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2017 DIGILAW 1071 (KER)

Mahinkutty v. Secretary, Perumbavoor Municipality

2017-07-25

K.VINOD CHANDRAN

body2017
JUDGMENT : 1. The petitioner is aggrieved with Exhibit P9 order passed by the Senior Town Planner refusing to consider the building permit application filed before the respondent-Municipality for extension of an existing building; in the property owned by the petitioner, which was obtained as per Exhibit P1 settlement deed. By Exhibit P1, the petitioner obtained 20.70 Ares of property, comprised in old survey No.310/17-1 [New Survey No.20] of Perumbavoor Village. The land is existing as a dry land, as is evidenced from Exhibit P2 possession certificate and Exhibit P2(a), extract of the Basic Tax Register [BTR]. There was existing a building thereon, for which tax was paid to the Municipality as per Exhibit P3. An industry was also established in the said land, on the strength of Exhibit P4 certificate issued by the Department of Industries, Government of Kerala. 2. The petitioner wanted an extension of the building, for which an application was filed at Exhibit P5. This was again for the purpose of expanding the commercial establishment already existing in the building. Exhibit P6 is the Consent to Operate issued by the Kerala State Pollution Control Board [for brevity “PCB”] and the No Objection Certificate issued by the District Medical Officer of Health, are seen at Exhibit P7 and P7(a). The Fire and Rescue Services Department also issued a No Objection Certificate, as is seen from Exhibit P8. The petitioner is carrying on a recycling unit of plastic. 3. The petitioner’s application was forwarded to the Senior Town Planner, Ernakulam; which was declined as per Exhibit P9, which is impugned in the writ petition. Exhibit P9; for declining the building permit, cites the reason of the area being covered under a master plan proposed for Perumbavoor town as per G.O.(Rt) No.2544/98/LAD dated 22.10.1998. According to the Senior Town Planner, the master plan indicates that only certain constructions are allowed in the particular area which is reserved for agricultural and horticultural uses, pastures, grazing grounds, fodder cultivation, fish farming, seed farming, diary and poultry and so on and so forth. 4. The petitioner is aggrieved by the impugned order, since the master plan is not implemented till now. It is also contended that there have been many buildings permitted in the said area in total violation of the prescription of agricultural zone, which itself makes it clear that there has been no implementation of the master plan. 4. The petitioner is aggrieved by the impugned order, since the master plan is not implemented till now. It is also contended that there have been many buildings permitted in the said area in total violation of the prescription of agricultural zone, which itself makes it clear that there has been no implementation of the master plan. The learned Government Pleader and the learned Counsel for the Municipality seeks to sustain the impugned order on the basis of the master plan especially for the reason that there was a revised master plan in the year 2016 also, specifically, published on 22.11.2016. 5. The revised master plan of 2016, however, does not detract from the fact that despite a master plan existing from 1998, which set apart the area for agricultural purposes, many constructions were made in violation of such specific setting apart of the area. A Division Bench of this Court in Padmini v. State of Kerala [ 1999 (3) KLT 465 ] and the Hon’ble Supreme Court in Raju S. Jethmalani v. State of Maharastra [ (2005) 11 SCC 222 ] have held that there can be no interdiction of the construction of buildings on properties existing within the categories as per the master plan; when such master plans are not implemented for long. The learned Counsel has also rightly placed reliance on a decision of a Division Bench in W.A.No.559 of 2016 dated 26.10.2016, wherein on similar consideration the judgment of a learned Single Judge setting aside an identical order declining construction on the basis of a master plan was upheld. 6. Going by the binding precedents, this Court is of the opinion that there can be no interdiction of the construction sought for by the petitioner when the master plan has not been implemented till date. In such circumstances, Exhibit P9 would stand set aside. The Senior Town Planner would consider the permit application dehors Exhibit P9 in accordance with law and in accordance with the Kerala Municipality Building Rules, 1999 within a period of one month from the date of receipt of a certified copy of this judgment and communicate the order to the petitioner and the local authority. The local authority shall then consider the issuance of the building permit, again in accordance with the Building Rules of 1999. The writ petition is disposed of as above. No costs.