IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 18TH MARCH 2008 / 28TH PHALGUNA 1929 WP(C).No. 24830 of 2007(E) -------------------------------------- PETITIONERS: --------------------- 1. P.J.XAVIER, S/O PALAPPARAMBIL JOSEPH, PALATHURUTHU, ELAMKULAM, KANAYANNUR. 2. P.J.JOB, S/O PALAPPARAMBIL JOSEPH, PALATHURUTHU, ELAMKULAM, KANAYANNUR. 3. P.J.MONY ALIAS P.J.MOLLY, S/O PALAPPARAMBIL JOSEPH, PALATHURUTHU, ELAMKULAM, KANAYANNUR. BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE LOCAL SELF GOVERNMENT(M) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF TOWN PLANNER, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. THE REGIONAL TOWN PLANNER, REGIONAL TOWN PLANNING OFFICE, ERNAKULAM. 4. TOWN PLANNING OFFICER, CORPORATION OF KOCHI. 5. CORPORATION OF KOCHI, REPRESENTED BY ITS SECRETARY, KOCHI-11. 6. THE TAHSILDAR, KANAYANNUR TALUK, ERNAKULAM. BY ADV. SRI.K.ANAND, SC, COCHIN CORPN. - R4 & R5 GOVERNMENT PLEADER SRI.MOHAMMED ANZAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.24830/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE SETTLEMENT DEED NO.4277/1983 DT. 12.12.1983. EXT.P2:- COPY OF THE SETTLEMENT DEED. NO.4278/1983 DT. 12.12.1983. EXT.P3:- COPY OF THE SETTLEMENT DEED NO.4276/1983. DT. 12.12.1983. EXT.P4:- COPY OF THE RELEVANT PORTION OF THE ELAMKULAM NORTH EXTENSION SCHEME LAYOUT DRAWING. DT. NIL. EXT.P4(a):- COPY OF THE RELEVANT PORTION OF THE ELAMKULAM NORTH EXTENSION SCHEME LAYOUT DRAWING OF ELAMKULAM NORTH HOUSING SCHEME (KUMARANASAN NAGAR HOUSING SCHEME) DT. NIL. EXT.P5:- COPY OF THE PLAN SUBMITTED BY THE PETITIONER DT. NIL. EXT.P5(a):- COPY OF THE PLAN SUBMITTED BY THE PETITIONER DT. NIL. EXTP5(b):- COPY OF THE PLAN SUBMITTED BY THE PETITIONER DT. NIL. EXT.P5(c):- COPY OF THE PLAN SUBMITTED BY THE PETITIONER DT. NIL. EXT.P5(d):- COPY OF THE PLAN SUBMITTED BY THE PETITIONER DT. NIL. EXT.P5(e):- COPY OF THE PLAN SUBMITTED BY THE PETITIONER DT. NIL. EXT.P5(f):- COPY OF THE PLAN SUBMITTED BY THE PETITIONER DT. NIL. EXT.P5(g):- COPY OF THE PLAN SUBMITTED BY THE PETITIONER DT. NIL. EXT.P6:_ COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT TO THE 2ND PETITIONER DT. 19.12.06. EXT.P6(a):- COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT TO THE IST PETITIONER DT. 18.12.06. EXT.P6(b):- COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT TO THE 3RD PETITIONER DT. 18.12.06. EXT.P7:- COPY OF THE CLARIFICATORY GOVERNMENT ORDER GO(MS)NO.348/04/LSGD DT. 31.12.04. EXT.P8:- COPY OF THE GOVERNMENT ORDER G.O.(RT) NO.2121/06/LSGD) DT. 28.8.06. EXT.P9:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC. NO.25478/06 DT. 31.1.07. W.P.(C) NO.24830/2007 EXT.P10:- COPY OF THE DRAWING SHOWING THE PRESENT LIE OF THE JAWAHAR NAGAR DT. NIL. EXT.P11:- NIL. EXT.P12:- COPY OF THE SHOWING THE PRESENT CONDITION AND ALIGNMENT OF JAWAHAR NAGAR ROAD AND MURALI ROAD DT. NIL. EXT.P12(a):- COPY OF THE SHOWING THE PRESENT CONDITION AND ALIGNMENT OF JAWAHAR NAGAR ROAD AND MURALI ROAD DT. NIL. E.XT.P12(b):- COPY OF THE SHOWING THE PRESENT CONDITION AND ALIGNMENT OF JAWAHAR NAGAR ROAD AND MURALI ROAD DT. NIL. EXT.P12(c):- COPY OF THE SHOWING THE PRESENT CONDITION AND ALIGNMENT OF JAWAHAR NAGAR ROAD AND MURALI ROAD DT. NIL. EXT.12(d):- COPY OF THE SHOWING THE PRESENT CONDITION AND ALIGNMENT OF JAWAHAR NAGAR ROAD AND MURALI ROAD. /TRUE COPY/ P.S. TO JUDGE tss PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.24830 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 18th March, 2008 JUDGMENT The petitioners in the Writ Petition are the owners in possession of a total extent of 90 cents of land in survey No.426 of Elamkulam Village obtained by them by virtue of Exts.P1, P2 and P3 sale deeds challenged in this Writ Petition what they described as the arbitrary and callous inaction on the part of respondents 3 to 5, namely, the Regional Town Planner, Ernakulam, the Town Planning Officer, Corporation of Kochi and the Corporation of Kochi represented by its Secretary in the matter of sanctioning the application submitted by them for building permit as early as on 28.7.2006. The application of the petitioners is for the construction of a multi storied residential building in their property and the same is pending consideration as per file No.KRP2-518/2006. The State of Kerala is the 1st respondent and the Chief Town Planner, Government of Kerala is the 2nd respondent. On enquiry with the officers of the G.C.D.A. and those of respondents 4 and 5, the petitioners were informed that there was a proposal for a 15 meter wide road through the northern boundary and 13 meter wide road on the western boundary of the petitioners property. Exts.P4 and P4(a) are the relevant portion of the Elamkulam North Extension WP(C)N0.24830/07 -2- Scheme layout drawing and a layout drawing of the Elamkulam North Housing Scheme (Kumaranasan Nagar Housing Scheme). Exts.P5, P5 (a), P5(b), P5(c), P5(d), P5(e), P5(f) and Ext.P5(g) are copies of the plan submitted by the petitioners along with the application for approval. The petitioners claim that the plans are fully in conformity with the Kerala Municipality Building Rules, 1999. Pending the application, the 4th respondent issued Exts.P6, P6(a) and P6(b) notices to the petitioners stating that the petitioners will have to surrender land having a width of 13 meters and directing the petitioners to obtain consent from the revenue authorities as well as from the third respondent. The petitioners complain that though they have been pursuing the matter with the respondents, no communication has been received from them regarding the permit applied for by them. They gather that respondents 4 and 5 are not taking steps on the basis of certain amendments brought in by the Government of Kerala regarding the FAR applicable to the buildings in Corporation area as well as on account of some road widening proposal as per the town planning scheme. The petitioners point out that as per G.O.(MS)No.34804/LSGD dated 31.12.2004 the 1st respondent clarified that the provisions relating to FAR in the KMBR will prevail over the provisions in the WP(C)N0.24830/07 -3- structural plan for Kochi and Ext.P7 is copy of the above clarificatory order. According to them, as per the structural plan notified under the Town Planning Scheme, their properties are earmarked as residential area and there is no scope for insisting on any development permit regarding the proposed construction. In the meanwhile, the Government had cancelled Ext.P7 order by issuing Ext.P8 order dated 28.8.2006. Aggrieved by Ext.P8, the Builders Association of Kerala filed Writ Petition before this court and this court disposed of the Writ Petition by Ext.P9 judgment. Under Ext.P9, Ext.P8 was quashed and the Government was directed to consider the matter afresh. Since petitioners application for building permit is prior to the cut off date mentioned in Ext.P9, the application is liable to be sanctioned in terms of Ext.P9 and Ext.P7 Government Orders. The petitioners have been orally informed that the applications submitted on 28.7.2006 will be sanctioned only with FAR of 1.50. This attempt is mala fide. When the petitioners persistently enquired about the reason for not granting the permit, the 4th respondent has informed that the sanction cannot be granted as per the Elamkulam North Extension Scheme. As per that scheme, there is a proposal to widen certain streets passing through the sides of the petitioners property to a width of 13 meters. The WP(C)N0.24830/07 -4- scheme also contemplated acquisition of required land for implementation of the scheme. The petitioners point out that the Elamkulam North Extension Scheme was sanctioned under Section 12 (2) of the Kerala Town Planning Act in the year 1980. But nothing further was pursued by any of the respondents till this date. As far as the petitioners land is concerned, the Scheme contemplated widening of existing streets and formation of new roads by acquisition steps, and no steps have been pursued till now. The Scheme is never going to be implemented. Due to the long lapse of time, the Scheme is deemed to be lapsed. No steps have been taken so far to implement the Scheme which comes under Chapter VII of the Town Planning Act, 1108. The petitioners refer to Section 12(2) of the Kerala Town Planning Act, 1108 as well as to Section 33 and highlights that if the land is not acquired within three years from the date of notification of the Scheme, the Scheme will cease to have effect as a declaration under Section 6 of the Land Acquisition Act. In this particular case, the notification under Section 12 has ceased to have effect due to the operation of Section 33, it is contended. The petitioners refer to clause 24(1) of the Scheme and submits that the execution of the works in pursuance of the scheme shall not be deferred for more than two WP(C)N0.24830/07 -5- years from the date of the Scheme unless permitted by the Government. Petitioners assert that under the present scenario or state of affairs in the area, there is no scope for implementing the Elamkulam North Extension Scheme. Therefore respondents are not justified in not granting the petitioners application for building permit for construction of the building relying on an obsolete and time barred development scheme. It is also submitted that respondents 4 and 5 granted permission to various other parties for construction of buildings in the Elamkulam North Extension area without any demur. Ext.P10 copy of the drawing showing the present lie of the Jawahar Nagar area where the property is situated is relied on. According to the petitioners, Elamkulam