IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 33362 of 2007(V)
1. P.P.MATHEW, AGED 46 YEARS, S/O.
... Petitioner
2. SUSAN MATHEW, AGED 44 YEARS,
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
2. THE SECRETARY, KOTTAYAM DEVELOPMENT
3. THE SECRETARY, KOTTAYAM MUNICIPALITY,
4. THE CHIEF TOWN PLANNING OFFICER,
For Petitioner :SRI.JOY GEORGE
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :04/03/2008
O R D E R
PIUS C. KURIAKOSE,J.
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W.P.(C) No.33362 of 2007
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Dated: 4th March, 2008
JUDGMENT
In this Writ Petition under Article 226 of the Constitution, the
petitioners has sought for the following reliefs:
1. Issue a Writ of Mandamus or order or direction, directing the 3rd
and 4th respondents to approve the lay out and plan submitted by the
petitioners for the construction of apartments and villas in Survey
Nos.107/2, 107/5/1, 107/5/2, 107/6/1 and 107/6/2 of Vijayapuram
Village, Muttambalam Kara, Kottayam as per Ext.P1 order of the
Government.
2. Issue a Writ of Mandamus or order or direction, directing the
respondents to comply with Ext.P1 direction without sought for any
clarification as is done in Ext.P3.
3. To issue a Writ of Certiorari or any other appropriate writ or order
or direction, quashing Ext.P3 and Ext.P4 as the same is unwarranted
and unjustified.
4. To declare that the 3rd and 4th respondents are further estopped
from raising any such contentions of duration of period etc., since
there is no prescription of period of completion of work and Ext.P1 is
issued in consultation with those respondents.
W.P.C.No.33362/07 – 2 –
5. Issue a Writ of Mandamus of order or direction, directing the 3rd
and 4th respondents to allow the petitioners to proceed with the
construction pursuant to Ext.P1 without insisting for further
formalities.
The grievance of the petitioners is that when the benefits of Ext.P1
were available to them, they being successors in interest of the
persons in whose favour the Government issued Ext.P1 exemptionn
order from the zoning regulations in the sanctioned development plan
was passed, it was absolutely unnecessary on the part of the
Municipality to have sought for a clarification from the Chief Town
Planner as to whether Ext.P1 is in currency even now. According to
the petitioners, pursuant to Ext.P1, their predecessors had in
compliance with the direction in Ext.P1 approached the Kottayam
Development Authority for a development permit and that Authority
had issued Ext.P2 development permit. They have also complied with
most of the conditions incorporated in Ext.P1 and is ready and willing
to comply with the remaining conditions also and it will suffice that
the Municipality considers their application for building permit only
after ensuring that all the conditions in Ext.P1 have been satisfactorily
complied with by the petitioner. According to them, it was on account
W.P.C.No.33362/07 – 3 –
of the financial constraints that the construction work could not be
taken up by their predecessors and by themselves all these 12 years.
2. The first respondent has filed a detailed statement conceding
that Ext.P1 Government Order had been issued in favour of the
petitioners predecessors in interest and that exemption was also
granted from rules 145(a)(iii) and (iv) of the Kerala Building Rules,
1084. The statement refers to the judgment of this court in Sayeesh
Kumar v. State of Kerala (2005(4) KLT 1027) and states that this
court has declared that the Government has no power to grant
exemption from zoning regulations approved and notified under the
provisions of the Town Planning Act. Pursuant to the judgment of this
court, the Government has issued Annexure R3(a) letter to the Chief
Town Planner taking the view that granting lay out approval and
building permit on the basis of exemption orders granted by the
Government subsequent to 7.11.2005, the date of pronouncement of
the judgment of this court in Sayeesh Kumar case (supra) is illegal.
It is on the basis of Ext.R3(a) that it was clarified by the Chief Town
Planner to the Municipal Secretary under Ext.P4 that it is not possible
to consider the petitioners application for lay out approval or building
permit.
W.P.C.No.33362/07 – 4 –
3. The Municipality has filed a detailed statement through its
Standing Counsel Mr.C.S.Manilal wherein it is contended that the
petitioners have not complied with any of the conditions in Ext.P1.
The petitioners have not so far approached the Municipality for
building permit. Lay out approval also has not been granted by the
Municipality even after the lapse of 12 years. The statement goes on
to justify Exts.P3 and P4. In view of the emergence of the new
prevailing circumstances, the development activities and the
potentialities, it will not be possible to rely on Ext.P1 at this distance
of time. Ext.P1 order is not in favour of the present petitioners and at
this point of time unless there is separate order in favour of the
present petitioners, they cannot avail the benefit of Ext.P1.
4. Heard Mr.Joy George, counsel for the petitioners,
Mr.C.S.Manilal, Standing Counsel for the Kottayam Municipality and
Mr.K.J.Mohammed Anzar, learned Government Pleader for
respondents 2 and 4. Learned counsel would make submissions on
the basis of their pleadings.
5. Mr.Manilal and the Government Pleader would inter alia
submit that Ext.P1 order was issued by the Government at a time
when the Kerala Building Rules, 1984 were in force and now that the
W.P.C.No.33362/07 – 5 –
statutory rules have been drastically amended and KMBR, 1999 are in
currency, the question of granting exemption from zoning regulations
will have to be considered afresh. They also submitted that the
judgment of this court in Sayeesh Kumar case (supra) has attained
finality and therefore the stand of the Government and the views
expressed through Annexure R3(a) letter is quite correct.
6. Having considered the rival submissions addressed at the
Bar, I am of the view that Ext.P1 will enure to the benefits of the
petitioners who claim under Mr.K.Thomas George and Mr.K.I.Korah in
whose favour Ext.P1 was issued by the Government. The judgment of
this court in Sayeesh Kumar case (supra) though declaratory in
nature, cannot have the effect of taking away the benefit exemption
orders granted by the Government years prior to the pronouncement
of that judgment. It is not disputed that the properties which were
originally paddy fields have been filled up by the petitioners in
substantial compliance of the 1st condition mentioned in Ext.P1. The
explanation that the other conditions could not be complied with and
actual constructions could not be taken up on account of the financial
constraints is significantly not seen denied in the statements filed
either by the Municipality or by the Government. Ext.P2 development
W.P.C.No.33362/07 – 6 –
permit issued by the development authority will show that the same
has been issued taking into account Ext.P1. In other words, Ext.P1
has been acted upon by the 4th respondent while issuing Ext.P2. At
the same time, there is merit in the submission of Mr.Manilal that the
question of granting building permit to the petitioners has to be
considered on the basis of the statutory building rules presently in
currency. Even as I decline that the petitioners will be entitled for the
benefit of Exts.P1 and P2, there will be a direction to the Kottayam
Municipality that while considering any application for building permit
for construction of buildings over the property mentioned in Ext.P1, it
will be open to the Municipality to ensure that the petitioners have
complied with all the five conditions mentioned in 1st paragraph of
Ext.P1 and also that the plan is submitted in conformity with the
K.M.B.R. 1999 in all respects.
The Writ Petition is disposed of as above.
srd PIUS C.KURIAKOSE, JUDGE