Petitioner challenged rejection of building permit. Court held unacquired land in open space zone cannot be denied use and culvert-bridged land remains contiguous. Writ allowed.
Rejection of building permit was set aside and respondents directed to reconsider application afresh.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
MONDAY, THE 30TH DAY OF MARCH 2015/9TH CHAITHRA, 1937
WP(C).No. 2242 of 2014 (E)
PETITIONER:
M/S.MUTHOOT FINANCE LTD, MUTHOOT CHAMBERS, 2ND FLOOR, KURIEN TOWERS, OPP.SARITHA THEATRE COMPLEX, BANERJI ROAD, KOCHI-682018, REPRESENTED BY ITS MANAGING DIRECTOR MR.GEORGE ALEXANDER.
BY ADVS.SRI.JOSEPH MARKOSE (SR.) SRI.V.ABRAHAM MARKOS SRI.BINU MATHEW SRI.TOM THOMAS (KAKKUZHIYIL) SRI.ABRAHAM JOSEPH MARKOS SRI.ABRAHAM VARGHESE THARAKAN
RESPONDENTS:
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-03-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
APPENDIX IN WP(C).No. 2242 of 2014 (E)
PETITIONER'S EXHIBITS:
EXHIBIT-P1(a): TRUE COPY OF LAND TAX RECEIPT NO.18328 DATED 21.06.2012.
EXHIBIT-P1(b): TRUE COPY OF LAND TAX RECEIPT NO.18300 DATED 21.06.2012.
EXHIBIT-P1(c): TRUE COPY OF LAND TAX RECEIPT NO.18335 DATED 21.06.2012.
EXHIBIT-P1(d): TRUE COPY OF LAND TAX RECEIPT NO.22295 DATED 16.6.2012.
EXHIBIT-P2: TRUE COPY OF THE ENVIRONMENTAL CLEARANCE ISSUED BY THE MINISTER OF ENVIRONMENT & FOREST, GOVERNMENT OF INDIA, NEW DELHI BY LETTER DATED 03.11.2010.
EXHIBIT-P3: TRUE COPY OF THE COMPOSITE CONSENT UNDER VARIOUS POLLUTION ACTS ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD BY ORDER DATED 22.03.2011, WHICH IS VALID TILL 20.03.2014.
EXHIBIT-P4: TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 20.02.2012 ISSUED BY AIRPORTS AUTHORITY OF INDIA.
EXHIBIT-P5: TRUE COPY OF THE NOC FOR CONSTRUCTION DATED 29.07.2011 ISSUED BY SOUTHERN NAVAL COMMAND.
EXHIBIT-P6: TRUE COPY OF THE COMMUNICATION DATED 28.04.2012 ISSUED BY THE GREATER COCHIN DEVELOPMENT AUTHORITY (GCDA) CONFIRMING THAT THE LAND IS PROPOSED FOR MIXED USE (RESIDENTIAL AND COMMERCIAL) AS PER VARIED STRUCTURE PLAN.
EXHIBIT-P7: TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 30.05.2013 ISSUED BY FIRE & RESCUE SERVICES DEPARTMENT.
EXHIBIT-P8: TRUE COPY OF THE COMMUNICATION DATED 21.04.2012 ISSUED BY CORPORATION OF COCHIN.
EXHIBIT-P9: TRUE COPY OF THE COMMUNICATION DATED 20.12.2013 ISSUED BY THE 1ST RESPONDENT REJECTING THE APPLICATION FOR BUILDING PERMIT SUBMITTED BY THE PETITIONER.
EXHIBIT-P10: TRUE COPY OF THE 2ND RESPONDENT'S COMMUNICATION TO THE 1ST RESPONDENT DATED 7.10.2013.
EXHIBIT-P11: TRUE COPY OF THE PERMISSION FOR CONSTRUCTION OF CULVERT BY ORDER DATED 1.9.2011 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT-P12: TRUE COPY OF THE APPLICATION DATED 20.12.2013 UNDER THE RTI ACT MOVED BY THE PETITIONER FOR A COPY OF THE PURPORTED SKETCH SHOWING ZONING OF ALL SURVEY NUMBERS FROM THE STADIUM LINK ROAD NORTH END UPTO THE THAMMANAM PULLEPADY ROAD.
EXHIBIT-P13:TRUE COPY OF THE PLAN OBTAINED FROM THE TOWN PLANNING DEPARTMENT OF THE 1ST RESPONDENT.
EXHIBIT-P14: PHOTOS SHOWING EXISTING AND PRESENT DEVELOPMENTS AND UNDER GOING ACTIVITIES NEAR BY THE PETITIONER'S PROPERTY.
EXHIBIT-P15: TRUE COPY OF THE LETTER DATED 10.01.2014 ISSUED IN REPLY TO RTI APPLICATION
RESPONDENT'S EXHIBITS: NIL.
