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2025 Supreme(Ker) 1476
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ZIYAD RAHMAN A.A., J.
Dr. Sr. Jancy Madathikunnel - Appellant
Versus
District Medical Officer, Collectorate - Respondent
WP(C) No. 20590 of 2023
Decided on : 26-05-2025
Advocate Appeared:
For the Appellant : JEEVAN MATHEW MANAYANI, JOHNSON MANAYANI, BENHUR JOSEPH MANAYANI, ANTONY THOMAS
For the Respondent: SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL BOARD, K.MANOJ CHANDRAN, SHRI.SUJITH MATHEW JOSE, C, PALA MUNICIPALITY, SHAJI THOMAS, JOHNSON MANAYANI, P.R.AJITH KUMAR, S.A.MANSOOR (PATTANAM), MOHAN PULIKKAL, JEN JAISON
Permits for industrial activities can be granted even in residential zones if conditions are met, emphasizing flexibility in zoning regulations and the absence of flood designation.
Headnote:
(A) Kerala Municipality Building Rules, 2019 - Rule 22(3) - Kerala Town and Country Planning Act, 2016 - Building Permit and Occupancy Certificate - Petitioners challenged the establishment of an automobile workshop in a flood-prone area, asserting potential pollution risks. The court found no legal basis for denying the permit, as the area was not officially designated as flood-prone and the construction complied with safety measures. (Paras 3, 12, 13, 22)
(B) Zoning Regulations - The court ruled that activities classified as 'Uses Restricted' can be permitted under certain conditions, emphasizing flexibility in zoning interpretations. (Paras 16, 21)
Facts of the case:
The petitioners, residents near the proposed workshop site, claimed it was in a flood-prone area and would lead to pollution. The workshop was granted permits by the Municipality, which the petitioners contested.
Findings of Court:
The court upheld the permits, noting compliance with safety measures and the absence of a flood designation.
Issues: The main issues included the flood-prone designation of the area and the legality of the permits issued for the workshop.
Ratio Decidendi: The court concluded that the absence of a flood designation and the safety measures taken justified the issuance of permits, and that zoning regulations allow for flexibility in permitting certain uses.
Result: Writ petitions disposed of without granting relief.
JUDGMENT :
In all these writ petitions, the dispute pertains to the Building Permit, Occupancy Certificate and the Consent to Establish granted to the 9th and 3rd respondents in WP(C) No.20590/2023, to establish an automobile workshop/service centre, to repair light motor vehicles manufactured by Maruti. (For convenience, WP(C) No.20590/2023 is treated as the leading case and the parties and Exhibits are referred to as described in the said writ petition, unless otherwise specifically mentioned).
2. The facts which are necessary to consider the issues are as follows: The petitioners in all these writ petitions are claiming to be persons/establishments residing or having properties near the property owned by the 9th respondent, where an automobile workshop is being established by the 3rd respondent. The property where the workshop is being established has an extent of 45.52 Ares, and the said property is situated on the side of Pala – Erattupetta main road, which comes within the jurisdiction of the 4th respondent - Municipality. The 9th respondent obtained a building permit from the 4th respondent on 26.4.2019 for the construction of a commercial building and later in the year, 2023, the plan was revised as evidenced by Ext.P1 permit granted by the Municipality. Subsequently, on completion of the said building, the 4th respondent issued Ext.P9 occupancy certificate to the said building which has a plinth area of 927.76 Sqm. In Ext.P9 itself, the nature of occupancy was shown as “Industrial Building – Automobile Workshop”. WP(C) No.20590/2023 was initially filed seeking a direction to the respondents 1, 2 and 4 to 8 to issue appropriate orders to stop the building construction and commissioning of the automobile workshop as per Ext.P1, by the respondents 3 and 9.
3. The main contention raised by the petitioners in WP(C)No.20590/2023 is that, the area where the building is being established is a flood-prone area where the water level came up to 2.318 meters above the ground level, during the flood that occurred in the year 2018. The said plot is near to the Meenachil river and in the subsequent years also there were waterlogging. Therefore, their apprehension is that, if the automobile workshop is established in the said property, in all probability, the water sources of the petitioners are likely to be polluted, in case of a flood, due to contamination from the oil, diesel and petrol from the said workshop.
4. Earlier, when WP(C) No.20590/2023 came up for consideration, this Court directed the District Disaster Management Authority (DDMA) to conduct an inspection and to submit a report after hearing all the affected parties. Accordingly, a report was submitted by the DDMA before this Court, after hearing the parties and after obtaining reports from the 4th respondent Municipality, the Town Planner and the Pollution Control Board. As per the said report, it is not desirable to deny a permit to the industrial venture. This finding was entered into, taking note of the fact that, the said area was never declared as a flood prone area in the Master Plan prepared for the Pala Municipality. It was also found that, in the year, 2018, the water level in that area reached at the level of 2.351 Mtrs. and the building for mechanical service of the vehicles was constructed by the 3rd respondent at a height of 2.7 mtrs. from the ground level. 5. After submission of the said report, WP(C)No.20590/2023 was amended, incorporating a prayer to quash the said report, which is produced as Ext.P32.
6. W.P.(C) No.31128/2023 and WP(C) No. 39955/2024 were filed by one Kunjan Gopi, who claims to be a person residing near the property where the workshop is being established. In addition to the contentions regarding the pollution, it was also contended that, the issuance of Occupancy Certificate, Consent to Establish etc. were not legally sustainable in view of the fact that, the property is situated in the residential zone as per the Master Plan notified for
