✦ High Court of India · 03 Apr 2025

HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE HARISANKAR v. MENON THURSDAY, THE

Case Details High Court of India · 03 Apr 2025
Court
High Court of India
Decided
03 Apr 2025
Bench
HARISANKAR V MENON
Length
1,100 words

P.N. KRISHNAN DAS, AGED 50 YEARS, S/O LATE MR. P.K. NARAYANAN, POLAKULATH HOUSE, AUTOMOBILE ROAD, PALARIVATTOM, KOCHI, PIN – 682025. DAYAVATI NARAYANAN, AGED 82 YEARS, W/O LATE P.K. NARAYANAN, POLAKULATH HOUSE, AUTOMOBILE ROAD, PALARIVATTOM, KOCHI, PIN - 682025 ANITHA LAL, AGED 54 YEARS, W/O LATE MR. P.N. KRISHNANLAL, POLAKULATH HOUSE, AUTOMOBILE ROAD, PALARIVATTOM, KOCHI, PIN – 682025. BY ADVS. RAJESH VIJAYENDRAN P.CHANDRASEKHAR ASOK CHACKO THOMAS W.P.(C)No.24456 of 2023 2 2025:KER:29010 RESPONDENTS: 1 2 3 4 STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANTHAPURAM, PIN – 695001. SENIOR TOWN PLANNER, OFFICE OF THE REGIONAL TOWN PLANNER, CIVIL STATION, KAKKANAD, ERNAKULAM, PIN – 682030. VARAPUZHA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY,VARAPPUZHA P.O, VARAPUZHA, ERNAKULAM, PIN – 683517. THE SECRETARY, VARAPUZHA GRAMA PANCHAYATH, VARAPUZHA, VARAPUZHA P.O., ERNAKULAM, PIN – 683517. BY ADVS. NIRMAL.S,SC OTHER PRESENT: SMT DEEPA SPL.GP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON

03.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.24456 of 2023 3 2025:KER:29010 JUDGMENT The petitioners herein are stated to be in joint ownership and possession of certain properties in Varappuzha Village, Ernakulam District. They sought for a building permit for construction of three separate residential apartments in their property from the 3rd respondent Panchayat. As per Ext.P12 communication dated 21.07.2023, the Panchayat informed the petitioners that, in view of the provisions of the structural plan with reference to the General Town Planning Scheme as applicable to the city of Kochi, the area where buildings are proposed to be constructed was an Agricultural zone and hence the permit could not be issued.

2. It is challenging Ext.P12 issued as above that the captioned writ petition is filed by the petitioners.

3. I have heard Sri.Chandrasekhar, the learned counsel for the petitioners, Smt.Deepa the learned Special Government Pleader (LSG) for the respondents 1 and 2 as well as Sri.S.Nirmal the learned counsel for respondents 3 and

4. W.P.(C)No.24456 of 2023 4 2025:KER:29010

4. The challenge against Ext.P12, is essentially on account of the fact that a positive direction has been issued by rejecting the building permit applied for the petitioners without issuing the show cause notice. It is the contention of the petitioners that with reference to the area in question, various other residential buildings, have already been constructed. Smt.Deepa on behalf of the respondents 1 and 2, on the other hand would point out that the residential buildings referred to by the petitioners are smaller buildings, within the permissible extent of 300sq.ms.

