Kerala High Court
Galaxy Homes Pvt.Ltd vs Corporation Of Kochi on 11 September, 2024
WP(C) No.40980/2022 1/8 Order Date : 11-09-2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
Wednesday, the 11th day of September 2024 / 20th Bhadra, 1946
IA.NO.5/2024 IN WP(C) NO. 40980 OF 2022
PETITIONER:
GALAXY HOMES PVT.LTD, GALAXY SQUARE BUILDING,RAJAJI ROAD,
ERNAKULAM,KOCHI,REPRESENTED BY ITS MANAGING DIRECTOR JINAS P.A., PIN
- 682035
RESPONDENT:
1. GALAXY HOMES PVT.LTD, GALAXY SQUARE BUILDING,RAJAJI ROAD,
ERNAKULAM,KOCHI,REPRESENTED BY ITS MANAGING DIRECTOR JINAS P.A., PIN
- 682035
2. CORPORATION OF KOCHI, OFFICE OF THE KOCHI MUNICIPAL CORPORATION,
PARK AVENUE ROAD, ERNAKULAM HEAD POST OFFICE, ERNAKULAM, REPRESENTED
BY THE SECRETARY, PIN - 678201
3. ASSISTANT EXECUTIVE ENGINEER, EAST ZONAL OFFICE,CORPORATION OF
KOCHI, VYTTILA.P.O.,ERNAKULAM, PIN - 682019
4. ADDL.R3 REVENUE DIVISIONAL OFFICER, FORT KOCHI P.O., FORT KOCHI -
682001 [ADDL.R3 IS IMPLEADED AS PER ORDER DATED 09/1/2023 IN
I.A-1/2022 IN WP(C) 40980/2022]
5. ADDL.R4 KERALA COASTAL ZONE MANAGEMENT AUTHORITY, REP. BY ITS MEMBER
SECRETARY, 4TH FLOOR, KSRTC BUS TERMINAL, THAMPANOOR,
THIRUVANANTHAPURAM . [ADDL.R4 IS IMPLEADED AS PER ORDER DATED
05.09.2023 IN I.A-2/2023 IN WP(C) 40980/2022]
6. ADDL.R5 M.A.MATHEW, AGED 67, S/O. LATE M.M.ABRAHAM, RESIDING AT A3,
JEWEL BAY VIEW APARTMENTS, KOCHI - 682019.
7. ADDL.R6 THOMAS VARGHESE, AGED 62, S/O. MATHAI, K-4, GALAXY WINDSOR,
VYTTILA P.O., KOCHI-682 019.
8. ADDL.R7 JAIMON THOMAS, AGED 40, S/O. THOMAS THOMAS, B1, HIGHWAY
GARDEN APARTMENTS, VYTTILA P.O, KOCHI-682 019. [ADDL.R5 TO R7 ARE
IMPLEADED AS PER ORDER DATED 05.09.2023 IN I.A-4/2023 IN WP(C)
40980/2022]
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to permit the
petitioner to amend the Writ Petition (C) in the manner indicated herein
below :- I. After paragraph 10D of the statement of facts add the
following as paragraphs 11, 12, 13, 14, 15, 16, 17, 18 and 19:- 11. This
Hon'ble Court heard the matter at length on 03.04.2024 and after hearing
the matter for a while, to resolve the issue this Hon'ble Court passed an
interim order on 03.04.2024, which reads thus:- There will be a direction
to the first and second respondents to file an affidavit along with a
sketch showing the existence of the authorized structures/road in the same
building line of the petitioner's property. The affidavit shall also
indicate the accuracy of the sketch produced by the petitioner along with
Ext.P14 and 2 Ext.P16 google map. The affidavit shall also meet the
contention of the petitioner that the sewage canal in question on the
WP(C) No.40980/2022 2/8 Order Date : 11-09-2024
northern side of the petitioner's property is a man made one that came
into existence after the grant of building permit to the petitioner. The
affidavit as directed above shall be filed before this Court on or before
12.4.2024. Post on 12.4.2024. 12. Thereafter when the case came up for
consideration before the Court on 27.05.2024 and 12.06.2024, the Standing
Counsel for the Corporation of Kochi sought adjournment to file the
affidavit as ordered on 03.04.2024. Thereafter the case came up for
consideration before the Court on 20.06.2024, by the time the Standing
Counsel filed a report before the Court. This Hon'ble Court after
considering the said report passed an order on 20.06.2024, which reads
