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KURILAND (P) LIMITED versus THE CHALAKUDY MUNICIPALITY

High Court of Kerala

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KURILAND (P) LIMITED v. THE CHALAKUDY MUNICIPALITY - WP(C) No. 28020 of 2006(I) [2007] RD-KL 1551 (19 January 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 28020 of 2006(I)

1. KURILAND (P) LIMITED,
... Petitioner

Vs

1. THE CHALAKUDY MUNICIPALITY
... Respondent

2. STATE OF KERALA, REPRESENTED BY

For Petitioner :SRI.S.RAMESH BABU

For Respondent :SRI.M.P.ASHOK KUMAR

The Hon'ble MR. Justice PIUS C.KURIAKOSE

Dated :19/01/2007

O R D E R

PIUS C.KURIAKOSE, J.

W.P.(C)NO. 28020 of 2006 Dated this 19th day of January, 2007

JUDGMENT

The petitioner company being aggrieved by Ext.P5 order passed by the first respondent Municipality rejecting its application for building permit for construction of a hotel building on its properties in survey No.293/1 of East Chalakudy Village, has filed the writ petition seeking quashment of Ext.P5 order and issuance of a writ of mandamus commanding the first respondent to reconsider Ext.P4 in the light of Ext.P3 order.

2. Ext.P2 memorandum and Articles of Association of the petitioner Company will reveal that acquisition of land and construction of hotels is one of the objectives of the Company. The Company purchased the land in question by virtue of four separate sale deeds registered with the Chalakudy Sub Registry. The land has direct frontage of National Highway 47 and is situated a little beyond the main junction of Chalakudy Municipality. Upon the said land there presently exist a hotel building by name ' Hotel Vrindavan Palace'. The petitioner relies on Ext.P3 order of the Government to show that it was on the strength of that exemption order that their predecessors Sri. Rajagopal and others were able to construct the existing building on the land. Under Ext.P3 the construction of the building by Mr.Rajagopal and others have been exempted from the zoning regulations of the D.T.P. Scheme sanctioned under Section 12 of the Town Planning Act in the year 1983 for the Chalakudy Municipal area. According to the petitioner company apart from the total extent of 70.05 cents of land upon which the existing hotel building is situated, the company has acquired another extent of 33 cents in the same survey number under document No. 4114/2003 and are presently under the ownership and possession of a total extent of 103.29 cents. The company has resolved to demolish the existing building and construct a Three Star Hotel which will meet the requirements of the Chalakudy town which is yet to have a three star hotel. It is averred that the proposed hotel building will be constructed upon the 70.05 cents of land in survey No. 293/1 in respect of which the Government passed Ext.P3 order. Ext.P4 is a copy of the site plan etc. submitted by the petitioner before the Municipality along with the application for building permit. But the Municipality has issued Ext.P5 order dated 1.6.2006 to the Chairman of the petitioner company informing that the application is being rejected because it was noticed on inspection that the land is set apart for public and semi public purposes under the D.T.P. scheme for office complex and therefore the application is liable to be rejected. The petitioner complains that even though they approached the Municipality requesting for a copy of the D.T.P. scheme, the same was never furnished. However, in response to another letter submitted by the petitioner seeking details regarding the building permits issued by the Municipality based on zonal exemptions granted by the Government, the Municipality has issued Ext.P6 letter. Ext.P6 shows that deviating from the D.T.P. scheme and on the strength of Government exemptions from zoning regulation as per that scheme as many as 10 permits have been issued by the Municipality.

3. The Municipality has filed a detailed counter affidavit. One of the grounds raised in the counter affidavit is that the petitioner has effective alternative remedy against Ext.P5 and therefore it is not entitled to invoke the constitutional jurisdiction of this court for relief. As regards merits, the contention is that since Ext.P3 order was granted to Sri.K.A.Rajagopal the benefit of Ext.P3 will not enure in favour of the petitioner, which is a company. It is further contended that the Government alone is authorized to grant permission to any person or agency for making any construction by giving exemption from the approved zoning regulation. The Municipality does not have any power to grant exemption to make construction by relaxing the approved zoning regulation. Lastly it is contended that since the proposed site set apart for the construction of a building and semi public purpose as per the D.T.P. scheme, the Municipality was quite justified in rejecting the building permit since the application of the petitioner was not accompanied by any exemption order.

4. I have heard the submissions of Sri.S.Ramesh Babu, the learned counsel for the petitioner, Sri.M.P.Ashok Kumar, the learned Standing Counsel for the Municipality and Sri.Mathew G.Vadakkal, the learned Government Pleader. Sri.Ramesh Babu submitting on the basis of the pleadings and the documents placed on record appealed that since Rajagopal is the predecessor in interest of the petitioner, Ext.P3 shall enure to the benefit of the petitioner also. Sri.Ashok Kumar the learned Standing Counsel however would submit that constructions which was permitted under Ext.P3 have been completed and since the construction now proposed by the petitioner is a new construction after demolishing the old construction, the Municipality cannot issue building permit in the absence of a separate exemption order from the Government. The learned Government Pleader would support the stand of the Municipality. The exemption order referred to in Ext.P6 according to the learned Government Pleader was issued by the Government considering the special circumstances which attended on those cases.

5. I have considered the rival submissions in the light of the documents placed on record and the circumstances which obtain in this case. Though strictly speaking Ext.P5 order may be appealable under the provisions of the Municipalities Act since it is seen that Ext.P5 has been passed without any reference to Ext.P3 order of the Government issued in favour of the predecessor of the petitioner company I am of the view that it is necessary that the first respondent Municipality reconsiders the issue. I find some merit in the contentions of the counsel for the petitioner that Ext.P3 will enure to the benefit of the petitioner especially since it is not disputed that on the strength that Ext.P3 hotel building was constructed on the property and the same is even now functioning. The present proposal is only to demolish the existing building and reconstruct the same as a three star hotel. The entirety of the constructions will be upon the land having an extent of 70.05 cents covered by Ext.P3. I am assured that under these circumstances, allowing the writ petition the following orders are passed. Ext.P5 order is quashed and the first respondent Municipality is directed to reconsider Ext.P5 in the light of Ext.P3 Government Order. Fresh orders as directed above will be passed by the first respondent after hearing the petitioner at its earliest and at any rate within one month of receiving a copy of this judgment. The writ petition is allowed as above. No costs. PIUS C.KURIAKOSE Judge dpk


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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