Kerala High Court
Bosco Louis vs Educational And Charitable Trust Of ... on 24 September, 2024
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
W.P.(C)No.2878 of 2023
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE ACTING CHIEF JUSTICE MR. A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE S.MANU
TUESDAY, THE 24TH DAY OF SEPTEMBER 2024 / 2ND ASWINA, 1946
WA NO. 1252 OF 2022
AGAINST THE JUDGMENT DATED 13.6.2022 IN WP(C) NO.2992
OF 2022 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 3, 4, 5, 7 & 8 IN WP(C):
1 THE SENIOR TOWN PLANNER
COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM,
PIN - 682030
2 THE REGIONAL TOWN PLANNER
REGIONAL TOWN PLANNING OFFICE, KADAVANTHARA,
ERNAKULAM, PIN - 682020
3 THE CHIEF TOWN PLANNER
SWARAJ BHAVAN, 2BD, 3RD FLOOR, NANDTHANCODU,
THIRUVANANTHAPURAM, KERALA, PIN - 695003
4 THE TAHSILDAR
KANAYANNUR TALUK, KANAYANNUR, PARK AVE,
NEAR SUBASH PARK, MARINE DRIVE, KOCHI,
PIN - 682011
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
W.P.(C)No.2878 of 2023
2
5 THE STATE OF KERALA REPRESENTED BY THE SECRETARY
LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM DISTRICT, PIN - 695001
BY ADVS.
SRI.K.GOPALAKRISHNA KURUP - ADVOCATE GENERAL(AG-1)
SMT.K.R.DEEPA -SPL.G.P. - LSGD
RESPONDENTS/PETITIONER & RESPONDENTS 1, 2 & 6 IN WP(C):
1 EDUCATIONAL & CHARITABLE TRUST OF ARCH DIOCESE OF
VERAPOLY
LATIN ARCH BISHOP'S HOUSE, BROADWAY,
THRIKKANARVATTOM DESOM, ERNAKULAM VILLAGE.
KANAYANNUR TALUK, ERNAKULAM DISTRICT,
PIN - 682031 REPRESENTED BY ITS TRUSTEE FATHER
DENNY MATHEW PERINGATT
2 SECRETARY,
KALAMASSERY MUNICIPALITY,B.P.O.. CHANGAMPUZHA
NAGAR, THIRUNILATH HOUSING COLONY. SOUTH
KALAMASSERY, KALAMASSERY. ERNAKULAM-682 030.
3 KALAMASSERY MUNICIPALITY,
B.P.O., CHANGAMPUZHA NAGAR, THIRUNILATH HOUSING
COLONY, SOUTH KALAMASSERY, KALAMASSERY,
ERNAKULAM-682 033, REPRESENTED BY ITS SECRETARY.
4 GREATER COCHIN DEVELOPMENT AUTHORITY (GCDA),
REPRESENTED BY ITS SECRETARY,SAHODARAN AYYAPPAN
ROAD, KADAVANTHRA, PB NO.2012, KOCHI-682 020.
BY ADVS.
STIYA SIVAN
SHRI.M.K.ABOOBACKER,SC KALAMASSERY MUNCIPALITY
M.K.THANKAPPAN
V.HARISH
ABDUL JAWAD K.
P. THOMAS GEEVERGHESE
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
W.P.(C)No.2878 of 2023
3
K.R.RENJU
S.SREEKUMAR (SR.)
