Allowed

Sunitha Suraj and Others v. Secretary, Corporation of Thiruvananthap

Kerala HC29 Nov 2016WP(C)/14162/2010

Case brief

AI extract

What is this about?

Coram quashed the Corporation's rejection of a commercial building conversion application. The Court held master plan zoning proposals alone cannot deny conversion if commercial structures exist locally. Builders must comply with Building Rules on access and open space; if not, they cannot operate commercially but must pay commercial rates.

What did the court decide?

Constitution of Corporation's rejection of conversion; directions for inspection; commercial tax liability imposed regardless of conversion grant.

Sunitha Suraj and Others Vs Secretary, Corporation of… — Landlord and Tenant | Kerala HC (2016)

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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 K.VINOD CHANDRAN

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TUESDAY, THE 29TH DAY OF NOVEMBER 2016/8TH AGRAHAYANA, 1938

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WP(C).No. 14162 of 2010 (U)

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PETITIONER(S):

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1. SUNITHA SURAJ, D/O.P.K.MENON, 'XANADU, TC 09/314(4), PLRS-F-42/3, PANICKERS LANE EXTN., SASTHAMANGALAM , THIRUVANANTHAPURAM -10

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2. VINITHA NAVEEN, (DIED), ND-03, T.C.NO.09/312, DEEPTHI,

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SARDAR PANICKER LANE, JAWAHAR NAGAR, KOWDIAR, THIRUVANANTHAPURAM-695 003.

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3. VASUDEVAVILASAM ARYA VAIDYASALA PVT. LTD. SREEVASAM, OTUKAL STREET, KAITHAMUKKU,

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THIRUVANANTHAPRUAM, REPRESENTED BY ITS MANAGING DIRECTOR.

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4. NAVEEN CHARLEY, S/O.P.P.CHARLEY, DAFODIL, PARUTHIKUNNATH HOUSE, KOLLAMKUDIMUGAL, KAKKANAD.

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BY ADVS.SRI.V.V.ASOKAN SRI.P.P.RAMACHANDRAN

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RESPONDENT(S):

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1. THE SECRETARY, CORPORATION OF THIRUVNANTHAPURAM, THIRUVANANTHAPURAM.

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2. CORPORATION OF THIRUVANANTHAPURAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY.

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3. REVENUE OFFICER, CORPORATION OF THIRUVANANTHAPURAM, THIRUVANANTHAPURAM.

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R1 TO R3 BY SRI.N.NANDAKUMARA MENON,SENIOR ADVOCATE SRI.P.K.MANOJKUMAR,SC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C).NO.14162/2010

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1 COPY OF THE GIFT DEED NO.1464/2005, DATED 30/3/2005

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P1(A) COPY OF THE GIFT DEED NO.1465/2005, DATED 30/3/2005

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P2 COPY OF THE LEASE DEED IN RESPECT OF DOOR NO.9/1295, DATED 30/8/2007

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P2(A) COPY OF THE LEASE DEED IN RESPECT OF DOOR NO.9/1296, DATED 30/8/2007

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P2(B) PHOTOGRAPH SHOWING THE NATURE OF BUILDING NO.9/1295, DATED NIL

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P2(C) PHOTOGRAPH SHOWING THE NATURE AND LIE OF BUILDING NOS.9/1295 AND 9/1296, DATED NIL

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P3 COPY OF THE PROPERTY TAX RECEIPT FOR THE PERIOD 2009-10 SECOND HALF IN RESPECT OF DOOR NO.9/1295, DATED 15/3/2010

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P3(A) COPY OF THE PROPERTY TAX RECEIPT FOR THE PERIOD 2009-10 SECOND HALF IN RESPECT OF DOOR NO.9/1296, DATED 15/3/2010

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P4 COPY OF THE NOTICE OF THE SECRETARY OF THIRUVANANTHAPURAM CITY CORPORATION, DATED 27/8/2009

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P5 COPY OF THE REQUEST MADE ON BEHALF OF THE PETITIONERS TO THE 1ST RESPONDENT, DATED 24/9/2009

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P6 COPY OF THE COMMUNICATION OF THE REVENUE OFFICER OF THIRUVANANTHAPURAM CITY CORPORATION, DATED 6/1/2010

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P6(A) COPY OF THE NOTICE PROCEEDINGS OF THE HEALTH OFFICER OF THE CORPORATION OF TRIVANDRUM, DATED 5/10/2009

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P6(B) COPY OF THE NOTICE ISSUED BY THE CORPORATION OF TRIVANDRUM, DATED 24/4/2010

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P7 COPY OF THE PROCEEDING OF THE OMBUDSMAN, DATED 6/2/2010

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P8 COPY OF THE DATA FURNISHED BY THE PETITIONERS BEFORE THE OMBUDSMAN, DATED NIL

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P8(A) PHOTOGRAPHS PERTAINING TO THE BUILDINGS IN JAWAHAR NAGAR HOUSING COLONY BEING UTILIZED FOR COMMERCIAL PURPOSE,DATED NIL

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P8(B) PHOTOGRAPHS PERTAINING TO THE BUILDINGS WITHIN THE CORPORATION LIMITS IN APPARENT VIOLATION OF THE BUILDING RULES, DATED NIL

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P8(C) PHOTOGRAPHS PERTAINING TO THE BUILDINGS WITHIN THE CORPORATION LIMITS IN APPARENT VIOLATION OF THE BUILDING RULES, DATED NIL

