Thulaseedharan Pillai vs State Of Kerala
2021 Latest Caselaw 21286 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
     FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
                        WP(C) NO. 33315 OF 2019
PETITIONER:

    1     THULASEEDHARAN PILLAI,
          AGED 69 YEARS,
          S/O.RAGHAVAN PILLAI, THULASEE SADANAM, PUTHENTHARA P.O,
          KOLLAM DISTRICT 691 582.
    2     ADDL P2 MAHESWARI G.,
          W/O THULASEEDHARAN PILLAI, THULASEE SADANAM,
          PUTHENTHARA P.O, KOLLAM DISTRICT 691 582.
    4     ADDL P3 SUJITH KUMAR T.,
          S/O. THULASEEDHARAN PILLAI, THULASEESADANAM,
          PUTHENTHARA.P.O., KOLLAM DISTRICT-691582.
    5     ADDL P4. SREEJITH T.,
          S/O. THULASEEDHARAN PILLAI, THULASEESADANAM,
          PUTHENTHARA.P.O., KOLLAM DISTRICT-691582.
          (IMPLEADING CARRIED OUT AS PER ORDER DATED 13-09-2021
          IN IA 2/2021 BY HON'BLE AS(J)
          BY ADV A.AHZAR


RESPONDENTS:

    1     STATE OF KERALA,
          REPRESENTED BY THE SECRETARY TO GOVERNMENT,
          LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT,
          THIRUVANANTHAPURAM 695 001.
    2     THE DISTRICT LEVEL COMMITTEE FOR REGULARIZATION OF
          UNAUTHORISED CONSTRUCTIONS,
          KOLLAM, TOWN PLANNING OFFICE,
          SALEM-KANYAKUMARI HIGHWAY (NH 47), KARBALA,
          KOLLAM DISTRICT 691 001, REPRESENTED BY ITS CONVENER.
    3     TOWN PLANNER,
          CONVENER OF THE DISTRICT LEVEL COMMITTEE FOR
          REGULARIZATION OF UNAUTHORISED CONSTRUCTIONS,
          KOLLAM TOWN PLANNING OFFICE,
          SALEM -KANYAKUMARI HIGHWAY (NH-47)
          KARBALA, KOLLAM DISTRICT 691 001.
    4     NEENDAKARA GRAMA PANCHAYATH,
          NH 47, NEENDAKARA, KOLLAM DISTRICT 691 582
          RPERESENTED BY ITS SECRETARY.
    5     THE SECRETARY,
          NEENDAKARA GRAMA PANCHAYATH, NH 47, NEENDAKARA,
          KOLLAM DISTRICT 691 582
 WP(C).No.33315 OF 2019

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     6      ENVRONMENTAL ENGINEER, KERALA
            STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE,
            KOLLAM 691 001.
            BY ADVS.
            GOVERNMENT PLEADER
            V.PREMCHAND

            APPU.P.S-GOVERNMENT PLEADER



      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.33315 OF 2019

                                         3




                              JUDGMENT

Dated this the 29th day of October 2021

This writ petition is filed seeking the following

reliefs:-

(i) Issue a writ in the nature of Certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P9;

(ii) Issue a writ of mandamus or any other appropriate writ, order directing the 2 nd and 3rd respondents to regularize the building constructed by the petitioner pursuant to Ext.P4 Building Permit in the immovable property having an extent of 11.95 Ares comprised in Survey Nos.150/2 of the Neendakara Village in Karunagappally Taluk in Kollam District, within a time frame that may please be fixed by this Hon'ble Court;

(iii) Issue a writ in the nature of Mandamus or any other appropriate writ or order directing the 2 nd, 3rd 4th and 5th respondents to assign building constructed by the petitioner pursuant to Ext.P4 Building Permit in the immovable property having an extent of 11.95 Ares comprised iin Survey Nos.150/2 of the Neendakara Village in Karunagappally Taluk in Kollam District, within a time frame that may please be fixed by this Hon'ble Court.

2. Heard the learned counsel for the petitioners,

learned counsel for the Government Pleader and the

learned counsel appearing for respondents 4 and 5 as well WP(C).No.33315 OF 2019

as the learned Standing Counsel appearing for the

Pollution Control Board.

3. The learned counsel for the petitioners submits

that the original writ petitioner subsequently passed

away and his legal heirs are impleaded as additional

petitioners 2 to 4 in the writ petition. The writ petitioner

had initially obtained Building Permit and license for the

construction of a single storeyed building. An ice plant

had been functioning in the said building for the past 25

years after obtaining license. Exhibits P1, P2 and P3 are

the licenses and consent to operate as well as the Report

of Test of Pressure of Vessels or Plant issued by the

Department of Factories & Boilers in respect of the said

premises. It is submitted that an application has been

submitted for additional construction in the existing

building and Exhibit P4 Building Permit had been issued

by the Panchayath. Construction was carried out and

the Completion Certificate as Exhibit P5 was also issued

by the Panchayath on 22.04.2017. It is submitted that WP(C).No.33315 OF 2019

Exhibit P6, consent of the adjacent property owner is also

obtained.