A.GRANCY JOSE
RAJAN VISHNURAJ
TONY THOMAS (INCHIPARAMBIL)(K/810/2010)
AMRUTHA K.P.(K/836/2020)
SAGAR ROSHAN(K/3985/2023)
SHILPA PRATHAP(K/1912/2024)
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06.08.2024,
ALONG WITH W.A.152/2023 & WP(C).2878/2023, THE COURT ON
24.09.2024 DELIVERED THE FOLLOWING:
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
W.P.(C)No.2878 of 2023
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE ACTING CHIEF JUSTICE MR. A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE S.MANU
TUESDAY, THE 24TH DAY OF SEPTEMBER 2024 / 2ND ASWINA, 1946
WA NO. 152 OF 2023
AGAINST THE JUDGMENT DATED 13.6.2022 IN WP(C) NO.2992
OF 2022 OF HIGH COURT OF KERALA
APPELLANT/3rd PARTY:
BOSCO LOUIS
AGED 37 YEARS
S/O. K.A LOUIS, RESIDING AT KARUNA NIVAS,
VIDAKKUZHA, THAIKKATTUKARA P.O, NAD GATE,
KALAMASSERY, ERNAKULAM DISTRICT, PIN - 683016
BY ADVS. RANJITH THAMPAN (SR.)(K/276/1990)
V.HARISH
RAJAN VISHNURAJ
RESPONDENTS/PETITIONER-RESPONDENTS:
1 EDUCATIONAL AND CHARITABLE TRUST OF ARCH DIOCESE
OF VERAPOLY LATIN ARCH BISHOPS HOUSE
BROADWAY, THRIKKANARVATTOM DESOM, ERNAKULAM
VILLAGE, KANAYANNUR TALUK, ERNAKULAM,
PIN - 682031 REPRESENTED BY ITS TRUSTEE FATHER
DENNY MATHEW PERINGATT
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
W.P.(C)No.2878 of 2023
5
2 KALAMASSERY MUNICIPALITY
B.P.O, CHANGAMBUZHA NAGAR, THIRUNILATH HOUSING
COLONY, SOUTH KALAMASSERY, KALAMASSERY,
ERNAKULAM, PIN - 682033 REPRESENTED BY ITS
SECRETARY
3 THE SECRETARY
KALAMASSERY MUNICIPALITY, B.P.O, CHANGAMBUZHA
NAGAR, THIRUNILATH HOUSING COLONY, SOUTH
KALAMASSERY, KALAMASSERY, ERNAKULAM, PIN - 682033
4 THE SENIOR TOWN PLANNER
COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM,
PIN - 682030
5 THE REGIONAL TOWN PLANNER
REGIONAL TOWN PLANNING OFFICE, KADAVANTHARA,
ERNAKULAM, PIN - 682020
6 THE CHIEF TOWN PLANNER
SWARAJ BHAVAN, 2BD, 3RD FLOOR, NANTHANCODU,
THIRUVANANTHAPURAM, PIN - 695003
7 GREATER COCHIN DEVELOPMENT AUTHORITY (GCDA)
REPRESENTED BY ITS SECRETARY, SAHODARAN AYYAPPAN
ROAD, KADAVANTHARA, PB.NO.2012, KOCHI, PIN -
682020
8 TAHASILDAR
KANAYANNUR TALUK, KANAYANNUR, PARK AVE, NEAR
SUBASH PARK MARINE DRIVE, KOCHI, PIN - 682011
9 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY, LOCAL SELF
GOVERNMENT DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM DISTRICT, PIN - 695001
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
W.P.(C)No.2878 of 2023
6
BY ADVS.
STIYA SIVAN
SHRI.M.K.ABOOBACKER,SC KALAMASSERY MUNCIPALITY
SRI.M.K.THANKAPPAN, SC, GCDA
SMT.K.R.DEEPA SPL.GOVERNMENT PLEADER-LSGD
SRI.K.GOPALAKRISHNA KURUP - ADVOCATE GENERAL(AG-1)
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06.08.2024,
ALONG WITH WA.1252/2022 AND W.P.(C)No.2878 of 2023, THE COURT ON
24.09.2024 DELIVERED THE FOLLOWING:
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
W.P.(C)No.2878 of 2023
7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE ACTING CHIEF JUSTICE MR. A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE S.MANU
TUESDAY, THE 24TH DAY OF SEPTEMBER 2024 / 2ND ASWINA, 1946
WP(C) NO. 2878 OF 2023
PETITIONER:
BOSCO LOUIS
AGED 37 YEARS
S/O. K.A LOUIS, RESIDING AT KARUNA NIVAS,
VIDAKKUZHA, THAIKKATTUKARA P.O, NAD GATE,
KALAMASSERY, ERNAKULAM, PIN - 683106
BY ADVS. RANJITH THAMPAN (SR.)
V.HARISH
RAJAN VISHNURAJ
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS ADDL. CHIEF SECRETARY, LOCAL
SELF GOVERNMENT DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE CHIEF TOWN PLANNER
SWARAJ BHAVAN, 2BD, 3RD FLOOR, NANTHENCODU,
THIRUVANANTHAPURAM, PIN - 695003
3 THE SENIOR TOWN PLANNER
COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM,
PIN - 682030
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
W.P.(C)No.2878 of 2023
8
4 KALAMASSERY MUNICIPALITY
B.P.O, CHANGAMBUZHA NAGAR, THIRUNILATH HOUSING
COLONY, SOUTH KALAMASSERY, KALAMASSERY,
ERNAKULAM, PIN - 682033, REPRESENTED BY ITS
SECRETARY
5 THE SECRETARY, KALAMASSERY MUNICIPALITY
B.P.O, CHANGAMBUZHA NAGAR, THIRUNILATH HOUSING
COLONY, SOUTH KALAMASSERY, KALAMASSERY,
ERNAKULAM, PIN - 682030
6 EDUCATIONAL AND CHARITABLE TRUST OF ARCH DIOCESE
OF VERAPOLY LATIN ARCH BISHOPS HOUSE
BROADWAY, THRIKKANARVATTOM DESOM, ERNAKULAM
VILLAGE, KANAYANNUR TALUK, ERNAKULAM,
PIN - 682031 REPRESENTED BY ITS TRUSTEE FATHER
DENNY MATHEW PERINGATT
BY ADVS.
