Kerala High Court
Aster Dm Health Care (Trivandrum) Pvt ... vs State Of Kerala Represented By The ... on 19 November, 2019
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA,
1941
WP(C).No.14378 OF 2019(V)
PETITIONER/S:
ASTER DM HEALTH CARE (TRIVANDRUM) PVT LTD
CIN-U85110KL2010PTCO25573, KUTTISAHIB ROAD,
NEAR KOTHAD BRIDGE, SOUTH CHITTOOR P.O.,
CHERANELLOOR,KOCHI,REP.BY ITS AUTHORISED
SIGNATORY, DR. HARISH PILLAI, AGED 51 YEARS,
S/O. KRISHNAN SHIVAN PILLAI
BY ADV. SRI.L.RAJESH NARAYAN
RESPONDENT/S:
1 STATE OF KERALA REPRESENTED BY THE SECRETARY
LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001
2 REGIONAL TOWN PLANNER,
1ST FLOOR, UPPER ZONE, HOUSING BOARD BUILDING,
SANTHINAGAR, THIRUVANANTHAPURAM-695 001
3 ADDL.R3 SECRETARY
THIRUVANANTHAPURAM CORPORATION, MUNICIPAL
CORPORATION OF THIRUVANANTHAPRUAM, VIKAS
BHAVAN PO, THIRUVANANTHAPURAM-695033.
4 ADDL.R4 PROJECT DIRECTOR
NHAI-PIU-TVM, NATIONAL HIGHWAYS AUTHORITY OF
INDIA, (MINISTRY OF ROAD TRANSPORT AND
HIGHWAYS), PROJECT IMPLEMENTATION UNIT, T.C
36/414(5), KOYIKKAL VEEDU, KAVU LANE,
PALKULANGARA, THIRUVANANTHAPURAM-695024.
(ADDL.R3 AND R4 ARE IMPLEADED AS PER ORDER
DATED 30/05/2019 IN IA.NO.01/2019)
R2 BY GOVERNMENT PLEADER
-2-
WP(C).No.14378 OF 2019(V)
R3 BY ADV. SRI.N.NANDAKUMARA MENON (SR.)
R3 BY SRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION
R4 BY ADV. SRI.K.A.SALIL NARAYANAN
OTHER PRESENT:
GP POOJA SURENDRAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 19.11.2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No.14378 OF 2019(V)
JUDGMENT
Dated this the 19th day of November 2019 The petitioner, which is stated to be a Private Limited Company, has approached this Court impugning Ext.P1 proceedings issued by the 2nd respondent - Regional Town Planner, as per which, their application for building permit, to construct a large hospital building of over 80,000 sq. mts., has been rejected citing the reason that access to the site of such construction is not adequate as per the provisions of the Interim Development Order (IDO for brevity) for Thiruvananthapuram City as also under Rule 33(1) of the Kerala Municipality Building Rules (KMB Rules for short).
2. The petitioner says that Ext.P1 has been issued by the Town Planner on an erroneous appreciation of true facts, since their property abuts two roads which are more than 10 metres in width each and because the -4- WP(C).No.14378 OF 2019(V) access roads to their property are concededly over 5 metres and 8 metres respectively in their width. The petitioner says, therefore, that going by the 6 th proviso to Rule 33(1) of the KMB Rules, the combined width of these two roads can be taken into account while ascertaining the access width to the property. The petitioner says that this aspect has not been considered by the Regional Town Planner in Ext.P1 and that as is evident therefrom, he has proceeded under the impression that one of the access roads is not connected to the National Highway and therefore, that it cannot be taken into account while calculating the width of the access required to the property.
3. The petitioner says that however, going by the counter affidavit filed by the Regional Town Planner before this Court, it is clearly conceded that the objection regarding one of the access roads not being connected to the Highway is no longer relevant, since the road in question will get connected to the National Highway -5- WP(C).No.14378 OF 2019(V) once the work of the said Highway is completed; and thus that they are entitled to the benefit of the 6 th proviso to Rule 33(1) of the KMB Rules. They thus assert that Ext.P1 is untenable.
4. The learned Government Pleader - Smt.Pooja Surendran, in response to the afore submissions made on behalf of the petitioner by their learned counsel - Sri.L.Rajesh Narayan Iyer, submits that it is true that the objection in Ext.P1 regarding one of the access roads being not connected to the National Highway is no longer relevant, since the National Highway Authority has informed the Regional Town Planner that once the work of the National Highway is completed, both the access roads will have equal proximity into the said Highway. She concedes that, therefore, the provisions of Rule 33(1) of the KMB Rules and in particular proviso 6 thereof, now finds compliance as far as the petitioner's proposal is concerned. She says that, however, the mandated requirement in the IDO that one of the access -6- WP(C).No.14378 OF 2019(V) roads must have a minimum of 12 metres width does not find compliance and therefore, that the Regional Town Planner acted within his jurisdiction to have rejected the application of the petitioner.
