IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 4TH JANUARY 2010 / 14TH POUSHA 1931 WP(C).No. 31677 of 2009(D) -------------------------- PETITIONER(S): ----------------------- 1. SMT.SHERLY WILSON, W/O.SRI.WILSON P.I. PARAKKAL, NJARELY HOUSE, KAROOR P.O., THRISSUR. 2. WILSON P.I., S/O.ITTOOP, PARAKKAL, NJARELY HOUSE, KAROOR P.O., THRISSUR. BY ADVS.MR.S.SREEKUMAR MR.P.MARTIN JOSE MR.M.A.MOHAMMED SIRAJ MR.P.PRIJITH RESPONDENT(S): ------------------------- 1. THE CHALAKKUDY MUNICIPALITY, REP. BY ITS SECRETARY. 2. THE KERALA STATE HOUSING BOARD, THIRUVANANTHAPURAM, REP. BY ITS SECRETARY. *ADDL. R3 * R4 ARE IMPLEADED. 3. PRADEEPKUMAR , AGED 46, S/O. SAHADEVAN, VENNARATHIL HOUSE, HOUSING COLONY CHALAKKUDY. 4. BABU JOSEPH, AGED 50, S/O.JOSEPH, PUTHANANGADY HOUSE, NEAR LIONS HOUSE, CHALAKKUDY. ADDL. R3 & R4 IS IMPLEADED AS PER ORDER DTD.4.1.2010 IN IA. 14423/2009. R1 BY ADV. MR.M.P.ASHOK KUMAR R2 BY ADV. MR.A.JAYASANKAR R3 & R4 BY ADV. MR.SREEPRAKASH K.NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.31677/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE LICENCE DTD. 21.2.2007 IN FAVOUR OF THE M/S. SEENA MEDICALS. P2:- COPY OF THE LICENCE ISSUED BY IST RESPONDENT UNDER SECTION 447 OF KERALA MUNICIPALITY ACT DTD. 25.8.07. P3:- COPY OF THE ORDER DTD. 8.7.09. P4:- COPY OF THE SALE DEED NO.19/05 OF CHALAKKUDY SRO DTD. 8.10.05. P5:- COPY OF THE APPLICATION DTD. 25.7.09 SUBMITTED BY THE 2ND PETITIONER BEFORE THE IST RESPONDENT. P6:- COPY OF THE JUDGMENT IN WPC. NO.22873/09 DTD. 20.8.09. P7:- COPY OF THE ORDER H2-9320/09 DTD. 9.9.09 BY IST RESPONDENT. P8:- COPY OF THE JUDGMENT IN WPC. 25996/09 OF THIS HONOURABLE DTD. 30.9.09. P9:- COPY OF THE ORDER DTD. 26.10.09 OF 2ND RESPONDENT. P10:- COPY OF THE SALE DEED NO.190/05 OF CHALAKKUDY SRO. DTD. 7.1.05. P11:- COPY OF THE TAX RECEIPT DTD. 28.7.09 ISSUED BY IST RESPONDENT. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE COMMUNICATION DTD. 24.8.09 ISSUED BY THE 2ND RESPONDENT. R2(A):- COPY OF THE PROJECT REPORT. R2(B):- COPY OF THE FINAL ALLOTMENT LETTER. TRUE COPY P.S. TO JUDGE tss ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.31677 OF 2009 (D) -------------------------------------------------- Dated this the 4th day of January, 2010 J U D G M E N T Challenge in this writ petition is against Ext.P9, an order passed by the 2nd respondent declining NOC, sought for by the petitioners to shift a medical store to the property purchased by the 2nd petitioner as per Ext.P4 sale deed. 2. Briefly stated, the facts of the case are that, petitioners were running a medical store in the name and style, M/s. New Supriya Medicals, in a plot of land allotted by the 2nd respondent. According to the petitioners the said medical store was sold to one Sri. Bhuvanachandran, who is running the store even now. Even at that time, the petitioners were owning another medical store under the name and style, Seena Medicals, which was established at a rented premises. While so, by Ext.P4 sale deed, the 2nd petitioner purchased a residential building in a plot of land developed by the 2nd respondent, which is stated to be close to M/s. New Supriya Medicals. Thereupon an application was made to the Municipality for a licence in order to shift M/s. Seena Medicals to the new premises purchased by the 2nd petitioner. WPC.No. 31677/09 :2 : 3. According to the petitioners at that stage, one of the residents of a premises close to the property covered by Ext.P4, filed O.S.No.275/09 before the Munsiff Court, Chalakkudy seeking injunction restraining the petitioners from shifting Seena Medicals to the new premises. Although the Civil Court had not passed any interim order, in view of the pendency of the suit, the Municipality did not take any action on the application made by the petitioners for licence. In view of the above, petitioners approached this court by filing WP(c).No.22873/09. That writ petition was disposed of by Ext.P6 judgment, by which this court directed the Municipality to consider the licence application and pass orders thereon. Accordingly, the Municipality took up the application for consideration and issued Ext.P7 letter requiring the petitioners to produce No Objection Certificate issued by the 2nd respondent. 4. Ext.P7 was challenged before this court by filing WP(c). No.25996/09. That writ petition was disposed of by Ext.P8 judgment holding that the issue whether the petitioners should be allowed to accommodate their medical store in a residential premises by change of user is a matter for the 2nd respondent to WPC.No. 31677/09 :3 : decide. Accordingly, it was directed that when an appropriate request is received from the petitioners, the Secretary of the 2nd respondent will consider whether they could be permitted to open a medical store at the premises in question. Petitioners state that accordingly, an application was made by them and that on such application Ext.P9 order was passed by the Secretary of the 2nd respondent declining to issue NOC. It is thereupon that this writ petition was filed challenging Ext.P9 order. 