Kerala High Court
P.M. Anwar Mohammed vs Maradu Municipality on 13 November, 2024
2024:KER:86155
W. P. (C) Nos. 34837, 37190 & 41225 of 2022
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 13TH DAY OF NOVEMBER 2024 / 22ND KARTHIKA, 1946
WP(C) NO. 34837 OF 2022
PETITIONER:
SIMI DAVIS ALIAS SIMI S. JACOB, AGED 54 YEARS,
W/O. SHAJI P JACOB, PUTHENPURAYIL, MARADU P.O.,
ERNAKULAM- 682304.
ADV. SRI. M.RAMESH CHANDER (SR.) ALONG WITH ADVS.
M/S.JOMY GEORGE, R.PADMARAJ, M.J.BENNY, R.AJITH KUMAR
[V.K.EDOM], CHITRA N. DAS, RISHAB S., FATHIMA AFEEDA P.
& RONA ANN SIBY
RESPONDENTS:
1 MARADU MUNICIPALITY, MARADU, ERNAKULAM -682 304,
REPRESENTED BY ITS SECRETARY.
2 MUNICIPAL SECRETARY,
MARADU MUNICIPALITY, MARADU, ERNAKULAM -682 304.
3 MUNICIPAL ENGINEER,
MARADU MUNICIPALITY, MARADU P.O. ERNAKULAM- 682304.
4 DISTRICT TOWN PLANNER,
LSGD PLANNING, DPC SECRETARIAT BUILDING, 4TH FLOOR,
CIVIL STATION, KAKKANAD, ERNAKULAM -682 030.
SRI. RAJAN T. R., SC FOR R1 TO R3
SMT.K.R.DEEPA, SPECIAL GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
13.11.2024, ALONG WITH WP(C).NOS.37190/2022 AND 41225/2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:86155
W. P. (C) Nos. 34837, 37190 & 41225 of 2022
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 13TH DAY OF NOVEMBER 2024 / 22ND KARTHIKA, 1946
WP(C) NO. 37190 OF 2022
PETITIONER:
ASHRAF ALI M.A., AGED 62 YEARS,
S/O. ABDUL KHADER HAJI, MUSLIM VEETTIL, NATTIKA,
NATTIKA P.O., THRISSUR-680566, REPRESENTED BY HIS POWER
OF ATTORNEY HOLDER MOHAMMED IQBAL, AGED 60 YEARS,
S/O.KOLLIYIL SAIDU MOHAMMED, KOLLIYIL HOUSE, ERIYAD,
ERIYAD P.O., THRISSUR DISTRICT, PIN - 680666.
BY ADVS. M/S. P.K.IBRAHIM & SREEJI K.B.
RESPONDENTS:
1 MARADU MUNICIPALITY,
OFFICE OF THE MARADU MUNICIPALITY, MARADU, ERNAKULAM,
PIN - 682304, REPRESENTED BY ITS SECRETARY.
* ADDL. 2 THE DISTRICT TOWN PLANNER,
LSGD PLANNING, DPC SECRETARIAT BUILDING, 4TH FLOOR,
CIVIL STATION, KAKKANAD, ERNAKULAM - 682030.
* ADDITIONAL R2 IS IMPLEADED AS PER ORDER DATED
22.12.2022 IN I.A. 1/2022 IN WP(C).NO.37190/2022
SRI. T.R.RAJAN, SC
SMT.K.R.DEEPA, SPECIAL GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
13.11.2024, ALONG WITH WP(C).NOS.34837/2022 AND 41225/2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:86155
W. P. (C) Nos. 34837, 37190 & 41225 of 2022
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 13TH DAY OF NOVEMBER 2024 / 22ND KARTHIKA, 1946
WP(C) NO. 41225 OF 2022
PETITIONERS:
1 MR.P.M. ANWAR MOHAMMED, AGED 47 YEARS,
SON OF MOHAMED KUNJU, PULIPARAMBIL HOUSE, C.C.40/4322,
MARKET ROAD, ERNAKULAM COLLEGE PO, PIN-682035.
