W.P.(C) Nos.12551/2023, 12601/2023, 12668/2023 and 12763/2023 v. Maradu Municipality & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH`** ``` THURSDAY, THE 22[ND] DAY OF JUNE 2023 / 1ST ASHADHA, 1945 ``` ## **`WP(C) NO. 12551 OF 2023`** ## **`PETITIONER:`** ``` RAJ MATHEW AGED 41 YEARS, S/O. MATHEW M., RAJ VILLA, VTJ ENCLAVE ROAD, MARADU P.O., ERNAKULAM, PIN - 682304 BY ADVS. DEEPU THANKAN UMMUL FIDA LAKSHMI SREEDHAR LEKSHMI P. NAIR NAMITHA K.M. ``` ## **`RESPONDENTS:`** ``` 1MARADU MUNICIPALITY MARADU, ERNAKULAM REPRESENTED BY ITS SECRETARY, PIN – 682 304 2MUNICIPAL ENGINEER MARADU MUNICIPALITY, MARADU, ERNAKULAM, PIN – 682 304 3DISTRICT TOWN PLANNER, LSGD PLANNING, DPC SECRETARIAT BUILDING, 4TH FLOOR, CIVIL STATION, KAKKANAD, ERNAKULAM, PIN – 682 030 ``` ``` BY ADVS. SRI.T.R.RAJAN SC - MARADU MUNICIPALITY SMT. DEVISREE - GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.06.2023, ALONG WITH WP(C).12601/2023, 12668/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` W.P.(C) Nos.12551, 12601, 12668 & 12763 OF 2023 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH`** ## **`THURSDAY, THE 22[ND] DAY OF JUNE 2023 / 1ST ASHADHA, 1945 WP(C) NO. 12601 OF 2023`** ## **`PETITIONER:`** ``` HARISH K.K. AGED 41 YEARS, S/O. KUNJUMON 'KANDOTH', YTJ ENCLAVE ROAD, MARADU P.O., ERNAKULAM, PIN 682 304 BY ADVS. DEEPU THANKAN UMMUL FIDA LAKSHMI SREEDHAR LEKSHMI P. NAIR NAMITHA K.M. ``` ## **`RESPONDENTS:`** ``` 1MARADU MUNICIPALITY MARADU, ERNAKULAM REPRESENTED BY ITS SECRETARY, PIN – 682 304 2MUNICIPAL ENGINEER MARADU MUNICIPALITY, ERNAKULAM - 682304, PIN 682 304 3DISTRICT TOWN PLANNER LSGD PLANNING, DPC SECRETARIAT BUILDING, 4TH FLOOR, CIVIL STATION, KAKKANAD, ERNAKULAM, PIN – 682 030 ``` ``` BY ADVS. SRI.T.R.RAJAN SC - MARADU MUNICIPALITY SMT. DEVISREE(GP) ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.06.2023, ALONG WITH WP(C).12551/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` W.P.(C) Nos.12551, 12601, 12668 & 12763 OF 2023 ``` ``` 3 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH`** ``` THURSDAY, THE 22[ND] DAY OF JUNE 2023 / 1ST ASHADHA, 1945 ``` ## **`WP(C) NO. 12668 OF 2023`** ## **`PETITIONERS:`** ``` 1NEX P.A., AGED 44 YEARS, S/O. P.P.ANTONY, 'PALLATH', YTJ ENCLAVE ROAD, MARADU P.O., ERNAKULAM, PIN – 682 304 2MARY SEEMA, AGED 40 YEARS, W/O. NEX P.A. 'PALLATH', YTJ ENCLAVE ROAD, MARADU P.O., ERNAKULAM, PIN - 682304 BY ADVS. DEEPU THANKAN UMMUL FIDA LAKSHMI SREEDHAR LEKSHMI P. NAIR NAMITHA K.M. ``` ## **`RESPONDENTS:`** - `1 MARADU MUNICIPALITY MARADU, ERNAKULAM REPRESENTED BY ITS SECRETARY, PIN – 682 304` - `2 MUNICIPAL ENGINEER MARADU MUNICIPALITY, ERNAKULAM, PIN – 682 304` - `3 DISTRICT TOWN PLANNER, LSGD PLANNING, DPC SECRETARIAT BUILDING, 4TH FLOOR, CIVIL STATION, KAKKANAD, ERNAKULAM, PIN – 682 030 BY ADV SHRI.T.R.RAJAN SC - MARADU MUNICIPALITY SMT. AMMINIKUTTY - GP` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ``` 22.06.2023, ALONG WITH WP(C).12551/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` W.P.(C) Nos.12551, 12601, 12668 & 12763 OF 2023 ``` ``` 4 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH`** ## **`THURSDAY, THE 22[ND] DAY OF JUNE 2023 / 1ST ASHADHA, 1945 WP(C) NO. 12763 OF 2023`** ## **`PETITIONER:`** ``` SIBIN VINCENT AGED 39 YEARS, S/O. VINCENT , 'KADAVUMKAL', YTJ ENCLAVE ROAD, MARADU P.O., ERNAKULAM, PIN 682304 BY ADVS. DEEPU THANKAN UMMUL FIDA LAKSHMI SREEDHAR LEKSHMI P. NAIR NAMITHA K.M. ``` ## **`RESPONDENTS:`** ``` 1MARADU MUNICIPALITY MARADU, ERNAKULAM REPRESENTED BY ITS SECRETARY, PIN – 682 304 ``` - `2 MUNICIPAL ENGINEER MARADU MUNICIPALITY, ERNAKULAM, PIN – 682 304` ``` 3DISTRICT TOWN PLANNER LSGD PLANNING, DPC SECRETARIAT BUILDING, 4TH FLOOR, CIVIL STATION, KAKKANAD, ERNAKULAM, PIN – 682 030 ``` ## `BY ADVS. SHRI.T.R.RAJAN SC,MARADU MUNICIPALITY ADVOCATE GENERAL OFFICE KERALA` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.06.2023, ALONG WITH WP(C).12551/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` W.P.(C) Nos.12551, 12601, 12668 & 12763 OF 2023 ``` ``` 5 ``` ## **JUDGMENT** Dated this the 22[nd] day of June, 2023 [ W.P.