thus :- This Court had passed an order on 3.4.2024 directing the first and
second respondents to file an affidavit along with a sketch showing the
existence of authorised structures/roads in the same building line of the
petitioner's property with a further direction to verify the accuracy of
the sketch produced by the petitioner along with Exts.P14 and P16 google
map. The Corporation was also directed to meet the contention of the
petitioner that the sewage canal in question on the northern side of the
petitioner's property is a man-made one that came into existence after the
grant of the building permit to the petitioner. Despite taking time, an
affidavit is filed on 14.6.2024 stating that, more than one residential
buildings were found in between the building in question and the
Chilavanoor canal and that, to file a report on whether such structures
are approved or not, they require more time for scrutinizing the data in
the Asset Register. They also say that a detailed sketch and report have
been called for from the Tahsildar (Land Records) to ascertain whether the
canal is natural or man-made. Communication was sent only on 6.6.2024 when
this Court had passed the order as early as 3.4.2024. It is also noted
that there is no averment regarding the accuracy of Exts. P14 and P16
Google Maps. 2. The permit was granted to the petitioner on 28.1.2017 and
it was renewed on 26.7.2019 which was valid up to 19.5.2022. The
petitioner's application for renewal was returned pointing out three
defects, namely, that the possession certificate produced contained
interpolations, that no permission was obtained from the Coastal Zone
Management Authority and also, allegedly filling up a drain. The
petitioner submits that the first and the third defect noted above have
been cured and the only subsisting defect is the second defect that no
permission was obtained from the Coastal Zone Management Authority.
3.After hearing the learned counsel appearing on both sides and also,
perusing the affidavit filed by the first and second respondent as
directed by this Court in its order dated 3.4.2024, I am inclined to
direct the Corporation to reconsider the application for renewal submitted
by the petitioner dated 17.5.2022 in accordance with the provisions of the
building rules that existed as on the date of grant of Ext.P2 permit and
de hors the reasons stated in Ext.P6. I am inclined to pass this order as
the defects now allegedly pointed out cannot be taken as reasons for not
considering the second renewal application after the grant of the building
permit. 4. It is also submitted by the learned senior counsel appearing
for the petitioner that the construction of the building is substantially
over. 5. In view of the above, there will be a direction to respondents 1
and 2 to consider the application of the petitioner as directed above and
WP(C) No.40980/2022 3/8 Order Date : 11-09-2024
in light of the observations made above and pass orders within three weeks
from today. In case any additional requirement/clarification is required
from the petitioner, respondents 1 and 2 will intimate the petitioner
within ten days from today. Post on 23.7.2024. 13. The respondents 1 and 2
did not require to submit any particulars from the petitioner to process
the request for renewal of the building permit, which they ought to have
made within 10 days from 20.06.2024 i.e. on or before 30.06.2024.