2 MR.P.M.ANAS MOHAMMED, AGED 53 YEARS,
SON OF MOHAMED KUNJU, PULIPARAMBIL HOUSE, C.C.40/4322,
MARKET ROAD, ERNAKULAM COLLEGE PO, PIN-682035.
BY ADVS. M/S.N.S.MOHAMMED USMAN, A.S.BENOY,
PRIYA DEVI P. & K.T.POULOSE
RESPONDENTS:
1 MARADU MUNICIPALITY, MARADU P.O., EMAKULAM, ERNAKULAM
-682304, REPRESENTED BY ITS SECRETARY.
2 SENIOR TOWN PLANNER,
LOCAL SELF DEPARTMENT PLANNING, DISTRICT TOWN PLANNING
OFFICE, 4TH FLOOR, CIVIL STATION, KAKKANAD, ERNAKULAM
-682 030 .
3 STATE OF KERALA,
REPRESENTED BY ITS PRINCIPAL SECRETARY, LOCAL SELF
GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM- 695 001.
SRI.T.R.RAJAN, SC
SMT.K.R.DEEPA, SPECIAL GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
13.11.2024, ALONG WITH WP(C).NOS.34837/2022 AND 37190/2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:86155
W. P. (C) Nos. 34837, 37190 & 41225 of 2022
4
MOHAMMED NIAS C. P. , J.
==========================================
W. P. (C) Nos. 34837, 37190 & 41225 of 2022
==========================================
Dated this the 13th day of November, 2024
JUDGMENT
The petitioner was given a permit for putting up a residential building
having an area of 119.37 sq.m., as per Ext.P1 dated 19.3.2019. In violation of
the conditions of the permit, the petitioner put up a building having an area
of 523.94 sq.m. The petitioner's property was included in the data bank
prepared under the provisions of the Kerala Conservation of Paddy Land
and Wetland Act, 2008. The petitioner submits that the properties were
since deleted from the data bank through proceedings under the Paddy Act.
The application of the petitioner seeking regularisation of the construction
was rejected through Ext.P4, dated 25.8.2022, citing the inclusion of the
property in the data bank as well as that the construction violated the
Structural Plan for the Central City of Kochi since in the Agricultural Zone
there was a restriction for putting up a building in A1 residential category
beyond 300 sq.m. Ext.P4 is impugned in this writ petition.
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W. P. (C) Nos. 34837, 37190 & 41225 of 2022
2. Learned Senior Counsel, Sri.M.Ramesh Chander, appearing for the
petitioner, submits that the petitioner's case is squarely covered by the
judgments in Exts.P5 and P6, wherein permits were granted for 463 sq.m.
and 744 sq.m. respectively, after the date of notification in 2007 which
restricted the construction beyond 300 sq.m.
3. This Court had passed an interim order on 4.4.2023, noticing that
several residential/commercial buildings had come up in the area having a
plinth of more than 300 sq.m., directed the Secretary of the Municipality to
file an affidavit with regard to the number of residential/commercial
buildings or any other building located in the area and also, the plinth area
and nature of the buildings. An affidavit has been filed, in compliance with
the above directions by the Municipality, on 2.9.2023, producing a list of
buildings as Ext. R(2)(b) which shows six buildings having much more than
300 sq.m. within a distance of 4 meters to 102 meters near the property of
the petitioner. Thus, it is clear that the structural plan and the restrictions
thereon have not been complied with even by the Municipality and they
have allowed commercial buildings to come up in violation of the Master
Plan and the scheme.
4. This Court had considered the issue of buildings coming up in
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W. P. (C) Nos. 34837, 37190 & 41225 of 2022
violation of the schemes/Master Plan and held as follows in the judgment
in WP(C). No.26246/2023:
"6. It is pertinent to note that, though the Master Plan was in existence, the
respondents had allowed several buildings to come up in violation of the
Scheme and based on this this Court had passed orders, after noticing that
several buildings had come up in violation of the Scheme/Master Plan and
therefore, preventing an individual, on the basis of the Master Plan which was
all along flouted, cannot be justified. Though technically the Master Plans was
in existence, it was never followed by the respondents/ authorities which has
led to the current situation. The respondents have only themselves to blame
and nobody else for the situation in which they are placed. Nothing in the
judgment in Regional Town Planner v. Muhammed Rasheed [2019 (3) KLT
433] or in R.P.No. 815/2022 comes in aid of the respondents in the circumstances
mentioned above."