(C) Nos.12551, 12601, 12668 & 12763 of 2023] In all these writ petitions, the petitioners hold landed property within the territorial limits of Maradu Municipality. The petitioners wanted to construct residential buildings in their property. Building Permits were issued. When the petitioners approached for renewal of Building Permit, the respondents refused to renew the same on the ground that in view of the Cochin Central City Structural Plan, the properties of the petitioners are falling within Zones where residential buildings are prohibited. 2. The respondents also noted that the land where the petitioners propose to construct residential buildings, are described as ‘Nilam’ in revenue records. It is aggrieved by the stand so taken by the Municipality that the petitioners are ``` W.P.(C) Nos.12551, 12601, 12668 & 12763 OF 2023 ``` ``` 6 ``` before this Court. 3. Counsel for the petitioners argued that after granting a Building Permit and after the petitioners constructing a portion of the building, the Municipal authorities cannot now refuse to renew the Building Permit on the ground that due to any town planning scheme, the residential buildings are not permitted in the respective zones. 4. Counsel for the petitioners further argued that the respondent Municipality is aware of the fact that the land of the petitioners is converted land and included in the Data Bank as converted land at the time of issuance of Building Permit itself. Therefore, in view of the judgment in _**Cheranalloor Grama Panchayat and another v. Joe Thattil** [2020 (5) KLT 763],_ permission under Section 27A cannot be insisted for renewal of the Building Permit issued prior to the introduction of the said provision, contended the counsel for the petitioners. ``` W.P.(C) Nos.12551, 12601, 12668 & 12763 OF 2023 ``` ``` 7 ``` 5. Standing Counsel entered appearance on behalf of the respondents and resisted the writ petition. On behalf of the respondents, it is submitted that Ext.P3 Building Permit dated 16.4.2016 was granted to the petitioner for construction of A1 residential building having area of 329.94 square metres in 4.68 Ares of property comprised in Re-Survey No.381 of Maradu Village, Block No.13, Division No.16 of Maradu Municipality. The validity of Building Permit expired on 15.04.2019. Since the construction of the building couldn’t be completed, renewal application was submitted on 12.12.2022. On examination, it was found that properties in Re-Survey No.381, Block No.13 of Maradu Village fall under the Agricultural Zone as per the Structural Plan (General Town Planning) for the Central City of Kochi wherein individual residential building for the owner not exceeding a total built-up area of 300 square metres only is permitted. In the possession certificate, the land is shown as Nilam. ``` W.P.(C) Nos.12551, 12601, 12668 & 12763 OF 2023 ``` ``` 8 ``` 6. Accordingly, Ext.P5 communication dated 07.01.2023 was issued calling upon the petitioner to produce plan limiting the area to 300 square metres and the latest e-possession certificate. The petitioner has not responded to the same. Ext.P5 communication was issued for the reason that the property in question falls under the Agricultural Zone as per the Structural Plan (General Town Planning) for the Central City of Kochi wherein individual residential building for the owner not exceeding a total built-up area of 300 square metres only is permitted. 7. The Structural Plan was sanctioned by the Government as per GO (MS) No.143/07/LSGD dated 31.05.2007. In Part-IV, Zoning and Subdivision regulations of the said Government Order under Table No.4.2, SL No.2, Sub No.13 for Agricultural Zone, individual residential building for the owner not exceeding a total built-up area of 300 square metres is only permitted. The built-up area of the building and ``` W.P.(C) Nos.12551, 12601, 12668 & 12763 OF 2023 ``` ``` 9 ``` sought to be constructed by the petitioner is 329.94 square metres and the property is described as Nilam in the possession certificate.” 