IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 26TH MARCH 2008 / 6TH CHAITHRA 1930 WP(C).No. 22658 of 2007(V) -------------------------------------- PETITIONER: ------------------- FATHIMA MEMORIAL EDUCATIONAL TRUST, REP.BY ITS CHAIRMAN,A.YOUNIS KUNJU, VADAKKEVILA P.O,KOLLAM. BY ADV. SMT.S.KARTHIKA SRI.M.S.UNNIKRISHNAN SMT.K.P.GEETHA MANI SRI.M.R.ANISON SRI.T.R.RAJESH RESPONDENTS: ----------------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT,LOCAL SELF GOVERNMENT DEPARTMENT,GOVT.SECRETARIAT,THIRUVANANTHAPURAM. 2. THE CHIEF TOWN PLANNER,TRIVANDRUM. 3. THE CORPORATION OF KOLLAM, REP.BY ITS SECRETARY,KOLLAM. 4. THE TOWN PLANNING OFFICER, CORPORATION OF KOLLAM,KOLLAM. 5. A.NAUSHAD,THENGAZHIKKATHU VEEDU, MANAKKADU,VADAKKEVILA,KOLLAM- 691 010. BY GOVERNMENT PLEADER SRI.K.J.MOHAMMED ANZAR BY ADV. SRI.M.K.CHANDRAMOHAN DAS SC, KOLLAM CORPORATION THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.22658/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE LETTER DT. 1.11.01. EXT.P2:- COPY OF THE LETTER DT. 9.11.01 ISSUED BY THE 2ND RESPONDENT ADDRESSED TO THE 3RD RESPONDENT. EXT.P3:- COPY OF THE PLAN APPROVED BY THE CORPORATION DT. 9.11.01. EXT.P4:- COPY OF THE LETTER ISSUED BY THE AICTE DT. 8.5.07. EXT.P5:- COPY OF THE BUILDING LICENCE FEE RECEIPT DT. 23.11.06. EXT.P6:- COPY OF THE REPRESENTATION DT. 5.12.06 BY THE PETITIONER . EXT.P7:- COPY OF THE REJECTION LETTER DT. 10.1.07 ISSUED BY THE 4TH RESPONDENT . EXT.P8:- COPY OF THE REJECTION LETTER DT. 10.1.07 ISSUED BY THE 3RD RESPONDENT . EXT.P9:- COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE GOVERNMENT 2.7.07. EXT.P10:- COPY OF THE NOTICE DT. 7.7.07 ISSUED BY THE 3RD RESPONDENT. EXT.P11:- COPY OF THE LETTER DT. 3.11.01 ISSUED BY THE 4TH RESPONDENT . EXT.P12:- COPY OF THE BUILDING TAX RECEIPT DT. 25.3.99. EXT.P13:- COPY OF THE BUILDING TAX RECEIPT DT. 30.8.2000. EXT.P14:- COPY OF THE BUILDING TAX RECEIPT DT. 18.6.04. EXT.P15:- COPY OF THE OCCUPANCY CERTIFICATE ALONG WITH APPROVED SITE PLANT DT. 11.3.05. EXT.P16:- COPY OF THE CERTIFICATE DT. 4.2.02 ISSUED BY THE CORPORATION SECRETARY. EXT.P17:- COPY OF THE CERTIFICATE DT. 28.6.02 ISSUED BY THE ASST. ENGINEER ATTACHED TO THE CORPORATION. EXT.P18:- COPY OF THE NOTIFICATE DT. 7.6.07 ISSUED BY GOVT. EXT.P19:- COPY OF THE OBJECTION DT. 10.7.07 SUBMITTED BY THE PETITIONER BEFORE THE GOVT. /TRUE COPY/ P.A. TO JUDGE PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No. 22658 OF 2007 ----------------------------------------------- Dated this the 26th day of March, 2008 J U D G M E N T The Fathima Memorial Educational Trust is the petitioner in this writ petition under Article 226 of the Constitution of Indiaand the petitioner claims to be a Trust, which is running several educational institutions in the State. The first respondent is the State represented by the Secretary, LSGD. The 2nd respondent is the Chief Town Planner. The 3rd respondent is the Kollam Corporation. The 4th respondent is the Town Planning Officer, Corporation of Kollam and the 5th respondent is one Sri.A.Naushad, Division Councillor in the Corporation Council. 2. It is submitted that with a view to start an Engineering College in the Kollam District, the petitioner applied for permission to the Government and based on the sanction granted by the Government, so as to comply with all the procedural formalities stipulated by the AICTE for starting an engineering college, the petitioner on 1.11.2001 submitted a lay out plan seeking permission for construction of engineering college WP(C)N0.22658/07 -2- buildings in 10.80 acres of land owned by the petitioner in various Survey Nos. in Vadakkevila Village in Kollam District. On the same day, by Ext.P1 order, the petitioner's application was rejected by the 3rd respondent on the ground that the land is situated in a residential zone as per 1981 development plan for Kollam district and that the petitioner will have to obtain zonal exemption. Pursuant to Ext.P1, the petitioner applied to the Government for zonal exemption and the Government granted zonal exemption as per G.O.(Rt)3292/01/LSGD dated 6.11.2001 and letter in that regard was issued by the 2nd respondent to the 3rd respondent on 9.11.2001 (Ext.P2). The petitioner claims, on the basis of Exts.P1 and P2, that the land owned by the petitioner in various survey numbers in Vadakkevila Village have been exempted from zonal exemption rules and permission is granted to the petitioner for construction of three storied Engineering College building. The petitioner relies on Ext.P3 dated 9.11.2001 issued by the Corporation to show that the Corporation has already granted approval to the lay out plan submitted by the petitioner in respect of the entire plot including WP(C)N0.22658/07 -3- existing buildings in all survey numbers mentioned in Ext.P2 order. It is submitted that, based on Ext.P2 exemption order and Ext.P3 approved lay out plan, the petitioner constructed a new three storied building on the land and it is pointed out that as on the date of construction of the new three storied building, 7 other buildings viz