4. It is seen that the judgment was affirmed in W.A.No.1099/2024 with
the following observation:
"6. Before parting with, we deem it appropriate to make some observations to be
taken cognisance by the State Government. We have come across considerable
number of similar cases. In many instances, we have noted permits issued by
local bodies in disregard to the Structure Plans/Master Plans/ DTP Schemes.
Zonal restrictions have been flouted not only by private parties, but by statutory
authorities also. Apart from deliberate violations, failure to take note of the zonal
regulations and plans under the Town and Country Planning Act, lack of
awareness etc also contribute to the infractions. Net result is foiling of the
laudable objective of planned and orderly development. It is high time that the
Government have to take effective measures to remedy the situation. We feel that
integration of the information regarding zonal regulations with the revenue
records such as land registers and thandaper accounts may help to improve the
situation. If the information as to the location of the properties within any zones
is easily noticeable from the revenue records, violations, intentional as also on
account of ignorance can be curtailed more effectively. The Government may
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W. P. (C) Nos. 34837, 37190 & 41225 of 2022
ponder over and implement the same or evolve any other effective method to
ensure effective enforcement of the plans/schemes under the Town and Country
Planning Act. The Special Government Pleader shall bring this judgment to the
notice of the Chief Secretary for the said purpose. "
5. In light of the above principles, and also that the construction has
already been completed, there will be a direction to the Municipality to
reconsider the application for regularisation submitted by the petitioner
dehors the reasons stated in the impugned orders and pass fresh orders, if
the application is otherwise in order and subject to the provisions of the
relevant building rules. This shall be done within two months from the date
of receipt of a copy of this judgment.
The impugned order is quashed. The Writ Petition is allowed as above.
6. The petitioner was granted Ext.P1 building permit on 16.3.2018 for a
residential building having a plinth area of 3444 sq.m. The petitioner
submits that he could not complete the construction within the time
granted and had applied for a renewal on 15.3.2021 which was rejected by
Ext.P2 order, dated 26.4.2021, stating that the petitioner's property is
included in the Agricultural Zone as per the Structural Plan where there is a
restriction for putting up building beyond 300 sq.m. Thereafter, through
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W. P. (C) Nos. 34837, 37190 & 41225 of 2022
Ext.P4, the permit granted to the petitioner was cancelled for the same
reason.
7. The issue arising in this case is covered in favour of the petitioner by
the judgments of this Court in WP(C). No.16737/2021 dated 16.12.2021 and
WP(C). No.19197/2020 dated 3.8.2021, wherein, in identical circumstances,
the Municipality took up the objection based on the Structural Plan after
issuing a building permit. This Court found that, after the grant of a
building permit, declining the request for renewal of the building permit on
the reason that the land falls under the Agricultural Zone was unacceptable.
It was also found that the Master Plan was in existence even before the
petitioner had applied for a building permit.
8. The learned Standing Counsel for the Municipality submits, that, the
above referred judgments have become final and permits have been issued
in compliance with the directions in the judgments.
9. In view of the fact that the case on hand is identical to the one
covered by the above judgments, the impugned orders are quashed. There
will be a direction to the Municipality to reconsider the application for
renewal of Ext.P1 building permit, if the application is otherwise in order,
and pass appropriate orders, in accordance with law, within two months
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W. P. (C) Nos. 34837, 37190 & 41225 of 2022
from the date of receipt of a copy of this judgment.
The impugned orders are quashed. The Writ Petition is allowed as
above.
10. The petitioners challenge Ext.P5 order passed by the Municipality
rejecting the application submitted by the petitioners seeking a building
permit for the construction of a commercial building on the ground that the
petitioner's property falls within the Agricultural Zone in the Structural
Plan of the Central City of Kochi.
