Kerala High Court
The Thrikkakara Municipality vs Saeed Rahman on 21 May, 2024
Author: V.G.Arun
Bench: V.G.Arun
WA No.488 of 2024 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
WA NO. 488 OF 2024
AGAINST THE ORDER/JUDGMENT IN WP(C) NO.10888 OF 2023 OF HIGH COURT
OF KERALA
APPELLANTS/RESPONDENTS 1 & 2:
1 THE THRIKKAKARA MUNICIPALITY,
THRIKKAKARA MUNICIPALITY OFFICE, KAKKANAD, KAKKANAD
P.O, ERNAKULAM DISTRICT, PIN. 682 030 REPRESENTED BY
ITS SECRETARY, THRIKKAKARA MUNICIPALITY, THRIKKAKARA
MUNICIPALITY OFFICE, KAKKANAD, KAKKANAD P.O, ERNAKULAM
DISTRICT, PIN. 682 030., PIN - 682030
2 THE SECRETARY
THRIKKAKARA MUNICIPALITY KAKKANAD P.O ERNAKULAM, PIN
- 682030
BY ADVS.
S.JAMAL
S.JAMAL, SC, THRIKKAKARA MUNICIPALITY
RESPONDENTS/WRIT PETITIONER:
1 SAEED RAHMAN
S/O ABDUL RAHAMAN,AGED 52 YEARS, PEDIKAT
HOUSE,NARYANAN NAIR ROAD, PADAMUGAL,KAKKANAD P.0,
ERNAKULAM DISTRICT. REP. BY THE POWER OF ATTORNEY
HOLDER ABDUL RAHMAN,S/O. BEEPATHUMMA PEDIKAT
HOUSE,NARYANAN NAIR ROAD, PADAMUGAL,KAKKANAD P.O,
ERNAKULAM DISTRICT.PIN-682 030., PIN - 682030
2 *ADDL.R2 IMPLEADED. THE GOVERNMENT OF KERALA,
REPRESENTED BY THE SECRETARY, LSGD.
*ADDL. R2- "THE GOVERNMENT OF KERALA, REPRESENTED BY
WA No.488 of 2024 2
THE SECRETARY, LSGD" IS SUO MOTU IMPLEADED AS
ADDITIONAL RESPONDENT AS PER ORDER DATED 21/05/2024 IN
W.A.NO.488/2024.
BY ADV T.K.AJITHKUMAR (VALATH)
OTHER PRESENT:
GOVT.PLEADER T.TECKCHAND
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21.05.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA No.488 of 2024 3
A. J. Desai, C.J.
&
V.G. Arun, J.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
W.A.No.488 of 2024
---------------------------------------------
Dated this the 21st day of May 2024
JUDGMENT
V.G.Arun,J.
The writ petitioner constructed a multi storied residential
apartment complex within the territorial limits of the appellant
Municipality and was issued with Exhibits P4 and P4(a) occupancy
certificates. Thereafter, the petitioner effected additional
construction in the car parking area of the building and submitted
Ext.P5 application before the Thrikkakara Municipality/appellant
seeking regularisation of the construction. That application was
rejected by the appellants stating that the additional construction
is above 2000 sq.meters and the building is situated in an area
earmarked as Agricultural Zone in the Structural Plan for Central
City of Kochi. The petitioner was therefore directed to obtain zonal
modification/dispensation order from the the Senior Town Planner.
The writ petition was preferred challenging that order and by the
impugned judgment, the learned Single Judge directed the
appellants to reconsider Ext.P5 application without regard to the
master plan. Aggrieved, the Thrikkakara Municipality and its
Secretary have filed this appeal.
2. We heard the learned Standing Counsel for the appellants
and the learned Counsel for the respondent/writ petitioner.
3. The fact that the building was constructed some time
back and occupancy certificate was issued in the year 2018 is not
in dispute. Indisputably, the additional construction in the parking
area of the building was effected after the master plan for the
area had come into force. As such, for regularising the additional
construction, the petitioner is bound to obtain zonal
modification/dispensation order from the appropriate authority.
4. Learned Government Pleader pointed out that, since the
regularization is sought after construction, only the Government
is empowered to consider the request for modification/
dispensation of the zonation.
The writ appeal is hence disposed of by granting liberty to
the writ petitioner to submit appropriate application seeking
zonal modification/dispensation from the master plan before the
Government within one month and the additional respondent to
take a decision on the application. Depending on the decision,
the writ petitioner can submit a fresh application for
regularisation before the appellant. In such event, the same
shall be dealt in accordance with law. Till the Government takes
a decision on the writ petitioner's application for regularization,
status quo shall be maintained with respect to the additional
construction effected.
Sd/-
A. J. Desai
Chief Justice
Sd/-
V.G. Arun
Judge
dpk