North Extension Scheme is liable to declared as oppressive and hence void on account of the lapse of considerable time without any effective steps for implementing the scheme. The inordinate delay caused in the matter of sanctioning the petitioners application is arbitrary and unconstitutional. The restrictions imposed in the scheme have been oppressive and unreasonable. More than 19 years have elapsed since the scheme was notified. Even now the petitioners are not being permitted to utilise their land as they desire. The freezing of the petitioners land is totally unjustified. Making above WP(C)N0.24830/07 -6- averments, the petitioners have raised as many as 16 grounds and sought the following specific reliefs: 1. Call for the records of the case leading to Ext.P6 series notices and quash the same by the issue of a writ of certiorari or such other writ or order. 2. Declare by means of an appropriate writ or order that the petitioners are entitled to obtain approval of the building plans Ext.P5 series submitted by the petitioners on 28-7-2006 (KRP-2/518/2006) and issue a writ of mandamus or other appropriate writ or order directing the respondents 4 and 5 to approve Ext.P5 series plans in tune with Kerala Municipality Building Rules, 1999 with regard to the FAR on the basis of the Ext.P9 judgment. 3. Declare by means of an appropriate writ or order that Elamkulam North Extension Scheme has become inoperative by the statutory operation of Section 33 of the Kerala Town Planning Act, in any view of the matter touching the area wherein the petitioners' land is situated. 4. Declare by means of an appropriate writ or order that Elamkulam North Extension Scheme is oppressive by reason of non implementation of the scheme in spite of the lapse of 19 years by now and as a sequel be declared as lapsed. Pending the Writ Petition, the petitioners were served with a building permit rejection memo dated 10.8.2007 issued from the office of the 5th respondent stating that the building permit application submitted by the petitioners is rejected for the reason that as the land is low lying and water logged and that there is a road proposal touching the subject land. Ext.P11 is the copy of the rejection memo. The WP(C)N0.24830/07 -7- petitioners submit that Ext.P11 dated 10.8.2007 was served on the petitioners only after they filed the Writ Petition. The petitioners reiterate that in the rejection memo itself the main ground for rejection is the existence of the Elamkulam North Extension Scheme and reiterate the contentions which they had raised in the context of the Elamkulam North Extension Scheme and they got the Writ Petition amended by incorporating an additional relief for quashing Ext.P11. 2. A counter affidavit has been filed by the third respondent, the Regional Town Planner, Ernakulam. It is stated therein that the petitioners property falls within the Government sanctioned DTP Scheme for Elamkulam East (not Elamkulam North Extension as claimed by the petitioners). Through Survey No.426, the survey in which the petitioners properties are situated, two roads of 15 meter width are proposed as per the Scheme. It is also stated that no application from the part of the petitioners or from the Corporation has been received. The counter affidavit claims that so many roads were proposed in the Elamkulam East Scheme and most of them have already materialised. This long stretch of 15 meter wide road from Sahodaran Ayyappan Road towards north in the Scheme area was a proposed road and most of its stretch is completed. This is the road WP(C)N0.24830/07 -8- which gives access to the petitioners plot. If no such road was proposed and subsequently constructed, the petitioners would not have wide access to their plot. The roads envisaged in the Scheme are for the benefit of all residents and other general public coming to that area. These roads help to divert the traffic coming to the town and help to decongest the main roads. The petitioners are the beneficiaries of the roads envisaged in the Scheme. They ought to have surrendered a portion of their plot in public interest so that the road can be completed to its full length which is now cut off at their plot. They can avail the benefit of road surrender as per the Kerala Municipal Building Rules and make that area more accessible from Elamkulam road and Sahodaran Ayyappan Road. It is then pointed out that now a days road widening are carried out through free surrender of the land by the land owners. It is to encourage such free surrender in the sanctioned scheme that Chapter 11 of the Kerala Municipal Building Rules, 1999 offers specific incentives to the land owners sch as higher FAR. The petitioners themselves are the beneficiaries of the road envisaged in the scheme and which is