SRI.K.GOPALAKRISHNA KURUP - ADVOCATE GENERAL(AG-1)
SMT.K.R.DEEPA -SPL.G.P.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 06.08.2024, ALONG WITH W.A.No.1252/2022 AND
W.A.No.152/2023, THE COURT ON 24.09.2024 DELIVERED THE
FOLLOWING:
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
W.P.(C)No.2878 of 2023
9
A.MUHAMED MUSTAQUE, Acg.C.J. & S.MANU, J.
------------------------------------------------------------------
W.A.Nos.1252 of 2022, 152 of 2023 &
W.P.(C)No.2878 of 2023
------------------------------------------------------------------
Dated this the 24th day of September, 2024
JUDGMENT
S.MANU, J.
W.A.No.1252 of 2022 is filed by the Senior Town
Planner and some other official respondents including the
State in W.P.(C)No.2992 of 2022. W.A.No.152 of 2023 is
filed by a third party against the same judgment of the
learned Single Judge. W.P.(C)No.2878 of 2023 is a writ
petition filed by the appellant in W.A.No.152 of 2023 in the
same issue. We proceed to dispose all cases together by
this common judgment.
2. W.P.(C)No.2992 of 2022 was filed by the 1st
respondent in W.A.No.1252 of 2022. Challenge in the writ
petition was against Ext.P8 letter dated 28.10.2021 and
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
Ext.P15 order dated 24.4.2022, both issued by the Senior
Town Planner, Ernakulam. By Ext.P8 the request for
approval of layout submitted by the Secretary, Kalamassery
Municipality dated 06.09.2021 (produced as Ext.P7 in the
writ petition) was returned by the Senior Town Planner.
Ext.P7 pertained to an application for regularisation of
unauthorised construction submitted by the writ petitioner.
By Ext.P8, the Senior Town Planner informed the Secretary
of the Municipality that the property wherein constructions
have been made is included in "ground and public open
space uses zone" (G-1 and G-2) as per Kochi City Structure
Plan. Construction of buildings for educational purposes
are not permitted in the said zone. Hence, it was intimated
that approval for layout cannot be considered. It was
further informed that application for dispensation/
modification from the regulations can be submitted.
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
Ext.P15 order was passed pursuant to an interim order in
W.P.(C)No.2992 of 2022 issued on 21.3.2022. Application
for approval of layout, to regularise additional constructions
made to the existing buildings by the writ petitioner was
rejected. Reasons given in Ext.P15 read as follows:-
"It has been stated in Rule 3(3) of KMBR 2019 that the
regulations on the town planning schemes under the
Town/Village Plans Act shall be applicable at all places
at which such schemes exists. The Structural Plan
(General town Planning Scheme) for Central City of
Kochi approved by the Government as per GO(MS)
No.103/91/LAD dated 20.03.1991 is the scheme in
prevalence in Kalamassery Municipality. It is seen that
the plot as per the application for Lay out approval as
per ref.No.3 is seen belonging to Ground & Public open
space uses zone (G1&G2). As per the zoning regulation
table 4.8 of the structural plan for central city of Kochi
as per GO(MS) No.143/07/LSGD dated 31.05.2007,
buildings under the category of educational buildings
are not permissible in the said zone. Therefore the said
constructions seem to have violated Rule 3 (3) of KMBR
2019."
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
3. Writ petitioner in W.P.(C)No.2992 of 2022
is an education and charitable trust registered under Act XII
of 1955. It established some educational institutions in 12
acres of land situated within the limits of Kalamassery
Municipality and comprised in block No.5 in Re.Sy.No.452/7
(old Sy.No.1087) of Thrikkakkara North Village. There
were five buildings as block Nos.A, B, C, D & E which were
all constructed after obtaining building permits. Later,
additional constructions; two floors in block A, three floors
in block B and one floor in block C were made by the trust
admittedly without prior permission from the Municipality.
