Disposed

Shiju Kuriakose, v. State of Kerala

Kerala HC7 Jul 2023WP(C)/10075/2023

Case brief

AI extract

What is this about?

This Single Judge disposed of a writ petition by directing the Palakkad Municipality to conduct a site inspection to verify if residential/commercial buildings exceeding 200 square metres of plinth area have been permitted near the petitioner's property. If verified, the petition argues the zoning regulations are unworkable, and the building permit application shall be considered without reference

What did the court decide?

Directed 3rd respondent to conduct site inspection within one month; if petitioner is correct regarding buildings >200 sq. metres in vicinity, Ext.P5 Building Permit application shall be considered ig

Shiju Kuriakose, Vs State of Kerala — Municipal and Town Planning | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 7TH DAY OF JULY 2023 / 16TH ASHADHA, 1945
WP(C) NO. 10075 OF 2023

¶4

PETITIONER

¶5

SHIJU KURIAKOSE,
AGED 47 YEARS
S/O KURIAKOSE, PADMINI NIVAS, C-28, MURIKKAVU WEST,
YAKKARA P.O., PALAKKAD, PIN - 678001

¶6

BY ADVS.
J.JULIAN XAVIER
ROY JOSEPH
ANIES MATHEW
ANJANA RAM
NIRMAL KURIEN EAPEN

¶7

RESPONDENTS:

¶8

1STATE OF KERALA,
REP. BY ITS SECRETARY,
DEPARTMENT OF REVENUE, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001

¶9

2 REVENUE DIVISIONAL OFFICER OFFICE OF THE REVENUE DIVISIONAL OFFICER, PARAKKUNNAM, VIDYUT NAGAR, PALAKKAD, PIN - 678001

¶10

3 PALAKKAD MUNICIPALITY, SANTHI NAGAR, KUNNATHUMEDU, PALAKKAD, REP. BY ITS SECRETARY, PIN - 678001

¶11

4 ADDL.R4: DISTRICT TOWN PLANNER, KODUVAYUR, MEENAKSHIPURAM HWY, SANTHI NAGAR, KENATHUPARAMBU, SULTANPET, PALAKKAD - 678 001. ( IS IMPLEADED AS PER ORDER DATED 13/04/2023 IN IA 1/23 ) BY ADV J.JULIAN XAVIER

¶12

ADV.DEVISREE. GOVERNMENT PLEADER
ADV.BINOY VASUDEVAN-STANDING COUNSEL

¶13

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶14

WP(C) NO.10075 OF 2023

¶15

¶16

JUDGMENT

¶17

Dated this the 7^th day of July, 2023

¶18

This writ petition is filed seeking the following reliefs :-

¶19

“(i) To call for the records connected with the case leading to Ext.P6 and quash the original of Ext.P6 to the extent it directs the petitioner to resubmit the application limiting the floor area to be constructed as 200 m² , by issuing a writ of certiorari.

¶20

(ii) To issue a writ of mandamus or any other appropriate writ, order or direction directing the 3^rd respondent to reconsider Ext.P5 Building Permit application in the light of Ext.P7 circular issued by the 1^st respondent as well as Ext.P4 order issued by the 2^nd respondent.”

¶21

Heard the learned counsel for the petitioner, the

¶22

learned Government Pleader representing respondents 1, 2 and the additional 4^th respondent and the learned Standing Counsel representing the 3^rd respondent

¶23

It is submitted by the learned counsel for the petitioner that the petitioner is owner in possession of 2.91 Ares of property in Survey No.69 of Palakkad-I Village in Palakkad Taluk. The property was converted on the strength of Ext.P4

¶24

WP(C) NO.10075 OF 2023

¶25

KLU Order. The property is not included in Data Bank. The petitioner submitted an application for Building Permit for construction of a residential building in the property. However,

¶26

the application was rejected by the 3^rd respondent on the ground that only buildings upto 200 Square Metres can be constructed as per Zoning Regulation of 2009 and the total plinth area proposed by the petitioner is 389.82 Square Metres.

¶27

Counsel for the petitioner submits that the property in question is a residential property and that several constructions without reference to the zoning regulation have already been allowed in the area in question which could be evident from even a cursory inspection by the Secretary. It is submitted that the application submitted by the petitioner is, therefore, liable to be considered since the Scheme pointed out by the 3^rd respondent has become unworkable and has not been insisted upon by the respondents themselves.

