates a restriction that the plot should have a minimum depth of 100 17 R.P..No.611/2008 meters. But it is seen that the writ petitioner has not sought for any mixed use and therefore, there is no application for the second limb of guideline No.(i). The petitioner's application will have to be scrutinized under limb No. 1 of the guideline No. (i) and not under limb 2. It is not disputed that the road in front of the petitioner's property has an existing/ proposed width of 12 metres or more. 11. Guideline No. (i) imposes further restriction in its last portion that “such uses” may be permitted in the residential zone if the area is “ substantially developed as a residential area. Argument of Sri.Pradeep that since the Government has preferred to use the terminology “such use” in the last portion of the guideline No. (i), the said line can only control the second limb of guideline No. (i) since the said limb deals with mixed use has considerable force. 12. Even if it is assumed for argument's sake that the last line of guideline No. (i) controls both the limbs, then the petitioner will have to show that the area is not “substantially developed”. The note appended to guideline No. (i) gives an insight to understand the terminology “substantially developed”. R.P..No.611/2008 18 The note says if it is more than 50% of the immediate surrounding ignoring roads, land used is residential or uses permissible in residential zone, that area can be considered as substantially developed as residential. The advocate commissioner's report which is obtained in this case is to be looked into. I will look into the advocate commissioner's report on the assumption that both the limbs of guideline No. (i) are controlled by the last line immediately succeeding the second limb. The commissioner has reported that around 180.5 cents of land approximately surrounds the petitioner's property excluding the road. Out of the said area roughly/14 cents of land have houses on it. The site actually occupied by the houses come to approximately 26 cents (This is taking into account objection filed by the Government to the Commissioner's report that the commissioner has not reported the existence of six houses on the eastern side). The remaining land is vacant. The surrounding land is inspected by the commissioner. The commissioner has reported that a thodu on the southern boundary of the petitioner's property has been totally excluded while counting area of the immediate surroundings. In fact the R.P..No.611/2008 19 guidelines exclude only roads and not the water channels or thodu. The commissioner has reported that the area actually occupied by the houses out of the entire extent of land is 11.63 percentage. If, in view of my finding that the area actually occupied by the houses is 26 cents at the maximum, then also it should be seen that percentage of area actually occupied by the houses out of the entire extent is less than 25 %. The argument of Mr.Pradeep that hospital cannot be established in industrial area or commercial area and that super specialty hospitals always adopts pollution abatement techniques and procedures and maintain high level of hygiene is worthy of acceptance. Similarly, Sri.Pradeep's further argument that multi specialty hospital cannot ordinarily create noise pollution and that the emergence of such a hospital give benefits to the local public is also acceptable. The judgment under review was passed in the light of the draft scheme. But, under Annexure A final scheme also, it will be seen that the draft scheme has not been substantially varied. I am of the view that the provisions of the Town Planning Scheme are to be interpreted in a manner which is realistic and does not work out hardship or injustice. R.P..No.611/2008 20 I do not find any reason for reviewing my judgment within the well limited contours of the jurisdiction for review. The Review Petition will stand dismissed. **(PIUS.C.KURIAKOSE,JUDGE)** srd/dpk