Sojo J.Kallidukkil Vs. Corporation of Thrissur - Court Judgment

SooperKanoon Citationsooperkanoon.com/1136336
CourtKerala High Court
Decided OnMar-26-2014
JudgeHONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
AppellantSojo J.Kallidukkil
RespondentCorporation of Thrissur
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr. justice a.v.ramakrishna pillai wednesday, the26h day of march20145th chaithra, 1936 wp(c).no. 7231 of 2013 (d) --------------------------- petitioner(s): -------------- sojo j.kallidukkil, aged37years advocate, s/o.k.s.johny, kallidukil house south bazar road, irinjalakuda p.o. by advs.sri.a.balagopalan sri.v.n.gopinathan sri.m.s.imthiyaz ahammed respondent(s): -------------- 1. corporation of thrissur rep. by its secretary, m.o.road, thrissur-1.2. m/s.manualsons housing development company (p) ltd., m.o.road, thrissur-1. r1 by sri.k.p.vijayan,sc,thrissur corporation r1 by adv. sri.v.m.syam kumar r1 by adv. smt.c.b.suma devi r1 by adv. smt.kripa elizabeth mathews r1 by adv. sri.v.n.haridas this writ petition (civil) having been finally heard on2603-2014, the court on the same day delivered the following: wp(c).no. 7231 of 2013 (d) --------------------------- appendix petitioner'(s) exhibits: exhibit p1(a): true copy of the plan with layout exhibit p2(b): true copy of conditions of the thrissur development authority. exhibit p2 : a list of building numbers already occupied by the alloties exhibit p3 : true copy of the order in wpc.20384/09 exhibit p4 : true copy of receipt issued by the1t respondent corporation to the petitioner. exhibit p5 : true copy of the communication received from the corporation dated162.2013 exhibit p6 : true copy of sanction given to mr.varunni by the1t respondent. respondent'(s) exhibits: exhibit r1(a): copy of the letter bearing no.c2/10243/2008/ddis dated3001.2009 of the chief town planner. //true copy// pa to judge bka a.v. ramakrishna pillai, j.-------------------------------------------------- w.p.(c) no. 7231 of 2013 -------------------------------------------------- dated this the 26th day of march, 2014 judgment aggrieved by the denial of building permit to the petitioner by the respondent corporation, he has come up before this court.2. the petitioner is the co-owner of 8 cents of land comprised in sy.no.389/1 of ayyanthole village, which was included in the green field residential layout scheme floated by the 2nd respondent company after obtaining sanction from the thrissur urban development authority and ayyanthole grama panchayat for development of land to an extent of 2280.85 cents. the petitioner alleges that the respondent corporation had already granted permission for construction in more than 50% of the plot and; more than 40 plot owners had occupied after completion of the building constructed therein. the petitioner further alleges that on either side w.p.(c) no. 7231 of 2013 ..2.. of his plot, buildings have been constructed by the respective owners. on the opposite side of the petitioner's building, a multi storied building having a larger plinth area has been constructed after obtaining building permit on the basis of the directions issued by this court in a writ petition. the grievance of the petitioner is that though he submitted ext.p4 application before the 1st respondent and remitted fees for issuance of building permit, the same was refused by the respondent corporation by ext.p5 on the ground that the period of development permit has elapsed and the 2nd respondent company, who floated the scheme, has not fulfilled the terms of the agreement. the petitioner further alleges that so far no action has been taken by the respondent corporation against the 2nd respondent company. it is with this background, the petitioner has come up before this court.3. the 1st respondent filed a detailed counter affidavit, wherein they have taken the contention that the w.p.(c) no. 7231 of 2013 ..3.. period of development permit expired and the conditions set out in the agreement dated 18.04.2000 executed by the 2nd respondent company has not been complied with. however, they have admitted the issuance of building permit to certain other plot owners.4. arguments have been heard.5. admittedly, the petitioner is an owner of one of the plots in the green filed residential layout scheme floated by the 2nd respondent. it is the definite case of the petitioner that on the basis of ext.p3 judgment, a multi storied building has been constructed in the plot just opposite to the petitioner's plot. ext.p6 is another instance, by which the respondent corporation has permitted one v.t.varunny and reena varunny on 19.01.2013 for constructing a building having a plinth area of more than 3,200 sq.ft. in one of the plots covered by the aforesaid scheme. this would go to say that the corporation has exercised its powers capriciously and arbitrarily. the denial of the building permit to the w.p.(c) no. 7231 of 2013 ..4.. petitioner on the ground that the 2nd respondent has not complied with the conditions in the agreement executed with the respondent corporation, is not a valid ground for denying building permit to the petitioner. the respondent corporation has no case that the petitioner has not satisfied the conditions required for the granting of building permit under the rules. similarly situated persons were already granted permit and; therefore, denial of permit to the petitioner on the ground of alleged non-fulfillment of certain conditions by a third party is unjustifiable and illegal.6. as rightly submitted by the learned counsel for the petitioner, the petitioner cannot be penalized by the 1st respondent by rejecting the request for permit for the alleged failure to comply with any of the conditions by the 2nd respondent company, especially, when majority of the owners of the plot were already granted permit for the construction in the area under the very same scheme and they had occupied the buildings. therefore, this court is w.p.(c) no. 7231 of 2013 ..5.. of the definite view that the petitioner is entitled to get the relief as prayed for in this writ petition. the writ petition is allowed. the 1st respondent corporation is directed to grant building permit to the petitioner de hors the failure and non-compliance of the conditions, if any, by the 2nd respondent company or any other third party, within a period of one month from the date of receipt of a copy of this judgment. sd/- a.v. ramakrishna pillai, judge bka/-
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI WEDNESDAY, THE26H DAY OF MARCH20145TH CHAITHRA, 1936 WP(C).No. 7231 of 2013 (D) --------------------------- PETITIONER(S): -------------- SOJO J.KALLIDUKKIL, AGED37YEARS ADVOCATE, S/O.K.S.JOHNY, KALLIDUKIL HOUSE SOUTH BAZAR ROAD, IRINJALAKUDA P.O. BY ADVS.SRI.A.BALAGOPALAN SRI.V.N.GOPINATHAN SRI.M.S.IMTHIYAZ AHAMMED RESPONDENT(S): -------------- 1. CORPORATION OF THRISSUR REP. BY ITS SECRETARY, M.O.ROAD, THRISSUR-1.

