IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
WP(C) NO. 7056 OF 2022
PETITIONER:
N.V.XAVIER.,
AGED 64 YEARS
S/O. VARGEEZ, NANKELIL HOUSE, SANJAY JUNCTION,
THOPPUMPADY P.O.,
ERNAKULAM DISTRICT 682 005.
BY ADVS.
O.V.MANIPRASAD
JOSE ANTONY
S.SHIV SHANKAR
RESPONDENTS:
1 THE CORPORATION OF KOCHI,
REPRESENTED BY THE SECRETARY,
CORPORATION OFFICE, PARK AVENUE ROAD,
ERNAKULAM 682 031.
2 THE SECRETARY,
CORPORATION OF KOCHI, PARK AVENUE ROAD,
ERNAKULAM 682 031.
3 THE ASSISTANT EXECUTIVE ENGINEER,
CORPORATION OF KOCHI, FORT KOCHI ,
REGIONAL OFFICE, FORT KOCHI P.O.
ERNAKULAM 682 001.
BY ADV D.G.VIPIN, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 23.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C).No.7056/2022
2
P.V.KUNHIKRISHNAN, J.
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W.P.(C).No.7056 of 2022
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Dated this the 23rd day of June, 2022
JUDGMENT
This writ petition is filed with following prayers: i. Issue a writ of certiorari or any other appropriate writ quashing Exhibit P3.
ii. Issue a writ of mandamus, order or direction directing the 2nd respondent to consider the application for building permit dated 09.02.2022 submitted by the petitioner and approve the layout plan submitted by the petitioner for the construction of building in Sy. No. 569/2-7 of the Rameswaram Village and to give necessary building permit for executing the construction of the building.
iii. Such other relief this Hon'ble court deems fit and proper to grant in the facts and circumstances of the case.
(SIC)
2. The petitioner applied for building permit to construct a commercial building in Sy. No. 569/2-7 of Rameswaram Village in Kochi Taluk, within the jurisdiction of W.P.(C).No.7056/2022 3 the 1st respondent Corporation. The application was rejected by the 3rd respondent, the Assistant Executive Engineer of 1 st respondent Corporation, as per Ext.P3 dated 15.02.2022, assigning invalid and unsustainable reason. According to the petitioner, the 3rd respondent has no jurisdiction or power to consider the application for building permit. As per the provisions of the Municipality Act and Rules, the Secretary of the Corporation is to consider, allow or reject the application for building permit. Therefore it is submitted that Ext.P3 is without jurisdiction. It is also submitted that respondents 1 to 3 have issued building permits to various persons having properties on either side of the BOT bridge junction Thoppumpady main road and those persons have constructed buildings without leaving land for the proposed widening of the said road. It is also submitted that going by Section 393 of the Kerala Municipality Act, the proposal in the structural plan or in the detailed town planning scheme or the master plan either to widen the road or to acquire the land would not be a reason at all for rejection of the application for building permit. The petitioner relied on Exts.P6 and P7 judgments in W.P.(C).No.7056/2022 4 those writ petitions which are entertained by this Court in similar situation.
3. Heard the learned counsel for the petitioner and the Standing Counsel for the Corporation.
4. After hearing both sides and also considering Exts.P6 and P7, I think a reconsideration by the 2 nd respondent is necessary. Ext.P3 is to be quashed and the 2 nd respondent can be directed to reconsider the matter in the light of Exts.P6 and P7 judgments.
Therefore, this writ petition is allowed in the following manner:
1. Ext.P3 is set aside.
2. The 2nd respondent is directed to reconsider the matter in the light of Exts.P6 and P7 judgments and pass appropriate orders in accordance to law, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment.
sd/-
P.V.KUNHIKRISHNAN JV JUDGE W.P.(C).No.7056/2022 5 APPENDIX OF WP(C) 7056/2022 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE ASSIGNMENT DEED NO.
2902/2021 DATED 08.11.2021 OF SRO COCHIN.
Exhibit P2 A TRUE COPY OF THE SITE AND LOCATION PLAN SUBMITTED TO THE 2ND RESPONDENT WHILE MAKING APPLICATION FOR BUILDING PERMIT.
Exhibit P3 A TRUE COPY OF THE INTIMATION NO.
FCP1/69/2022 DATED 15.02.2022.
Exhibit P4 A TRUE COPY OF THE APPROVED PLAN WITH REGARDING TO THE CONSTRUCTION OF THE RESIDENTIAL BUILDING.
Exhibit P5 A TRUE COPY OF THE RECEIPT DATED 18.10.2021 ISSUED BY THE IST RESPONDENT.
Exhibit P6 A TRUE COPY OF THE JUDGMENT DATED 06.08.2015 IN WPC NO. 21555/2015 OF THIS HONBLE COURT.
Exhibit P7 A TRUE COPY OF THE JUDGMENT DATED 03.08.2021 IN WPC NO. 8272/2021.