Kerala High Court
Thrikkakara Municipality vs Soosy Wilson on 30 September, 2024
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
2024:KER:72654
W.A.Nos.1099 & 1401 of 2024
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE S.MANU
MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946
WA NO. 1099 OF 2024
AGAINST THE JUDGMENT DATED 21.06.2024 IN
WP(C) NO.26246 OF 2023 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 4, 5 & 6 IN THE WRIT PETITION:
1 THRIKKAKARA MUNICIPALITY,
MUNICIPAL OFFICE, THRIKKAKARA, KAKKANAD KOCHI,
ERNAKULAM DISTRICT, REPRESENTED BY ITS SECRETARY,
PIN - 682030.
2 THE SECRETARY,
THRIKKAKARA MUNICIPALITY, MUNICIPAL OFFICE,
THRIKKAKARA, KAKKANAD, KOCHI, ERNAKULAM DISTRICT,
PIN - 682030.
3 THE ASSISTANT EXECUTIVE ENGINEER,
LID & EW, THRIKKAKARA MUNICIPALITY MUNICIPAL
OFFICE, THRIKKAKARA, KAKKANAD KOCHI,
ERNAKULAM DISTRICT, PIN - 682030
BY ADVS.
S.JAMAL
ANJALI DEVADAS
ISMAIL SHAHAR
2024:KER:72654
W.A.Nos.1099 & 1401 of 2024
2
RESPONDENTS/WRIT PETITIONER & RESPONDENTS 1 TO 3 IN WPC
1 SOOSY WILSON,
AGED 74 YEARS
W/O WILSON JACOB,
KOOVAPILAKIL HOUSE KOLENCHERRY P.O,
ERNAKULAM DISTRICT., PIN - 682311
2 ARUN DAVID,
AGED 44 YEARS
S/O.C.P DAVID, CHEMBAKOTTUKUDIYIL HOUSE,
THRIKKARIYOOR P.O., AYAKKADU, KOTHAMANGALAM,
ERNAKULAM DISTRICT, PIN - 686692
3 THE STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY TO
GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
4 THE CHIEF TOWN PLANNER,
SWARAJ BHAVAN, 3D FLOOR NANTHANCODE KOWDIAR PO,
THIRUVANANTHAPURAM, PIN - 695001
5 THE SENIOR TOWN PLANNER
OFFICE OF THE JOINT DIRECTOR, LOCAL SELF GOVT.
DEPARTMENT[PLANNING] 4TH FLOOR CIVIL STATION,
KAKKANAD ERNAKULAM, PIN - 682030.
SMT.K.R.DEEPA- SPL.G.P.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
25.09.2024, ALONG WITH WA.1401/2024, THE COURT ON
30.09.2024 DELIVERED THE FOLLOWING:
2024:KER:72654
W.A.Nos.1099 & 1401 of 2024
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE S.MANU
MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946
WA NO. 1401 OF 2024
AGAINST THE JUDGMENT DATED 21.06.2024 IN
WP(C) NO.26246 OF 2023 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 1-3 IN WPC:
1 THE STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY TO
GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT,
GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM,
PIN - 695001
2 THE CHIEF TOWN PLANNER,
SWARAJ BHAVAN, 3RD FLOOR, NANTHANCODE,
KOWDIAR.P.O., THIRUVANANTHAPURAM, PIN - 695003
3 THE SENIOR TOWN PLANNER,
OFFICE OF THE JOINT DIRECTOR, LOCAL SELF
GOVERNMENT DEPARTMENT (PLANNING), 4TH FLOOR,
CIVIL STATION, KAKKANAD, ERNAKULAM, PIN -
682030
BY ADVS.
SMT.K.R.DEEPA - SPL.GOVERNMENT PLEADER, LSGD
2024:KER:72654
W.A.Nos.1099 & 1401 of 2024
4
RESPONDENTS/PETITIONERS & RESPONDENTS 4, 5 & 6 IN WPC
1 SOOSY WILSON,
AGED 74 YEARS
W/O WILSON JACOB, KOOVAPILAKIL HOUSE
KOLENCHERRY P.O, ERNAKULAM DISTRICT.,
PIN - 682311
2 ARUN DAVID,
AGED 44 YEARS
S/O.C.P DAVID, CHEMBAKOTTUKUDIYIL HOUSE,
THRIKKARIYOOR P.O., AYAKKADU, KOTHAMANGALAM,
ERNAKULAM DISTRICT, PIN - 686692
3 THRIKKAKARA MUNICIPALITY,
MUNICIPAL OFFICE,THRIKKAKARA, KAKKANAD KOCHI,
ERNAKULAM DISTRICT, REPRESENTED BY ITS
SECRETARY, PIN - 682030
4 THE SECRETARY,
THRIKKAKARA MUNICIPALITY, MUNICIPAL OFFICE
THRIKKAKARA, KAKKANAD, KOCHI, ERNAKULAM
DISTRICT, PIN - 682030
5 THE ASSISTANT EXECUTIVE ENGINEER,
LID & EW, THRIKKAKARA MUNICIPALITY MUNICIPAL
OFFICE,THRIKKAKARA, KAKKANAD KOCHI, ERNAKULAM
DISTRICT, PIN - 682030
* ADDL R6: THE PRINCIPAL SECRETARY,
REVENUE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM
* ADDL R6 IS SUO MOTU IMPLEADED AS PER ORDER
DATED 24.09.2024 IN WA 1401/2024.