4. Thereafter, an application was submitted for

regularisation of constructions and the 5th respondent

conducted an inspection. Inspection and Verification

Report of the 5th respondent along with the application

for regularisation of constructions had been forwarded to

the 2nd respondent Convener of the District Level

Committee for Regularisation of Unauthorised

Constructions, Kollam and Exhibit P9 order dated

28.01.2019 was passed. The request made by the

petitioner for regularisation of the construction had been

rejected on the ground that the petitioner did not make

available any details with regard to the functioning of the

ice plant and that the entire building was, therefore, to

be considered as falling under the hazardous occupancy

and would then violate the provisions of the Master plan.

5. A statement has been placed on record by the

2nd respondent contending as follows:

"4. Neendakara Grama Panchayath is covered WP(C).No.33315 OF 2019

under the published master plan namely -Greater Kollam Development Plan (GKDP). As per third proviso of section 63 for of Town and Country Planning Act 2016, where no interim development orders are issued, use and development of land in the area shall be governed by the provisions of the published draft plan from the date of publication of the notice in the Official Gazette inviting objections, if any thereon under the provisions of the Act. The GKDP is published in the official gazette inviting objections and suggestions on 18.12.2012. As per section 113 (2)(i) of Town and Country Planning Act 2016, any draft Master Plan published under the repealed Acts including Town Planning Act, 1108 ME under which GKDP is published, shall be deemed to be a draft Master Plan, published under this Act. Hence use and development of land in Neendakara Grama Panchayath is to regulated as per GKDP and hence the application submitted by the Petitioner is to be verified with respect to the provisions of GKDP and also for checking the adequancy of safety and security provision laid down in Appendix II of Regularisation Rules, 2018, the occupancy of building is to be assessed. As the building mentioned in the application is the additional construction carried out (for commercial purpose) to an existing Ice Plant, the occupancy of the building as a whole is to be taken as the most restrictive occupancy viz. Ice Plant as per note (iii) under rule 34(2) of KPBR, 2011. In order to decide whether the Ice Plant is to be considered as group 1 WP(C).No.33315 OF 2019

hazardous, details on pressure and quantity of ammonia storage are to be provided along with the application. From the initial scrutiny of the regularization application it was found that the application does not contain the required information for verifying the application with respect to GKDP and safety and security provisions laid down in Appendix II of regularization Rules 2018. Hence vide letter No. C/1189/2018/Kdis (R) dated 09.10.2018 the Secretary of Neendakara Grama Panchayath was directed to revised the application with required information. However the revised application submitted by the Secretary vide letter No. N3/1841/18 dated 22.10.2018 did not contain the required information fully.

5. For final disposal of application, the revised application with technical recommendation of District Town Planner was placed before the Regularisation Committee meeting convened on 28.12.2018. As per the revised plan submitted by the Secretary, the construction affects proposed road widening included in GKDP and also the number of workers and power utilized in the Ice Plant is reported as 3 and 30 HP respectively whereas number of workers and power permitted as per zoning regulations of GKDP are 3 and 5 HP in respectively in the residential zone. Hence, the regularization committee observed that unauthorized construction violates the provisions of Published GKDP. Further, in the revised application also quantity and pressure of the Ammonia used in the ice WP(C).No.33315 OF 2019

plant were not mentioned. As per rule 34(3) (1) of KPBR- 2011, hazardous occupancy shall generally includes buildings and yards used for storage under pressure of more than 1Kg/cm2 and in quantities exceeding 70 m' of acetylene, ammonia etc. Hence in the absence of data on the pressure and storage of ammonia used in ice plant, the committee decided to take the occupancy as group 1- hazardous and observed that it violates safety and security criteria no (6) of Appendix II, as minimum open space of 7.50m required for group 1 hazardous building as per Rule 6(3) of KPBR,2011 is not available around the building. Therefore the Committee rejected the application of the petitioner under Section 6(10) of the regularization Rules 2018 and authorized the District Town Planner, the convener of Regularisation committee to issue order for rejecting the application.

6. Accordingly,, vide order No. C/1550/18(R) dated 28.01.2019 convenor (Town Planner, Kollam) of District level committee for regularization of the unauthorized construction passed the order rejecting the petitioner's application for regularization. The petitioner was given chance for informing about the pressure and quantity of storage of ammonia used in the industrial unit. If he would have been furnished the details the occupancy could have been decided accordingly. Even if the occupancy is treated as GI industrial,, it violates the provisions of published master plan it could not be considered for regularization."

WP(C).No.33315 OF 2019

6. It is further submitted that since the details had

not been made available, the entire building had to be

considered as hazardous occupancy and that the

construction of such a building would violate the provisions

of the Master Plan.

