Suneeth Sebastian vs State Of Kerala
2022 Latest Caselaw 3367 Ker

W.P.(C)No.23835 of 2021
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             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                 THE HONOURABLE MR. JUSTICE T.R.RAVI
    TUESDAY, THE 22ND DAY OF MARCH, 2022/1ST CHAITHRA, 1944
                          WP(C) NO. 23835 OF 2021
PETITIONER:

            SUNEETH SEBASTIAN
            AGED 48 YEARS
            S/O.P.J. SEBASTIAN, 81-VIDYANAGAR,
            COCHIN UNIVERSITY P.O., KOCHI 682 022,
            THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK,
            ERNAKULAM DISTRICT, REP.BY HIS POWER OF ATTORNEY
            HOLDER, P.J. SEBASTIAN, AGED 77 YEARS,
            S/O.P.J. PAPPY, 81-VIDYANAGAR,
            COCHIN UNIVERSITY P.O., KOCHI 682 022,
            THRIKKAKARA NORTH VILLAGE,
            KANAYANNUR TALUK, ERNAKULAM DISTRICT
            BY ADVS.
            SRI PRATHEESH.P
            SMT.ANJANA KANNATH

RESPONDENTS:

     1      STATE OF KERALA
            REP.BY THE SECRETARY TO GOVERNMENT,
            LOCAL SELF GOVERNMENT DEPARTMENT,
            GOVERNMENT SECRETARIAT,
            THIRUVANANTHAPURAM, PIN 695 004
     2      THE MARADU MUNICIPALITY
            MARADU, ERNAKULAM 682 304, REP.BY ITS SECRETARY
     3      THE SECRETRAY
            MARADU MUNICIPALITY, MARADU,
            ERNAKULAM, PIN 682 304
     4      THE ASSISTANT ENGINEER
            LSGD, ENGINEERING WING, MARADU MUNICIPALITY,
            MARADU, ERNAKULAM PIN 682 304
         R1 BY GOVT. PLEADER SRI K.M.FAISAL
         R2 TO R4 BY ADV SHRI.T.R.RAJAN SC,MARADU MUNICIPALITY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
01.02.2022, THE COURT ON 22.3.2022 DELIVERED THE FOLLOWING:
 W.P.(C)No.23835 of 2021
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                              T.R. RAVI, J.
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                        W.P.(C)No.23835 of 2021
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                 Dated this the 22nd day of March, 2022

                                JUDGMENT

The petitioner was granted a building permit on 2.2.2018 by

the 3rd respondent for construction of a residential building of a

total area of 409.18 M2 and a carpet area of 303.84 M 2. Exts.P1

and P2 are the building permit and the approved building plan. The

petitioner completed the construction and approached the 3 rd

respondent for occupancy certificate. On 30.7.2021, by Ext.P3, the

4th respondent informed the petitioner that the occupancy

certificate cannot be granted, since the area where the construction

was carried out falls under the agricultural zone as per the

Structure Plan (General Town Planning Scheme) for Central City of

Cochin. The structure plan was sanctioned in the year 2007 and as

per the Zoning Regulation, residential buildings upto a total built up

area of 300 M2 alone is permitted in those areas. The petitioner

relies on Ext.P6 judgment dated 3.8.2021 in W.P.(C)No.19197 of

2020 wherein this Court had in similar circumstances directed grant

of renewal of building permit in a case where the construction was

of residential building with a total area of 745.25 M2.

2. Respondents 2 to 4 have filed a counter affidavit W.P.(C)No.23835 of 2021

producing along with Ext.R3(a), which is the structure plan. Part IV

of Ext.R3(a) deals with Zoning and Subdivision Regulations.

Ext.R3(a) identifies eight major groups of use of Zones as

residential, commercial, industrial, public and semi-public, grounds

and public open spaces (park and playgrounds), transportation,

conservation zone and CBD. Three kinds of patterns of land

utlilisation have been identified as water sheet, agricultural use and

developed land. The contention is that the area comes under the

land utilisation pattern of agriculture, which permits only

construction of residential building for the owner not exceeding a

total built up area of 300 M2.

3. The petitioner has filed a reply affidavit to show that the

property of the petitioner is a land which had been converted more

than 20 years back and cannot be treated as an agricultural land.

Photographs have been produced to show that the area in question

has several residential buildings.

4. Heard the learned counsel for the petitioner and the

respondents.

5. Following the judgment in W.P.(C)No.19197/2020, this

Court had disposed of W.P.(C)No.16737/2021 wherein also the relief

sought was for renewal of a building permit which had already been

granted and based on which the construction had almost been

completed. This Court directed renewal of the building permit W.P.(C)No.23835 of 2021

finding that it is highly arbitrary and unjustifiable to decline the

benefit, since the building permit had been granted and

construction was also almost completed. I do not find any reason

to take a different view in this writ petition, particularly, when in

this case construction is already completed and what remains is

issuance of an occupancy certificate. Moreover, the property is very

close to Maradu Junction and is a dry land. It is not as if that

construction of residential building is totally prohibited in the zone.

The restriction is only regarding the constructed area.

6. The writ petition is hence allowed. Ext.P3 notice which

directs the petitioner to submit a fresh application restricting the

construction to 300 M2 is set aside. Respondents 1 to 4 are directed

to reconsider the application of the petitioner for issuance of an

occupancy certificate and to grant the same and number the

building, if the petitioner is otherwise entitled to. The reason that

the area is coming under the agricultural zone shall not be a reason

for rejection of the application. Necessary orders shall be issued

within six weeks from the date of receipt of a certified copy of this

judgment.

Sd/-

T.R. RAVI JUDGE dsn W.P.(C)No.23835 of 2021

APPENDIX OF WP(C) 23835/2021

PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE 3RD RESPONDENT DATED 2.2.2018 Exhibit P2 TRUE COPY OF THE APPROVED BUILDING PLAN DATED 2.2.2018 Exhibit P3 THE COPY OF THE NOTICE BEARING NO.E2/BA/150/2017 DATED 30.7.2021 ISSUED BY THE 4TH RESPONDENT Exhibit P4 THE COPY OF THE POSSESSION CERTIFICATE ISSUED FROM THE VILLAGE OFFICE TO THE PETITIONER DATED 15.7.2021 Exhibit P5 THE COPY OF THE TAX RECEIPT DATED 2.7.2021 ISSUED FROM THE VILLAGE OFFICE TO THE PETITIONER Exhibit P6 THE COPY OF THE JUDGMENT IN W.P.(C) NO.19197/2020 DATED 3.8.2021 Exhibit P7 THE COPY OF THE CERTIFICATE NO.3715/13 DATED 11.10.2013.

Exhibit P8 THE PHOTOGRAPHS OF THE RESIDENTIAL BUILDINGS ADJACENT TO THE PETITIONER'S PROPERTY.

RESPONDENTS' EXT:

EXT.R3(A): TRUE COPY OF RELEVANT PAGES (5 PAGES) OF GO(MS)No.143/07/LSGD DT.31.5.2007.