M/S Joys The Beach Resorts Pvt Ltd vs Corporation Of Thiruvananthapuram
2023 Latest Caselaw 12744 Ker

Kerala High Court

M/S Joys The Beach Resorts Pvt Ltd vs Corporation Of Thiruvananthapuram on 8 December, 2023

Author: Bechu Kurian Thomas

Bench: Bechu Kurian Thomas

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

        THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

FRIDAY, THE 8TH DAY OF DECEMBER 2023 / 17TH AGRAHAYANA, 1945

                     WP(C) NO. 34585 OF 2023

PETITIONER:

             M/S JOYS THE BEACH RESORTS PVT LTD,
             REP BY ITS DIRECTOR, GEETHA JOSE THOTTAM,
             AGED 63 YEARS W/O T C PAUL, HAVING OFFICE AT NO 3
             LAKE VIEW ROAD, PUDUKUPPAM,
             NALLAVADU POST, PONDICHERRY, PIN - 605 007.
             BY ADVS.
             BHARATH V GOPAL
             INDRAJITH.I
             THEJAN RAJ

RESPONDENTS:

    1     CORPORATION OF THIRUVANANTHAPURAM
          REPRESENTED BY ITS SECRETARY,
          OFFICE AT VIKAS BHAVAN P.O PALAYAM
          THIRUVANANTHAPURAM, PIN - 695 033.
    2     SECRETARY
          CORPORATION OF THIRUVANANTHAPURAM,
          OFFICE AT VIKAS BHAVAN P.O PALAYAM
          THIRUVANANTHAPURAM., PIN - 695 033.
    3     DISTRICT TOWN PLANNER
          OFFICE OF DISTRICT TOWN PLANNER,
          REP BY ITS SECRETARY,
          THIRUVANANTHAPURAM, PIN - 695 043.
    4     STATE OF KERALA
          REP BY SECRETARY LOCAL SELF GOVERNMENT,
          URBAN DEPARTMENT ROOM NO 201 A, 2ND FLOOR ANNEX 1
          SECRETERIATE, THIRUVANANTHAPURAM., PIN - 695 001.
          BY ADV SUMAN CHAKRAVARTHY
          SR.GP.K.AMMINIKUTTY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.12.2023,    THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 W.P.(C) No.34585/23                           -:2:-



                           BECHU KURIAN THOMAS, J
                      ......................................................
                              W.P.(C).No.34585 of 2023
                       ...................................................
                 Dated this the 8th day of December, 2023


                                       JUDGMENT

Petitioner is the owner of 8.80 Ares of property in Re-survey

No.100 of Thycaud Village. A commercial building already exists

in the said property bearing building numbers T.C.No.26/908,

T.C No. 26/909 and T.C No. 26/910. Petitioner allegedly

constructed three additional floors over the existing structure

without permission. Thereafter petitioner sought regularization of

the additional constructions. By Ext.P6, the respondents rejected

the application which is challenged in this writ petition.

2. Petitioner's predecessor-in-interest had commenced construction

of a building on the basis of a permit issued prior to 2009.

Later, on 12-05-2009, petitioner's predecessor-in-title was issued

with a permit to construct three additional floors over the

existing structure. The building permit was renewed till 2018.

Subsequently, petitioner purchased the said property in 2019

and continued the construction in accordance with the permit

issued to the prior owner. In the meantime, the Interim

Development Order [for short, IDO] for the Corporation of

Thiruvananthapuram came into force. As per the IDO, a road of

27 mtrs. width is proposed, and hence, the setback required for

the building as per the rules is not available.

3. By the time the IDO came into force, the building was partially

completed with the ground floor and the first floor already

constructed. Even building numbers were allotted for the

completed portion. In the meantime, after completing the entire

structure, petitioner applied for a completion certificate, wherein

few defects were pointed out. Petitioner contends that though

four out of the five defects have already been rectified, the

remaining defect regarding the setback on the basis of the IDO

is a condition that is impossible for compliance or performance.

