IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 4TH MARCH 2008 / 14TH PHALGUNA 1929 WP(C).No. 33362 of 2007(V) -------------------------- PETITIONERS: ------------ 1. P.P.MATHEW, AGED 46 YEARS, S/O. P.C.PAILO, VATTAKUNNEL PULLIKEL HOUSE, ERAYIL KADAVU, KOTTAYAM, NOW RESIDING AT XI, GIRINAGAR, KADAVANTHRA, KOCHI. 2. SUSAN MATHEW, AGED 44 YEARS, W/O.P.P.MATHEW, VATTAKUNNEL PULLIKEL HOUSE, ERAYIL KADAVU, KOTTAYAM, NOW RESIDING AT XI, GIRINAGAR, KADAVANTHRA, KOCHI. BY ADV. SRI.JOY GEORGE SMT.PRAICY JOSEPH RESPONDENTS: ------------- 1. STATE OF KERALA REPRESENTED BY THE LOCAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY, KOTTAYAM DEVELOPMENT AUTHORITY, NAGAMPADAM, KOTTAYAM-1, (THE SAID OFFICE IS NOW ABOLISHED AND HENCE REP. BY THE DISTRICT COLLECTOR, CIVIL STATION, KOTTAYAM). 3. THE SECRETARY, KOTTAYAM MUNICIPALITY, KOTTAYAM. 4. THE CHIEF TOWN PLANNING OFFICER, OFFICE OF THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM. R1,R2 & R4 BY GOVT. PLEADER MR.K.J.MOHAMMED ANZAR R3 BY ADV.MR.C.S.MANILAL, S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.33362 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 4th March, 2008 JUDGMENT In this Writ Petition under Article 226 of the Constitution, the petitioners has sought for the following reliefs: 1. Issue a Writ of Mandamus or order or direction, directing the 3rd and 4th respondents to approve the lay out and plan submitted by the petitioners for the construction of apartments and villas in Survey Nos.107/2, 107/5/1, 107/5/2, 107/6/1 and 107/6/2 of Vijayapuram Village, Muttambalam Kara, Kottayam as per Ext.P1 order of the Government. 2. Issue a Writ of Mandamus or order or direction, directing the respondents to comply with Ext.P1 direction without sought for any clarification as is done in Ext.P3. 3. To issue a Writ of Certiorari or any other appropriate writ or order or direction, quashing Ext.P3 and Ext.P4 as the same is unwarranted and unjustified. 4. To declare that the 3rd and 4th respondents are further estopped from raising any such contentions of duration of period etc., since there is no prescription of period of completion of work and Ext.P1 is issued in consultation with those respondents. W.P.C.No.33362/07 - 2 - 5. Issue a Writ of Mandamus of order or direction, directing the 3rd and 4th respondents to allow the petitioners to proceed with the construction pursuant to Ext.P1 without insisting for further formalities. The grievance of the petitioners is that when the benefits of Ext.P1 were available to them, they being successors in interest of the persons in whose favour the Government issued Ext.P1 exemptionn order from the zoning regulations in the sanctioned development plan was passed, it was absolutely unnecessary on the part of the Municipality to have sought for a clarification from the Chief Town Planner as to whether Ext.P1 is in currency even now. According to the petitioners, pursuant to Ext.P1, their predecessors had in compliance with the direction in Ext.P1 approached the Kottayam Development Authority for a development permit and that Authority had issued Ext.P2 development permit. They have also complied with most of the conditions incorporated in Ext.P1 and is ready and willing to comply with the remaining conditions also and it will suffice that the Municipality considers their application for building permit only after ensuring that all the conditions in Ext.P1 have been satisfactorily complied with by the petitioner. According to them, it was on account W.P.C.No.33362/07 - 3 - of the financial constraints that the construction work could not be taken up by their predecessors and by themselves all these 12 years. 