Disposed

Sujatha Amma and Another v. State of Kerala and Others

Kerala HC26 Sept 2012WP(C)/21289/2011

Case brief

AI extract

What is this about?

A writ petitioner challenged orders denying renewal of a building permit on the ground that the land fell in a green zone. The court held that since the original permit was issued before the relevant 2007 zonal regulations took effect, no reference to the Chief Town Planner was required for renewal.

What did the court decide?

Respondents 2 and 3 directed to consider the petitioner's application for renewal of the building permit in accordance with law.

Sujatha Amma and Another Vs State of Kerala and Others — Property and Title | Kerala HC (2012)

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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 A.M.SHAFFIQUE

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WEDNESDAY, THE 26TH DAY OF SEPTEMBER 2012/4TH ASWINA 1934

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WP(C).No. 21289 of 2011 (I)

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PETITIONER(S):

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1. SUJATHA AMMA, T.C. 29/1131, DNRA - 10, THIRUVONAM, DEVI NAGAR, PALKULANGARA, THIRUVANANTHAPURAM

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2. SYAM, T C 29/1131, DNRA-10,

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THIRUVONAM, DEVI NAGAR, PALKULANGARA, THIRUVANANTHAPURAM

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BY ADVS.SRI.P.SREEKUMAR

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SRI.K.S.MANU (PUNUKKONNOOR) SRI.P.S.SIDHAN SRI.V.K.RAJANANDAN

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM - 695 001

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2. THIRUVANANTHAPURAM CORPORATION REPRESENTED BY ITS SECRETARY, PALAYAM THIRUVANANTHAPURAM - 695 010

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3. THE SECRETARY, THIRUVANANTHAPURAM CORPORATION, PALAYAM, THIRUVANANTHAPURAM - 695 011

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4. THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM - 695 010

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R1 & R 4 BY GOVERNMENT PLEADER SRI. V.VIJULAL R2 & R3 BY ADV. SRI.N.NANDAKUMARA MENON (SR.) BY ADV. SRI.P.K.MANOJKUMAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MJL

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WP(C).No. 21289 of 2011 (I)

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXT.P1	:	A TRUE COPY OF THE PERMIT NO.2221 DATED 11/2/1994
EXT.P2	:	A TRUE COPY OF THE PERMIT NO.5089 DATED 19/7/1996 ISSUED BY THE 2ND RESPONDENT
EXT.P3	:	A TRUE COPY OF THE GOVERNMENT ORDER DATED 21/7/1997
EXT.P4	:	A TRUE COPY OF THE ORDER NO.2192 DATED 13/4/2004
EXT.P5	:	A TRUE COPY OF THE PERMIT NO. T P4/BA/2847/05 DATED 27/4/2006 ISSUED BY THE 2ND RESPONDENT
EXT.P6	:	A TRUE COPY OF THE REQUEST DATED 21/4/2009 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT
EXT.P7	:	A TRUE COPY OF THE LETTER DATED 29/3/2011 SENT BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT
EXT.P8	:	A TRUE COPY OF THE COMMUNICATION DATED 14/6/2011 OF THE IST RESPONDENT
EXT.P9	:	A TRUE COPY OF THE COMMUNICATION DATED 24/6/2011 ISSUED BY THE 4TH RESPONDENT

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RESPONDENTS' EXHIBITS: NIL

/TRUE COPY/

P A TO JUDGE

MJL

A.M.SHAFFIQUE, J.

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W.P.(C)NO.21289/2011

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Dated this the 26^th day of September, 2012.

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J U D G M E N T

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Petitioner challenges Exts.P8 and P9 orders issued by the

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Chief Town Planner. Ext.P8 is an order issued by the Government stating that since the property of the petitioner is situated in the green strip zone as informed by the Regional Town Planner and Chief Town Planner no exemption for construction could be granted as per the direction in the judgment of the Division Bench of the High court. Ext.P9 is a letter issued by the Chief Town Planner to the petitioner stating that the property in which he had applied for renewal of building permit comes within the green zone of the master plan and therefore the petitioner was directed to approach the Corporation for necessary orders.

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The facts of the case disclose that the petitioner, who is the owner of certain item of land had obtained building permit for construction of commercial establishment and later on it seems that by Ext.P5 building permit dated 27.04.2006

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she had obtained permit for constructing ground floor and three floors in an extent of 26.50 cents of land belonging to her situated in survey No.1513/2 of Pettah village, Thiruvananthapuram District.