¶28

WP(C) NO.10075 OF 2023

¶29

¶30

Government Pleader entered appearance and

¶31

resisted the writ petition. The Government Pleader submitted that the Development Plan for the Palakkad Municipality was prepared and sanctioned in the year 1986 and variation in the Zoning Regulations was ordered by the Government on 11.11.2009. It is submitted that some areas have been retained as paddy zones in the Zoning Regulations and that the construction of a residential building having a floor area of 389.82 Square Metres as suggested by the petitioner is not permissible. It is further submitted that only residential buildings having floor area of 200 Square Metres are permitted in the zone in question and that the Zoning Regulations are liable to be strictly followed.

¶32

Standing Counsel for the 3^rd respondent submitted that the property of the petitioner is comprised in the paddy zone under the Detailed Town Planning Scheme for the Palakkad Municipality and that the respondents do not have the power or the jurisdiction to relax the conditions thereon.

¶33

WP(C) NO.10075 OF 2023

¶34

¶35

Having considered the contentions advanced, I notice

¶36

that this Court has considered similar issue in respect of the same Municipality in W.P.(C) No.27966 of 2022. As in W.P.(C) No.27966 of 2022, the petitioner also has raised a specific contention that the area in question where the petitioner's property is situated in a residential land and that several constructions have been permitted by the respondents themselves in the immediate vicinity of the said property. If that be so and if the DTP Scheme has not been acted upon by the respondents themselves and has become obsolete and unworkable, the objection now raised to issuance of Building Permit sought for by the petitioner cannot be countenanced.

¶37

In view of the above, the writ petition is disposed of directing the 3^rd respondent-Palakkad Municipality to conduct a site inspection and specifically verify whether Building Permits in excess of residential buildings having 200 Square Metres of plinth area have been permitted to be put up in the vicinity of the petitioner's property. If the contention of the

¶38

WP(C) NO.10075 OF 2023

¶39

¶40

petitioner is correct and there are other residential and commercial buildings in the said vicinity, then Ext.P5 Building Permit application submitted by the petitioner shall also be considered without reference to the objection that the property in question is a paddy zone. Appropriate steps shall be taken by the 3^rd respondent within a period of one month from the date of receipt of a copy of this judgment.

N.NAGARESH

JUDGE

hmh

WP(C) NO.10075 OF 2023

¶45

¶46

APPENDIX OF WP(C) 10075/2023

¶47

PETITIONER EXHIBITS

¶48

Exhibit P1TRUE COPY OF THE SALE DEED
NO.2205/1/2022 DATED 28.09.2022 OF SRO
OLAVAKKOD IN FAVOR OF THE PETITIONER
Exhibit P2TRUE COPY OF THE LAND TAX RECEIPT DATED
22.11.2022 ISSUED BY THE VILLAGE
OFFICER, PALAKKAD-I VILLAGE
Exhibit P3TRUE COPY OF THE POSSESSION CERTIFICATE
DATED 25.11.2022 ISSUED BY THE VILLAGE
OFFICER, PALAKKAD-1 VILLAGE
Exhibit P4TRUE COPY OF THE ORDER NO.
RDOPKD/2041/2022-J1 DATED 25.03.2022
ISSUED BY THE REVENUE DIVISIONAL
OFFICER, PALAKKAD
Exhibit P5TRUE COPY OF THE APPLICATION FOR PERMIT
SUBMITTED ON 05.01.2023 BY THE
PETITIONER BEFORE THE 3RD RESPONDENT
Exhibit P6TRUE COPY OF THE LETTER NO. EJBR/BA-
1008/1009/2023/E4 DATED 27.02.2023
ISSUED BY THE 3RD RESPONDENT
Exhibit P7TRUE COPY OF THE AMENDED CIRCULAR
PUBLISHED IN KERALA GAZETTE EXTRA
NO.1471 DATED 21.04.2021 BY THE 1ST
RESPONDENT
RESPONDENT EXHIBITS
EXHIBIT R-3(A)TRUE COPY OF GO (MS) 210/09/LSGD DATED
11-11-2009

Shiju Kuriakose, v. State of Kerala

Case brief

What is this about?

What did the court decide?

Shiju Kuriakose, v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

T.K.Sukumaran, Vs 1. Varantharapilly Grama Panchayat

Rejeena Thomas, Vs Varantharapilly Grama Panchayat

Ashwathy K. G., Vs Union of India

Rajani K.C Vs the District Geologist

Johnson Km S/O Varkey Mathai Vs State of Kerala

Sunil Kumar K.R Vs Nazer Km