5. The learned Standing Counsel for Thiruvananthapuram Corporation - Sri.P.K.Manoj Kumar submits that he does not have anything specific to comment on this issue, since it is only after the Regional Town Planner clears the proposal, can the Corporation consider the petitioner's application for building permit. He says that the Corporation is willing to abide by any of the directions to be issued by this Court in this writ petition.
6. When I consider the afore submissions, it is ineluctable that the point of divergence between the petitioner and the Regional Town Planner is only with respect to the width of the access road. This is pertinent because, in Ext.P1, there is also an objection raised that the proposed plan of the petitioner does not comply with -7- WP(C).No.14378 OF 2019(V) Rule 33(1) of the KMB Rules. However, in paragraph 4 of the counter affidavit filed on behalf of the 2 nd respondent
- Town Planner, it is specifically stated that the property has access to two independent roads, as envisaged in proviso 6 of Rule 33(1) of the KMB Rules and therefore, that the said objection is no longer relevant.
7. Obviously, therefore, the only issue now standing in the way of the petitioner's proposal is the requirement of the IDO which mandates an access of 12 metres width to the property in question. Sri.L.Rajesh Narayan Iyer, learned counsel for the petitioner, vehemently asserts that even the provisions of the IDO will have to be governed by the general provisions of the KMB Rules. He says that, as is evident from Table 4.2 of Rule 33(1) of the KMB Rules, the access for a building over 18,000 sq.mts. has been shown to be 10 metres and that the 6th proviso to the said Rule stipulates that when there are two independent motorable roads, the sum total of the width of those roads can be used to satisfy -8- WP(C).No.14378 OF 2019(V) this criteria. He says, therefore, that when the IDO provides for an access of 12 metres, which is only in modification to the access mandated by Rule 33(1) of the KMB Rules, then the calculation of that width will also have to be taken in terms of the provisos in the said Rule. He says that if this is done, then it is obvious, even going by the counter pleadings on record, that access to his client's property is over 13 metres, since it is conceded that one of the access roads has a width of minimum 5 metres and the other has a minimum of 8 metres width.
8. When I examine Ext.P1 from the touch point of the afore submissions, I find that the Regional Town Planner has not considered this issue in that perspective, but has only stated, as is also reiterated in his counter affidavit, that even though there are two access roads with a width of 5 metres and 8 metres respectively, their combined width cannot be taken for the purpose of satisfying the criterion under the IDO, however, without -9- WP(C).No.14378 OF 2019(V) in any manner saying as to why this cannot be done even when the 6th proviso to Rule 33(1) of the KMB Rules permits so. There is no mention in Ext.P1 or in the counter pleadings that the said proviso to Rule 33(1) of the KMB Rules is not applicable to the IDO and this is pertinent because, if it is so applicable, then certainly, the objections now remaining may also be rendered irrelevant. However, unfortunately, even going by the counter affidavit, there is no clarity on this issue.
9. I am, therefore, of the view that the Regional Town Planner must reconsider this aspect, after affording necessary opportunity of being heard to the petitioner; and then decide whether the provisions of Rule 33(1) and its provisos are applicable to the IDO and if not, state as to why it is not so.
Resultantly, I order this writ petition and quash Ext.P1, not because I have conclusively found against it, but so as to pave way for a fresh consideration at the hands of the 2nd respondent - Regional Town Planner, -10- WP(C).No.14378 OF 2019(V) who shall immediately hear the petitioner and take a decision in terms of my observations above, as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment and the resultant order shall be communicated to the petitioner without any further delay thereafter.
Sd/-
DEVAN RAMACHANDRAN JUDGE kkj APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE COMMUNICATION NO.D/1771/2018 DATED 18.8.2018 EXHIBIT P2 TRUE COPY OF THE LETTER NO.NHAI/PIU-
TVM/NMOC-ASTER/ 2019/363 DATED 27.03.2019 EXHIBIT P3 TRUE COPY OF THE LOCATION AND LAND SKETCH OF THE PROPOSED I=SITE ISSUED BY THE VILLAGE OFFICER, ATTIPARA VILLAGE EXHIBIT P4 TRUE COPY OF THE COMPUTERIZED TOPOGRAPHICAL SURVEY MAP EXHIBIT P5 TRUE COPY OF THE REPLY DATED 5.4.19