buildings bearing Corporation Numbers 354,356 to 360 and 365 were already existing on the land. It is submitted that for satisfying the mandatory requirements under AICTE norms, the entire 10.80 acres of land and all the buildings situated in different survey numbers mentioned above is absolutely necessary. The AICTE granted permission for starting the engineering college on the basis of ownership and possession of the buildings and the approval granted by the Corporation in Ext.P3 lay out plan. It is pointed out that the college started functioning from 2002 – 03 onwards. Pursuant to AICTE sanction for engineering course with an intake of 60 each thereafter to more courses and one additional batch were sanctioned by the AICTE during 2006. The AICTE team inspected the college and and premises for the purpose of renewal of approval for the WP(C)N0.22658/07 -4- year 2006 – 07. Certain deficiencies were noted and Ext.P4 letter dated 8.5.2007 was issued to the petitioner pointing out that there is a deficiency of built up area of 2320 sq. mts. for meeting AICTE requirements. Since additional constructions were absolutely necessary in terms of AICTE specifications for accommodating the new courses and batches, the petitioner sought permission from the Corporation to make some additional construction in the already existing building in survey number 615/1. The built up area as proposed will come to 2160 sq. meters in the form of first and second floor in the already existing building in Survey No. 615/1. Along with the application, lay out plan for construction of first and second floor above, the existing building was also submitted. Against Ext.P5 receipt dated 23.11.2006 application fee was also remitted. Considering the urgency of the matter, Ext.P6 representation was submitted by the petitioner on 5.12.2006 to the Town Planning Officer of the Corporation. After two months, the 2nd respondent Chief Town Planner has rejected the petitioner's application and the 3rd respondent Corporation has directed the petitioner to demolish WP(C)N0.22658/07 -5- all the constructions so far made including the existing building owned by the petitioner in Sy.No. 615/1. Exts.P7 and P8 dated 10.1.2007 are the communications received by the petitioner. The petitioner points out that the only reason stated by the 3rd respondent is that the zonal exemption already granted to the petitioner as per Exts.P1 and P2 is not sufficient for making additional construction and that separate zonal exemption should be obtained. 3. Being aggrieved by Exts.P7 and P8, the petitioner approached the Government by filing appeal and the Government passed an interim order directing the Corporation not to demolish the constructions for the time being. Later the petitioner filed Ext.P9 representation dated 2.7.2007 before the Government seeking permission to proceed with and complete the construction of the first and second floors of the already existing building. Now the 3rd respondent has issued another notice on 7.7.2007 (Ext.P10) to the petitioner threatening the petitioner with penal action, if construction of the building is proceeded with. The petitioner submits that the zonal WP(C)N0.22658/07 -6- exemption granted to them, as stated in Exts.P1 and P2, is in respect of the entire plot for the purpose of making construction for the establishment of an engineering college and relied on Ext.P11 letter dated 3.11.2001 issued by the 4th respondent to the Government. The petitioner refers to Ext.P3 plan and submits that the said plan shows existing building bearing No. VP/VII/354 and also relies on Exts.P12 to P14. Property tax receipts issued by the Grama Panchayat during the period from 1999 to 2003. The petitioner also submits that it has been known that as per the latest development plan for Kollam District prepared by the Chief Town Planner, the area where the engineering college is located had been re-classified as a “ Commercial Zone”. The Town Planning Department prepared such plan during the year 2006 and steps are being taken for reclassifing the above land as commercial zone instead of residential zone in the latest development plan. It is pointed out that in almost all other Districts in the State, the Government has already notified the latest town planning scheme and in Kollam District steps are under finalisation for the notification of the WP(C)N0.22658/07 -7- revised Town Planning Scheme. Once the latest scheme is implemented, the question of zonal exemption for the construction of college building will not arise. It is alleged by the petitioner that the action of the respondents in rejecting their plan for permission to construct first and second floors to the already existing building bearing number 354 in Sy.No.615/1 is vitiated by irrelevant consideration and political malice. It is stated that the 5th respondent is a councilor of Manakkad Division 29 of Vadakkevila Panchayat and the Chairman of the petitioner trust was his rival candidate in the last Panchayat election. The Chairman of the petitioner trust has filed election petition before this court and the same is even now pending. Challenging Exts.P7, P8 and P10 on various grounds, the petitioner prays for the following reliefs' i). Quash Exts.P7, P8 and P10 since they are vitiated by malice and irrelevant consideration at the instance of the 5th respondent. ii). Quash Exts.P7, P8 and P10 as they violates the WP(C)N0.22658/07 -8- petitioner's fundamental right under Article, 14, 19(i) (g) and 30 (i) of the Constitution. Iii). Direct the respondents 1 to 4 to permit the petitioner to construct first and second floors over existing building No.354 in Sy.Nos.615/1. 