Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH THURSDAY, THE 29TH DAY OF SEPTEMBER 2022 / 7TH ASWINA, 1944 WP(C) NO. 1679 OF 2022 PETITIONERS 1 TOJAN CHACKO AGED 53 YEARS THEKKEKKARA HOUSE, EAST FORT P.O, NADATHARA, THRISSUR , PIN - 680005 2 SUMA TOJAN AGED 48 YEARS THEKKEKKARA HOUSE, EAST FORT P.O, NADATHARA, THRISSUR , PIN - 680005 BY ADVS. K.I.MAYANKUTTY MATHER NARAYANI HARIKRISHNAN UTHARA ASOKAN RESPONDENTS
1. THRISSUR MUNICIPAL CORPORATION,
THRISSUR, ROUND SOUTH, M.O. ROAD, THRISSUR MAIN P.O. THRISSUR , PIN - 680001 REPRESENTED BY ITS SECRETARY 2 SECRETARY THRISSUR MUNICIPAL CORPORATION, THRISSUR, ROUND SOUTH, M.O. ROAD, THRISSUR MAIN P.O. THRISSUR, PIN - 680001 W.P(C) No. 1679 of 2022 2 ]
3 ASSISTANT ENGINEER THRISSUR CORPORATION OFFICE, THRISSUR, ROUND SOUTH, M.O. ROAD, THRISSUR MAIN P.O. THRISSUR , PIN - 680001 4 EXECUTIVE ENGINEER THRISSUR CORPORATION OFFICE, THRISSUR, ROUND SOUTH, M.O. ROAD, THRISSUR MAIN P.O. THRISSUR , PIN - 680001 5 STATE OF KERALA, REPRESENTED BY ITS SECRETARY LOCAL ADMINISTRATION (M) DEPARTMENT, SECRETARIAT, THIRUNANANTHAPURAM G.P.O. PIN - 695001 6 DISTRICT TOWN PLANNING OFFICER CIVIL STATION, AYYANTHOLE P.O., THRISSUR, PIN - 680001 BY ADVS. SHRI. SANTHOSH P.PODUVAL, SC, THRISSUR CORPORATION
SMT.RASHMI K M., GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C) No. 1679 of 2022 3 ]
JUDGMENT
Dated this the 29th day of September, 2022 The petitioners challenge Ext.P15 proceedings of the 1 st respondent-Thrissur Municipal Corporation, whereby the petitioners have been informed that the application submitted by them for renewal of Building Permit cannot be considered as the area where the proposed building is to come up has been included in the Industrial Zone as per the new Master Plan.
2. The petitioners state that they proposed to construct a
16 floor multi-storeyed building in 19.73 Ares of land in Re- Survey No.10/33 of Nadathara Village in Thrissur Taluk. The Corporation Authorities issued Ext.P11 Building Permit on 09.06.2017. As Covid-19 pandemic broke out, the petitioners could not complete the construction of the building. The petitioners therefore submitted an application for renewal of Building Permit on 14.05.2020. The receipt of the application for Building Permit renewal is acknowledged by Ext.P13.
W.P(C) No. 1679 of 2022 4 ]
3. Thereafter, the petitioners have been issued with
Ext.P14 communication of the Assistant Engineer of Thrissur Municipal Corporation pointing out that the application for renewal of Building Permit suffers from two defects; ie; (1) As per the latest Possession Certificate, there is a shortage of 50 square metres in the site plan. Consequently, F.A.R, coverage, etc. will have to be altered. (2) Since there are changes in the dimension of the property, a revised drawing is to be submitted indicating the proposed road widening as per the revised Master Plan. On 10.12.2021, the Executive Engineer issued Ext.P15 notice stating that since the petitioners' property is now falling within the Industrial Zone as per the new Master Plan, their application for Building Permit cannot be considered.
