Devamatha Province vs State of Kerala and Others

Justice A.M. Shaffique

Petitioner applied for a building permit for extension to the existing Higher Secondary School building. But the same was rejected by Ext.P6 on the ground that in view of the judgment in O.P.No.8740/97 the Chief Town Planner has no jurisdiction to grant any relaxation for construction of building in violation of zoning regulation. It is submitted by the learned counsel appearing for the petitioner that the extension sought for is for construction within the same premises of the School adjacent to the existing building. In so far as the School is already in existence from 2001 onwards, it is not known as to how this area can come under a zone where a building cannot be constructed.

5th respondent has filed a counter affidavit stating that it is only on account of the orders passed in Ext.P6 that the building permit cannot be issued. They reiterated the contentions raised by the Chief Town Planner. Respondents 1 to 3 have filed a counter affidavit stating that as per the General Town Planning Scheme of Trichur Town dated 31/10/1985, part of the petitioner''s land area is seen as residential/public/semi public paddy fields and other agricultural fields zoned in the General Town Planning Scheme of Trichur town. It is further stated that the petitioner constructed the existing building by obtaining exemption as per Ext.P2 from the Zoning Regulation of Sanctioned Master Plan. It is further contended that as per G.O. (MS) No. 230/06/LSGD dated 06/10/2006, Government have varied the General Town Planning Scheme for Thrissur Town as per Ext.P7 for making zoning regulations compatible to the then existing development scenario. It is also stated that the petitioner applied for construction of extension to existing school building which lies in the area zoned as ''paddy fields and other agricultural green spaces''. It is not in conformity with the Zoning Regulations of the Authorised Town Planning Scheme and therefore, according to them, no sanction can be granted which will be in violation of judgment in O.P.No.8740/97. It is relevant to note that petitioner''s property comes within the area demarcated for the purpose of school for which permission was already granted. It is not known as to how under a General Town Planning Scheme, this area can be declared as green zone. The fact that it is zoned as residential/public/semipublic by itself indicate that the said area can be utilised for the purpose of constructing a building for the School. It is not in dispute that even when permission was granted for construction of the existing school, the Master Plan 1985 was in force. When the authorities had already granted permission for constructing a school in the said property, it cannot be said that an extension to the said building is not permissible.

In the light of the aforesaid circumstances, I am of the view that the Corporation is bound to grant permission without reference to Ext.P6. In the above circumstances, Ext.P6 is hereby set aside. The Corporation is directed to consider the application for building permit of the petitioner and pass appropriate orders in accordance with law.