4. The 3rd respondent Corporation filed a statement as directed by the court and it is submitted therein that the petitioner has obtained exemption from zoning regulation from the Chief Town Planner vide approval No. D10-8288/2001/K.Dis. Dated 9.11.2001. The Corporation has granted building permit also on 12.11.2001. As per the said permit and zonal exemption, the petitioner constructed the college buildings in a zone which is notified as residential zone as per 1981 development plan of Kollam District. Other than the newly constructed three storied building there were 7 other buildings in other properties mentioned in the building permission granted by the corporation. From the permission granted, it was clear that the sanction was granted only for a three storied building. In the meanwhile, the petitioner applied for permission to make some WP(C)N0.22658/07 -9- additional constructions in the already existing building. Along with that application, the petitioner submitted lay out plan which had already been issued by the Corporation and therefore, the Corporation directed the petitioner to submit lay out plan for the proposed new construction from the Chief Town Planner. As per Section 54 (1) of the KBR 1999, lay out approval from the Chief Town Planner is indispensable for the educational building having more than 500 Sq. m. the approval already granted to the petitioner was only regarding the construction contemplated in that application. That permission will not apply to the future construction. Notices under Rule 406 (1) & (2) of the Kerala Municipality Act was issued to the petitioner since the Corporation is not competent to issue permission and the petitioner proceeded with the construction without approval from the Chief Town Planner which is required under Rule 100 and 101 of KBR. 5. Reiterating the same contentions, the Corporation has filed a counter affidavit also. It is contended in the counter affidavit that as per the Corporation records, the area of the WP(C)N0.22658/07 -10- existing building is 120 m2 square. But according to the application submitted by the petitioner existing area is shown as 938 meter square. From the very inception, the petitioner has submitted false information before the Corporation and tried to obtain permission for construction by ingenuous method. On a detailed inspection, it was found that the petitioner has demolished the existing structure and a new building is being constructed in the same place. It was noticed that concreting of the first floor is completed and the second floor is progressing. Under such circumstances provisional demolition order under Section 406 (2) of the Municipalities Act was issued to the petitioner directing him to demolish construction which are made without Corporation permission. It is contended that it is not an extension of the existing construction, which is being made by the petitioner. Therefore, there is no estoppal against the Corporation contending that the exemption required. The counter affidavit refers to the Judgment of this court in Sayeesh Kumar & others v. State of Kerala & others (2005 (4) ILR 769) and points out that the Government has no WP(C)N0.22658/07 -11- power to grant individual exemption and thereby tinker with the scheme. In view of the statutory provisions and the judgment of this court, the petitioner is not eligible for any permission to construction building in the area and the Corporation has no power to grant permission. 6. It is claimed that the action of the Corporation in issuing Ext.P8 and P10 notices to the petitioner to stop further construction and also to demolish the construction made in violation of the provisions of the Building Rules is strictly in conformity with law. On behalf of the second respondent a statement has been filed by the Senior Town Planner in the Office of the Chief Town Planner. It is conceded therein that the petitioner's site for the proposed construction falls in the residential use zone of the sanctioned development plan for Kollam. The Government have granted exemption for construction of an Engineering College/MCA College building in the site subject to conformity with the conditions vide G,.O.