8. I have heard the learned counsel for the petitioners and the learned Standing Counsel representing the Maradu Municipality. 9. It is an admitted position that the Building Permits were originally issued to the petitioners before 30.12.2017, when Section 27A was brought into the Kerala Conservation of Paddy Land and Wet Land Act, 2008. As the petitioners have been granted Building Permit prior to 30.12.2017, it will be harsh, if the Building Permit is not renewed, contending that the land is Nilam. Furthermore, the Building Permits were granted even when the Cochin Central City Structural Plan was in existence in Maradu Municipality. 10. In similar circumstances, this Court considered the legality of denying renewal of Building Permit to similarly ``` W.P.(C) Nos.12551, 12601, 12668 & 12763 OF 2023 ``` ``` 10 ``` situated persons. In Ext.P7 judgment in W.P(C) No.39727/2022, this Court held as follows : - “5. The land belonging to the petitioners is stated to be Nilam in Exts.P2 and P2 (a) land tax receipts. The petitioners sought for a building permit in the year 2016 and the building permit was granted as per Ext.P3. As the petitioners could not complete the construction, they were compelled to apply for renewal of building permit. The respondents would now state that the site where the building is being constructed falls under Agricultural Zone under the existing Town Planning Scheme and buildings upto 300 square meters only can be permitted. 6. Going by the facts of the case, this Court is of the considered opinion that after granting Building Permit to the petitioners on 27.04.2016 and after the petitioners have completed substantial construction work in pursuance of the permit, it will be highly arbitrary and thoroughly unjustifiable to decline the petitioners request for renewal of Building Permit on the reason that the land is falling under the Agricultural Zone. The said master plan was in existence even before the petitioners applied for the Building Permit. Nevertheless, the Building Permit was issued to the petitioners. Therefore it will not be justifiable to decline renewal of the building permit on that ground. A similar view was taken by another learned Judge in the judgment in W.P.(C) No.19197 of 2020.” 11. Similar is the view taken by this Court in W.P.(C) No.19197/2020 wherein it was held as follows : - ``` W.P.(C) Nos.12551, 12601, 12668 & 12763 OF 2023 ``` “8. Going by the facts of the case, this Court is of the considered opinion that after granting Building Permit to the petitioner on 04.09.2015 and after renewing the said permit as per the requirements of the petitioner, and further after the petitioner has completed substantial construction work in pursuance of the permit, it will be highly arbitrary and thoroughly unjustifiable to decline the petitioner renewal of Building Permit holding that the land is falling under the Agricultural Zone. The said master plan was in existence even before the petitioner applied for the Building Permit. Nevertheless the Building Permit was issued to the petitioner. Therefore it will not be justifiable to decline renewal of building permit on that ground.” In view of the afore judgments of this Court, the petitioners are also entitled to similar relief. The writ petitions are therefore disposed of directing the 1[st] respondent to grant renewal of Building Permit to the petitioners without regard to the Zonal regulations in Cochin Central City Structural Plan, if the petitioners are eligible otherwise. To enable the 1[st] respondent to pass such orders, impugned orders in these writ petitions namely Ext.P5 in W.P.(C) Nos.12551/2023, 12601/2023 and 12763/2023 and Ext.P6 in W.P.(C) No.12668/2023 are set ``` W.P.(C) Nos.12551, 12601, 12668 & 12763 OF 2023 ``` ``` 12 ``` aside. It is for the petitioners to take appropriate steps for changing the nature of land in the revenue records. Fresh orders shall be passed within a period of one month. Sd/- **N.NAGARESH JUDGE** ded ``` W.P.