7. A counter affidavit has been placed on record by

the respondents 4 and 5 as well. It is stated that the

applications submitted by the petitioner along with all the

documents submitted had been forwarded by the

Panchayath to the District Level Committee and Exhibit P9

order had been issued by the said Committee. It is

submitted that the construction being in a residential zone,

the permitted limit is 3 workers and power use of 5 HP,

whereas the plant has 3 workers and power use of 30 HP.

The said construction would violate the Master Plan. A

detailed reply has also been placed on record by the

petitioner.

8. It is submitted by the learned counsel for the

petitioner that the ice plant has been in existence for the WP(C).No.33315 OF 2019

past 25 years and that the petitioner is not seeking any

fresh permit in respect of the ice plant. The specific

contention of the petitioner is that he had sought a building

permit for reconstruction over the existing building and the

said building was proposed to be used as an office building

and for commercial purposes only. The learned counsel for

the petitioner reiterates that the remaining portion of the

building which was constructed on the strength of Exhibit

P4 Building Permit, will not be used for any industrial

purpose including that of the ice plant and that the building

will only be used for office purposes. It is submitted that

since the ice plant had been in operation, admittedly for the

past 25 years, the question of hazardous occupancy or the

occupancy of the said building in the residential zone would

not arise since the ice plant admittedly pre-dated the

Master Plan.

9. The petitioner submits that Exhibits P1 to P3

documents produced by the petitioner would show that the

ice plant was in existence and was duly licensed and has WP(C).No.33315 OF 2019

been running in the ground floor of the property . It is

further submitted that there is absolutely no intention to

use any other part of the building which is constructed by

the petitioner for any industrial purposes much less for the

conduct of the ice plant any more. It is submitted that the

rest of the building will be used only as office space and

that the issue therefore requires a reconsideration without

considering the entire building as hazardous occupancy.

10. Having considered the contentions advanced and

in view of the specific contentions stated in Exhibit P9 as

well as in the affidavit filed on behalf of the 2 nd respondent,

that the application of the petitioner has been rejected by

reckoning that the entire building as hazardous occupancy

category and in view of the affidavit placed on record in the

writ petition and the contentions raised by the petitioner, I

am of the opinion that the issue requires a reconsideration

of the hands of the 2nd respondent.

In the above view of the matter, Exhibit P9 is set

aside. There will be a direction to the 2nd respondent to take WP(C).No.33315 OF 2019

up the request made by the petitioner and to consider and

pass orders on the same in accordance with law, taking

note of the specific submission made by the petitioner that

no further part of the building except the originally licensed

premises will be used as an ice plant and taking note of the

fact that the licensed ice plant was in existence much

before the Master Plan has been drawn up. The petitioner

shall produce the revised application along with any other

materials which are required, before the 2 nd respondent for

a proper consideration of his request. Appropriate orders

shall be passed after hearing the petitioner as well as the

Panchayat, within a period of three months from date of

receipt of copy of this judgment.

The Writ Petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE SSK/29/10 WP(C).No.33315 OF 2019

APPENDIX

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE LICENCE DATED 18-07-2019 ISSUED BY THE 4TH RESPONDENT PANCHAYATH EXHIBIT P2 TRUE COPY OF THE LICENCE ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD.

EXHIBIT P3 TRUE COPY OF THE REPORT OF EXAMINATION OR TEST OF PRESSURE VESSELS OR PLANT ISSUED BY THE DEPARTMENT OF FACTORIES AND BOILERS. EXHIBIT P4 TRUE COPY OF THE BUILDING PERMIT DATED 20-

05-2014 ISSUED BY THE 4TH RESPONDENT EXHIBIT P5 TRUE COPY OF THE COMPLETION CERTIFICATE EXHIBIT P6 TRUE COPY OF THE CONSENT ISSUED BY THE ADJACENT PROPERTY OWNER MR. RAJENDRAN PILLA EXHIBIT P7 TRUE COPY OF THE APPLICATION FOR REGULARIZATION SUBMITTED BY THE PETITIONER. EXHIBIT P8 TRUE COPY OF THE INSPECTION AND VERIFICATION REPORT EXHIBIT P9 TRUE COPY OF THE ORDER DATED 28-1-2019 PASSED BY THE 2ND RESPONDENT.

RESPONDENT EXHIBITS EXHIBIT R5 A TRUE COPY OF THE PERMIT DATED 20.05.2014 ISSUED BY THE 4TH RESPONDENT EXHIBIT R5 B TRUE COPY OF THE COMPLETION CERTIFICATE DATED 22.4.2017 SUBMITTED BY THE PETITIONER EXHIBIT R5 C TRUE COPY OF THE COMMUNICATION DATED 19.5.2017 ISSUED BY THE 4TH RESPONDENT

RESPONDENTS' EXHIBITS: NIL

SSK //TRUE COPY// PA TO JUDGE