implemented upto their plot. They are taking the benefit of the scheme and is blocking the benefits to the plot owners beyond their plot by requesting for permission to construct a WP(C)N0.24830/07 -9- multi storied building in the proposed road itself. They have 90 cents of land with them and as responsible citizens, they should not hinder the benefit of access to their neighbours which they are now enjoying. Therefore, they should come forward to surrender the land for the proposed road as only a small portion (5.9 cents) out of their 90 cents plot is required for the purpose of road widening. The scheme envisaged to carry out all the road widenings and zonal changes within two years as this is a prime locality. But due to paucity of funds and other technical reasons, this could not be achieved. It is further stated that the provisions in the scheme do not become null and void. After referring to various roads proposed by the Scheme which are already become reality, the counter affidavit contends that the petitioners who own extensive area of 90 cents should not be so stubborn that they will not surrender land. As they are already at the receiving end of the benefit of the scheme, they should come forward and surrender their land. The incentives will be given to them and the plan will be sanctioned, it is stated. The roads are meant to relieve the public from the traffic congestions and the petitioners plot is not a small plot. They can very well build in the remaining portion of the plot after leaving the space for road purpose. WP(C)N0.24830/07 -10- 3. As regards the grounds taken by the petitioner with reference to the prevalence of Building Rules over structure plan it is submitted that structure plan is a general map to guide the development of a city. Based on the structure plan, detailed Town Planning Schemes are prepared by the Town and Country Planning Department. The 15 metre wide road was formed up to the petitioner's property exactly as envisaged in the scheme and it was due to the stubbornness of the petitioner that the construction of the road further north and then west to meet the Kaloor Kadavanthra Road was hindered. Ext.R3(a) series of photographs showing the present state of roads developed as envisaged in the scheme is produced. Ext.R3(b) copy of the proposals in the Elamkulam East Scheme which was sanctioned in the year 1988 is also produced. It is then submitted that the intention of the petitioner is to have a flat project for Mather Group. It is alleged that the petitioners who are enjoying benefit of lands surrendered by others for constructing 15 metre access to their property are now taking stubborn stand that they will not surrender even 5.09 cents of land which is necessary for expanding the 15 metre road upto the Kaloor Kadavanthra Road. Since the project is for construction of a high rise building the builders will be able to make full utilisation of the WP(C)N0.24830/07 -11- additional FAR which is allowed for persons who make free surrender. Any loss which the petitioner may sustain on account of land value will be adequately compensated by the FAR concessions. 4. The Corporation of Cochin has through their standing counsel filed a statement. Along with the statement Exts.R4(a), (b) and © copies of the decisions taken by the standing committee of the Corporation on the applications submitted by the petitioner are produced. As per those decisions permit is granted on condition that the land necessary for constructing 15 metre road as requested by the GCDA (by adding additional width of 13 metres to the existing road having width of 2 metres) should be surrendered. It is further stated that subsequently Exts.P6, P6(a) and P6(b) notices were issued to the petitioner informing him that in order to develop the land as required by him 13 metre with of land has to be surrendered and he was also directed to produce the consent of the revenue authority and that of the Regional Town Planner. The scheme has to be implemented for the purpose of removing the traffic congestions which arises in the main road which is possible only by connecting the road which presently exist in the scheme area to the main road. It is also stated that the petitioner has not produced no objection certificate of revenue WP(C)N0.24830/07 -12- authorities as per Kerala Land Utilisation Act and the layout approval of the Chief Town Planner. The same can be granted only if the above mentioned consents are also produced. 