CORPORATION OF THIRUVANANTHAPURAM Vs. KRISHNAKUMAR

JUDGEMENT

(1.) The writ petition has been filed by the Corporation of Thiruvananthapuram challenging Ext.P6 order dated 23/10/2013 passed by the Tribunal for Local Self Government Institutions, Thiruvananthapuram (hereinafter referred to as 'the Tribunal') in Appeal No.648/2013 filed by the respondent herein. The appeal came to be filed by the respondent herein against the decision No.1(17) dated 13/05/2013 of the Corporation Council which was communicated to the respondent as per letter dated 01/06/2013. By the said decision, the Council opined that the appeal filed before it cannot be entertained as the Secretary had already rejected the application for building permit on the ground that the property is in the paddy field list.

(2.) The brief facts involved in the writ petition would disclose that the respondent submitted an application dated 12/02/2013 for building permit, on 15/02/2013. Local inspection was conducted by the office of the Corporation and it was found that various survey numbers covered by the property comes under the Green Strip Zone of the revised Town Planning Scheme of the Thiruvananthapuram city and no construction could be was made in the said property without obtaining prior concurrence of the Chief Town Planner. Accordingly, by order dated 13/03/2013, application was rejected. The appeal preferred by the respondent before the Council of Corporation on 21/03/2013 was rejected, against which he had filed an appeal before the Tribunal. The Tribunal, after considering the matter, declared that the respondent is entitled to a deemed permit in terms of Rule 15(2) of the Kerala Municipal Building Rules (hereinafter referred to as 'the Rules') read with Section 392(2) of the Kerala Municipality Act (hereinafter referred to as 'the Act') and therefore they have obtained a deemed permit for effecting construction. While coming to the said finding, the Tribunal observed that though the application was submitted by the respondent on 15/02/2013, no order was communicated by the Secretary to the respondent within thirty days. The Council also did not take a decision within a further period of 30 days after receiving the application dated 21/03/2013 and therefore taking into consideration Rule 15(2) of the Rules and Section 392(2) of the Act, respondent is entitled for deemed licence. Further, the Tribunal, relied upon the judgment in Shivaprasad v. State of Kerala, 2011 1 KerLT 690 and observed that the Town Planning Act does not survive and therefore the master plan cannot be relied upon. Reference is also made to another judgmentin Abdul Kabeer v.Malappuram Municipality, 2012 3 KerLT 106 . The Tribunal further proceeded to consider whether the property is a paddy land or wet land as on the date of coming into force of Kerala Conservation of Paddy and Wet Land Act, 2008 (hereinafter referred to as 'the 2008 Act') and relying upon the judgment in Jafarkhan v. K.A.Kochumakkar and Others,2012 1 KHC 523 observed that since the conversion had been made even prior to the 2008 Act coming into force, treating the property as paddy land does not arise.He also placed reliance on the judgment in Ashraf v. Eramala Grama Panchayat, 2012 3 KerLT 323 and the data bank entires.

(3.) Sri.N.Nandakumara Menon, learned senior counsel appearing on behalf of the petitioner submits that the Tribunal have absolutely gone wrong in coming to the conclusion that the respondent has a deemed permit. It is submitted that as far as the objection raised by the Corporation is concerned, no concession could be effected since the property is described as Green Strip Zone in the Zonal Regulation prepared in terms with the master plan. Under such circumstances, without permission from the Town Planner, no building permit can be granted to the respondent. The same principle will apply even assuming for the sake of argument that deemed permit is available to the respondent. That apart, it is contended that the respondent is not entitled for deemed building permit as an order had been passed by the Secretary well within time under the Rules, that is on 13/03/2013. The only fact is that it was communicated to the respondent and he received it only on 28/03/2013. It is also argued that the judgments relied upon by the Tribunal had no application to the facts of the case especially on account of the fact that the detailed town planning scheme has to be verified to understand as to whether the property is declared to be a Green Strip Zone or not and such an adjudication has not been made. It is also contended that the judgment in Shivaprasad is pending in appeal before this Court and therefore the said judgment cannot be made applicable to the factual situation in the case. That apart, in view of the Kerala Town and Country Planning Ordinance, 2013 which has been re-promulgated subsequently and the present being 2015, the provisions of the Ordinance revives all the Town Planning Scheme and no permission can be granted in violation of the Town Planning Scheme nor can any person construct any building in violation of the said Ordinance as held in the judgment in Kannur Municipality v. Nabeesa Yousf, 2015 3 KerLT 407 .