2. M/S.MANUALSONS HOUSING DEVELOPMENT COMPANY (P) LTD., M.O.ROAD, THRISSUR-1. R1 BY SRI.K.P.VIJAYAN,SC,THRISSUR CORPORATION R1 BY ADV. SRI.V.M.SYAM KUMAR R1 BY ADV. SMT.C.B.SUMA DEVI R1 BY ADV. SMT.KRIPA ELIZABETH MATHEWS R1 BY ADV. SRI.V.N.HARIDAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON2603-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 7231 of 2013 (D) --------------------------- APPENDIX PETITIONER'(S) EXHIBITS: EXHIBIT P1(A): TRUE COPY OF THE PLAN WITH LAYOUT EXHIBIT P2(B): TRUE COPY OF CONDITIONS OF THE THRISSUR DEVELOPMENT AUTHORITY. EXHIBIT P2 : A LIST OF BUILDING NUMBERS ALREADY OCCUPIED BY THE ALLOTIES EXHIBIT P3 : TRUE COPY OF THE ORDER

IN WPC.20384/09 EXHIBIT P4 : TRUE COPY OF RECEIPT ISSUED BY THE1T RESPONDENT CORPORATION TO THE PETITIONER. EXHIBIT P5 : TRUE COPY OF THE COMMUNICATION RECEIVED FROM THE CORPORATION DATED162.2013 EXHIBIT P6 : TRUE COPY OF SANCTION GIVEN TO MR.VARUNNI BY THE1T RESPONDENT. RESPONDENT'(S) EXHIBITS: EXHIBIT R1(a): COPY OF THE LETTER BEARING NO.C2/10243/2008/DDIS DATED3001.2009 OF THE CHIEF TOWN PLANNER. //TRUE COPY// PA TO JUDGE BKA A.V. RAMAKRISHNA PILLAI, J.