Thereafter the case came up for consideration before the Court on
23.07.2024 and 07.08.2024 and on these dates on the request of the
Standing Council the case was adjourned. While so, the petitioner was
given a notice with date 30.07.2024 by the 1st respondent on 02.08.2024
requiring them to produce 4 documents. A true copy of the said notice
dated 30.07.2024 is produced herewith and marked as Exhibit P20. In
response to the said notice, (which was served on the petitioner on
02.08.2024), the Petitioner produced the required documents except two
(ROR and Possession Certificate) along with a covering letter dated
06.08.2024. A true copy of the covering letter dated 06.08.2024 containing
the acknowledgment of the office of the 1st respondent is produced
herewith and marked as Exhibit P21. 14. On 09.08.2024, petitioner produced
the Possession Certificate before the office of the 1st respondent. ROR
was made available before the office of the 1st respondent on 13.08.2024,
but the office of the 1st respondent for reasons known to them alone
declined to accept the said document. The petitioner immediately through
K-swift portal produced the said document and obtained acknowledgment on
13.08.2024. A true copy of the online acknowledgment so obtained by the
petitioner is produced herewith and marked as Exhibit P22. 15. The 1st
respondent however without any justification through the Standing Counsel
informed this Hon'ble Court on 16.08.2024 that an order has already been
issued on 09.08.2024 rejecting the request for renewal put in by the
petitioner. A copy of the said order was subsequently communicated to the
petitioner's Counsel. A true copy of the said proceedings of the 1st
respondent with date 09.08.2024 is produced herewith and marked as Exhibit
P23. From the sequence of events narrated above, it is apparent from
Ext.P23 order that such an order has been issued by the 1st respondent
with a vindictive mind. The 1st respondent being a public authority ought
not to have adopted such an approach without granting reasonable time to
make available the documents. From Ext.P23 order, it is seen that such an
order has been issued by the 1st respondent solely on the basis of the
report of the Building Inspector dated 08.08.2024, without endeavouring to
consider the documents made available before his office as explained
above. 16. From Ext.P23 order, following 3 defects are highlighted :- (iv)
Non production of renewed consent to establish from Pollution Control
Board. (v) That no conversion order has been produced classifying the land
as purayidom in the BTR (vi) ROR has not been produced. 17. As regards
Defect No.1, it is submitted that, petitioner has already applied for
renewal of the consent to establish as could be seen from Ext.P17 dated
21.02.2023 and that they have obtained renewed NOC from the Pollution
Control Board only now. A true copy of the said renewed consent to
establish dated 31.08.2024 is produced herewith and marked Exhibit P24.
18. As regards Defect No.2, it is submitted that the petitioner's land is
WP(C) No.40980/2022 4/8 Order Date : 11-09-2024
not included in the Data Bank as could be seen from Ext.P9, though in the
Revenue Records (BTR) nature of the land remained as Nilam. The petitioner
has already taken steps had already applied for conversion. It is settled
law that in the matter of processing the application for renewal of the
building permit or in the matter of granting occupancy certificate, it is
not legally permissible for the Municipal Authority to insist production
of conversion order under Section 27A from the Revenue Divisional Officer.
A reference to 2020 (2) KLT 478- Mahin Vs. Keezhmad Grama Panchayath, 2020
(5) KLT 763 - Cheranelloorr Grama Panchayath Vs. Joe Thattil. 2021 (6) KLT
452 - Abdul Salam Vs. State of Kerala, 2020 (6) KLT 738- Global Education
Trust Vs. State of Kerala, 2023 KHC Online 10678 = 2023 KER 8175 - Suresh
K.R. Vs. State of Kerala and 2022 (3) KLJ 889 = 2022 KHC 5093 - Usha Rajan
Vs. Thripunithura Municipality. 19. The 3rd respondent ought to have taken
a decision upon Ext.P11 - application which was filed as early as on
08.12.2022. On account of the non disposal of Ext. P11 alone, petitioner
is now put to irreparable prejudice and hardship for no fault of theirs.