11. A statement has been filed on behalf of the 2 nd respondent Senior
Town Planner, Ernakulam, stating as follows:
"4. It is submitted that Kochi -- Muvattupuzha Road has a proposed widening of
27m. Since, the said plot falls under a depth of 75m from the boundary of road,
mixed use is permissible and the proposed commercial building may be permitted
in the plot subject to the Provisions of the Kerala Municipality Building Rules,
1999 and other applicable statutes."
12. Given the above statement that the petitioners' property falls in a
mixed zone, the impugned order is quashed and there will be a direction to
the respondent Municipality to reconsider the application, if the same is
otherwise in order, in accordance with the relevant building rules and pass
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orders, in accordance with law, within six weeks from the date of receipt of
a copy of this judgment.
The impugned order is quashed. The Writ Petition is allowed as above.
Sd/-
MOHAMMED NIAS C. P.,
JUDGE
MMG
2024:KER:86155
W. P. (C) Nos. 34837, 37190 & 41225 of 2022
APPENDIX OF WP(C).NO.34837/2022
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT ISSUED BY
THE 1ST RESPONDENT TO THE PETITIONER.
EXHIBIT P2 TRUE COPY OF THE POSSESSION CERTIFICATE OF
THE PROPERTY ISSUED FROM THE OFFICE OF THE
MARADU VILLAGE.
EXHIBIT P3 TRUE COPY OF THE BUILDING PLAN SUBMITTED BY
THE PETITIONER FOR GETTING REGULARISATION THE
ADDITIONAL CONSTRUCTION.
EXHIBIT P4 TRUE COPY OF THE COMMUNICATION FROM THE 3RD
RESPONDENT DATED 25/08/2022.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT DELIVERED BY THIS
HON'BLE COURT IN SIMILAR CIRCUMSTANCES ON 16-
12-2021 IN WRIT PETITION NO. 16737/2021.
EXHIBIT P6 TRUE COPY OF ANOTHER JUDGMENT OF THIS HON'BLE
COURT IN WRIT PETITION NO. 19197/2020 DATED
03-08-2021.
EXHIBIT P7 TRUE COPY OF THE ROUGH SKETCH SHOWING THE
BUILDINGS ABUTTING VTJ ENCLAVE ROAD WITH
APPROXIMATE AREA OF EACH BUILDINGS
RESPONDENTS' EXHIBITS:
EXHIBIT R(2)(A) TRUE COPY OF THE RELEVANT PAGES (5 PAGES) OF
GO (MS) NO 143/07/LSGD DATED 31/5/2007 IS
PRODUCED HEREWITH AND MARKED AS EXHIBIT
R2(A).
EXHIBIT R(2)(B) TRUE COPY OF THE LIST OF BUILDINGS ETC
ANNEXURE R4(A) A TRUE COPY OF THE LOCATION SKETCH OF THE
PLOT
2024:KER:86155
W. P. (C) Nos. 34837, 37190 & 41225 of 2022
APPENDIX OF WP(C).NO.37190/2022
PETITIONER'S EXHIBITS:
EXHIBIT-P1 TRUE COPY OF THE BUILDING PERMIT NO. E3-BA
(55028)/2018 DATED 16.03.2018 ISSUED BY THE
RESPONDENT
EXHIBIT-P2 TRUE COPY OF THE COMMUNICATION DATED
26.04.2021 OF THE RESPONDENT REJECTING THE
RENEWAL OF BUILDING PERMIT
EXHIBIT-P3 TRUE COPY OF THE SUBMISSION DATED 23.06.2021