4. The petitioners state that they have started the building
construction as per Ext.P11 Building Permit issued on 09.06.2017. As the petitioners could not complete the building construction within the stipulated time, an application for renewal was submitted on 14.05.2020. The Corporation W.P(C) No. 1679 of 2022 5 ] Authorities stated that the petitioners have to leave sufficient space for the proposed road widening. Therefore, they have to submit a revised plan.
5. The petitioners further submit that they originally
proposed to construct a 16 storeyed building and the proposal was revised limiting the total floors to 14. Apart from the reduction of floors, there is no change in the structure of the building. The petitioners would therefore urge that since what is submitted by them is an application for renewal of Building Permit, the application should be considered dehors the Master Plan which came into effect subsequently, with effect from 20.02.2021.
6. Respondents 1 to 4 resisted the writ petition by filing a
counter affidavit. Respondents 1 to 4 submitted that the application submitted by the petitioners is for renewal of Ext.P11 Building Permit. Ext.P11 Building Permit contemplated a 16 storeyed building covering an area of 11373.89 square metres. The subsequent application submitted by the petitioner has a W.P(C) No. 1679 of 2022 6 ] plinth area of 9704.42 square metres only with a reduced height. Therefore, it should be treated as an application for new Building Permit in which case, the petitioners will have to satisfy the requirements under the new Master Plan.
7. Respondents 1 to 4 further submitted that the extent of
the property in the possession of the petitioners as per the Certificate is 0.1973 hectares whereas the original Building Permit granted for construction of a building is in an area of 0.2023 hectares. In view of the reduced land area also, the application submitted by the petitioners cannot be treated as an application for renewal of the Building Permit and it should be treated as an application for new Building Permit.
8. The 6th respondent also resisted the writ petition. The
6th respondent stated that from Ext.P11, it can be seen that the Building Permit dated 09.06.2017 has been issued to the petitioners for the residential apartment purpose in the land. In Ext.P14, the petitioners were required to revise the application due to certain anomalies found in the plot dimension as per W.P(C) No. 1679 of 2022 7 ] records. It is clear from Ext.P15 that the revised application was rejected by the Thrissur Municipal Corporation due to the non confirmity with the Master Plan sanctioned as per G.O(Ms) No.59/2021/LSGD dated 20.02.2021.
9. The 6th respondent further submitted that the Master
Plan was published on 06.11.2012 in the Government Gazette inviting objections and suggestions under Section 8 and Sub-section (1) of Section 13 of the Town Planning Act, 1108 ME for the total area of 101.42 square metres. Notice regarding the Master Plan was published and objections were invited. After considering all the objections, the new Master Plan has been published. The petitioners are therefore liable to comply with the provisions of the new Master Plan.
10. I have heard the learned Senior Counsel for the
petitioner, the learned Standing Counsel for respondents 1 to 4 and the learned Government Pleader representing respondents 5 and 6. W.P(C) No. 1679 of 2022 8 ]
11. The petitioners submitted an application for Building
Permit for construction of a 16 storeyed building. A building permit was issued to the petitioners on 09.06.2017 as per Ext.P11. The petitioners could not complete the construction
due to Covid-19 pandemic and consequent difficulties. Therefore, the petitioners submitted application for renewal of the Building Permit on 14.05.2022, before the period of expiry of the original Building Permit. In the meanwhile, the petitioners proposed to reduce the total floors of the building from 16 to 14. Except for the reduction in the floors, there is no structural changes in the revised proposal of the petitioners.
12. It is the specific assertion of the petitioners that in respect of the land area, the Authorities insisted that the
petitioners should make provisions for future road widening and therefore in the revised plan submitted by the petitioners, the landed area was reduced by 50 square metres leaving provisions for the road widening. The petitioners have not sold any part of the land included in Ext.P11 Building Permit. Nor the
W.P(C) No. 1679 of 2022 9 ] petitioners have utilised the land for any other purposes. The landed area was reduced solely for facilitating the proposed road widening in future. Therefore, the same cannot be a reason to deny renewal of Building Permit or to insist that the revised Building Permit should be in accordance with the new Master Plan.