5. In any view of the matter, this Court notices that Ext.P12 has been issued without hearing the petitioners. It would be for the petitioners to point out the ground realities, with reference to the area in question, the nature of the building proposed to be constructed therein etc. before the Panchayat. The petitioners would also be entitled to seek appropriate variations from the Government in the manner, if so advised, on the basis of the ground realities. In the afore circumstances, this writ petition would W.P.(C)No.24456 of 2023 5 2025:KER:29010 stand disposed of as under: i. ii. Ext.P12 issued by the 4th respondent herein is set aside. The 4th respondent herein to issue a show cause notice, to the petitioners herein, within a period of four weeks from today, containing the proposal for rejection of the building permits applied for. iii. Petitioners upon the receipt of the notices would be entitled to file appropriate objections placing reliance on actual state of affairs/ground realities before the 4th respondent. iv. The 4th respondent thereafter to consider and pass a detailed order after hearing the petitioner also, within a further period of six weeks thereafter. Sd/- HARISANKAR V. MENON JUDGE ANA W.P.(C)No.24456 of 2023 6 2025:KER:29010 APPENDIX OF WP(C) 24456/2023 PETITIONER EXHIBITS Exhibit - P1 TRUE COPY OF THE BASIC TAX RECEIPT DATED 05.05.2023 ISSUED BY VO, VARAPUZHA Exhibit - P2 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 04.03.2023 ISSUED BY VO, VARAPUZHA Exhibit - P3 TRUE COPY OF THE LOCATION SKETCH BEARING NO.687/2023 DATED 12.05.2023 ISSUED BY VO, VARAPUZHA Exhibit - P4 TRUE COPY OF THE BASIC TAX RECEIPT DATED 05.05.2023 ISSUED BY VO, VARAPUZHA Exhibit - P5 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 16.03.2023 ISSUED BY VO, VARAPUZHA Exhibit - P6 TRUE COPY OF THE LOCATION SKETCH BEARING NO. 686/2023 DATED 12.05.2023 ISSUED BY VO, VARAPUZHA Exhibit- P7 TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT JOINTLY SUBMITTED BY THE PETITIONERS ON 08.05.2023 Exhibit - P8 TRUE COPY OF THE LETTER DATED 25.05.2023 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONERS Exhibit - P9 TRUE COPY OF THE LETTER DATED 27.06.2023 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONERS Exhibit - P10 TRUE COPY OF THE LETTER DATED 01.02.2020 W.P.(C)No.24456 of 2023 7 2025:KER:29010 ISSUED BY CHIEF TOWN PLANNER (PLANNING), THIRUVANANTHAPURAM Exhibit - P11 TRUE COPY OF THE ORDER DATED 13.07.2023 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT Exhibit - P12 TRUE COPY OF THE COMMUNICATION DATED 21.07.2023 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONERS Exhibit - P13 TRUE COPY OF JUDGEMENT IN WP(C).NO.29637 OF 2019 - SOOSY WILSON V. STATE OF KERALA Exhibit - P14 TRUE COPY OF JUDGEMENT IN W.P.(C) 14260 OF 2022 - PANKAJAKSHAN NAIR V. ST. OF KERALA Exhibit - P15 TRUE COPY OF JUDGEMENT IN W.P.(C) 12680 OF 2023 - SUMA AKA MARIAMMA V. ST. OF KERALA Exhibit - P16 TRUE COPY OF JUDGEMENT IN W.P.(C) 24396 OF 2021 - VELLAPALLY BROTHERS V. ST. OF KERALA Exhibit - P17 TRUE COPY OF JUDGEMENT IN W.P.(C) 14163 OF 2020 - CONFIDENT PROJECTS RESIDENTIAL V. PRINCIPAL SECY., LSGD KERALA RESPONDENT EXHIBITS EXHIBIT R2 (A) EXTRACT FROM THE STRUCTURE PLAN REPORT PG 15 EXHIBIT R2(A) A TRUE COPY OF THE SATELLITE IMAGE OF THE LOCATION OF THE PLOT. W.P.(C)No.24456 of 2023 8 2025:KER:29010 PETITIONER EXHIBITS EXHIBIT P18 A TRUE COPY OF GO(MS) NO.143/ 07/ LSGD DATED 31.05.2007 EXHIBIT P20 EXHIBIT P19 EXHIBIT P21 A TRUE COPY 6F THE PHOTOGRAPHS SHOWING THE BUILDINGS WHICH HAS BEEN CONSTRUCTED AFTER THE GO(MS) NO.143/ 07/ LSGD DATED 31.05.2007 A TRUE COPY OF THE PHOTOGRAPHS SHOWING THE BUILDINGS WHICH HAS BEEN CONSTRUCTED AFTER THE GO(MS) NO.143/ 07/ LSGD DATED 31.05.2007 A TRUE COPY OF THE PHOTOGRAPH SHOWING THE BUILDINGS WHICH HAS BEEN CONSTRUCTED AFTER THE GO(MS) NO.143/ 07/ LSGD DATED 31.05.2007