Lack of permission is frankly admitted in paragraph 4 of the
writ petition. Application for regularisation of the additional
constructions was submitted to the Municipality in 2018.
Secretary of the Municipality sent a letter to the District
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
Town Planner on 06.11.2019 recommending for approval of
layout plan and to permit regularisation of additional
constructions. By letter dated 07.12.2019 the Senior Town
Planner informed the Municipality that the land wherein the
above blocks were constructed was included in ground and
public open space uses zone in the Kochi City Structure
Plan and therefore educational institutions are not
permitted in the said property. The Municipality again
addressed the Town Planner which was responded in the
negative by the first order under challenge in the writ
petition, i.e., Ext.P8.
4. Premier contentions of the Trust in the writ
petition are as follows:-
A. Exhibit P8 letter issued by the 3rd
respondent is without any basis, without
applying mind and unreasonable and it
violates Article 14 and 21 of the
Constitution of India.
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
B. The existing buildings were constructed
based on the Exhibit P2 Series permits
and taxes for the same have been
collected till 31-03-2020 and there was
no dispute related to the zone till then.
The 1st respondent Municipality after
inspecting the site and building submitted
reports to the 3rd respondent
recommending to approve the layout and
to regularize the additional constructions
of the petitioner. The request for approval
and regularization of the building were
sent by the 1st respondent Municipality to
the 3rd respondent only because the total
area constructed exceeded their
permissible authority and not because of
any issue regarding the zone in which the
buildings were constructed.
C. Since other educational institutes including
Cochin University, St. Joseph Higher
Secondary School, St. Paul's College,
Government Poly Technic Institute, ITI
Institute, etc. are situated in the same
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
locality of the petitioner's building and
there was no objection to these
institutions so far and the objection raised
against the construction of the building of
the petitioner seems some nefarious
intention on the part of the 3 rd
respondent.
D. In Exhibit P7 letter of the 1st respondent
clearly stated that the land of the
petitioner in question belongs to a public
zone and the educational occupancy
buildings are permissible. Through Exhibit
P7 letter, the 1st respondent
recommended to the 3rd respondent for
layout approval and regularization of the
building. Without considering the above
findings of the 1st respondent
municipality, the 3rd respondent issued
Exhibit P8 letter by rejecting the
application for layout approval.
5. The Senior Town Planner resisted the writ
petition by filing counter affidavit. The Town Planner
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
contended as follows:-
"As per Kerala Municipality Building Rules,
1999, Rule 54(1) in case of Professional
Educational Institutions under Group B
Occupancy approval of District Town Planner
shall be obtained for usage of plot and lay out
of buildings with total floor area exceeding 500
sq.m up to 2000 sq.m and approval of Chief
Town Planner shall be obtained for usage of
plot and lay out of buildings with total floor
area exceeding 2000 sq.m under each such
occupancy. The floor area of the said
Engineering college building as per this WPC is
4935.91 sq.m for Block A and date of permit
was 17.12.2010, 2082.03 sq.m for Block B
and date of permit was 09.11.2012, 2758.39
sq.m for Block C and date of permit was
28.11.2012, 1536.78 sq.m for Block D and
date of permit was 09.11.2012, 1973.78 sq.m
for Block E and date of permit was 07.11.2012
and the total area of existing building is
13286.89 sq.m. As per KMBR 1999, for the
said constructions approval of Chief Town
Planner should be obtained for usage of plot
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
and lay out of buildings. But it was not taken.
Hence the permit issued by the Municipality is
in violation of KMBR 1999. Permit issued to the
said building is already in violation of KMBR,
1999. Further the petitioner had made
additional construction to the building even
without applying for building permit. If the
initial building application has been forwarded
for layout approval of the District Town
Planner as per KMBR Rules, it might have been
intimated in the earlier stage itself, that the
said property falls in the Ground and Public
Open Space uses zone as per the Structure
Plan (Master Plan) for Central City of Kochi and
the said construction was not permissible
there.
The petitioner had submitted an application
dated 06.11.2019 to the Senior Town Planner,
Ernakulam on 07.11.2019 for getting approval
for the usage of plot and layout of buildings for
an educational Occupancy (Professional
Education) building in a plot with an area of 12
acre in re survey number 452/7 of Thrikkakara
North Village in Kalamassery Municipality. The
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
application was for regularising the additional
constructions done on the existing buildings.
