W.P.(C).No.8506 of 2014 (K)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 11TH DAY OF JUNE 2014/21ST JYAISHTA, 1936 WP(C).No. 8506 of 2014 (K) --------------------------- PETITIONER(S): -------------- 1. AUGUSTINE LAWRENCE JACKSON, AGED 51 YEARS, S/O.JOSEPH RESIDING AT KALIYARA VETTIL PALLURUTHY PO AND VILLAGE, ERNAKULAM COCHIN 682 006 2. M/S.HOLY FAITH BUILDERS & DEVELOPERS PVT LTD, CC NO 34/2353 MAMANGALAM,PALARIVATTOM PO. ERNAKULAM COCHIN 682025 REPRESENTED BY ITS MANAGING DIRECTOR, SANY FRANCIS, AGED 49 YEARS, S/O.LATE K C FRANCIS,RESIDING AT KATTRUKUDIYIL HOUSE, HOUSE NO 48/2005-C,RMV ROAD, ELEMAKKARA P.O., ERNAKULAM, COCHIN-682026 BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENT(S): - ------------------- ## 1. STATE OF KERALA - DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT ANNEX TRIVANDRUM 695 001 REPRESENTED BY ITS SECRETARY 2. REVENUE DIVISIONAL OFFICER,FORT COCHIN, COCHIN 682 001 ERNAKULAM DISTRICT 3. THRIKKAKKARA MUNICIPALITY,THRIKKAKKARA, ERNAKULAM,COCHIN 682 021 REPRESENTED BY ITS SECRETARY R3 BY ADV. SRI.S.SHANAVAS KHAN R1 & R2 BY GOVERNMENT PLEADER SRI. THOMAS JOHN AMBOOKKAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8506 of 2014 (K) --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------------- EXHIBIT P1 TRUE COPY OF LETTER NO BA/1448/2013 DATED 18-02-2014 ISSUED BY THE 3RD RESPONDENT MUNICIPALITY TO THE PETITIONERS EXHIBIT P2 TRUE COPY OF THE CERTIFICATE NO TP1/5547/14 DATED 14-032014 ISSUED BY THE 3RD RESPONDENT MUNICIPALITY TO THE PETITIONERS EXHIBIT P3 TRUE COPY OF THE CIRCULAR NO D-2/2984/09/K DIS DATED 29-042009 ISSUED BY THE CHIEF TOWN PLANNER,TRIVANDRUM EXHIBIT P4 TRUE PHOTOGRAPHS SHGOWING THE LIE AND NATURE OF THE PROPERTIES AND MULTISTORIED BUILDINGS CONSTRUCTED IN THE ADJACENT PROPERTIES EXHIBIT P5 TRUE COPY OF THE TITLE DEED NO 1424/2004 DATED 14-05-2004 OF THRIKKAKARA SUB REGISTRAR OFFICE IN FAVOUR OF THE PETITIONER RESPONDENT(S)' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. dlk ## **C.T. RAVIKUMAR, J. ========================== W.P.(C). No.8506 OF 2014 ==========================** Dated this the 11[th] day of June, 2014 ## **JUDGMENT** This writ petition has been filed seeking quashment of Ext.P1 order whereby the application submitted by the petitioners for building permit was rejected. The first petitioner and his relatives Seena Jenson and K.J.Jerson are the joint owners in possession of 38.93 Ares of land comprised in Re-survey Nos.690/4 and 691 in Block No.8 of Kakkanad village. The petitioners submitted an application for grant of permit for effecting construction of a flat in the aforesaid property. That application was rejected as per Ext.P1 assigning the reason that the land in question is described in the revenue records as 'Nilam'. The further reason assigned as per Ext.P2 is that the land in question lies within an area earmarked as residential zone in the structural plan for Central City Cochin. The contention of **W.P.(C).8506/14** 2 the petitioners is that the first reason assigned for rejection of the application is absolutely unsustainable for the reason that Ext.P1 was passed without conducting a proper inspection into the property in question. It is contended that the said action on the part of the respondents would squarely go against the decision of this Court in **Praveen v. Land Revenue Commissioner [2010 (2) KLT 617].** It is further contended that the reason that the land in question lies in an area earmarked as residential zone and therefore, permission could not be granted for construction of residential buildings cannot be raised by the respondents as in the area in question constructions for other than residential purposes have already been effected. It is the further contention that respondents cannot be heard to contend that the area in question is still remaining as residential zone in the light of the decision of this court in **Gopalakrishnan T.V. v. State of Kerala [2011 (3) KLT 317].** 2. I have heard the learned counsel for the petitioners, the **W.P.(C).8506/14** 3 learned standing counsel appearing for the third respondent and the learned Government Pleader. In the light of the decision in **Praveen** 's case (supra), there cannot be any doubt with respect to the position that an application for building permit could not be rejected for the mere reason that the concerned land is described as 'Nilam' in the revenue records. Going by the said decision, before considering such an application, a physical verification of the land concerned has to be made by the authorities to ascertain its real nature. There is no case for the respondents that before passing Ext.P1 order, they have conducted an inspection of the property in question. Evidently, the said reason has been assigned based on the description of the property in the revenue records. In such circumstances, I am inclined to uphold the contention of the petitioners that the said reason is unsustainable. Evidently, the contention of the petitioners is that in the nearby areas, permits were granted by the same respondents to effect construction for purposes other than residential purposes. In view of the said contention, the decision of this Court in **Gopalakrishnan** 's case **W.P.(C).8506/14** 4 (supra) assumes relevance. In the said case, this Court held that if large number of constructions for commercial purposes were permitted by the concerned Local Self Government Institutions in an area earmarked as a residential zone, that area could no longer be regarded as a residential area. There is nothing in the impugned order which would suggest that the respondents have conducted an inspection into the property concerned and also the nearby lands to verify the verity of the aforesaid contention. In the light of the decision in **Gopalakrishnan'** s case (supra), when such contention is raised, the respondents are bound to consider the same and for ascertaining the correctness of the same, to conduct an inspection. For all these reasons, I am of the view that the application submitted by the petitioners for building permit requires a fresh consideration at the hands of the Secretary of the third respondent. To enable such consideration, Ext.P1 order is set aide. Consequently, there will be a direction to the Secretary of the third respondent to conduct an inspection into the property concerned to ascertain its real nature and **W.P.(C).8506/14** 5 also to see whether any construction for purposes other than residential purposes have been effected in the nearby lands. After such an inspection, the application submitted by the petitioners shall be reconsidered and appropriate orders shall be passed thereon. The whole exercise shall be done expeditiously, at any rate, within a period of six weeks from the date of receipt of a copy of this judgment. Writ petition is disposed of accordingly. **Sd/C.T. RAVIKUMAR (JUDGE)** **spc/** **W.P.(C).8506/14** 6 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **W.P.(C).8506/14** 7