P.N. KRISHNAN DAS, AGED 50 YEARS, S/O LATE MR. P.K. NARAYANAN, POLAKULATH HOUSE, AUTOMOBILE ROAD, PALARIVATTOM, KOCHI, PIN – 682025. DAYAVATI NARAYANAN, AGED 82 YEARS, W/O LATE P.K. NARAYANAN, POLAKULATH HOUSE, AUTOMOBILE ROAD, PALARIVATTOM, KOCHI, PIN - 682025 ANITHA LAL, AGED 54 YEARS, W/O LATE MR. P.N. KRISHNANLAL, POLAKULATH HOUSE, AUTOMOBILE ROAD, PALARIVATTOM, KOCHI, PIN – 682025. BY ADVS. RAJESH VIJAYENDRAN P.CHANDRASEKHAR ASOK CHACKO THOMAS W.P.(C)No.24456 of 2023 2 2025:KER:29010 RESPONDENTS: 1 2 3 4 STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANTHAPURAM, PIN – 695001. SENIOR TOWN PLANNER, OFFICE OF THE REGIONAL TOWN PLANNER, CIVIL STATION, KAKKANAD, ERNAKULAM, PIN – 682030. VARAPUZHA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY,VARAPPUZHA P.O, VARAPUZHA, ERNAKULAM, PIN – 683517. THE SECRETARY, VARAPUZHA GRAMA PANCHAYATH, VARAPUZHA, VARAPUZHA P.O., ERNAKULAM, PIN – 683517. BY ADVS. NIRMAL.S,SC OTHER PRESENT: SMT DEEPA SPL.GP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON

03.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.24456 of 2023 3 2025:KER:29010 JUDGMENT The petitioners herein are stated to be in joint ownership and possession of certain properties in Varappuzha Village, Ernakulam District. They sought for a building permit for construction of three separate residential apartments in their property from the 3rd respondent Panchayat. As per Ext.P12 communication dated 21.07.2023, the Panchayat informed the petitioners that, in view of the provisions of the structural plan with reference to the General Town Planning Scheme as applicable to the city of Kochi, the area where buildings are proposed to be constructed was an Agricultural zone and hence the permit could not be issued.

2. It is challenging Ext.P12 issued as above that the captioned writ petition is filed by the petitioners.

3. I have heard Sri.Chandrasekhar, the learned counsel for the petitioners, Smt.Deepa the learned Special Government Pleader (LSG) for the respondents 1 and 2 as well as Sri.S.Nirmal the learned counsel for respondents 3 and

4. W.P.(C)No.24456 of 2023 4 2025:KER:29010

4. The challenge against Ext.P12, is essentially on account of the fact that a positive direction has been issued by rejecting the building permit applied for the petitioners without issuing the show cause notice. It is the contention of the petitioners that with reference to the area in question, various other residential buildings, have already been constructed. Smt.Deepa on behalf of the respondents 1 and 2, on the other hand would point out that the residential buildings referred to by the petitioners are smaller buildings, within the permissible extent of 300sq.ms.