The area of the existing building was 8823.83
sq.m and total area including the proposed
building was 10167.73 sq.m. On Scrutiny, it
was found that the said property falls in the
Ground and Public Open Space uses zone as
per the Structure Plan (Master Plan) for
Central City of Kochi sanctioned by Govt. as
per G.O. (Ms)103/91/LAD dated 20" March
1991. As per Table 4.8 of the zoning and sub
division regulations (Part IV) of the Structure
Plan (varied vide G.O. (Ms)143/07/LSGD dated
31st May 2007), use regulations in Ground and
Public Open Space uses zone, the proposed
educational building of the petitioner is not
permitted. Also, there was violation as per the
submitted plan in access width required as per
KMBR 1999. So the submitted plan violates
Structure Plan provisions and also the required
access width as per KMBR provisions. Hence
Exhibit P6 application submitted by the
petitioner was rejected. Later, Exhibit P7
application was re-submitted by the
Municipality and the same was again rejected
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
as per Exhibit P8. In Exhibit P8 the petitioner
was also intimated to apply for getting
dispensation/modification of the provisions of the
Master Plan as permitted vide G.O.(Ms)No:
305/2015/LSGD dated Thiruvananthapuram, 29 th
September 2015 and Circular No:
304282/RD2/15/LSGD dated Thiruvananthapuram,
18th February 2016. The Petitioner instead of
applying for said modification/dispensation has
approached this Honourable High Court.
The Structure Plan (Master Plan) for Central
City of Kochi was sanctioned by Government
as per G.O. (Ms)103/91/LAD dated 20 th March
1991. The Structure Plan area consists of
Kochi Corporation and adjacent local bodies
including Kalamassery Municipality also. From
the date of sanctioning, the regulation as per
this plan is applicable to the entire planning
area. The construction in the land should be in
conformity with provisions of the Structure
Plan."
It was further contended by the Town Planner that the
Structure Plan sanctioned in the year 1991 is now deemed
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
to be Master Plan sanctioned as per the Kerala Town and
Country Planning Act, 2016. After coming into operation of
a Master Plan or DTP Scheme no person shall use any land
or carry out development in any land or change the use
otherwise than in conformity with the Master Plan and
detailed Town Planning Schemes. Therefore, the Town
Planner justified the decision reflected in Ext.P15.
6. The learned Single Judge, after hearing
both sides, disposed the writ petition by setting aside
Exts.P8 and P15. The Senior Town Planner was directed to
consider the application to approve layout plan on the basis
of Ext.P7 recommendation of the Municipality. The
Municipality was directed to consider the matter afresh on
the basis of the decision by the Senior Town Planner. The
learned Single Judge to a great extent relied on a judgment
of a Division Bench of this Court in W.A.No.559/2016. It
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
was noted by the learned Single Judge that the Division
Bench had observed that the structure plan for Kochi has
not been implemented so far. The said judgment of the
Division Bench was relied on by the learned Single Judges
in some other writ petitions also.
7. Impugned judgment was rendered on
13.06.2022. Later, on 26.7.2023, a Division Bench of this
Court in R.P.No.815/2022 filed by the State against the
judgment dated 26.10.2016 in W.A.No.559/2016 clarified
the judgment as follows:-
"Therefore this review petition is ordered clarifying that
the findings in the judgment dated 20.6.2016 in
W.A.No.559/2016 were upon the facts of that case and
they should not be treated as a finding by this Court
that the Town Planning scheme in question was never
implemented in the Municipality in question. The rights
conferred on the writ petitioner/Additional respondents
4 & 5 in terms of the directions contained in the
judgment in Writ petition W.P.(C)No.15551/2015 and
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W.A.Nos.1252 of 2022, 152 of 2023 &
the judgment in W.A.No.559/2016 are not liable to be
reopened. With the above clarifications, this Review
Petition is disposed of."
The Division Bench accepted the contentions of the State
that once a Town Planning Scheme is notified, it comes into
force immediately. Therefore, the foundation of the
judgment of the learned Single Judge has been altered
subsequently. The learned Single Judge rendered the
judgment mainly on the ground that structure plan has not
been implemented as found by the Division Bench.
8. In W.A.No.1252/2022 the appellants
contend that the writ petitioner, after making additional
constructions without obtaining permit, applied for
regularisation of the additional constructions. It is also
contended that the building permits issued by the
Municipality for the original constructions were illegal.
Further, it has been stated that the Structure Plan for
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
Central City of Kochi is validly notified and is implemented
and if any variation or modification is to be done it can only
be done in accordance with law, as per the provisions of the
Town and Country Planning Act, 2016. Government Orders
and Circulars are also issued in this regard in terms of the
provisions of the Town and Country Planning Act, 2016. The
writ petitioner had made constructions of large magnitude
which required prior approval of the Chief Town Planner.
