Allowed

Confident Projects Residential Represented by Its Managing Partner v. the Principal Secretary to Government

Kerala HC23 Feb 2023WP(C)/14613/2020

Case brief

AI extract

What is this about?

The High Court at Ernakulam held that petitioners owning land in Kottayam Municipality are entitled to use their property for high density residential purposes. The court declared that since the adjacent zone is residential, petitioners can use the land as permitted in that zone despite its classification in the master plan.

What did the court decide?

Petitioners entitled to use land for high density residential zone purposes; Municipality directed to consider building permit application within six weeks.

Confident Projects Residential Represented by Its Managing… — Land Acquisition | 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 MURALI PURUSHOTHAMAN

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THURSDAY, THE 23RD DAY OF FEBRUARY 2023 / 4TH PHALGUNA,

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1944

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WP(C) NO. 14613 OF 2020

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PETITIONER/S:

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1 CONFIDENT PROJECTS RESIDENTIAL REPRESENTED BY ITS MANAGING PARTNER

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T. A. JOSEPH, AGED 57 YEARS, S/O. LATE ALEXANDER JOSEPH, CONFIDENT HOUSE, S. A. ROAD, VYTTILA, ERNAKULAM DISTRICT.

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2 GEE VARGHESE PAUL @ VARGHESE PAUL AGED 66 YEARS

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S/O. POULOSE GEE VARGHESE, 'MANOHAR HILLS', MUTTAMBALAM P. O., KOTTAYAM.

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3 LEELAMMA JACOB AGED 64 YEARS W/O. CHACKO JACOB, VELLOOKUNNEL HOUSE, MALLISSERY

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P. O., KANJIRAPPALLY, KOTTAYAM.

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4 ROSAMMA THOMAS AGED 57 YEARS

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W/O. JOSE THOMAS, KADAMAPUZHA HOUSE, MALLISSERY

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P. O., KANJIRAPPALLY, KOTTAYAM.

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5 ANNIE ALEXANDER AGED 69 YEARS W/O. ALEXANDER, PEEDIKAPARAMBIL HOUSE, MUTTAMBALAM P. O., KOTTAYAM.

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BY ADVS.
S.SHANAVAS KHAN
S.INDU

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RESPONDENT/S:

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1 THE PRINCIPAL SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT DEPARTMENT, 4TH FLOOR, GOVERNMENT SECRETARIAT ANNEXE, THIRUVANANTHAPURAM - 695 001.

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2THE DIRECTOR
DIRECTORATE OF URBAN AFFAIRS, PUBLIC OFFICE
BUILIDING, MUSEUM P. O., THIRUVANANTHAPURAM - 695
033.

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3 THE CHIEF TOWN PLANNER OFFICE OF THE CHIEF TOWN PLANNER, SWARAJ BHAVAN, SECOND FLOOR, NANTHANCODE, KOWDIAR P. O., THIRUVANANTHAPURAM - 695 003.

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W. P. (C) No. 14613 of 2020

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4 THE DISTRICT TOWN PLANNER OFFICE OF THE DISTRICT TOWN PLANNER, ST. ANTONY'S COMPLEX, NAGAMBADAM P. O., KOTTAYAM - 686 001.

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5 THE KOTTAYAM MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, KOTTAYAM - 686 001.

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6 THE SECRETARY KOTTAYAM MUNICIPALITY, MUNICIPAL OFFICE, KOTTAYAM - 686 001.

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BY ADVS.
SMT. DEEPA, SPL GOVERNMENT PLEADER
SRI.SIBY CHENAPPADY, SC, KOTTAYAM MUNICIPALITY
SRI. AJIT JOY, SC, KOTTAYAM MUNICIPALITY

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 23.02.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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W. P. (C) No. 14613 of 2020

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J U D G M E N T

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Petitioners are the absolute owners and in possession of 1 acre 1 cent and 73 square links of landed property in Re. Survey Nos. 20/2,3,4, 20/2-6-1, 20/8 and 21/3-2-1 of Muttambalam Village, Kottayam District.

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According to the petitioners, the properties are lying as a single compact plot and is classified as purayidam as per the Basic Tax Register. Exts. P1 to P3 documents have been produced to show that the property is not included in the data bank prepared under the Kerala Conservation of Paddy Land and Wetland Act, 2008. In the previous master plan of the year 1991, the property was included in the 'residential zone'. However, in the 2008 varied plan, it is included in the 'proposed residential zone', whereas in the 2017 master plan, the entire property is included in the 'paddy and wetland zone'.

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The petitioners submitted an application dated 14.02.2018 before the Secretary, Kottayam Municipality for construction of a residential apartment in the said property. On receipt of the application, the Secretary sought clarification from the District Town Planner regarding the zoning as the site is not discernible from the zoning map. The District

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Town Planner informed the Secretary that, as per the draft master plan, the property of the petitioners comes under 'Paddy Field Zone'. The master plan was approved by the Government vide Ext. P21 order and the petitioners' property comes under 'Paddy/Wet Land Zone' as per Ext. P22 master plan. According to the petitioners, the inclusion of their property which is a dry land in the 'paddy and wetland zone' is illegal and arbitrary and cannot be sustained in law. Accordingly, the petitioners seek for direction to set aside Exts. P10, P21 and P22 and to declare that their property is not liable to be included in 'Paddy/Wet Land Zone' as per Ext. P22 master plan and for direction to the Municipality to consider their application for building permit dehors Ext. P10.