5. In any view of the matter, this Court notices that Ext.P12 has been issued without hearing the petitioners. It would be for the petitioners to point out the ground realities, with reference to the area in question, the nature of the building proposed to be constructed therein etc. before the Panchayat. The petitioners would also be entitled to seek appropriate variations from the Government in the manner, if so advised, on the basis of the ground realities. In the afore circumstances, this writ petition would W.P.(C)No.24456 of 2023 5 2025:KER:29010 stand disposed of as under: i. ii. Ext.P12 issued by the 4th respondent herein is set aside. The 4th respondent herein to issue a show cause notice, to the petitioners herein, within a period of four weeks from today, containing the proposal for rejection of the building permits applied for. iii. Petitioners upon the receipt of the notices would be entitled to file appropriate objections placing reliance on actual state of affairs/ground realities before the 4th respondent. iv. The 4th respondent thereafter to consider and pass a detailed order after hearing the petitioner also, within a further period of six weeks thereafter. Sd/- HARISANKAR V. MENON JUDGE ANA W.P.(C)No.24456 of 2023 6 2025:KER:29010 APPENDIX OF WP(C) 24456/2023 PETITIONER EXHIBITS Exhibit - P1 TRUE COPY OF THE BASIC TAX RECEIPT DATED 05.05.2023 ISSUED BY VO, VARAPUZHA Exhibit - P2 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 04.03.2023 ISSUED BY VO, VARAPUZHA Exhibit - P3 TRUE COPY OF THE LOCATION SKETCH BEARING NO.687/2023 DATED 12.05.2023 ISSUED BY VO, VARAPUZHA Exhibit - P4 TRUE COPY OF THE BASIC TAX RECEIPT DATED 05.05.2023 ISSUED BY VO, VARAPUZHA Exhibit - P5 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 16.03.2023 ISSUED BY VO, VARAPUZHA Exhibit - P6 TRUE COPY OF THE LOCATION SKETCH BEARING NO. 686/2023 DATED 12.05.2023 ISSUED BY VO, VARAPUZHA Exhibit- P7 TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT JOINTLY SUBMITTED BY THE PETITIONERS ON 08.05.2023 Exhibit - P8 TRUE COPY OF THE LETTER DATED 25.05.2023 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONERS Exhibit - P9 TRUE COPY OF THE LETTER DATED 27.06.2023 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONERS Exhibit - P10 TRUE COPY OF THE LETTER DATED 01.02.2020 W.P.(C)No.24456 of 2023 7 2025:KER:29010 ISSUED BY CHIEF TOWN PLANNER (PLANNING), THIRUVANANTHAPURAM Exhibit - P11 TRUE COPY OF THE ORDER DATED 13.07.2023 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT Exhibit - P12 TRUE COPY OF THE COMMUNICATION DATED 21.07.2023 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONERS Exhibit - P13 TRUE COPY OF JUDGEMENT IN WP(C).NO.29637 OF 2019 - SOOSY WILSON V. STATE OF KERALA Exhibit - P14 TRUE COPY OF JUDGEMENT IN W.P.(C) 14260 OF 2022 - PANKAJAKSHAN NAIR V. ST. OF KERALA Exhibit - P15 TRUE COPY OF JUDGEMENT IN W.P.(C) 12680 OF 2023 - SUMA AKA MARIAMMA V. ST. OF KERALA Exhibit - P16 TRUE COPY OF JUDGEMENT IN W.P.(C) 24396 OF 2021 - VELLAPALLY BROTHERS V. ST. OF KERALA Exhibit - P17 TRUE COPY OF JUDGEMENT IN W.P.(C) 14163 OF 2020 - CONFIDENT PROJECTS RESIDENTIAL V. PRINCIPAL SECY., LSGD KERALA RESPONDENT EXHIBITS EXHIBIT R2 (A) EXTRACT FROM THE STRUCTURE PLAN REPORT PG 15 EXHIBIT R2(A) A TRUE COPY OF THE SATELLITE IMAGE OF THE LOCATION OF THE PLOT. W.P.(C)No.24456 of 2023 8 2025:KER:29010 PETITIONER EXHIBITS EXHIBIT P18 A TRUE COPY OF GO(MS) NO.143/ 07/ LSGD DATED 31.05.2007 EXHIBIT P20 EXHIBIT P19 EXHIBIT P21 A TRUE COPY 6F THE PHOTOGRAPHS SHOWING THE BUILDINGS WHICH HAS BEEN CONSTRUCTED AFTER THE GO(MS) NO.143/ 07/ LSGD DATED 31.05.2007 A TRUE COPY OF THE PHOTOGRAPHS SHOWING THE BUILDINGS WHICH HAS BEEN CONSTRUCTED AFTER THE GO(MS) NO.143/ 07/ LSGD DATED 31.05.2007 A TRUE COPY OF THE PHOTOGRAPH SHOWING THE BUILDINGS WHICH HAS BEEN CONSTRUCTED AFTER THE GO(MS) NO.143/ 07/ LSGD DATED 31.05.2007

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