Therefore, the original constructions were also in violation
of the statutory requirements. The State pointed out that
Master Plan is a long term perspective plan for guiding the
sustainable development of the city. Development control
regulations is also part of the implementation of the Master
Plan. The earmarking of the areas into Residential/
Industrial/Commercial/Agricultural or keeping areas for
parks, roads, etc. is an exercise that is done in public
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
interest and hence the private interest of the land owners
who seek to build up particular construction would have to
necessary yield to the overriding public interest that
informs the provision of the TP Scheme.
9. W.P.(C)No.2878/2023 was filed by the
appellant in W.A.No.152/2023. The petitioner in this case
is a permanent resident within the limits of the
Kalamassery Municipality. He opposes the constructions
made by the writ petitioner in W.P.(C)No.2992/2022.
According to him, the constructions are without obtaining
required permission and in violation of the provisions of the
Municipality Act, Building Rules and also of the Kerala Town
and Country Planning Act, 2016. The Trust has no valid
title of the land in their possession. He points out that the
property under possession of the Trust falls under the
ground and public open space uses zone and the structural
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W.A.Nos.1252 of 2022, 152 of 2023 &
plan is very much in force. The Trust has made the
constructions defying every applicable laws. According to
the petitioner, the Secretary of the Municipality has acted
illegally by processing the applications for regularisation.
The petitioner sought leave of this Court to challenge the
judgment in W.P.(C)No.2992/2022 and on being granted
leave, filed W.A.No.152/2023. In the writ appeal the
judgment of the learned Single Judge has been assailed for
the reasons and grounds which the party has raised in W.P.
(C)No.2878/2023.
10. We heard the learned Special Government
Pleader, learned Senior Counsel for the 1st respondent in
W.A.No.1252/2022 and the learned Senior Counsel
appearing for the appellant in W.A.No.152/2023. We have
perused the pleadings and documents also.
11. During the course of hearing, the learned
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
Senior Counsel appearing for the Trust reiterated the
contentions in W.P.(C)No.2992/2022. It was also pointed
out that the Trust, a non-profitable entity made the
constructions for the purpose of running educational
institutions. The original constructions were made after
obtaining building permits. The Municipality has been
levying tax with respect to those constructions. The
additional constructions were made to expand the space
available in the original buildings to meet the additional
requirements. The zonal restrictions now pointed out by
the Town Planner were not raised any time before. It is
also pointed out that in response to some RTI applications
with respect to same property, it was informed that the
same falls within public zone. The Trust also relied on
Ext.P11 land use certificate issued by the Tahsildar. It was
also pointed out by the learned Senior Counsel appearing
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
for the Trust that in the same vicinity several other
educational institutions have been constructed and are
functioning. The zonal restrictions were never enforced and
it is highly arbitrary, discriminatory and illegal to deny
regularisation to the Trust by raising objections.
12. We have anxiously considered all
contentions. It is candidly admitted by the Trust that the
additional constructions sought to be regularised were
completed without obtaining any building permits. We note
that it has become a practice to violate the provisions of
the Building Rules and make constructions on the
assumption that such constructions can be regularised
later. We do not endorse the action by the Trust in making
constructions of several floors, extending to large area,
unauthorisedly. The Town Planner has raised serious
objections pointing out that the property wherein the
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
constructions have been made falls within ground and
public open space uses zone (G-1 and G2). Importance of
preserving such zones for the benefit of the community at
large cannot be doubted. So also the necessity to adhere to
the zonal regulations under the Town Planning Act needs no
emphasis. Object of the Town Planning Scheme and the
zonal regulations made under it is to promote orderly
development. Violations of the Master Structure Plans
cannot be neglected lightly.
13. As we noted in the beginning, the learned
Single Judge had passed the impugned judgment mainly
relying on the judgment of a Division Bench in
W.A.No.559/2016, especially on the reasoning that the
Town Planning Scheme was not implemented in the
Municipality in question. We are not oblivious of the fact
that a different Municipality was involved in the said case.