13. When a citizen has been issued with a Building Permit
during the currency of one Master Plan and then, if a new Master Plan comes into effect, citizen should be permitted to complete the building construction, as per the Building Permit issued, irrespective of the changes that have effected by the Master Plan. In this case, the petitioners have submitted an application for renewal. The minor changes brought about by them were to satisfy the requirements of the proposed future road widening.
14. In such circumstances, this Court is of the firm view that the application submitted by the petitioners should be treated as a renewal application only. The said application
W.P(C) No. 1679 of 2022 10 ] cannot be considered as an application for new Building Permit so as to apply provisions of the new Master plan which came into force on 20.02.2021.
15. In the circumstances, Ext.P15 is quashed.
Respondents 1 to 4 are directed to consider the application submitted by the petitioners on 14.05.2020 as an application for renewal of existing Building Permit. The petitioners shall be granted renewal of Building Permit, if the proposal of the petitioners does not violate any provisions of the Building Rules. Needless to say, the requirements of Master Plan which came into force with effect from 20.02.2021 shall not be made
applicable to the petitioners. Orders in this regard shall be passed within a period of two months. The writ petition is disposed of as above. Sd/- N. NAGARESH, JUDGE smm/07.10.2022 W.P(C) No. 1679 of 2022 11 ] APPENDIX OF WP(C) 1679/2022 PETITIONER EXHIBITS Exhibit P1 EYE SKETCH TO DEMONSTRATE THE LIE OF THE SUBJECT PROPERTY DATED NIL Exhibit P2 PHOTOGRAPH SHOWING THE LIE OF THE NEIGHBOURING PROPERTY OF THE SUBJECT LAND DATED NIL Exhibit P3 PHOTOGRAPHS SHOWING THE LIE OF THE THE SUBJECT LAND DATED NIL Exhibit P4 PHOTOGRAPHS SHOWING THE LIE OF THE THE SUBJECT LAND DATED NIL Exhibit P5 PHOTOGRAPHS SHOWING THE LIE OF THE THE SUBJECT LAND NIL Exhibit P6 PHOTOGRAPHS SHOWING THE LIE OF THE THE SUBJECT LAND NIL Exhibit P7 PHOTOGRAPHS SHOWING THE LIE OF THE THE SUBJECT LAND NIL Exhibit P8 PHOTOGRAPHS SHOWING THE LIE OF THE THE SUBJECT LAND NIL Exhibit P9 PHOTOGRAPHS SHOWING THE LIE OF THE THE SUBJECT LAND NIL Exhibit P10 PHOTOGRAPHS SHOWING THE LIE OF THE THE SUBJECT LAND NIL Exhibit P11 : TRUE COPY OF THE BUILDING PERMIT OBTAINED BY THE PETITIONERS FROM THE 1ST RESPONDENT DATED 09.06.2017 Exhibit P12 TRUE COPY OF THE NOTIFICATION ISSUED BY THE GOVERNMENT DATED 13.10.2021 Exhibit P13 TRUE COPY OF THE ACKNOWLEDGMENT EVIDENCING SUBMISSION OF THE REQUEST FOR W.P(C) No. 1679 of 2022 12 ] RENEWAL OF BUILDING 14.6.2020/ PERMIT DATED 1.11.2021 Exhibit P14 TRUE COPY OF THE INTIMATION GIVEN BY THE 3RD RESPONDENT DATED 25.2.2021 Exhibit15 TRUE COPY OF THE COMMUNICATION GIVEN BY THE 4TH RESPONDENT REJECTING THE REQUEST FOR RENEWAL DATED 10.12.2021 RESPONDENT EXHIBITS COPY OF THE G.O.M.S.NO.59/2021/LSGD DATED 20.02.2021 EXT.R6(a)