Petitioner submitted a representation as Ext.P9 requesting to

consider his application for regularization afresh.

4. A statement has been filed by the 2 nd respondent pointing out

that the width of the road proposed in the IDO in front of

petitioner's property is 27 mtrs., while the plan submitted by

the petitioner shows the width of the road as only 25 mtrs. It

was also pointed out that the setback now available from the

proposed road will be only 1.7 mtrs., and hence, setback is not

available as per Rules.

5. I have heard Sri.Thejan Raj, the learned counsel for the

petitioner, Sri.Suman Chakravarthy, the learned Standing

Counsel for the Panchayat and Smt. Amminikutty.K., the learned

Senior Government Pleader.

6. Petitioner's predecessor-in-interest had commenced construction

and had partially completed it. Building numbers had also been

allotted for two floors. The permit issued in 2009 permitted

additional constructions to be carried out. At the time the said

structure was constructed, it was in tune with the building rules

especially regarding the setback. The IDO came into force only

in 2017. The ground floor and first floor of the building had

been in existence from 2009 onwards. If the petitioner satisfied

the requirements of the building permit regarding the setback

for the ground floor and first floor as originally issued, on the

basis of which construction was carried out, then the stipulation

in the IDO regarding setback cannot apply to the constructions

over the existing structure. Subsequent construction over the

existing structure cannot be denied approval on the basis of the

setback stipulated in the IDO notified in 2017. Therefore, I am

of the view that Ext.P9 request for reconsidering the application

for regularization submitted by the petitioner is only to be

considered in a time bound manner.

7. Hence, there will be a direction to the 2 nd respondent to

reconsider and pass appropriate orders on the application for

regularization dated 25-05-2023 and Ext.P9 request dated

23-09-2023 submitted by the petitioner, as expeditiously as

possible, at any rate, within a period of 30 days from the date

of receipt of a copy of this judgment, bearing in mind the

observations made above.

The writ petition is disposed of.

BECHU KURIAN THOMAS JUDGE AMV/08/12/2023

APPENDIX OF WP(C) 34585/2023

PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE REGISTERED SALE DEED NO 696/2019 SUB REGISTRAR CHALAI THIRUVANANTHAPURAM EXECUTED IN FAVOR OF THE PETITIONER EXHIBIT P2 THE TRUE COPY OF THE BUILDING PLAN AND PERMIT EXHIBIT P3 THE TRUE COPIES OF THE TAX PAYMENT RECEIPT DATED 22/3/2023.

EXHIBIT P4 THE TRUE COPY OF THE RECEIPT DATED 25/05/2023 ISSUED BY THE 1ST RESPONDENT ACKNOWLEDGING THE APPLICATION FOR REGULARISATION EXHIBIT P5 THE TRUE COPY OF THE NOC DATED 06/06/2023 EXHIBIT P6 TRUE COPY OF THE 1ST RESPONDENT HAD ISSUED A NOTICE DATED 27.07.2023 IN REPLY TO THE APPLICATION FOR REGULARISATION OF THE BUILDING FILED BY THE PETITIONER.

EXHIBIT P7 THE TRUE COPY OF THE LETTER NO.

                   E5/36589/23 DATED 11/9/2023
EXHIBIT P7(A)      TRUE COPY OF THE NOTICE NO.D6-31/2013
                   DATED 18/9/2013
EXHIBIT P7(B)      TRUE    COPY     OF     THE   NOTICE     NO
                   E5/36589/2023 DATED 29/9/2023
EXHIBIT P7(C)      TRUE COPY OF THE NOTICE NO 633/2023
                   DATED 3/10/2023
EXHIBIT P8         THE TRUE COPY OF THE ORDER DATED
                   11/09/2017 ISSUED BY THE LOCAL SELF
                   GOVERNMENT DEPARTMENT
EXHIBIT P9         THE TRUE COPY OF THE REPRESENTATION
                   DATED   23/9/2023     SUBMITTED    BY   THE
                   PETITIONER TO THE 2ND RESPONDENT


                                                        TRUE COPY