Kerala High Court
The Senior Town Planner vs Educational & Charitable Trust Of ... on 25 August, 2022
WA No.1252/2022 1/7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
Thursday, the 25th day of August 2022 / 3rd Bhadra, 1944
WA NO. 1252 OF 2022
AGAINST JUDGMENT DATED 13.06.2022 IN WP(C) 2992/2022 OF THIS COURT
APPELLANTS/RESPONDENTS 3,4,5,7 & 8 IN WP(C):
1. THE SENIOR TOWN PLANNER, COLLECTORATE, CIVIL STATION, KAKKANAD,
ERNAKULAM - 682030.
2. THE REGIONAL TOWN PLANNER, REGIONAL TOWN PLANNING OFFICE,
KADAVANTHARA, ERNAKULAM - 682020.
3. THE CHIEF TOWN PLANNER, SWARAJ BHAVAN, 2BD, 3RD FLOOR, NANDTHANCODU,
THIRUVANANTHAPURAM, KERALA- 695003.
4. THE TAHSILDAR, KANAYANNUR TALUK, KANAYANNUR, PARK AVE, NEAR SUBASH
PARK, MARINE DRIVE, KOCHI - 682011.
5. THE STATE OF KERALA ,REPRESENTED BY THE SECRETARY,LOCAL SELF
GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM DISTRICT, PIN
- 695001.
BY ADVOCATE GENERAL SRI.K.GOPALAKRISHNA KURUP
RESPONDENTS/PETITIONER & RESPONDENTS 1,2 & 6 IN WP(C):
1. EDUCATIONAL & CHARITABLE TRUST OF ARCH DIOCESE OF VERAPOLY,LATIN
ARCH BISHOP'S HOUSE, BROADWAY,THRIKKANARVATTOM DESOM, ERNAKULAM
VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN - 682031
REPRESENTED BY ITS TRUSTEE FATHER DENNY MATHEW PERINGATT.
2. SECRETARY,KALAMASSERY MUNICIPALITY, B.P.O.,CHANGAMPUZHA NAGAR,
THIRUNILATH HOUSING COLONY,SOUTH KALAMASSERY, KALAMASSERY,
ERNAKULAM- 682030.
3. KALAMASSERY MUNICIPALITY,B.P.O.,CHANGAMPUZHA NAGAR, THIRUNILATH
HOUSING COLONY,SOUTH KALAMASSERY, KALAMASSERY, ERNAKULAM-
682033.REPRESENTED BY ITS SECRETARY.
4.GREATER COCHIN DEVELOPMENT AUTHORITY (GCDA),REPRESENTED BY ITS
SECRETARY, SAHODARAN AYYAPPAN ROAD,
KADAVANTHRA,PB NO.2012, KOCHI - 682020.
P.T.O.
WA No.1252/2022 2/7
BY ADV.SMT.STIYA SIVAN FOR R1.
STANDING COUNSEL SRI.M.K.ABOOBACKER FOR R2 & 3
STANDING COUNSEL SRI.M.K.THANKAPPAN FOR R4
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to stay the operation and implementation of the judgment dated 13.06.2022
in WP(C) No.2992/2022, pending disposal of the Writ Appeal.
This Writ Appeal coming on for admission on 25/08/2022 upon perusing
the appeal memorandum, the court on the same day passed the following:
P.T.O.
WA No.1252/2022 3/7
S.Manikumar, C.J.
&
Shaji P.Chaly, J.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
W.A.No.1252 of 2022
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Dated this the 25th day of August, 2022
ORDER
S.Manikumar, C.J.
Before the writ court, in W.P.(C)No.2992 of 2022 the
petitioner therein has sought for the following reliefs:
"i) Set aside Exhibit P8 dated 28.10.2021 issued by the 3rd
respondent;
ii) to issue a writ of mandamus or any other writ, order or
direction, directing the 3rd respondent to consider
Exhibit P7 recommendation of the 1st respondent.
iii) Set aside Exhibit P15 order dated 24.04.2022 issued
by the 3rd respondent;
iv) to issue a writ of mandamus or any other writ, order,
or direction, directing the 3rd respondent to approve
the layout plan by reconsidering the Exhibit P7
recommendation."
2. Adverting to the rival submissions and taking note of
the judgment of this court in W.P.(C)No.20055 of 2019 dated
WA No.1252/2022 4/7
W.A.No.1252 of 2022
19.11.2019, which followed the judgment of this court in
W.A.No.559 of 2016 dated 26.10.2016, writ court set aside
Exhibits P8 and P15 orders impugned in the writ petition and
issued the following directions:
"ii) The 3rd respondent is directed to consider the
application to approve lay out plan by considering
Ext.P7 recommendation as expeditiously as possible,
at any rate, within a period of two weeks from the
date of receipt of a copy of this judgment.
iii) The Municipality is directed to consider the matter
afresh based on the decision by the 3rd respondent."
3. Being aggrieved, instant writ appeal is filed on the
grounds inter alia that as the construction is violative of zoning
regulations, the Chief Town Planner has no jurisdiction to
regularise the same and that the Government alone is
empowered to do so.
4. Placing reliance on the notification G.O.(Ms)
No.103/91/LAD dated 20.03.1991, issued by the Local
Administration (G) Department, Government of Kerala, Mr.K.
WA No.1252/2022 5/7
W.A.No.1252 of 2022
Gopalakrishna Kurup, learned Advocate General submitted that
the subject property falls in the zone GI and GII and inasmuch as
the violation is against the zones, the Government alone is the
authority to consider regularisation of any construction and in
such circumstances, the directions issued by the writ court
directing the Senior Town Planner, Ernakulam, respondent No.3
therein, to consider the application to approve lay out, is
erroneous.
5. For the above said grounds, he also submitted that no
regularisation can be considered by the Municipality.
6. In support of the above, attention of this court was also
invited to Annexure A1, by which the Government have issued
orders.
7. Learned Advocate General further submitted that a
review petition has also been filed seeking review of the
judgment in W.A.No.559 of 2016 dated 26.10.2016.
WA No.1252/2022 6/7
W.A.No.1252 of 2022
8. We have gone through the material on record. We are
of the view that the issues raised in this writ appeal require
adjudication.
9. Hence the writ appeal is admitted. Ms.Stiya Sivan,
learned counsel takes notice for respondent No.1.
Mr.M.K.Aboobacker, learned standing counsel takes notice for
Kalamassery Municipality (respondent Nos.2 and 3). Mr.M.K.
Thankappan, learned standing counsel takes notice for the
Greater Cochin Development Authority (respondent No.4).
10. There shall be an interim stay of the directions for a
period of three weeks.
Post on 14.09.2022.
Sd/-
S.Manikumar
Chief Justice
Sd/-
Shaji P.Chaly
Judge
vpv
25-08-2022 /True Copy/ Assistant Registrar
WA No.1252/2022 7/7
EXT.P7: TRUE COPY OF THE LETTER DATED 06.09.2021
SENT BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT.
EXT.P8: A TRUE COPY OF THE COMMUNICATION DATED 28.10.2021
SENT BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT.
EXT.P15: TRUE COPY OF THE ORDER NO.TCPEKM/805/2021-
D.DIS DATED 24.04.2022 ISSUED BY THE 3RD RESPONDENT.
Annexure A1: TRUE COPY OF THE G.O[MS)NO.305/2015/LSGD
THIRUVANANTHAPURAM DATED 29.09.2015