(C) Nos.12551, 12601, 12668 & 12763 OF 2023 ``` ``` 13 ``` ## **`APPENDIX OF WP(C) 12551/2023`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, MARADU DATED 09/12/2022 ``` - `EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT FOR THE YEAR 2022, REMITTED BY THE PETITIONER DATED 30/07/2022` - `EXHIBIT P3 TRUE COPY OF THE BUILDING PERMIT ISSUED TO THE PETITIONER BY THE FIRST` - `RESPONDENT MUNICIPALITY DATED 16/04/2016` - `EXHIBIT P4 TRUE COPY OF THE PHOTOGRAPH OF THE RESIDENTIAL BUILDING OF THE PETITIONER DATED NIL` - `EXHIBIT P5 TRUE COPY OF THE LETTER ISSUED BY THE SECOND RESPONDENT DATED 01/04/2023` - `EXHIBIT P6 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C)NO. 16737/2021 DATED 16/12/2021` ``` RESPONDENT EXHIBITS ``` ``` EXHIBIT R(2)(A)TRUE COPY OF THE RELEVANT PAGES (5 PAGES) OF GO (MS) NO 143/07/LSGD DATED 31/5/2007 ``` ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P7 ``` ``` TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C)NO.39727/2022 DATED 09/03/2023 ``` ``` W.P.(C) Nos.12551, 12601, 12668 & 12763 OF 2023 ``` ``` 14 ``` ## **`APPENDIX OF WP(C) 12601/2023`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, MARADU DATED 24/02/2016 ``` - `EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT FOR THE YEAR 2022 REMITTED BY THE PETITIONER DATED 02/08/2022` - `EXHIBIT P3 TRUE COPY OF THE BUILDING PERMIT ISSUED TO THE PETITIONER BY THE FIRST RESPONDENT MUNICIPALITY DATED 16/04/2016` - `EXHIBIT P4 TRUE COPY OF THE PHOTOGRAPH OF THE RESIDENTIAL BUILDING OF THE PETITIONER DATED NIL` - `EXHIBIT P5 TRUE COPY OF THE LETTER ISSUED BY THE SECOND RESPONDENT DATED 07/01/2023` - `EXHIBIT P6 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C)NO.16737/2021 DATED 16/12/2021` ``` RESPONDENT EXHIBITS ``` ``` EXHIBIT R(2)(A)TRUE COPY OF THE RELEVANT PAGES (5 PAGES) OF GO (MS) NO 143/07/LSGD DATED 31/5/2007. ``` ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P7 ``` ``` TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C)NO.39727/2022 DATED 09/03/2023 ``` ``` W.P.(C) Nos.12551, 12601, 12668 & 12763 OF 2023 ``` ``` 15 ``` ## **`APPENDIX OF WP(C) 12668/2023`** ``` PETITIONER EXHIBITS ``` - `EXHIBIT P1 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, MARADU DATED 24/02/2016` - `EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT OF THE PETITIONERS HEREIN FOR THE YEAR 2022 DATED 29/06/2022` - `EXHIBIT P3 TRUE COPY OF THE TAX RECEIPT OF THE PETITIONERS FOR THE YEAR 2022 DATED 04/07/2022` - `EXHIBIT P4 TRUE COPY OF THE BUILDING PERMIT ISSUED TO THE PETITIONERS BY THE FIRST RESPONDENT MUNICIPALITY DATED 27/04/2016` - `EXHIBIT P5 TRUE COPY OF THE PHOTOGRAPH OF THE RESIDENTIAL BUILDING OF THE PETITIONERS DATED NIL` - `EXHIBIT P6 TRUE COPY OF THE LETTER ISSUED BY THE SECOND RESPONDENT DATED 07/01/2023` - `EXHIBIT P7 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C)NO.16737/2021 DATED 16/12/2021` ## `RESPONDENT EXHIBITS` ``` EXHIBIT R(2)(A)TRUE COPY OF THE RELEVANT PAGES (5 PAGES) OF GO (MS) NO 143/07/LSGD DATED 31/5/2007 ``` ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P8TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C)NO.39727/2022 DATED 09/03/2023 ``` ``` W.P.(C) Nos.12551, 12601, 12668 & 12763 OF 2023 ``` ``` 16 ``` ## **`APPENDIX OF WP(C) 12763/2023`** ``` PETITIONER EXHIBITS ``` - `EXHIBIT P1 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, MARADU DATED 22/12/2022` - `EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT FOR THE YEAR 2022 REMITTED BY THE PETITIONER DATED 11/03/2022` - `EXHIBIT P3 TRUE COPY OF THE BUILDING PERMIT ISSUED TO THE PETITIONER BY THE FIRST RESPONDENT MUNICIPALITY DATED 16/04/2016` - `EXHIBIT P4 TRUE COPY OF THE PHOTOGRAPH OF THE RESIDENTIAL BUILDING OF THE PETITIONER DATED NIL` - `EXHIBIT P5 TRUE COPY OF THE LETTER ISSUED BY THE SECOND RESPONDENT DATED 07/01/2023` - `EXHIBIT P6 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C)NO.16737/2021 DATED 16/12/2021` ``` RESPONDENT EXHIBITS ``` ``` EXHIBIT R(2)(A)TRUE COPY OF THE RELEVANT PAGES (5 PAGES) OF GO (MS) NO 143/07/LSGD DATED 31/5/2007 ``` ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P7 ``` ``` TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C)NO.39727/2022 DATED 09/03/2023 ```