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W.A.Nos.1252 of 2022, 152 of 2023 &
However, the Master Plan covers the Municipality involved
in the said case as well as Kalamassery Municipality which
is involved in the case on hand. In R.P.No.815/2022 it was
clarified that findings in the judgment dated 20.06.2016 in
W.A.No.559/2016 should not be treated as a finding by this
Court that the Town Planning Scheme in question was
never implemented. Therefore, we are of the view that the
judgment under challenge cannot be sustained. Since the
Town Planning Scheme was in force when additional
constructions were made by the Trust, we are of the view
that Ext.P15 order issued by the Senior Town Planner is
liable to be upheld. The Trust shall be at liberty to move
the Government for modification/dispensation as provided
under Annexures A1 and A2. We note that the Government
have provided such relief to an educational institution in
Annexure A3. We have taken note of the formidable
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W.A.Nos.1252 of 2022, 152 of 2023 &
contentions of the petitioner in W.P.(C)No.2878/2023 also.
He has a grievance that Ext.P22 representation submitted
by him to the Additional Chief Secretary, Local Self
Government Department was not considered.
14. Therefore, we set aside the judgment in
W.P.(C).No.2992 of 2022 and dispose these cases with the
following directions:-
(i) The 1st respondent Trust in
W.A.No.1252/2022 may approach the
Government for modification/dispensation
as provided under Annexure A1
Government Order & A2 circular.
(ii) If an application for modification/
dispensation is received, competent
authority of the Government shall consider
the same and take decision in accordance
with law after hearing the Trust, the
Secretary of Kalamassery Municipality, the
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W.A.Nos.1252 of 2022, 152 of 2023 &
Chief Town Planner and the petitioner in
W.P.(C)No.2878/2023.
(iii) A decision in the matter shall be taken and
communicated to all parties mentioned
above within a period of three months from
the date of receipt of application for
modification/dispensation in the office of
the competent authority.
Writ appeals and writ petition are disposed of as
above.
Sd/-
A.MUHAMED MUSTAQUE,
ACTING CHIEF JUSTICE
Sd/-
S.MANU,
JUDGE
skj
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
APPENDIX OF WP(C) 2878/2023
PETITIONER'S EXHIBITS
Exhibit P1 A TRUE PHOTOCOPY OF THE REPORT NO.H4-17633 OF
2021 DATED 19.07.2022 SUBMITTED BY THE
TAHSILDAR TO THE DISTRICT COLLECTOR
Exhibit P2 A TRUE PHOTOCOPY OF THE LETTER NO. BA-
350/2018 DATED 06.11.2019 SENT BY THE 5TH
RESPONDENT TO THE DISTRICT TOWN PLANNER
Exhibit P3 A TRUE PHOTOCOPY OF THE COMMUNICATION DATED
07.12.2019 MADE BY THE SENIOR TOWN PLANNER,
ERNAKULAM TO THE 5TH RESPONDENT.
Exhibit P4 A TRUE PHOTOCOPY OF THE PROVISIONAL ORDER AND
NOTICE DATED 14.02.2020 ISSUED BY THE 5TH
RESPONDENT.
Exhibit P5 A TRUE PHOTOCOPY OF THE NOTICE DATED
26.02.2020 ISSUED FROM THE HEALTH INSPECTOR
GRADE-1 TO THE INSTITUTE RUN BY THE 6TH
RESPONDENT.
Exhibit P6 A TRUE PHOTOCOPY OF THE REPRESENTATION DATED
13.06.2020 PREFERRED BY THE PETITIONER BEFORE
THE 5TH RESPONDENT ALONG WITH ITS RECEIPT.
Exhibit P7 A TRUE PHOTOCOPY OF THE JUDGMENT IN WPC NO.
14062 OF 2020 PASSED BY THE HON'BLE HIGH
COURT OF KERALA
Exhibit P8 A TRUE PHOTOCOPY OF THE ORDER DATED
12.10.2020 ISSUED BY THE 5TH RESPONDENT.
Exhibit P9 A TRUE PHOTOCOPY OF THE JUDGMENT IN WPC NO.
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
15350 OF 2020 PASSED BY THE HON'BLE HIGH
COURT OF KERALA.
Exhibit P10 A TRUE PHOTOCOPY OF THE REPORT DATED
26.08.2020 BY THE CHIEF TOWN PLANNER
(VIGILANCE).
Exhibit P11 A TRUE PHOTOCOPY OF THE LETTER NO.