5. On behalf of the 2nd respondent, the Kerala State Housing Board, a statement has been filed. The 2nd respondent would submit that the area in respect of which the NOC was sought for is covered by Ext.R2(a), the Land Development and Housing Scheme at Kizhakke Chalakkudy which was sanctioned by Government and that in terms of the Scheme, the area in question is situated within the residential area. It is stated that taking into account the aforesaid fact, when the plot in question was originally allotted to one Sujatha Narayanan, Ext.R2(b) allottment order was issued incorporating clause(8), which provided that “the building shall be used for residential purposes only”. It is stated that, the area being an WPC.No. 31677/09 :4 : exclusively residential one, change of user cannot be permitted and that it was therefore that by Ext.P9, the request of the petitioners for issuing NOC has been rejected. 6. In so far as the plea of the petitioners that several other residential buildings in the area are being allowed to be used for commercial purposes is concerned, along with the memo filed by the Standing Counsel for the 2nd respondent, letter dated 9.12.2009, issued by the 2nd respondent to the Secretary of the Municipality, requesting it to withdraw the licenses, if any, issued for starting commercial establishments within Chalakkudy Housing Scheme, has been produced. 7. On behalf of the Municipality a counter affidavit has been filed. The Municipality also supports the stand taken by the 2nd respondent. According to the Municipality, the buildings have been classified in terms of the provisions contained in the Kerala Municipality Building Rules. It is stated that the building in question is a residential building and that a building classified as residential one, cannot be allowed to be used for commercial purposes. The Municipality also submits that action is being initiated based on the WPC.No. 31677/09 :5 : letter dated 9.12.2009 received from the 2nd respondent requesting to withdraw the licenses issued for establishing commercial establishments in Chalakkudy Housing Scheme. 8. Petitioners have filed a reply affidavit. The main contention raised in the reply affidavit is with reference to Ext.P10, a sale deed executed by the Housing Board in favour of the transferor of the 2nd petitioner. According to the petitioners, neither in Ext.P10 nor in Ext.P4, is there any restriction incorporated preventing the 2nd petitioner from using the building in question for commercial purposes. On this basis, it is argued that the petitioners are entitled to use the building for commercial purposes. 9. I have considered the submissions made at the Bar. As already seen, the challenge is against Ext.P9. By this order the 2nd respondent has declined to issue NOC to the petitioners enabling them to shift their medical store to a premises classified as residential, which is now purchased by the 2nd petitioner as per Ext.P4 sale deed. The residential premises purchased by the 2nd petitioner is covered by Ext.R2(a), the Land Development and Housing Scheme at Kizhakke Chalakkudy. After acquiring land and WPC.No. 31677/09 :6 : developing the area, as per the Scheme, plots were allotted to various allottees. In respect of the plot covered by Ext.P4, Ext.R2(b) is the letter of allotment issued to the original allottee and clause 8 thereof prevented use of the building for any purposes other than for residential purposes. From Ext.P10, the sale deed executed by the Housing Board in favour of the 2nd petitioner's transferor, it is seen that the sale was subject to all other terms and conditions stipulated in the conditions of allotment. In view of the terms of Ext.P10, transferor of the 2nd petitioner was bound by the conditions of allotment. If that be so, the 2nd petitioner being the transferee of the plot in question, is equally bound by the conditions imposed by the Housing Board, irrespective of whether such conditions are incorporated in Exts.P4, the sale deed executed in his favour. Appreciated in the aforesaid manner, it should be held that the Housing Board was justified in the stand taken in Ext.P9 that the area having been developed for residential purposes, cannot be permitted to be used for any commercial purposes. In any case, the area having been acquired under the provisions of the Land Acquisition Act and developed in terms of a scheme, earmarking WPC.No. 31677/09 :7 : various portions for specified purposes, any departure therefrom can only lead to utter chaos and will defeat the very scheme approved by the Government. In my view, the aforesaid stand of the Housing Board does not spell out any arbitrariness, warranting interference of this court under Article 226 of the Constitution of India. 10. True, the counsel for the petitioners complained that many of the residential buildings in the area in question are being used for commercial purposes. Photographs were also produced in support of this contention. Although there appears to be substance in what the petitioners contend, still from the letter dated 9.12.2009, issued by the 2nd respondent to the Secretary of the Municipality, it is seen that the 2nd respondent has taken note of such change of user and has requested the Municipality to withdraw the licenses, if any, already issued. Counsel for the Municipality also submits before me that steps are being taken for withdrawing the licenses so issued. Now that both the Housing Board and the Municipality have confessed the mistake that has been committed and as remedial action has already been initiated, I WPC.No. 31677/09 :8 : do not find any substance in the allegation now raised by the petitioners that having allowed change of user in respect of others, they cannot be discriminated. Writ petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/