As far as Defect No.3 is concerned it is submitted that ROR as well as
Possession Certificate has already been produced. The Petitioner has
already produced the documents referred to above in the office of the 1st
Respondent. II. In the grounds, after Ground No.4D add the following as
additional Grounds 5, 6, 7 and 8:- 5. In any view of the matter, the 3rd
respondent is bound and obliged to dispose off Ext.P11 - application
without any delay. The 3rd respondent should have taken a decision upon
Ext.P11 and enabled the petitioner to obtain necessary changes in the
revenue records as regards the nature of their land. 6. Ext.P23 order to
the extent of rejecting the application for renewal of building permit
submitted by the petitioner is highly prejudicial and vindictive in
nature. The 1st respondent being a public authority ought not to have
adopted an approach in haste without granting reasonable time to make
available the documents. From Ext.P23 order, it is seen that such an order
has been issued by the 1st respondent solely on the basis of the report of
the Building Inspector dated 08.08.2024, without endeavouring to consider
the documents already on record before the office of the 1st respondent
and the legal position on the subject. 7. The three defects now pointed
out in Ext.P23 order are ex facie unsustainable and cannot stand the test
of law. As regards Defect No.1, i.e. the alleged non submission of Consent
to establish, it is submitted that, petitioner has already been granted
with renewed consent to establish as could be seen from Ext.P24. As
regards Defect No.3, alleged non submission of ROR and possession
certificate, the petitioner would submit that those documents are already
submitted before the 1st respondent as could be seen from the
acknowledgments given by the office of the 1st respondent. 8. The
petitioner would submit that the alleged defect no.2 which is on the basis
of description of land as nilam in BTR is only a frail attempt on the part
of the 1st respondent to somehow reject the application and put the
petitioner to unnecessary hardships. This Hon'ble Court in the following
judgments have categorically reiterated that once the building permit is
granted, thereafter, the description of land cannot be projected as a
reason for non-renewal of building permit or rejection of occupancy-2020
(2) KLT 478- Mahin Vs. Keezhmad Grama Panchayath, 2020 (5) KLT 763 -
WP(C) No.40980/2022 5/8 Order Date : 11-09-2024
Cheranelloorr Grama Panchayath Vs. Joe Thattil. 2021 (6) KLT 452 - Abdul
Salam Vs. State of Kerala and 2020 (6) KLT 738- Global Education Trust Vs.
State of Kerala. III. In the relief portion, after relief (iv) add the
following as the reliefs (v), (vi) and (vii) :- (v) Call for the records
of the case from the 1st respondent leading to the issuance of Ext.P23 and
set aside / annul the same to the extent to which it has gone against the
petitioner by means of an appropriate writ or order; (vi) Issue a writ of
mandamus or other appropriate writ or order directing the 1st respondent
to reconsider the request for renewal of the building permit (KRP2
108/2016 -KRP/COC/43/2016) in accordance with law and on the basis of the
documents already made available before the office of the 1st respondent
forthwith. (vii) Issue a writ of mandamus or other appropriate writ or
order directing the 3rd respondent to finalize Ext.P11 - Application
within a short time and thereby enable the petitioner to effect necessary
changes in the revenue records as regards the nature of their subject
land. IV. In the interim relief portion, the existing interim relief may
be numbered as (i) and beneath the same add the following as interim
relief No.(ii) :- (ii) For the reasons stated in the amended writ petition
(c), it is humbly prayed that this Hon'ble Court may be pleased to direct
the 1st respondent to reconsider the request to renew the building permit
- KRP2 108/2016 -KRP/COC/43/2016 in accordance with law and adverting to
the documents already made available before the 1st respondent pending
disposal of the Writ Petition (C).
This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and upon hearing the arguments
of SRI.K.I.MAYANKUTTY MATHER (SR.), Advocate along with M/S.S.PARVATHI &
KALLIYANI KRISHNA B., Advocates for the petitioner, K.B.ARUNKUMAR,
Advocate for R1 & R2, SRI.PRAKASH M.P.,(STANDING COUNSEL) for Addl.R4m
M/S.S.GOPAKUMAR, SANTOSH DANIEL S & T.M.BINITHA,Advocates for Addl.R5, the
court passed the following:
WP(C) No.40980/2022 6/8 Order Date : 11-09-2024
MOHAMMED NIAS C.P., J
........................................................
W.P.(C)No.40980 of 2022
..............................................................
Dated this the 11th day of September, 2024
ORDER
This is an application to amend the writ petition.
2. Heard. Allowed.
Petitioner is directed to produce the amended writ
petition.
Post on 25.09.2024.
Sd/-
MOHAMMED NIAS C.P.