(Rt.) No. 3292/01/LSGD dted 6-11-2001. The conditions were that (1) all other provisions of the Town Planning Schemes should be WP(C)N0.22658/07 -12- followed. (2) The construction shall be subject to the Kerala Municipality Buildings Rules, 1999 and (3) The Government/Corporation and management of Institution shall take steps to improve the Pallikkunnu Road to the site or NH Bye- pass to the site to at least a width of 12m. Before the functioning of the building. The above conditions were insisted for ensuring that the impact of the educational institution in the surrounding area is minimized. It is then stated that as per the Government Order the construction had to be started after obtaining development permit and building permit from the Kollam Corporation. The exemption granted by the Government was only for construction of the building proposed in the site asper details shown in the plan submitted along with the petition and not for the entire parcel of land in which the construction is proposed. Ext.P2 is copy of the lay out approval issued by the Chief Town Planner for the construction based on the application which was forwarded by the Kollam Corporation as required under the KMBR, 1999. As per Ext.P2 approval is granted only for three storied Engineering College Building in the site. The WP(C)N0.22658/07 -13- statement reiterates that the Government exemption order was only for the construction of the building proposed in the site. The land owned by the petitioner continues to be in the residential use zone as per the sanctioned Development Plan for Kollam. Any further construction, other than which has been carried out on the basis of development permit and building permit issued by the Corporation of Kollam as insisted in the Government Order granting exemption will be governed by the zoning regulations. 7. It is then stated that the Kollam Development Authority and the Department of Town and Country Planning took certain actions required under the Town Planning Act 1108 for variation of the sanctioned development plan for Kollam and the modified plan prepared thus was forwarded to the Government seeking concurrence for publication. Further processing for finalizing the modified plan is not completed. Further to the above as part of the steps taken by Government to vary the sanctioned Town Planning Schemes, actions to vary the sanctioned Development Plan for Kollam are also progressing. However, such variation is also not sanctioned so far. Therefore development controls are WP(C)N0.22658/07 -14- to be effected based on the provisions of the sanctioned development plan for Kollam. Statement also refers to the judgment of the Division Bench in Sayeeshkumar's case and submits that it has been held that the Government has no power to grant individual exemption by tinkering with the approved scheme and grant permission for construction of a non-residential building in a residential zone. Statement refers to rule 100 to 102 of the Kerala Municipality Building Rules, 1999 and submits that as per those rules permission cannot be granted for making constructions violating provisions of the sanctioned Town Planning Schemes. 8. The petitioner has filed a reply affidavit reiterating its contentions and repudiating the contentions raised by the Corporation. It is stated in the reply affidavit that the version of the Corporation that the area of the existing building on the petitioner's property is only 120M2 is absolutely incorrect. Referring to Ext.P2 approved plan it is pointed out that the existing area of ground floor comes to not less than 938 M2. Reply denies the allegation that the petitioner has been WP(C)N0.22658/07 -15- submitted false information before the Corporation for getting permit for making constructions. Such wrong and incorrect statements are levelled only with the deliberate intention of misleading this court, it is contended. The reply denies the allegation that the petitioner has demolished the existing structure and made a new construction in its place. The application submitted before the Corporation by the petitioner is to grant permission for making the first and second floor construction to the already existing single storied building. Existing structure has been kept intact and is never demolished. The reply affidavit explains that the roof of that existing structure was not a concreted one . In fact in that ground floor building the Library of the Engineering College was functioned for the last more than six years. Since the proposal is to construct two floors above the existing ground floor, necessarily the roof which was with tin sheets had to removed and a concrete roof had to be provided. This alone is what has been done by the petitioner. Petitioner's application to the Corporation is only to make additional first and second floor constructions to the WP(C)N0.22658/07 -16- existing ground floor of the building. Petitioner has produced additional documents against affidavit dt. 19-10-07 producing additional documents P15 to P19. 9. I heard the submissions of Smt.V.P.Seemanthini. Learned senior counsel for the petitioner and those of Sri.C.S.Manilal, learned counsel representing Sri.Chandramohandas, Standing Counsel for the Corporation and Sri.C.M.Suresh Babu, learned Spl. Govt. Pleader for Local Self Government Department. The counsel would make submissions on the basis of the pleadings and drawing my attention to the documents placed on record and the relevant statutory provisions. 