/TRUE COPY/
P.S. TO JUDGE
Dama Seshadri Naidu, J.
W.P.(C)No.2242 of 2014 E
Dated this the 30th day of March, 2015
JUDGMENT
The Petitioner, having proposed to construct its Corporate Office comprising Basements, Ground plus twelve floors and Terrace having a total area of 22535 sq.mt., submitted an application for building permit to the respondent Corporation. The land on which it wanted to construct is an extent of 3.20 acres in Survey Nos. 139/1,139/3, 140, 140/3, 140/1, 143/2 and 143/3 of Elamkulam Village and Survey Nos.227 and 228/1 of Poonithura Village, both in Kanayannur Taluk. Locationally, the property lies on the side of the Jawaharlal Nehru Stadium Link Road, which is a 22 meter wide public road.
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P2 Environmental Clearance by the Ministry of Environment & Forests, Government of India, New Delhi; (2) Exhibit P3 Composite Consent under various Pollution Acts issued by Kerala State Pollution Control Board; (3) Exhibit P4 No Objection Certificate issued by Airports Authority of India; (4) Exhibit P5 No Objection Certificate issued by Southern Naval Command; (5) Exhibit P6 Confirmation issued by the fifth respondent Greater Cochin Development Authority (GCDA) that the land comes under the category of mixed use (residential and commercial) as per Varied Structure Plan, and (6) Exhibit P7 No Objection Certificate issued by Fire & Rescue Services Department.
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authority, granted building permits to the petitioner’s neighbouring plot owners to raise multi-storied complexes. The developers who took advantage of the statutory position include Kent Constructions, Indian Medical Association (IMA), Skyline Builders, Olive Builders, Desai Homes, etc. The structures raised by these companies or associations are said to have been located on either side of the Jawaharlal Nehru Stadium Link Road.
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1 (2005) 11 SCC 222 2
2009 (3) KLT 92
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nevertheless, the authorities concerned have treated them as lying contiguous and permitted the owners thereof to cover the canal with a culvert. According to him, the respondent Corporation has thus extended the benefit of road access to the property owners from the 22 metre width road.
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Eventually, the learned Senior Counsel has urged this Court to allow the writ petition.
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without the necessity of acquisition of land. Summing up his submissions, the learned Special Government Pleader has submitted that the Structure Plan for Central City of Kochi is still in force and that the culvert connecting the two plots of the petitioner is owned by the Corporation, thereby rendering the petitioner's plot unfit for any building permit. 15. The learned Counsel for the first respondent has adopted, in their entirety, the arguments of the second respondent. He has further submitted that the first respondent forwarded the petitioner's application for building permit to the second respondent in terms of Rule 54 of the Kerala Municipality Building Rules. According to him, the respondent Corporation has to go by the directive of the second respondent, which it eventually did.
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Pleader for the second respondent, apart from perusing the record.
i. Whether the fact that the survey numbers where the petitioner's property is situated in 'Ground and Public Open Space Zone' as per the Structure Plan comes in the way of the petitioner's putting its property to a mixed use, which is otherwise permitted in the area?
ii. Whether the contiguity of the petitioner's property is affected in view of the bisection of the property by the Karanakkodam canal, which has been covered by a culvert, though?
In re, Issue No.1:
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Corporation; nor is it disputed that the area comes under mixed use. But the fact remains that the survey numbers in which the petitioner's property is situated lie in 'Ground and Public Open Space Zone'. The property in question is shown in Kochi City Structure Plan as a place earmarked for public utility. It is axiomatic that in any master plan, various areas may be marked as public utility places or as lung spaces or recreational open spaces. The places thus shown may belong to the Corporation or to any individuals. To subserve the public purpose, the properties owned by individuals, having been earmarked for public use, are, in fact, required to be acquired before they could be dedicated for the declared purpose. In the present instance, no acquisition proceedings have been initiated.
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land. Answering the said question, the Hon'ble Supreme Court has held thus:
“[T]his in our opinion, cannot be done. It would have been possible for the Municipal Corporation and the Government of Maharashtra to acquire the land in order to provide civic amenities. But the land in question has not been acquired. We are quite conscious of the fact that the open park and garden are necessary for the residents of the area. But at the same time we cannot lose sight of the fact that a citizen is deprived of his rights without following proper procedure of law…We fail to understand how the burden can be placed on the appellants that they should provide suitable area in the present locality for using the same as garden or park. Rather, the burden should have been placed on the Municipal Corporation or the State Government instead of putting it on the appellants that they must provide some space for garden and park.”