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A counter affidavit is filed by the District Town planner wherein it is stated, inter alia, that the property is included in the 'Paddy/Wet Land Zone' in the master plan based on existing land use, geographical and environmental aspects.

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During the pendency of this writ petition, the learned counsel for the petitioners brought to the notice of this Court the judgment dated 15.03.2022 in W. P. (C) No. 24396 of 2021, wherein, this Court, on the basis of the map showing adjacent land zones, found that the property of

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W. P. (C) No. 14613 of 2020

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the petitioner therein comes within the paddy and wetland zone and to the north of the said zone, the high density residential zone is situated and declared that the petitioner is entitled to the benefit of putting his land to the uses which are permissible in the adjacent land use zone viz ; high density residential zone. In the said judgment, the learned Judge has also relied on letter No.F/465/2010 (vol-III) dated 01.02.2020 of the Chief Town Planner addressed to the District Town Planners which provides that if a land which is included in the Paddy Land Zone is not a paddy land but a dry land, it can be put to use for such permissible uses in the adjacent land use zone. The learned counsel for the petitioners submits that the property of the petitioners herein is situated more closer to the aforesaid high density residential zone than the property referred to in the aforesaid judgment and the petitioners are entitled to similar benefits.

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Accordingly, the learned Special Government Pleader was directed to produce the part map showing the adjacent land use zones. The learned Special Government Pleader has filed a Memo dated 30.01.2023 producing the Master Plan for Kottayam-Part Map. The map shows that the adjacent land use zone is high density residential zone. On

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going through the map, it can be seen that the property of the petitioners comes within the Paddy/Wet Land Zone and to the North of the Zone, the high density residential zone is situated. The property of the petitioners lies further north to the property of the petitioner in W. P. (C) No. 24396 of 2021 and is more closer to the high density residential zone.

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Accordingly, it is declared that the petitioners are entitled for the benefit of putting their land to the uses which are permissible in the adjacent land use zone viz ; high density residential zone. There will be a direction to respondents 5 and 6 to consider the application for building permit submitted by the petitioners, based on the above declaration and dehors Ext.P10, within a period of six weeks from the date of receipt of a

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copy of this judgment.

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Writ petition is disposed of accordingly. There will be no order as

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to costs.

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Sd/MURALI PURUSHOTHAMAN JUDGE

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///TRUE COPY/// P. A. TO JUDGE

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W. P. (C) No. 14613 of 2020

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APPENDIX OF WP(C) 14613/2020

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PETITIONER EXHIBITS

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`EXHIBIT P1`	`TRUE COPY OF THE` `IN RESPECT OF THE` `VILLAGE OFFICER M`	`POSSESSION CERTIFICATE` `PROPERTIES ISSUED BY` `UTTAMBALAM.`
`EXHIBIT P1 (a)`	`TRUE COPY OF THE` `IN RESPECT OF THE` `VILLAGE OFFICER M`	`POSSESSION CERTIFICATE` `PROPERTIES ISSUED BY` `UTTAMBALAM.`
`EXHIBIT P1 (b)`	`TRUE COPY OF THE` `IN RESPECT OF THE` `VILLAGE OFFICER M`	`POSSESSION CERTIFICATE` `PROPERTIES ISSUED BY` `UTTAMBALAM.`
`EXHIBIT P1 (c)`	`TRUE COPY OF THE` `IN RESPECT OF THE` `VILLAGE OFFICER M`	`POSSESSION CERTIFICATE` `PROPERTIES ISSUED BY` `UTTAMBALAM.`
`EXHIBIT P2`	`TRUE COPY OF THE` `28.04.2018 ISSUED` `MUTTAMBALAM.`	`LAND TAX RECEIPTS DATED` `BY VILLAGE OFFICER,`
`EXHIBIT P2 (a)`	`TRUE COPY OF THE` `28.04.2018 ISSUED` `MUTTAMBALAM.`	`LAND TAX RECEIPTS DATED` `BY VILLAGE OFFICER,`
`EXHIBIT P2 (b)`	`TRUE COPY OF THE` `28.04.2018 ISSUED` `MUTTAMBALAM.`	`LAND TAX RECEIPTS DATED` `BY VILLAGE OFFICER,`
`EXHIBIT P2 (c)`	`TRUE COPY OF THE` `28.04.2018 ISSUED` `MUTTAMBALAM.`	`LAND TAX RECEIPTS DATED` `BY VILLAGE OFFICER,`
`EXHIBIT P3`	`TRUE COPY OF THE` `THE PROPERTIES FO` `OF LAND.`	`THANDAPER EXTRACTS OF` `R PROVIDING THE NATURE`
`EXHIBIT P3 (a)`	`TRUE COPY OF THE` `THE PROPERTIES FO` `OF LAND.`	`THANDAPER EXTRACTS OF` `R PROVIDING THE NATURE`
`EXHIBIT P4`	`TRUE COPY OF THE` `DATED 13.06.2017.`	`GAZETTE NOTIFICATION`
`EXHIBIT P5`	`TRUE COPY OF THE` `22.06.2017 SUBMIT` `UNDER THE RTI ACT` `INFORMATION OFFIC`	`APPLICATION DATED` `TED BY FIRST PETITIONER` `BEFORE THE PUBLIC` `ER.`
`EXHIBIT P6`	`TRUE COPY OF THE` `DATED 29.06.2017` `INFORMATION OFFIC`	`LETTER NO.A/856/2017` `OF THE PUBLIC` `ER.`
`EXHIBIT P7`	`TRUE COPY OF THE`	`APPEAL DATED 10.07.2017`
	`FILED BEFORE THE`	`4TH RESPONDENT.`
`EXHIBIT P8`	`TRUE COPY OF THE`	`COMMUNICATION DATED`