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It is her complaint that though part of the construction had been completed when she applied for the renewal of the permit by Ext.P6 dated 21.04.2009 the same was not granted by the Corporation on the ground that a reference to the Chief Town Planner is required. It is in the said circumstances that the Chief Town Planner had given an opinion as per Ext.P9 which was reiterated by the Government as per Ext.P8.

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In fact the contention of the learned counsel appearing for the petitioner is that in so far as the building permit had already been granted by way of Ext.P5, there is no reason why the permit should not be renewed to enable the petitioner to complete the construction. According to the

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learned counsel the scheme referred to in Ext.P9 and zoning regulations for Trivandrum city had come into force only in 2007 by Notification GO(MS)144/07/LSGD dated 31/05/2007 and since the building permit had been issued prior to the said notification coming into effect, so far as the renewal of permit is concerned, the notification will have no effect and it is incumbent on the part of the Corporation to renew the permit despite the notification which came into force with effect from 31/05/2007. It is further argued that a learned single judge of this court in Shivaprasad Vs.State of Kerala (2011(1) KLT 690) had opined that the Kerala Municipality Act and the Building Rules, framed there under over rides the provisions of the Town Planning Act 1939 and the Madras Town Planning Act 1920. In other words, the Municipality Building Rules continues to apply de-hors whatever scheme framed under the Town Planning Acts mentioned above.

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The learned government pleader however contends

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that in so far as the portion of the property is admittedly coming under the green zone as per the notified scheme unless the Chief Town Planner consents as provided under Rule 7(8) of the Municipality Building Rules to permit such constructions, it was not open for the petitioner to construct any building in the said property and the building permit so issued by the Corporation is therefore illegal and for that reason itself the petitioner is not entitled to get extension for the period of constructing a building by renewal of building permit. The learned Government Pleader also referred to a Division Bench judgment of this court in Sayeesh Kumar Vs. State of Kerala (2005(4) KLT 1027) to contend for the proposition that the Government has no power to grant exemption in respect of any Town Planning scheme. Therefore according to the learned Government Pleader once the property is notified as the

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green strip or green zone under the notification which is a scheme, it is not open for the Government or the Chief Town Planner to grant any exemption and for that reason Exhibit P8 and P9 are valid in law.

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It is further argued that the 2007 scheme is only a modified version of the 1971 scheme which was in existence earlier. In that view of the matter, Ext.P5 building permit could not have been issued by the Corporation.

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Having heard the arguments on either side I am of the view that the zonal regulation with reference to the scheme had come into effect only on 12/5/2007 by virtue of Notification No.GO(MS)144/07/LSGD dated 31/05/2007. In that view of the matter in respect of building permits to be issued subsequent to the said scheme coming into effect, there is some logic in contending that permission from the Chief Town Planner also is required. Admittedly this is a case were building permit had been issued in the year 2006

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as evident from Ext.P5. Apparently the zoning regulation was not in force at that point of time. In that circumstances, denial of extension of the building permit or non consideration of the extension of building permit application may not apply as far as the present request of the petitioner is concerned. Apart from that, this Court in Shivaprasad's case (Supra) held that the Town Planning Act 1939 and the Madras Town Planning Act 1920 cannot survive in the light of Part IX of the Constitution of India and the Municipality Act 1994 which also leads to the conclusion that the scheme framed under the said provision cannot over ride the provisions of Municipalities Act or the Municipal Building Rules. It is argued by the learned government pleader that Shivaprasad's case had been stayed by the Division Bench. Merely because there is a stay of operation of the judgment, it does not mean that the judgment cannot be made applicable. Until the said

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judgment is set aside the law laid down continues to apply. In that view of the matter, I am of the view that while seeking renewal of the building permit, there is no necessity for the corporation, to make a reference to the Chief Town Planner as the said opinion with reference to the present scenario may not be applicable to the case on hand. In regard to the contention raised by the government pleader with reference to Rule 7(8) of the Building Rules, I don't think that the said provision has any application to the facts on hand. As per Rule 7(8), in case the application is for approval of plot, or building requirements and for usage of plot the secretary shall refer the matter to Chief Town Planner. Here Ext.P6 is only an application to renew the permit granted as per Ext.P5. Hence the said argument does not arise for consideration in the case.

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