Petitioner challenged rejection of building permit for reconstructing existing row houses in Kalpathy's Agraharam. Court quashed order as it offered no specific reasons how the plan altered heritage character. Directed fresh consideration.
Ext.P4 communication quashed; 1st respondent directed to reconsider Ext.P3 plan afresh within six weeks after hearing.
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 A.K.JAYASANKARAN NAMBIAR
MONDAY, THE 11TH DAY OF DECEMBER 2017/20TH AGRAHAYANA, 1939
WP(C).No. 29705 of 2017 (K)
PETITIONER :
C.S.KRISHNAN, S/O.LATE C.S.SUBRAMANIAN, AGED 45 YEARS, 1/769 (1) "LEKSHMI" KALCHETTY STREET, KALPATHY P.O, PALAKKAD -678 003.
BY ADV. SRI.K.P.BALAGOPAL
RESPONDENT(S):
1. PALAKKAD MUNICIPALITY, PALAKKAD -678 001, REPRESENTED BY ITS SECRETARY.
2. THE SECRETARY, PALAKKAD MUNICIPALITY, PALAKKAD -678 001.
3. THE TOWN PLANNER, DISTRICT TOWN PLANNING OFFICE, CIVIL STATION, PALAKKAD -678 001.
4. THE ART & HERITAGE COMMISSION
R1 & R2 BY SRI.T.C.SURESH MENON,SC
SRI.P.S.APPU
SRI.A.R.NIMOD
R3 & R4 BY GOVERNMENT PLEADER SRI.MANURAJ.K.J.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sts
WP(C).No. 29705 of 2017 (K)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P3 TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT WITH PLAN
RESPONDENT(S)' EXHIBITS:
NIL
/TRUE COPY/
P.A.TO JUDGE
sts
A.K.JAYASANKARAN NAMBIAR, J.
W.P.(C). No. 29705 of 2017(K)
Dated this the 11th day of December, 2017
JUDGMENT
The petitioner has approached this Court aggrieved by Ext.P4 communication issued by the 4th respondent, whereby an application for construction of a multiple dwelling unit in Sy.No.1309 of Palakkad Municipality was rejected on the ground that, permitting the demolition of the existing row houses and reconstruction of multiple dwelling house in its place would spoil the character of the Agraharam as well as the character of the street. In the writ petition, it is the case of the petitioner that the issue of grant of permission to demolish existing row houses, and for reconstruction of multiple dwelling units in its place, has already been considered by the respondents on earlier occasions in the case of others and such permission has been granted. It is stated that, there were no tangible reasons discernible from Ext.P4 as to why, in the petitioner's case alone, such a permission could not be granted. It is on these grounds that Ext.P4 communication is impugned in the writ petition, where the petitioner has also produced Ext.P3, the plan of the proposed reconstructed structure to take the place of the existing Agraharam.
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W.P.(C). No. 29705of 2017(K)
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the case as also the submissions made across the bar, I find that, while in the counter affidavit filed on behalf of the 4th respondent, there is an apprehension raised with regard to the possible alteration to the existing character of the street and facade of the buildings in the Agraharam area, there is nothing in Ext.P4 communication to indicate as to, in what manner the plan submitted by the petitioner (Ext.P3) militates against the character of the street or the facade of the buildings, that is said to form the unique character of the Agraharam in the heritage area aforementioned. In my view, when the 4th respondent chooses not to grant permission for an alteration of the structure put up by the petitioner, it has to give reasons for the said denial of permission. Inasmuch as in Ext.P4 communication, no such reasons are spelt out, other than general reasons stating that the reconstruction will spoil the character of the Agraharam as also the character of the street, I am of the view that Ext.P4 communication cannot be legally sustained. Accordingly, I quash Ext.P4 and direct the 1st respondent to consider Ext.P3 plan submitted by the petitioner, afresh, and examine as to whether or not the permission can be granted for putting up a new structure in accordance with the said plan. The 4th respondent shall also take note of the contention of
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the petitioner that the permission for reconstruction has been granted to others in the locality and the permission shall be denied only if a construction in accordance with Ext.P3 plan would take away the character of the Agraharam as well as the character of the street in the Kalpathy area. The 4th respondent shall pass fresh orders as directed, after hearing the petitioner, within a period of six weeks from the date of receipt of a copy of this judgment. The petitioner shall produce copy of the writ petition together with a copy of this judgment before the 4th respondent for further action.
Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE
das/ 11.12.2017
3 issues framed by the court
Whether a building permit rejection order without specific reasons regarding the impact on heritage character is sustainable.
Whether the applicant is entitled to a fresh consideration of the permit application after the impugned order is quashed.
Whether the Town Planner must consider alternatives when granting permission for reconstruction that alters existing row houses.
C.S.KRISHNAN
PALAKKAD MUNICIPALITY
THE SECRETARY, PALAKKAD MUNICIPALITY
THE TOWN PLANNER, DISTRICT TOWN PLANNING OFFICE
THE ART & HERITAGE COMMISSION
A.K.JAYASANKARAN NAMBIAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