RB1/432/2020/LSGD DATED 07.10.2020 ISSUED BY
THE 1ST RESPONDENT TO THE 5TH RESPONDENT
Exhibit P12 A TRUE PHOTOCOPY OF THE INTERIM ORDER DATED
09.02.2021 PASSED BY THIS HON'BLE COURT IN
WPC NO. 795 OF 2021
Exhibit P13 A TRUE PHOTOCOPY OF THE ORDER DATED
10.02.2021 ISSUED BY THE 5TH RESPONDENT.
Exhibit P14 A TRUE PHOTOCOPY OF THE ORDER DATED
09.11.2022 IN APPEAL NO.97 OF 2021 BY THE
TRIBUNAL FOR LOCAL SELF GOVERNMENT
INSTITUTIONS
Exhibit P15 A TRUE COPY OF THE LETTER DATED 06.09.2021
ISSUED BY THE 5TH RESPONDENT TO THE REGIONAL
TOWN PLANNER
Exhibit P16 A TRUE PHOTOCOPY OF THE COMMUNICATION DATED
28.10.2021 ISSUED BY THE 3RD RESPONDENT TO
THE 5TH RESPONDENT.
Exhibit P17 A TRUE PHOTOCOPY OF THE ORDER DATED
24.04.2022 ISSUED BY THE 3RD RESPONDENT
Exhibit P18 A TRUE PHOTOCOPY OF THE JUDGEMENT DATED
13.06.2022 ISSUED BY THE HON'BLE COURT IN WPC
NO. 2992 OF 2022
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
Exhibit P A TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE
18(a) KERALA MUNICIPALITY BUILDING (REGULARIZATION
OF UNAUTHORIZED CONSTRUCTION) RULES, 2018
Exhibit P19 A TRUE PHOTO COPY OF THE G.O.
(MS).NO.305/2015/LSGD DATED 29.09.2015 VIDE
Exhibit P20 A TRUE PHOTO COPY OF THE G.O.
(MS).NO.306/2015/LSGD DATED 29.09.2015 VIDE
Exhibit P21 A TRUE PHOTO COPY OF THE CIRCULAR
NO.304282/RD2/15/LSGD DATED 18.02.2016 ISSUED
BY THE STATE GOVERNMENT
Exhibit P22 TRUE PHOTOCOPY OF THE REPRESENTATION DATED
18.01.2023 PREFERRED BY THE PETITIONER BEFORE
THE 1ST RESPONDENT
Exhibit P23 A TRUE PHOTOCOPY OF THE RELEVANT PAGES OF
ZONING AND SUB-DIVISION REGULATIONS OF KOCHI
STRUCTURAL PLAN (PART IV)
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W.A.Nos.1252 of 2022, 152 of 2023 &
APPELLANT'S ANNEXURES
Annexure A1 A TRUE PHOTOCOPY OF THE JUDGMENT PASSED
BY THIS HON'BLE COURT IN WPC.NO.14062
OF 2020
Annexure A2 A TRUE PHOTOCOPY OF THE ORDER NO.TP-
11967/2020 DATED 12.10.2020 PASSED BY
THE 3RD RESPONDENT ALONG WITH ITS
ENGLISH TRANSLATION.
Annexure A3 A TRUE PHOTOCOPY OF THE NOTICE DATED
26.02.2020 ISSUED BY THE HEALTH
INSPECTOR OF THE 2ND RESPONDENT ALONG
WITH ITS ENGLISH TRANSLATION.
Annexure A4 A TRUE PHOTOCOPY OF THE ORDER ISSUED BY
THE 2ND RESPONDENT DATED 10.02.2021
ALONG WITH ITS ENGLISH TRANSLATION.
Annexure A5 A TRUE PHOTOCOPY OF THE GO(P)
NO.11/2018/LSGD DATED 15.02.2018 WHICH
WAS PUBLISHED IN GAZETTE NOTIFICATION
SRO NO.95 / 2018 DATED 20.02.2018
Annexure A6 A TRUE PHOTOCOPY OF THE REPORT DATED
19.07.2022 OF THE 8TH RESPONDENT ALONG
WITH ITS ENGLISH TRANSLATION.
Annexure A7 A TRUE PHOTOCOPY OF THE ORDER DATED
09.11.2022 IN APPEAL NO.97 OF 2021
PASSED BY THE TRIBUNAL FOR LOCAL SELF
GOVERNMENT INSTITUTIONS, TRIVANDRUM
2024:KER:71083
W.A.Nos.1252 of 2022, 152 of 2023 &
APPELLANTS' ANNEXURES
Annexure A1 TRUE COPY OF THE
G.O[MS)NO.305/2015/LSGD
THIRUVANANTHAPURAM DATED 29.09.2015
Annexure A2 TRUE COPY OF THE CIRCULAR
NO.304282/RD2/2015/LSGD
THIRUVANANTHAPURAM DATED 18.02.2016
Annexure A3 TRUE COPY OF THE GOVERNMENT ORDERG.O
(RT) NO. 1562/22/LSGD
THIRUVANANTHAPURAM DATED 01.07.2022