As far as this Court is concerned, firstly in Hassan v. Corporation of Calicut4 it considered the issue whether rejection of the application submitted by the Appellants therein for permission for construction can be sustained in view of Clause (vii) of Sub-section (1) of Section 393 of the
4 1996 (2) KLT 839
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Kerala Municipality Act. This Court, per P.A.Mohammed, J.,
has held thus:
“5. It must be recalled that every citizen has the freedom to enjoy his land in a manner he likes of course subject to the prevailing laws in the country, the right to hold land and enjoyment thereof though is not a fundamental right, is a civil right protected by Chapter IV of the Constitution. Article 300A mandates that no person shall be deprived of his property save by authority of law. When a person is restrained from enjoyment of his land it may amount to deprivation of his property. But such deprivation can be made only by authority of law. That means all restrictions for enjoyment of land must be in accordance with the procedure authorised by law. It also envisages strict compliance of such procedure in all matters restraining the enjoyment of land.”
In fact, the above ratio was quoted with approval in Padmini & Ors v. State of Kerala5 by a learned Division Bench. Further, in Nasar v. Malappuram Municipality6 , a learned Single Judge of this Court, following the ratio of Padmini (supra), has observed that in so far as the owner of the land is concerned, the acquisition affects his interest
5 (1999) 2 KLT 465
6 (2009) 3 KLT 92
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only from the issuance of notifications and declarations under the Land Acquisition Act; therefore, any attempt to curb the rights of the owners of lands, until the publication of those statutory notifications and declarations, would result in infraction of the right to property under Article 300A of the Constitution. It is further opined that any infraction of that nature would also result in the violation of the equality principle in the matter of enforcement of laws as is enshrined in Article 14 the Constitution. It is, in the end, emphatically held that any demand to create a rider over the title of the owner of the property under the pretext of a Town Planning Scheme which has not become operational by acquisition would, essentially, be oppressive and would not be countenanced in the face of Article 14 of the Constitution.
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In re, Issue No.2:
“(i) All uses permitted in the residential and commercial use zones may also be permitted on either side of roads having existing or proposed width of 12 Meters or more to a depth of 75 Meters from the boundary of the road.
(iv) The Maximum permissible F.A.R. and Coverage for buildings under residential and commercial occupancies (as defined in building rules in force) shall be 2.50 and 50%
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respectively in the areas prescribed under (i), (ii) and (iii) above.’’
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across and use the properties as if they were contiguous. It is, indeed, relevant to observe that the respondent Corporation has permitted through Exhibit P11 proceedings even the petitioner to bridge across the canal with a culvert. In Exhibit P11, the conditions stipulated therein inter alia require the petitioner as follows:
“7) As is done by Skyline and Kent, canal should be constructed through the compound of M/s.Muthoot Finance and to avert water logging.
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resolved, there is no manner of doubt that the petitioner's property passes the muster under Clause 4.13 extracted above.
“22. In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalisation of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to
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regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable inter-meddling with the private ownership of the property may not be justified.
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and roads. Zoning and building regulations are also legitimised from the point of view of the control of community development, the prevention of overcrowding of land, the furnishing of recreational facilities like parks and playgrounds and the availability of adequate water, sewerage and other governmental or utility services.”
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plot becomes fully compliant with the distance norms. Culvert has already been in place as has been permitted through Exhibit P11 by the first respondent Corporation. In the context of contempranea expositio, usage or practice developed under a statute is indicative of the meaning ascribed to the words by contemporary opinion. All along, the respondent authorities, wherever they have permitted the use of culvert, have treated the property on either side of the canal as contiguous. I do not see any egregious reason for a differential treatment to be meted out to the petitioner.
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in view the observations of this Court above, and pass appropriate orders thereon as expeditiously as possible, at any rate, within a month's time from the date of receipt of a copy of the judgment.
With the above direction, the writ petition stands disposed of. No order as to costs.
Dama Seshadri Naidu, Judge
tkv
2 issues framed by the court
Whether designation as 'Ground and Public Open Space Zone' prevents construction where land has not been acquired.
Whether a canal-covered by a culvert disrupts the contiguity required for mixed-use zoning compliance.
Colour shows how this judgement treated each authority
Raju S. Jethmalani v. State of KeralaRelied on¶96
(2005) 11 SCC 222 · Who else cites this
Nasar v. Malappuram MunicipalityRelied on¶96
2009 (3) KLT 92
Hassan v. Corporation of CalicutRelied on¶99
1996 (2) KLT 839
Padmini & Ors v. State of KeralaRelied on¶106
(1999) 2 KLT 465
Friends Colony Development Committee v State of OrissaDistinguished¶14
(2004) 8 SCC 733 · Who else cites this
M/s. Muthoot Finance Ltd
Corporation of Cochin
Chief Town Planner
State of Kerala
Regional Town Planner
Greater Cochin Development Authority
Dama Seshadri Naidu
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
