Allowed

Abin Sha Ks v. Kalamassery Municipality

Kerala HC20 Jul 2023WP(C)/14102/2023

Case brief

AI extract

What is this about?

Petitioners challenged an obstruction in obtaining a Building Permit due to the Kalamassery Municipality's reliance on the Cochin Central City Structural Plan. Relying on a prior judgment deeming the plan antiquated for this area, the Court quashed the objection letter and directed the Municipality to decide the permit application within one month.

What did the court decide?

Ext.P5 set aside; 2nd respondent directed to consider Ext.P4 application for Building Permit within one month.

Abin Sha Ks Vs Kalamassery Municipality — Municipal and Town Planning | Kerala HC (2023)

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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 N.NAGARESH

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THURSDAY, THE 20TH DAY OF JULY 2023 / 29TH ASHADHA, 1945

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WP(C) NO. 14102 OF 2023

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PETITIONERS:

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1 ABIN SHA KS

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AGED 32 YEARS

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S/O SHAMSUDEEN, SHA MANZIL, ASHOKA ROAD, KALOOR, ERNAKULAM, PIN - 682017

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2 ASIF SHA KS AGED 27 YEARS S/O SHAMSUDEEN, SHA MANZIL, ASHOKA ROAD, KALOOR, ERNAKULAM, PIN - 682017

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BY ADVS.

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P.THOMAS GEEVERGHESE
TONY THOMAS (INCHIPARAMBIL)
E.S.FIROS

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RESPONDENTS:

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1 KALAMASSERY MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, CHANGAMPUZHA NAGAR P.O, ERNAKULAM, PIN - 682033

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2 SECRETARY KALAMASSERY MUNICIPALITY, MUNICIPAL OFFICE, CHANGAMPUZHA NAGAR P.O., KALAMASSERY, ERNAKULAM, PIN - 682033

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3 SENIOR TOWN PLANNER

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LSGD PLANNING OFFICE OF DISTRICT TOW PLANNER, 4TH FLOOR,
CIVIL STATION, ERNAKULAM, KAKKANAD, PIN - 682030

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SMT.DEEPA. N-GOVERNMENT PLEADER
SRI.M.K.ABOOBACKER,STANDING COUNSEL

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO.14102 OF 2023

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JUDGMENT

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Dated this the 20^th day of July, 2023

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The petitioners are before this Court seeking to quash Ext.P5 and to direct the 2^nd respondent to consider Ext.P4 application for Building Permit within a specified time, without any reference to the 'Agricultural Zone' specified in Kochi Structural Plan.

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The petitioners state that the petitioners wanted to construct a residential building within Kalamassery Municipal area and submitted an application for Building Permit under the Kerala Municipal Building Rules, 2019. Respondents 1 and 2 are not granting Building Permit to the petitioners on the ground that under the Cochin Central City Structural Plan, the land in question in the Kalamassery Municipality is in Agricultural

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WP(C) NO.14102 OF 2023

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3

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Zone. It is aggrieved by the omission on the part of respondents

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1 and 2 to consider the application for Building Permit that the petitioners have approached this Court.

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I have heard the learned counsel for the petitioners, the learned Standing Counsel representing respondents 1 and 2 and the learned Government Pleader representing the 3^rd respondent.

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From the pleadings in the writ petition, it emerges that this Court in R.P.No.607 of 2020 in W.P.(C) No.10059 of 2020 considered the applicability of Cochin Central City Structural Plan to the Kalamassery Municipality. After elaborately considering the issues involved and various judgments of this Court, a learned Single Judge of this Court held as follows:-

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“15. After hearing both sides, it appears that the case of the review petitioner-municipality would be that the said provisions of the Kochi Structural Plan regarding zonal regulations may have been notified in the manner prescribed in the Town Planning Scheme and Town Planning Act. Even if that be so, the fact situation in the present case relating to the Kalamassery Municipality is almost identical or similar to the cases dealt with in

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WP(C) NO.14102 OF 2023

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4

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the aforecited judgments of this Court in respect of the Kochi Structural Plan in the neighbouring Thrikkakara Municipality. Merely because the Kochi Structural Plan is notified does not necessarily mean that the Structural Plan has been implemented with all efficacy and vigour. If, the fact situation is as stated above, then the only irresistible conclusion is the one, as already made by this Court in a series of cases in respect of the Thrikkakara Municipality and therefore, it is only to be held that the said structural plan, has become antiquated and redundant, which had been seen from the very ground realities in existence. Hence, it is to be only held that the present stand to reject the plea for occupancy certificate, would amount to an impugned rejection on the basis of a procedure which is not fair, just and reasonable and hence, the depravation of the constitutional right of the writ petitioner to enjoy his property, is not in accordance with the procedure, which is just, fair and reasonable and hence, the said impugned rejection is only to be held as illegal, ultra vires and unreasonable.”

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It is submitted at the Bar that the judgment in R.P.No.607 of 2020 in W.P.(C) No.10059 of 2020 has become final.

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In view of the findings of the learned Single Judge of

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this Court to the effect that the Cochin Central City Structural Plan has become antiquated and redundant, in so far as it is applicable to the Kalamassery Municipality, this Court is of the considered view that the petitioners’ application for Building Permit cannot be withheld based on the said Structural Plan.

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WP(C) NO.14102 OF 2023

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In the circumstances, the writ petition is disposed of setting aside Ext.P5 and directing the 2^nd respondent to consider Ext.P4 application for Building Permit submitted by the petitioners and take appropriate decision thereon, within a period of one month.

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N.NAGARESH JUDGE

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hmh

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WP(C) NO.14102 OF 2023

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APPENDIX OF WP(C) 14102/2023

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PETITIONER EXHIBITS

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Exhibit.P1THE TRUE COPY OF THE SALE DEED NO.
4000/2022 DATED.28.11.2022
Exhibit.P2THE TRUE COPY OF THE LAND TAX RECEIPT
DATED.9.1.2023 OF THRIKKAKARA NORTH
VILLAGE OFFICE
Exhibit.P3THE TRUE COPY OF THE ORDER ISSUED BY
THE SUB COLLECTOR FORT KOCHI TO THE
PETITIONER DATED.26.7.2022
Exhibit.P4THE TRUE COPY OF THE APPLICATION
SUBMITTED BY THE PETITIONERS TO THE 1ST
RESPONDENT DATED.18.2.2023

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Exhibit.P5THE TRUE COPY OF THE OBJECTION LETTER
BY THE 2ND RESPONDENT TO THE
PETITIONERS
Exhibit.P6THE PHOTOGRAPHS OF THE PROPERTY
Exhibit.P7TRUE COPY OF THE JUDGEMENT IN
WPC.21488/2022 DATED.20.7.2022

Abin Sha Ks v. Kalamassery Municipality

Case brief

What is this about?

What did the court decide?

Abin Sha Ks v. Kalamassery Municipality

Case brief

What is this about?

What did the court decide?

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