JUDGE
RPR/-
WP(C) No.40980/2022 7/8 Order Date : 11-09-2024
APPENDIX OF WP(C) 40980/2022
Exhibit P1 TRUE COPY OF THE BUILDING PERMIT DATED 21.05.2016
ISSUED BY THE 2ND RESPONDENT
Exhibit P2 TRUE COPY OF THE BUILDING PERMIT DATED 28.01.2017
ISSUED BY THE 2ND RESPONDENT
Exhibit P3 TRUE COPY OF THE BUILDING PERMIT DATED 06.11.2017
ISSUED BY THE 2ND RESPONDENT
Exhibit P4 TRUE COPY OF THE PROCEEDINGS FOR RENEWAL OF THE
BUILDING PERMIT DATED 26.07.2019 ISSUED BY THE 2ND
RESPONDENT
Exhibit P5 TRUE COPY OF THE ACKNOWLEDGEMENT BY THE 1ST RESPONDENT
DATED 17.05.2022
Exhibit P6 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST
RESPONDENT DATED 31.08.2022 TO THE PETITIONER
Exhibit P7 TRUE COPY OF THE AVIATION CLEARANCE ISSUED BY HEAD
QUARTERS SOUTHERN NAVAL COMMAND, KOCHI DATED 15.06.2022
Exhibit P8 TRUE COPY OF THE LATEST LAND TAX RECEIPT ISSUED BY
VILLAGE OFFICER, ELAMKULAM VILLAGE DATED 30.06.2022
Exhibit P9 TRUE COPY OF THE RELEVANT DATA BANK EXTRACT DATED NIL
Exhibit P10 TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR,
ERNAKULAM DATED 14.06.1996
Exhibit P11 TRUE COPY OF THE APPLICATION SUBMITTED BY THE
PETITIONER BEFORE THE REVENUE DIVISIONAL OFFICER, KOCHI
DATED 08.12.2022 AND TYPED COPY
Exhibit P12 PHOTOGRAPH DISCLOSING THE PRESENT FRONT VIEW OF THE
SUBJECT BUILDING DATED NIL
Exhibit P13 PHOTOGRAPH DISCLOSING THE PRESENT STATUS OF THE SUBJECT
BUILDING DATED NIL
Exhibit P14 TRUE COPY OF THE LEGAL OPINION / CONFIRMATION GIVEN BY
THE THEN STANDING COUNSEL OF KCZMA DATED 10.05.2016
Exhibit P15 TRUE COPY OF THE SKECH
Exhibit P16 TRUE COPY OF THE GOOGLE MAP
EXHIBIT P17 True copy of the online application put in by the
petitioner for renewal of the consent to establish
before the Pollution Control Board and the online
receipt evidencing remittance of requisite fee dated
21.2.2023
Exhibit P18 TRUE COPY OF THE AFFIDAVIT (WITHOUT ANNEXURES) FILED BY
THE JOINT SECRETARY, MINISTRY OF ENVIRONMENT, FOREST
AND CLIMATIC CHANGE, NEW DELHI BEFORE THE HON'BLE
JUSTICE THOTTATHIL B. RADHAKRISHNAN (MARADU FLATS
ENQUIRY COMMISSION) APPOINTED BY THE HON'BLE SUPREME
COURT DATED 21.6.2022
Exhibit P19 TRUE COPY OF THE JUDGMENT DATED 13.2.2017 IN W.P.(C)
NO.1845/2017 OF THIS HON'BLE COURT
Exhibit P20 TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT
DATED 30.07.2024
Exhibit P21 TRUE COPY OF THE COVERING LETTER DATED 06.08.2024
CONTAINING THE ACKNOWLEDGMENT OF THE OFFICE OF THE 1ST
RESPONDENT
Exhibit P22 TRUE COPY OF THE ONLINE ACKNOWLEDGMENT OBTAINED BY THE
PETITIONER DATED 13.08.2024
WP(C) No.40980/2022 8/8 Order Date : 11-09-2024
Exhibit P23 TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT WITH
DATE 09.08.2024
Exhibit P24 TRUE COPY OF THE RENEWED CONSENT TO ESTABLISH DATED
31.08.2024
Exhibit R-1(a) The true copy of the Possession Certificate submitted y
the petitioner
Exhibit R-1(b) The true copy of the Coastal Zone Management Plan of
Kochi Corporation, prepared as per CRZ notification
2011 and CRZ map
Exhibit R-1(d) true copy of the communication dated 06.06.2024 issued
to the Village Officer, Poonithura
Exhibit R-1(c) true copy of the communication dated 06.06.2024 issued
to the Tahsildar(land records),Kanayannoor
