IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 WP(C).No. 11715 of 2006(T) -------------------------- PETITIONER: ------------------ S.ASHOK KUMAR, AGD 49 YERS, S/O.SIVARAMAN, SUDHALAYAM, SNEHA NAGAR, HOUSE NO. 32, ULIYAKOVIL, KOLLAM. BY ADV. SRI.ANIL THOMAS(T) SMT.K.V.RESHMI RESPONDENTS: ---------------------- 1. THE SECRETARY TO GOVERNMENT OF KERALA, DEPRTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF TOWN PLANNER, TRIVANDRUM. 3. THE TOWN PLANNER, KOLLAM. 4. THE KOLLAM CORPORATION REORESEBTED BY SECRETARY. 5. THE TOWN PLANNING OFFICER, KOLLAM CORPORATION. ADV. SRI.M.K.CHANDRA MOHAN DAS,SC,KOLLAM MPT FOR R4 & 5 GOVERNMENT PLEADER SRI SHYSON P. MAGUZHA FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/01/2009, COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE BUILDING PERMIT NO.TP.2/BRC/129/04-05 DATED 27/12/04. EXT.P2 TRUE COPY OF THE ORDER REVISED BUILDING PERMIT NO.TP2/BRC/129/04 DATED 6/6/05 ISSUED BY THE KOLLAM CORPORATION. EXT.P3 TRUE COPY OF THE LETTER NO.29070/63/05 DATED 25/6/05 FROM THE GOVT. EXT.P4 TRUE COPY OF THE REPLY DTD. 25/7/05 TO EXT.P3 ;SUBMITTED BY THE PETITIONER THROUGH HIS ENGINEER TO THE 4TH RESPONDENT. EXT.P5 TRUE COPY OF THE REPREENTATIN DTD. 15/12/05 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT. EXT.P6 TRUE COPY OF THE ORDER NO.TP.2/BRC 129/04-05 DATD 11/1/06 ISSUED BY THE 4TH RESPONDENT. EXT.P7 TRUE COPY OF THE REVIEW PETITIN DTD. 17/1/06 SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE MINISTER, LSG DEPT. EXT.P8 TRUE COPY OF THE LETTER DTD. 18/4/06 SENT TO THE 3RD RESPONDENT BY THE 2ND RESPONDENT. EXT.P9 TRUE COPY OF THE REPORT SENT TO THE 2D REPONDENT ON 28/4/06. EXT.P10TRUE COPY OF THE REPORT ENT TO THE IST REPONDENT ON 17/5/06. EXT.P11TRUE COPY OF THE DTP SCHEME FOR KADAPPAKKADA AND SURROUNDINGS. EXT.P12TRUE COPY OF THE RECOMMENDATION MADE BY THE 4TH RESPONDENT. EXT.P13TRUE COPY OF THE REPREENTATION OF THE SRINAGAR RSIDENTS ASSOCIATION, KADAPPAKKADA. EXT.P14TRUE COPY OF THE DEVELOPMENT PLAN FOR KOLLAM 2011 AD PREPARED BY THE 4TH AND 5TH RESPONDENTS. EXT.P15TRUE COPY OF THE ORDER DTD. 19/8/08 ISSUED BY THE 5TH RESPONDENT. RESPONDENTS' EXTS: EXT.R1A TRUE COPY OF THE GOVT. ORDER DTD. 25/6/2005. HARUN-UL-RASHID,J. --------------------------- W.P.(C).NO.11715 OF 2006 ---------------------------- DATED THIS THE 20TH DAY OF JANUARY, 2009 JUDGMENT Ext.P1 is the permit issued by the Corporation of Kollam to the petitioner for the construction of a commercial-cum- residential building in his property at Kadappakkada, Kollam. Ext.P2 is the revised building permission. It is submitted by the petitioner that he had constructed the building in accordance with the building plan and permit issued by the Corporation. But to the surprise of the petitioner, the Secretary and the Town Planning Officer of the Kollam Corporation (respondents 4 and 5) issued proceedings dated 12/7/2005 to the petitioner directing him to stop the work forthwith and also to show cause why the building permit shall not be cancelled. The reasons stated in the said proceedings are that the construction of the building is in violation of the zonal regulations relating to the construction of residential buildings and that there is a proposal for widening of the side road as per -2- W.P.(C).No.11715/2006 Government order dated 25/6/2005. Ext.P3 is the said proceedings. It is evident that Ext.P3 was issued on the basis of the instructions received from the Government. The learned Government Pleader submitted that Ext.R1(a) is the communication dated 25/6/2005 issued by the Secretary to Government to the Secretary of the Kollam Corporation. The petitioner submitted a representation to the Government stating the true facts and requested to desist the proceedings initiated against the petitioner. Ext.P6 is the order dated 11/1/2006 issued by the Secretary, Kollam Corporation directing the petitioner to demolish the construction and surrender the building permit and plan. Petitioner submitted a review petition to the Minister for Local Self Government Department. The petitioner pointed out that stop memo itself was issued on the basis of confusion, as it is clear that the side road ends in a house cannot and need not be widened for public purpose, that there is a side road on the western side of the petitioner's property, that it reaches in a dead -3- W.P.(C).No.11715/2006 end and the same is used by some of the residents only and moreover the petitioner has so far constructed the building in strict conformity of the building permit issued by the Kollam Corporation leaving sufficient space on all the sides. It was also pointed out that the Corporation issued a stop memo solely based on the Government letter, Ext.R1(a). It is submitted that the petitioner has so far completed the structure in conformity with the building permit issued by the Kollam Corporation. Pursuant to Ext.P7, the Chief Town planner, Thiruvanathapuram directed the Town Planner, Kollam to give a detailed report in the matter. Ext.P9 is the report submitted by the Town Planner, Kollam to the Chief Town Planner, Thiruvananthapuram, wherein it is stated that the party has to provide a side yard of 9.50m (6.50m) for road widening + 3 m. for set back) on the western side of the plot as per the detailed Town Planning Scheme. The party has provided only 4.50m. side yard and within that space there is a projection of 1.5 m. shade. There is no other violation in the -4- W.P.(C).No.11715/2006 construction. It is also reported that the construction is as per the building permit issued by the Corporation and there is no change from the approved plan. The Chief Town Planner, on receipt of Ext.P9 report, submitted a report No.C3/1084/06/D.Dis. dated 17/5/2006 to the Government. In the said report the Chief Town Planner, after narrating the details, pointed out that the construction is as per the building permit issued by the Corporation and there is no change from the approved plan. He further reported that it is unfair to take demolition action at this stage and the Corporation is liable to regularize the structure since the building construction has been carried as per the approved plan. Ext.P10 is the report submitted by the Chief Town Planner to the Government. Petitioner also produced Ext.P11 detailed Town Planing Scheme for Kadappakada and surroundings prepared by the Department of Town Planning, Kerala State. 2. In view of Ext.P9 and the report of the Chief Town -5- W.P.(C).No.11715/2006 planner, the proceedings for demolition of the building pursuant to Exts.P3 and P6 shall stand quashed. Writ Petition is allowed. There will be no order as to costs. HARUN-UL-RASHID, Judge. kcv.