10. Having considered the submissions I am of the view that the petitioner is entitled for relief. Ext.P2 exemption order was granted in favour of the petitioner on 9-11-2001 in respect of 10.89 acres of land belonging to the petitioner in various survey numbers mentioned in Ext,.P2 including survey No.615.1 of Vadakkevila Village for the construction Engineering College Building. Based on Ext.P2 the petitioner constructed a three storied building for the college. As will be seen from Ext.P3 lay WP(C)N0.22658/07 -17- out plan at the time of construction of the above three storied building seven other buildings including building bearing door No.VP/7/354 in survey No.615/1 was in existence. According to the petitioner and it is seen from Ext.P4 letter dated 8-5-07 issued by the AICTE pursuant to their inspection of the petitioner's college for the purpose of extension of AICTE approval for the year 2006-07 there is deficiency of 2320 sq. m. of built up area to the petitioner's Engineering College building and the petitioner is directed to make up the above deficiency before 31-8-2007. Against Ext.P5 petitioner submitted application before the corporation for making additional constructions to the already existing building No. 354 in survey No.615/1 by submitting a plan for the proposed construction. Therefore through Ext.P6 letter the petitioner brings to the notice of the Corporation the urgency in making additional constructions in view of the instructions of the AICTE. The Corporation by Ext.P7 and P8 rejected the petitioner's application for additional construction to the existing building on the ground that for making additional constructions to the existing building Ext.P2 WP(C)N0.22658/07 -18- zonal exemption order will not be sufficient and therefore a fresh zonal exemption order will have to be obtained. Against P7 and P8 the petitioner approached the Government and the Government passed an order directing the Corporation not to demolish the petitioners constructions for the time being. Petitioner then submitted Ext.P9 representation to the Government on 2-7-07 seeking permission to continue and complete the construction at the earliest. At that point of time the Corporation issued Ext.P10 notice threatening the petitioner that penal action in case petitioner continues with the construction of first and second floors. The present writ petition essentially challenges the validity of Exts.P7, P8 and P10. Ext.P15 approved site plan issued by the Corporation along with the occupancy certificate for the newly constructed Engineering College building on 11-3-2005 produced by the petitioner will show that the plinth area of the already existing building No.354 is 1115 M2 and not 120 M2 as stated in the counter affidavit of the Corporation. Item No.A in P15 plan is the existing building No.354 and item No.C in Ext.P15 is the newly constructed three WP(C)N0.22658/07 -19- storied building having 3500 M2 plinth area. It will also show that a small area of 342 M2 was sanctioned was sanctioned for additional construction in the existing building No.354 then itself. The claim of the petitioner is that in 2005 itself a small room with a plinth area of 245 M2 was constructed in the western extremity of the building No.354 in 2005 itself. Ext.P16 and P17 certificates will show that existing No.354 as RCC roof as well as A.C. sheet roof with thermocool ceiling. The claim of the petitioner that the Library of the Engineering College was housed and functioning in building No.354 for the last six years is not seen controverted. The contention is that only the sheet roof portion of that building was removed to make two additional floors to that building by keeping in tact the existing structure of building. Ext.P18 draft notification issued by the Government proposing to revise the existing development plan for Kollam District as well as Ext.P19 objection filed by the petitioner to that development plan plan on 10-7-07 are also relied on by the petitioner. As per Ext.P18 revised plan produced by the Government Educational Institutions like the Engineering College will come within the WP(C)N0.22658/07 -20- Public and semi public zone and not within the residential zone. Only educational institutions up to Higher Secondary level are included in the residential zones. Concededly the above draft development plan has now been approved by the Government and the new revised master plan was already published in the Govt. Gazette dated 12-2-2008 and category 9 of the above notification deals with public and semi public zone which includes educational institutions like Engineering Colleges. 10. As per rule 30 of the Kerala Municipality Building Rules 1999, educational institutions are classified as group-B. Rule 54 (1) of the Building Rules insist for approval of District Town Planner for usage of plot up to .5 hectors and lay out of 500 sq. metres area under educational occupancy