Thomas Cleophas @ Vijayan Thomas v. Senior Town Planner, Department of Town Planning, Regional Town Planning Office, Ernakulam & Maradu Municipality

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **WEDNESDAY, THE 26[TH] DAY OF JULY 2023 / 4TH SRAVANA, 1945 WP(C) NO. 4208 OF 2014** ## **PETITIONER/S:** THOMAS CLEOPHAS @ VIJAYAN THOMAS, AGED 59 YEARS, S/O.THOMAS, RESIDING AT KALLUVILA VEEDU, R.C.STREET, NEYYATTINKARA P.O., TRIVANDRUM, PIN - 695 121. BY ADV SRI.PEEYUS A.KOTTAM ## **RESPONDENT/S:** 1 SENIOR TOWN PLANNER DEPARTMENT OF TOWN PLANNING, REGIONAL TOWN PLANNING OFFICE, ERNAKULAM, COCHIN-682 020. 2 MARADU MUNCIPALITY MARADU, PIN-682 040, ERNAKULAM DISTRICT, REPRESENTED BY ITS SECRETARY. BY ADVS. ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.T.R.RAJAN, SRI.APPU P.S., GP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 4208 OF 2014** 2 ## J U D G M E N T 1. Petitioner is the owner in possession of 3 acres and 7.39 cents of property comprised in resurvey No.416/2 in block No.13 of Maradu Village acquired as per registered Sale Deed No.1584/2006 of Maradu SRO. The property is a dry land as it lies without any cultivation for the last more than 25-30 years. In order to develop the property by dividing into small plots for the purpose of construction of residential buildings after providing common pathway, recreation area and other common facilities, an application dated 1.7.2013 was submitted to second respondent, Maradu Municipality. On receipt of the application, Municipality prepared a report and forwarded the same to the first respondent, Senior Town Planner for approval, vide communication dated 1.8.2013, Ext.P1, with the recommendation that as per the data bank register the property was converted eight years back and as per the gazette notification, the **WP(C) NO. 4208 OF 2014** 3 property is a residential plot, and therefore compliance of Rule 27(1) of the Kerala Municipal Building Rules is required to be followed. 2. It was contended that previously also an application for construction of a multi storied residential building with ground plus 14 floors was submitted to Maradu Grama Panchayat and on 18.7.2006 the erstwhile Panchayat had granted permission for construction, Ext.P3, but due to recession construction did not start. 3. Petitioner was flabbergasted to receive letter dated 15.10.2013, Ext.P4, of the first respondent informing that the application for development permit could not be considered as the property was described as nilam in the basic tax register and falls within agricultural zone in the structural plan of Kochi. 4. WP(C) No.26924/2013 was preferred against Ext.P4 before this court and this court vide judgment dated 6.11.2013 Ext.P5 allowed the writ petition and set aside Ext.P4 and directed the **WP(C) NO. 4208 OF 2014** 4 Senior Town Planner to reconsider the application for development permit in the light of the decisions of this Court in WP(C) No.33526/2011 (Ext.P7) and Hon'ble Supreme Court in Raju S.Jethmalani and Others v. State of Maharashtra and Others [(2005) 11 SCC 222] . It was further contended that first respondent again rejected the case of the petitioner vide order impugned dated 6.1.2014, Ext.P6. The prime reason shown is that as per the structural plan the area is earmarked as agricultural zone and that permission cannot be granted even for sub dividing the property into plots. 5. Learned counsel appearing on behalf of the petitioner submitted that property of petitioner is dry and permission was granted by the Grama Panchayat on previous occasion for raising commercial building, but owing to recession the same did not take place. Now, there is no change of circumstances for the first respondent to reject permission. The property always remained dry and **WP(C) NO. 4208 OF 2014** 5 non agricultural. There are many five star hotels, multi specialty hospitals and famous Mar Gregorian school in and around the area of the property of the petitioner. 6. In a similar matter, when Kalamassery Municipality rejected an application for development permit, on challenge allowed this Court vide judgment dated 22.12.2011, Ext.P7, in WP(C) No.33526/2011. 