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2/-

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WP(C).NO.14162/2010

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P8(D) PHOTOGRAPHS PERTAINING TO THE BUILDINGS WITHIN THE CORPORATION LIMITS IN APPARENT VIOLATION OF THE BUILDING RULES, DATED NIL

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P8(E) PHOTOGRAPHS PERTAINING TO THE BUILDINGS WITHIN THE CORPORATION LIMITS IN APPARENT VIOLATION OF THE BUILDING RULES, DATED NIL

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P8(F) PHOTOGRAPHS PERTAINING TO THE BUILDINGS WITHIN THE CORPORATION LIMITS IN APPARENT VIOLATION OF THE BUILDING RULES, DATED NIL

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P9 COPY OF THE PROCEEDING OF THE OMBUDSMAN, DATED 8/4/2010

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RESPONDENT'S EXHIBITS:

NIL

/TRUE COPY/

P.A.TO JUDGE

sts

K. VINOD CHANDRAN, J.

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W.P.(C) No. 14162 of 2010 (U)

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Dated: 29^th November, 2016

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J U D G M E N T

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The petitioners are aggrieved with the denial of conversion sought for by the petitioners from a residential building to a commercial building, which was declined by the Corporation.

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The petitioners 1 and 2, the second of whom

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expired in the course of the proceedings, were the owners of two buildings constructed some time in 1960-1961, which, admittedly, were used as residences. The buildings are said to be situated in Sasthamangalam, one of the fast developing areas within the Thiruvananthapuram Corporation; wherein all residential buildings have been converted to

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W.P.(C) No. 14162/2010

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commercial buildings. The petitioners, too, rented out the buildings for commercial purposes to two earlier tenants and eventually, to the 3^rd petitioner, who is conducting a dispensary in the building. The 3^rd petitioner, when applied for renewal of license, was declined the same by Ext.P4 for two reasons; one, for dues with respect to the property tax and the other being the nature of the building which was 'residential'.

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The 1^st petitioner's father, hence, being the Power of Attorney holder, applied for a conversion and agreed to pay property tax for the buildings at the commercial rates, by Ext.P5. The same was declined by Ext.P6 for three reasons; one, that the open space required for commercial buildings was not available; two, the master plan declared the area as 'residential' and; three, the access to the building was found to be

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W.P.(C) No. 14162/2010

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not of sufficient width, as provided in the Kerala Municipality Building Rules, 1999 ('Building Rules' for short).

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There was a status quo order obtained at the time of admission of the writ petition and the business is said to be continuing even now.

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The learned Senior Counsel for the respondent Corporation would, at the outset, submit that there is no provision by which a conversion could be granted. It is also submitted that the order indicates that, if at all, conversion is to be made and a fresh assessment carried out, then, the building should comply with the conditions as per the Building Rules, as applicable to commercial buildings. It is also submitted that the master plan has set apart the area for residential purposes.

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W.P.(C) No. 14162/2010

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The master plan framed under the Town Planning Scheme, which did not materialise for long,

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was, time and again, held to be not a reason to deny the land owners from enjoying their property to the full extent by making constructions thereon, even if it deviates from the proposed zoning, as per the master plan. A recent judgment of the Division Bench on 26.10.2016 in W.A. No.1459/2016, is also to the same effect. Hence, the mere fact that a proposal exists under the master plan for zoning the area as a residential zone, cannot stand in the way of consideration of the conversion sought for by the petitioners.

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An earlier Division Bench had also considered

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the aspect, as is seen from Gopalakrishnan T.V. v. State of Kerala and others - 2011 (3) KHC 162 ,

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W.P.(C) No. 14162/2010

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where the issue was with respect to the denial of an application for commercial building permit in an area intended to be notified as 'residential' under the master plan. The Division Bench found that if there are other commercial constructions in the locality, then, the mere proposal under the master plan cannot interdict the land owners from making such constructions. In such circumstance, the finding of the Corporation that the zoning of the area as 'residential' would stand against the conversion sought for by the petitioners, cannot be accepted.

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The further grounds raised are the non availability of sufficient width for the access to the building as also the lack of open space as required for a commercial building. The petitioner definitely would have to comply with such requirements. In such circumstance, the Corporation would inspect the

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property and decide on whether the building has access and open space as provided for in the Building Rules, applicable to commercial buildings as on the date of application made at Ext.P5, i.e. as on 24.09.2009. It is reiterated that the consideration would be as to the provisions as existing on 24.09.2009 and if the building is found to be entitled to be assessed as 'commercial', then, necessarily, such orders shall be issued and in that event, the petitioner shall also be liable to pay the property tax, as assessed under the commercial category, at the rates that periodically existed; from 24.09.2009 onwards. If the building lacks any of the conditions stipulated in the Building Rules, then, the Corporation shall intimate such grounds to the petitioners and the petitioners could make a rectification and again make an application. If eventually the conversion is rejected, then, the

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W.P.(C) No. 14162/2010

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petitioner cannot carry on any commercial business within the premises, but, will have to necessarily concede to an assessment at the rates applicable to commercial buildings for the period in which the commercial activity was carried on.

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The writ petition would stand disposed of with the above directions and observations. No Costs.

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Sd/K.VINOD CHANDRAN, JUDGE

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jjj 1/12/16

Sunitha Suraj and Others v. Secretary, Corporation of Thiruvananthap

Case brief

What is this about?

What did the court decide?

Sunitha Suraj and Others v. Secretary, Corporation of Thiruvananthap

Case brief

What is this about?

What did the court decide?

What the court decided

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