5. Reply affidavit has been filed by the petitioners reiterating their contentions and repudiating the contentions of the respondents. It is claimed that Ext.P10 drawing truly and correctly demonstrates the present lie, nature and condition of the Elamkulam East Scheme area and Exts.R1 and R2 sketches produced along with the statement appear to be copy of the original drawings prepared two decades before and has no comparison with the existing state of affairs. It is then pointed out that from Ext.P10 drawing it could be seen that structures have already come up on the further northern side of the petitioners' property. The present lie and alignment of Jawahar Nagar Road and Murali Road are lying in such a way that these two roads cannot be connected viably. The third respondent has not adverted to or comprehended the hard realities at the site while attempting to resist the petitioners' contentions. Existence of buildings on the further north of the petitioners' property can be seen from R3 and R4 photographs through not very legible. More legible photographs showing the present condition and alignments of Jawahar Nagar Road WP(C)N0.24830/07 -13- and Murali Road are produced as Ext.Exts. P12, P12(a), (b),(c) and (d). Some of those photographs show the existence of buildings on the further norther side of the petitioners' property making it impossible or improbable to make a road through the western side of the petitioner's property for connecting Murali Road. The plea of the respondents that the petitioners should have voluntarily surrendered 5.9 cents out of 90 cents for the purpose of the so called road widening road laying is really illogical and fallacious. The total of 90 cents belong to the three petitioners in distinct shares. Even if 5.9 cents is to be surrendered the same has to be done by one of the petitioners. The insistence that the petitioners should freely surrender land having exorbitant value in the area is unjust. By surrendering 5.9 cents as suggested by the third respondent, no viable project can thereafter be materialized at the site. 6. I have heard the submissions of Sri.K.I. Mayankutty Mather learned counsel for the petitioners and Sri.K.Anand, learned counsel for the Corporation, and Sri.K.J.Muhammed Anzar, learned Government Pleader . For certain clarifications I directed presence of the third respondent in court and the third respondent was also permitted to make her submissions in substantiation of the contentions WP(C)N0.24830/07 -14- raised by her through the counter affidavit. 7. I am not impressed by the ground raised by the respondents that the writ petition is not maintainable in view of existence of statutory remedy against the order rejecting the building permit appalicatin submitted by the petitioners. After all the rule that jurisdiction under Article 226 will not be invoked when an alternate remedy exists is not an absolute rule. It is only a rule of prudence and discretion to be exercised by the court depending on the circumstances which attend on a given case. There are well known exceptions to the rule also. 8. I will at once notice that the contention of the respondents that it is very unfair on the part of the petitioners to insist that they will not freely surrender even an inch of their land for paving the way for extension of the 15 metre wide road conceived by the Elamkulam East Scheme is not without force. After all the petitioners themselves are enjoying the benefits of the road which has been constructed upto their properties by obtaining free surrender from other persons in the neighbourhood. I have also no difficulty to accept the case of the respondents that implementation of the proposal in the DTP Scheme to the extent 15 meter for road along the northern and western WP(C)N0.24830/07 -15- boundaries of the petitioners property up to Kaloor-Kadavanthra road which would result in a 15 meter wide road connecting the Sahodaran Ayyappan road at one end and the Elamkulam Road and then Kumaranasan junction on the Kaloor-Kadavanthra road will go a long way in decongesting the heavily congested traffic in the city. Ideally the petitioners should have accepted the request of the respondents to surrender portions of their lands extending to a total of less than 6 cents. But the stark reality is that the petitioners are not prepared to make any such free surrender. They are also not lured by the FAR concessions contemplated by Chapter II of KMBR for persons who surrender lands for road widening. The question is whether this court can compel the petitioners to surrender their lands free to the respondent for the purpose of extending 15 meter wide road in the manner envisaged by the Detailed Town Planning Scheme of the Elamkulam East Extension Scheme. I am afraid that the question will have to be answered in the negative and in favour of the petitioners. The issue is covered by the Full Bench judgment of this court in Francis v. Chalakudy Municipality (1999 (3) KLT 560(F.B.) and by that of the Division Bench judgment of this court in Padmini v. State of Kerala (1999(3) KLT 465).