7. On the other hand learned Government Pleader appearing for the first respondent contended that the proposed land was earmarked as agricultural zone in the Government sanctioned “Structure Plan of Central City of Kochi” and part IV of zoning and sub division regulation of sanctioned Structure Plan for Central City of Kochi, vide Government order dated 31.5.2007, permits construction of individual residential building for the owner, if he does not have his own residence, not exceeding total built up area of 300 sq.m. Government had made various zoning **WP(C) NO. 4208 OF 2014** 6 regulations. 8. According to the provisions of Kerala Conservation of Paddy Land and Wetland Act, 2008 and subsequent circulars, if the nature of the land as per the revenue records is paddy, local level monitoring committee can consider application only for construction of residential building up to 300 sq.m. for owner of the land if he does not have a residence of his own, but not for commercial purposes. 9. It was further contended that Town Planning Act, 1108 (M.E.) was repealed with the rider that notwithstanding such repeal any draft General Town Planning Scheme for an area including master plan or development plan or a draft detailed town planning scheme published under the repealed Act would deem to be a draft master plan or a draft detailed town planning scheme, with the commencement of Kerala Town and Country Planning Act, 2016. As per the Scheme under the Kerala Conservation of Paddy Land and Wet Land Act, 2008 **WP(C) NO. 4208 OF 2014** 7 and its subsequent circulars, a residential house up to an area of 300 sq.m. can only be constructed in land described as paddy, for owner of the land if he does not have a residence for his own, and therefore the provisions under the erstwhile Town Planning Act or the Kerala Town and Country Planning Act, 2016 would not be applicable. 10. I have heard the learned counsel appearing for the parties and appraised the paper book. 11. It is settled law that an appropriate application under Kerala Conservation of Paddy Land and Wet Land Act, 2008 is required to be submitted for converting the land. Until and unless the land is not converted, permission to raise commercial construction in an agricultural land cannot be granted, except for residential purpose that too upto 300 sq.m., as per the Scheme in vogue vide Government Order dated 31.5.2007. There is no challenge to the aforementioned Scheme/order. The order Ext.P6 of the Senior Town Planner is based upon the fact that the Scheme was in existence. **WP(C) NO. 4208 OF 2014** 8 The proposed building of the petitioner for which permit is being sought is much more than 300 sq.m.. In my view the order dated 6.1.2014 Ext.P6 of the first respondent Senior Town Planner rejecting application of petitioner for commercial construction is perfect, legal and justified. More over, the new Act also does not permit construction of commercial building in view of existence of the Scheme, even if the Scheme prior to the amendment is still in existence. Writ petition is devoid of any merit and is accordingly dismissed. Pending interlocutory applications, if any, in the writ petition would stand dismissed. Sd/- AMIT RAWAL JUDGE jg **WP(C) NO. 4208 OF 2014** 9 ## **APPENDIX OF WP(C) 4208/2014** PETITIONER EXHIBITS EXHIBIT P1.THE TRUE COPY OF THE LETTER BA NO.164/13-14 DATED 1/8/2013 FORWARDED BY THE 2ND RESPONDENT TO THE OFFICE OF THE 1ST RESPONDENT EXHIBIT P2.THE TRUE COPY OF THE RELAVANT PAGE OF THE DATA BANK REGISTER PERTAINING TO THE PROPERTY COMPRISED IN RESURVEY NO.416/2 IN BLOCK IN 13 OF MARADU VILLAGE. EXHIBIT P3.THE TRUE COPY OF THE BUILDING PERMIT NO.A-1, (2) 121/06-07 DATED 18/7/2006 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER EXHIBIT P4.THE TRUE COPY OF THE ORDER NO.D1/1785/13 DATED 15/10/2013 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER EXHIBIT P5.THE TRUE COPY OF THE JUDGMENT DATED 6/11/2013 IN WPC NO.26924/2013 OF THIS COURT. EXHIBIT P6.THE TRUE COPY OF THE ORDER NO.D/1785/13 DATED 6/1/2014 PASSED BY THE 1ST RESPONDENT EXHIBIT P7.THE TRUE COPY OF THE JUDGMENT DATED 22/12/2011 OF THIS HONOURABLE COURT IN WPC NO.33526/2011-M. EXHIBIT P8.THE TRUE COPY OF THE LETTER NO.D/122/13 DATED 29/6/2013 SENT BY THE 1ST RESPONDENT TO KALAMASSERY MUNCIPALITY EXHIBIT P9.THE TRUE COPY OF THE RELEVANT PAGE OF FAIR VALUE REGISTER PERTAINING TO THE PROPERTY IN SURVEY NO.416/2 IN BLOCK NO.13 OF MARADU VILLAGE. 10 ## **WP(C) NO. 4208 OF 2014** RESPONDENT'S EXHIBITS R1(a) : TRUE COPY OF JUDGMENT DATED 7.11.05 IN OP NO.8740/97 R1(b) : TRUE COPY OF GO NO.54757/M1/05/LSGD DATED 22.12.05 R1(c) : TRUE COPIES OF VARIOUS JUDGMENTS UPHOLDING THE IMPORTANCE OF MASTER PLAN AND SOME OF THE OBSERVATIONS OF THE HON'BLE SUPREME COURT.