Allowed

K.K.Sabu v. Thiruvankulam Grama Panchayath

Kerala HC14 Jul 2010WP(C)/6810/2010

Case brief

AI extract

What is this about?

Petitioner challenged a Panchayat stop memo halting construction based on a future road widening under the Central City of Kochi structure plan. Court allowed continuation of construction under the valid permit, citing that unimplemented acquisition schemes cannot freeze property rights.

What did the court decide?

The writ petition is allowed; petitioner is entitled to continue construction under the existing building permit; structure plan will not stand in the way.

K.K.Sabu Vs Thiruvankulam Grama Panchayath — Property and Title | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR

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WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932

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WP(C).No. 6810 of 2010(A)

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----------------------------------------

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PETITIONER(S):

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-----------------------

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K.K.SABU, AGED 47, S/O.K.C.KURAIN KAROTTU HOUSE, NADAKKAVUNGAL, THIRUVANKULAM P.O.

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BY ADV. SRI.DINESH R.SHENOY SRI.G.HARIKRISHNAN (TRIPUNITHURA)

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RESPONDENT(S):

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-------------------------

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1. THIRUVANKULAM GRAMA PANCHAYATH REP BY ITS SECRETARY O/O.THIRUVANKULAM GRAMA PANCHAYATH THIRUVANKULAM PO.

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2. THE SENIOR TOWN PLANNER O/O. REGIONAL TOWN PLANNER TOWN PLANNING OFFICE, BEHIND GCDA COMPLEX, GIRINAGAR.

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R1 BY ADVS. SRI.S.SREEKUMAR, SRI.ANEESH JAMES. R2 BY GOVERNMENT PLEADER SRI.C.M.SURESH BABU

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) NO.6810/2010

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APPENDIX

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PETITIONER'S EXHIBITS

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P1:- COPY OF THE SITE PLAN AND LOCAL CERTIFICATE ISSUED BY THE VILLAGE OFFICER, THIRUVANKULAM VILLAGE DTD. NIL.

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P2:- COPY OF THE BUILDING PERMIT NO.A4.799/2009 DTD. 13.4.2009 ISSUED BY THE IST RESPONDENT.

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P3:- COPY OF THE APPROVED SITE PLAN OF THE PROPOSED BUILDING.

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P4:- COPY OF THE APPROVED FRONT ELEVATION AND GROUND FLOOR PLAN.

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P5:- COPY OF THE APPROVED SECTION PLAN AND IST FLOOR PLAN.

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P6:- COPY OF THE ORDER NO.A4.799/09 DTD. 11.2.2010 ISSUED BY THE IST RESPONDENT.

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P7:- COPY OF THE LETTER DTD. 20.1.2010 ISSUED THIS THE 2ND RESPONDENT TO THE IST RESPONDENT.

TRUE COPY

P.A. TO JUDGE

tss

T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~

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W.P.(C). No.6810/2010-A

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~~~~~~~~~~~~~~~~~~~~~~~~~~~

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Dated this the 14^th day of July, 2010

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J U D G M E N T

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The petitioner was granted a building permit as per Ext.P2 for construction of a residential building. The same is dated 13/04/2009. The total extent of the property owned by him where the building is proposed to be constructed is 17.56 cents.

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The building proposed to be constructed is a three storied residential building having a total plinth area of 1020.19m² . Ext.P3 is the photocopy of the approved site plan of the building. It is pointed out that the petitioner thereafter started construction and, while the construction was going on, by Ext.P6, a stop memo was issued by the Panchayat. It was informed that he should obtain a revised building permit in the light of the fact that under the Town Planning Scheme, the distance to be maintained from the middle of the road is 16.50 mts. The same is under challenge in this writ petition. Ext.P7 is a letter issued from the Regional Town Planning Officer to the Panchayat showing the said requirement. The same is dated 20/01/2010.

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W.P.(C). No.6810/2010

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-:2:-

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The learned counsel for the petitioner submitted that at the time of issuance of the permit, no such communication was received by the Panchayat and, at any rate, the building permit once approved cannot be revised as sought for, especially, due to the fact that he has already started construction on the basis of the building permit.

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The first respondent in the counter affidavit

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submits that the Thiruvamkulam Panchayat is also included in the area covered by the structure plan for 'Central City of Kochi' approved by the Government of Kerala. A structural plan map was prepared in the year 2009 itself and, accordingly, certain distance rules have been stipulated for the new constructions. It is in the light of the above, the Panchayat issued Ext.P6 letter pursuant to Ext.P7 directions of the Senior Town Planner, Ernakulam. It is pointed out that the petitioner is therefore bound to maintain a distance of 16.50 mts from the centre of the road.

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The second respondent in the counter affidavit has pointed out that as per G.O.(MS) 103/91/LAD dated 20/03/1991, the structure plan, Town Planning Scheme

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W.P.(C). No.6810/2010

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-:3:-

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for central city, Kochi was sanctioned by the Government. The first respondent Panchayat is within the scheme area. In the structure plan, widening of Kalamassery-Chottanikkara road to 27 metre is proposed and for regulating the building constructions on either side of the road, the responsibility is with local body concerned. Ext.P7 is a clarification letter.

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Evidently, the Panchayat has approved the building plan and issued the permit prior to the issuance of Ext.P7. What is proposed in the structure plan is widening of the road to 27 mts., which necessarily requires acquisition of land on either sides. So far, no proceedings have been initiated by the Land Acquisition authorities to effect acquisition for the widening of the road by implementing the scheme. It is settled by various decisions of this Court including Padmini v. State of Kerala [1999 (3)

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KLT 465] that schemes which require acquisition of land cannot be put against the land owners on the ground that the property is proposed to be acquired. The land cannot be freezed indefinitely.

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W.P.(C). No.6810/2010

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Evidently, there is a structure plan approved by the Government. As far as the position herein is concerned, there is a valid building permit in his favour and therefore, the petitioner is entitled to continue with the construction in terms of the building permit issued. Therefore, the writ petition is allowed. The structure plan will not stand in the way of the petitioner making the construction. It is made clear that the same will be at the risk of the petitioner. No costs.

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(T.R. Ramachandran Nair, Judge.)

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K.K.Sabu v. Thiruvankulam Grama Panchayath

Case brief

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K.K.Sabu v. Thiruvankulam Grama Panchayath

Case brief

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