MADE IN RESPONSE TO EXT.P2
EXHIBIT-P4 TRUE COPY OF THE ORDER DATED 08.11.2021 OF
THE RESPONDENT
EXHIBIT-P5 TRUE COPY OF THE JUDGMENT DATED 03.08.2021 IN
WP(C) NO. 19197 OF 2020
EXHIBIT-P6 TRUE COPY OF THE JUDGMENT DATED 16.12.2021 IN
EXHIBIT-P7 TRUE COPY OF THE JUDGMENT IN WPC
NO.15551/2015 DATED 27.05.2015
EXHIBIT-P8 TRUE COPY OF THE JUDGMENT IN WA NO.559/2016
DATED 26.10.2016
EXHIBIT-P9 TRUE COPY OF THE JUDGMENT DATED 26.10.2019 IN
EXHIBIT-P10 TRUE COPY OF THE PERMIT RENEWAL CERTIFICATE
ISSUED BY THE 1ST RESPONDENT DATED 16.2.2022
IN THE MATTER OF THE PETITIONERS IN EXT P6
JUDGMENT
RESPONDENTS' EXHIBITS:
EXHIBIT R(1)(A) TRUE COPY OF THE RELEVANT PAGES (5 PAGES) OF
GO (MS) NO L43LO7LLSGD DATED 31/5/2007
ANNEXURE R2(A) A TRUE COPY OF THE LOCATION SKETCH OF PLOT
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W. P. (C) Nos. 34837, 37190 & 41225 of 2022
APPENDIX OF WP(C).NO.41225/2022
PETITIONERS' EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF SALE DEED NO.419 OF 2019 SRO
MARADU.
EXHIBIT P2 THE TRUE COPY OF THE SALE DEED NO.1047 OF
2019 OF SRO MARADU.
EXHIBIT P3 THE TRUE COPY OF THE BASIC TAX RECEIPT
NO.KL07021408761/2022 ISSUED FROM MARADU
VILLAGE DATED 15.6.2022.
EXHIBIT P4 THE SITE PLAN OF THE PROPERTIES HAVING TOTAL
EXTENT OF 5.95 ARES IN RE-SURVEY NO.245/1 OF
MARADU VILLAGE.
EXHIBIT P5 THE TRUE COPY OF THE ORDER NO.E2/BA-165/2022
DATED 18.10.2022 ISSUED BY THE 1ST
RESPONDENT.
EXHIBIT P6 THE TRUE COPY OF THE APPLICATION UNDER RTI
ACT DATED 31.10.2022 SUBMITTED BY THE 1ST
PETITIONER.
EXHIBIT P7 THE TRUE COPY OF THE INFORMATION NO.E2-
12644/2022 DATED 21.11.2022 OBTAINED UNDER
RTI ACT TO THE PETITIONERS.
EXHIBIT P8 TRUE COPY OF RENEWED BUILDING PERMIT NO. BA-
121/14-15 DATED 4.9.2015 ISSUED TO THE
PETITIONERS.
EXHIBIT P9 THE TRUE COPY OF THE OCCUPANCY CERTIFICATE
DATED 8.5.2017 ISSUED BY THE 1ST RESPONDENT
TO THE PETITIONERS.
EXHIBIT P10 THE TRUE COPY OF THE JUDGMENT DATED
21.11.2022 IN WP(C) NO.25392 OF 2022.
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W. P. (C) Nos. 34837, 37190 & 41225 of 2022
EXHIBIT P11 TRUE PHOTOCOPY OF POSSESSION CERTIFICATE
DATED 21/12/2018 ISSUED BY THE VILLAGE
OFFICER, MARADU VILLAGE TO PETITIONER'S
PREDECESSOR
EXHIBIT P12 TRUE PHOTOCOPY OF THANDAPPER ACCOUNT DATED
22/12/2018 ISSUED BY THE VILLAGE OFFICER,
MARADU TO PETITIONER'S PREDECESSOR
EXHIBIT P13 TRUE PHOTOCOPY OF THE LOCATION SKETCH DATED
26/12/2018 ISSUED BY THE VILLAGE OFFICER,
MARADU TO PETITIONER'S PREDECESSOR
RESPONDENTS' EXHIBITS:
EXHIBIT R(1)(A) TRUE COPY OF THE RELEVANT PAGES (5 PAGES) OF
GO (MS) NO 143/07/LSGD DATED 31/5/2007