2. The first respondent has filed a detailed statement conceding that Ext.P1 Government Order had been issued in favour of the petitioners predecessors in interest and that exemption was also granted from rules 145(a)(iii) and (iv) of the Kerala Building Rules, 1084. The statement refers to the judgment of this court in Sayeesh Kumar v. State of Kerala (2005(4) KLT 1027) and states that this court has declared that the Government has no power to grant exemption from zoning regulations approved and notified under the provisions of the Town Planning Act. Pursuant to the judgment of this court, the Government has issued Annexure R3(a) letter to the Chief Town Planner taking the view that granting lay out approval and building permit on the basis of exemption orders granted by the Government subsequent to 7.11.2005, the date of pronouncement of the judgment of this court in Sayeesh Kumar case (supra) is illegal. It is on the basis of Ext.R3(a) that it was clarified by the Chief Town Planner to the Municipal Secretary under Ext.P4 that it is not possible to consider the petitioners application for lay out approval or building permit. W.P.C.No.33362/07 - 4 - 3. The Municipality has filed a detailed statement through its Standing Counsel Mr.C.S.Manilal wherein it is contended that the petitioners have not complied with any of the conditions in Ext.P1. The petitioners have not so far approached the Municipality for building permit. Lay out approval also has not been granted by the Municipality even after the lapse of 12 years. The statement goes on to justify Exts.P3 and P4. In view of the emergence of the new prevailing circumstances, the development activities and the potentialities, it will not be possible to rely on Ext.P1 at this distance of time. Ext.P1 order is not in favour of the present petitioners and at this point of time unless there is separate order in favour of the present petitioners, they cannot avail the benefit of Ext.P1. 4. Heard Mr.Joy George, counsel for the petitioners, Mr.C.S.Manilal, Standing Counsel for the Kottayam Municipality and Mr.K.J.Mohammed Anzar, learned Government Pleader for respondents 2 and 4. Learned counsel would make submissions on the basis of their pleadings. 5. Mr.Manilal and the Government Pleader would inter alia submit that Ext.P1 order was issued by the Government at a time when the Kerala Building Rules, 1984 were in force and now that the W.P.C.No.33362/07 - 5 - statutory rules have been drastically amended and KMBR, 1999 are in currency, the question of granting exemption from zoning regulations will have to be considered afresh. They also submitted that the judgment of this court in Sayeesh Kumar case (supra) has attained finality and therefore the stand of the Government and the views expressed through Annexure R3(a) letter is quite correct. 6. Having considered the rival submissions addressed at the Bar, I am of the view that Ext.P1 will enure to the benefits of the petitioners who claim under Mr.K.Thomas George and Mr.K.I.Korah in whose favour Ext.P1 was issued by the Government. The judgment of this court in Sayeesh Kumar case (supra) though declaratory in nature, cannot have the effect of taking away the benefit exemption orders granted by the Government years prior to the pronouncement of that judgment. It is not disputed that the properties which were originally paddy fields have been filled up by the petitioners in substantial compliance of the 1st condition mentioned in Ext.P1. The explanation that the other conditions could not be complied with and actual constructions could not be taken up on account of the financial constraints is significantly not seen denied in the statements filed either by the Municipality or by the Government. Ext.P2 development W.P.C.No.33362/07 - 6 - permit issued by the development authority will show that the same has been issued taking into account Ext.P1. In other words, Ext.P1 has been acted upon by the 4th respondent while issuing Ext.P2. At the same time, there is merit in the submission of Mr.Manilal that the question of granting building permit to the petitioners has to be considered on the basis of the statutory building rules presently in currency. Even as I decline that the petitioners will be entitled for the benefit of Exts.P1 and P2, there will be a direction to the Kottayam Municipality that while considering any application for building permit for construction of buildings over the property mentioned in Ext.P1, it will be open to the Municipality to ensure that the petitioners have complied with all the five conditions mentioned in 1st paragraph of Ext.P1 and also that the plan is submitted in conformity with the K.M.B.R. 1999 in all respects. The Writ Petition is disposed of as above. srd PIUS C.KURIAKOSE, JUDGE