-------------------------------------------------- W.P.(C) No. 7231 of 2013 -------------------------------------------------- Dated this the 26th day of March, 2014

JUDGMENT

Aggrieved by the denial of building permit to the petitioner by the respondent Corporation, he has come up before this Court.

2. The petitioner is the co-owner of 8 cents of land comprised in Sy.No.389/1 of Ayyanthole Village, which was included in the Green Field Residential Layout Scheme floated by the 2nd respondent Company after obtaining sanction from the Thrissur Urban Development Authority and Ayyanthole Grama Panchayat for development of land to an extent of 2280.85 cents. The petitioner alleges that the respondent Corporation had already granted permission for construction in more than 50% of the plot and; more than 40 plot owners had occupied after completion of the building constructed therein. The petitioner further alleges that on either side W.P.(C) No. 7231 of 2013 ..2.. of his plot, buildings have been constructed by the respective owners. On the opposite side of the petitioner's building, a multi storied building having a larger plinth area has been constructed after obtaining building permit on the basis of the directions issued by this Court in a writ petition. The grievance of the petitioner is that though he submitted Ext.P4 application before the 1st respondent and remitted fees for issuance of building permit, the same was refused by the respondent Corporation by Ext.P5 on the ground that the period of development permit has elapsed and the 2nd respondent Company, who floated the scheme, has not fulfilled the terms of the agreement. The petitioner further alleges that so far no action has been taken by the respondent Corporation against the 2nd respondent Company. It is with this background, the petitioner has come up before this Court.

3. The 1st respondent filed a detailed counter affidavit, wherein they have taken the contention that the W.P.(C) No. 7231 of 2013 ..3.. period of development permit expired and the conditions set out in the agreement dated 18.04.2000 executed by the 2nd respondent Company has not been complied with. However, they have admitted the issuance of building permit to certain other plot owners.

4. Arguments have been heard.

5. Admittedly, the petitioner is an owner of one of the plots in the Green Filed Residential Layout Scheme floated by the 2nd respondent. It is the definite case of the petitioner that on the basis of Ext.P3 judgment, a multi storied building has been constructed in the plot just opposite to the petitioner's plot. Ext.P6 is another instance, by which the respondent Corporation has permitted one V.T.Varunny and Reena Varunny on 19.01.2013 for constructing a building having a plinth area of more than 3,200 sq.ft. in one of the plots covered by the aforesaid Scheme. This would go to say that the Corporation has exercised its powers capriciously and arbitrarily. The denial of the building permit to the W.P.(C) No. 7231 of 2013 ..4.. petitioner on the ground that the 2nd respondent has not complied with the conditions in the agreement executed with the respondent Corporation, is not a valid ground for denying building permit to the petitioner. The respondent Corporation has no case that the petitioner has not satisfied the conditions required for the granting of building permit under the Rules. Similarly situated persons were already granted permit and; therefore, denial of permit to the petitioner on the ground of alleged non-fulfillment of certain conditions by a third party is unjustifiable and illegal.

6. As rightly submitted by the learned counsel for the petitioner, the petitioner cannot be penalized by the 1st respondent by rejecting the request for permit for the alleged failure to comply with any of the conditions by the 2nd respondent Company, especially, when majority of the owners of the plot were already granted permit for the construction in the area under the very same Scheme and they had occupied the buildings. Therefore, this Court is W.P.(C) No. 7231 of 2013 ..5.. of the definite view that the petitioner is entitled to get the relief as prayed for in this writ petition. The writ petition is allowed. The 1st respondent Corporation is directed to grant building permit to the petitioner de hors the failure and non-compliance of the conditions, if any, by the 2nd respondent Company or any other third party, within a period of one month from the date of receipt of a copy of this judgment. Sd/- A.V. RAMAKRISHNA PILLAI, JUDGE bka/-