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W. P. (C) No. 14613 of 2020

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	`03.08.2017 OF THE 4TH RESPONDENT.`
`EXHIBIT P9`	`TRUE COPY OF THE COMMUNICATION DATED` `15.03.2018 OF THE 6TH RESPONDENT.`
`EXHIBIT P10`	`TRUE COPY OF THE COMMUNICATION DATED` `07.04.2018 OF THE 4TH RESPONDENT.`
`EXHIBIT P11`	`TRUE COPY OF THE ZONAL MAP OF THE 5TH` `RESPONDENT PERTAINING TO MASTER PLAN OF` `THE YEAR 1991.`
`EXHIBIT P12`	`TRUE COPY OF THE ENLARGED SKETCH.`
`EXHIBIT P13`	`TRUE COPY OF THE RELEVANT PORTION OF` `ZONING MAP OF THE 5TH RESPONDENT` `MUNICIPALITY OF THE YEAR 2017 PERTAINING` `TO PROPERTY OF PETITIONERS.`
`EXHIBIT P14`	`TRUE COPY OF THE REPRESENTATION DATED` `04.05.2018 SUBMITTED BY SECOND PETITIONER` `BEFORE THE FIRST RESPONDENT.`
`EXHIBIT P15`	`TRUE COPY OF THE OBJECTION DATED` `28.05.2018 SUBMITTED BY SECOND PETITIONER` `BEFORE THE 6TH RESPONDENT.`
`EXHIBIT P16`	`TRUE COPY OF THE JUDGMENT DATED` `06.07.2018 IN W.P.(C) NO.20638/2018 OF` `THIS HON'BLE COURT.`
`EXHIBIT P17`	`TRUE COPY OF THE COVERING LETTER DATED` `17.07.2018 SUBMITTED BY 2ND PETITIONER` `BEFORE 6TH RESPONDENT.`
`EXHIBIT P18`	`TRUE COPY OF THE REPRESENTATION DATED` `10.05.2018 PREFERRED BY THE SECOND` `PETITIONER BEFORE THE 1ST RESPONDENT.`
`EXHIBIT P19`	`TRUE COPY OF THE LETTER DATED 11.06.2019` `SUBMITTED BY PETITIONERS BEFORE THE 6TH` `RESPONDENT.`
`EXHIBIT P20`	`TRUE COPY OF THE COMMUNICATION DATED` `12.11.2019 SUBMITTED BY THE 6TH` `RESPONDENT BEFORE THE FIRST RESPONDENT.`
`EXHIBIT P21`	`TRUE COPY OF THE COMMUNICATION DATED` `14.05.2020 OF THE FIRST RESPONDENT.`
`EXHIBIT P22`	`TRUE COPY OF THE RELEVANT PORTION OF THE` `APPROVED MASTER PLAN OF 5TH RESPONDENT` `MUNICIPALITY.`
`EXHIBIT P23`	`TRUE COPY OF THE JUDGMENT DATED` `14.06.2011 IN W.A.NO.1731 OF 2008 OF THE` `DIVISION BENCH OF THIS HON'BLE COURT.`
`EXHIBIT P24`	`TRUE COPY OF THE REPORT DATED 24.03.2018` `OF THE AGRICULTURAL FILED OFFICER, KRISHI` `BHAVAN, KOTTAYAM.`

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EXHIBIT P25TRUE COPY OF THE REPORT DATED 24.03.2018
OF THE VILLAGE OFFICER, MUTTAMBALAM.
EXHIBIT P26TRUE COPY OF THE JUDGMENT DATED
10.04.2018 IN W.P.(C) NO.7484/2018 OF
THIS HON'BLE COURT.

Confident Projects Residential Represented by Its Managing Partner v. the Principal Secretary to Government

Case brief

What is this about?

What did the court decide?

Confident Projects Residential Represented by Its Managing Partner v. the Principal Secretary to Government

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

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