BY ADVS.SMT.S.INDU
SRI.S.JAMAL, SC, THRIKKAKARA MUNICIPALITY
SMT.KALA G.NAMBIAR
SRI.S.SHANAVAS KHAN
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
25.09.2024, ALONG WITH WA.1099/2024, THE COURT ON
30.09.2024 DELIVERED THE FOLLOWING:
2024:KER:72654
W.A.Nos.1099 & 1401 of 2024
5
A.MUHAMED MUSTAQUE & S.MANU, JJ.
---------------------------------------------------
W.A.Nos.1099 & 1401 of 2024
----------------------------------------------------
Dated this the 30th day of September, 2024
JUDGMENT
S.MANU, J.
Thrikkakara Municipality has filed W.A.No.1099/2024
and State Government represented by Principal Secretary
to Government, Local Self Government Department as well
as Chief Town Planner and Senior Town Planner have filed
W.A.No.1401/2024 against the judgment dated 21.06.2024
in W.P.(C)No.26246/2023.
2. Writ petitioners challenged Exts.P13 and P14
issued respectively by the Senior Town Planner and
Secretary, Thrikkakara Municipality, by which the
application for revising building permit was rejected stating
that the property entangled is situated within agriculture
zone as per the structure plan for Kochi city. The writ
2024:KER:72654
W.A.Nos.1099 & 1401 of 2024
petition was allowed by the learned Single Judge. Ext.P13
was set aside and the Senior Town Planner and the
Municipality were directed to reconsider the application
dehors the reasons stated in Ext.P13 and pass orders if the
application is otherwise in order.
3. The Government and the Municipality assailed the
impugned judgment on common grounds. It is contended
that the Structure Plan for Central City of Kochi sanctioned
in the year 1991 is now deemed to be a Master Plan
sanctioned as per the Kerala Town and Country Planning
Act, 2016. As per Section 61 of the Act, after the Master
Plan or the DTP Scheme comes into operation, no person
shall use or cause to use any land otherwise than in
conformity with or in a manner prejudicial to the Master
Plan and Detailed Town Planning Schemes under the Act.
The property of the petitioners, with respect to which the
revision of the permit is sought, falls within agriculture zone
2024:KER:72654
W.A.Nos.1099 & 1401 of 2024
as per the Structure Plan. Consequently, the request
cannot be considered. It is pointed out by the appellants
that a Division Bench of this Court in R.P.No.815/2022 filed
against the judgment in W.A.No.559/2016 accepted the
contention of the Government that the structure plan is in
force and the observation in the judgment in
W.A.No.559/2016 to the contrary is incorrect. On the
above reasons and other reasons stated in the
memorandums of appeals they contended that the
judgment of the learned Single Judge is illegal.
4. To the contrary, the learned counsel appearing for
the party respondents/writ petitioners pointed out that the
selfsame reason stated in Ext.P13 was negatived by this
Court in W.P.(C)No.29637/2019 and the said judgment has
become final. Therefore, he submitted that it is not
permissible for the appellants to refuse to revise the permit
stating the same reason. He also submitted that the
2024:KER:72654
W.A.Nos.1099 & 1401 of 2024
structure plan has never been rigorously adhered to by the
local body and the Government. He further submitted that
when the authorities had already granted permit in view of
the judgment in W.P.(C)No.29637/2019, it is unjust and
improper to refuse to entertain the application for revising
the permit.
5. We note that the judgment in W.P.
(C)No.29637/2019 was passed taking note of the judgment
in W.A.No.559/2016. Contention of the appellants that the
latter judgment was reviewed in R.P.No.815/2022 is
correct. However, no challenge was made against the
former judgment. The said judgment became final.
Municipality and the Government were parties in W.P.
(C)No.29637/2019. Hence the aforesaid judgment binds
the appellants herein. Though the substratum of the
judgment was later altered by the judgment in
R.P.No.815/2022, the binding effect of the concluded inter-
2024:KER:72654
W.A.Nos.1099 & 1401 of 2024
party judgment will not fade. As correctly pointed out by
the learned counsel for the party respondents, the very
same reasons stated in Ext.P13 were negated by the
learned Single Judge in W.P.(C)No.29637/2019. It is not
legally permissible for us to disregard the said concluded
judgment in view of well settled principles regarding
binding effect of inter-party judgments. Hence, we concur
with the finding of the learned Single Judge that Ext.P13
cannot be sustained in view of the earlier judgment in W.P.
(C)No.29637/2019. We, therefore, confirm the impugned
judgment.
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
2024:KER:72654
W.A.Nos.1099 & 1401 of 2024
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 ponder
over and implement the same or evolve any other effective
method to ensure effective enforcement of the
2024:KER:72654
W.A.Nos.1099 & 1401 of 2024
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.
Writ Appeals fail and are accordingly dismissed.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE
Sd/-
S.MANU, JUDGE
skj
