Residential properties under specific schemes cannot be used for commercial purposes.

JUDGMENT

The petitioner, stated to be the owner of a property extending to 7.474 cents and a two-storied residential building - a part of the Chinnakkada Housing Accommodation Scheme launched by the 3^rd respondent herein, as the subsequent assignee - has filed the captioned writ petition challenging Ext.P16 order issued by the Tribunal for Local Self Government Institutions, Thiruvananthapuram, in an appeal filed by the 1^st respondent herein.

2. The petitioner, as noticed above, is the owner of a property with a two storied residential building. The property was devolved as part of the Chinnakkada Housing Accommodation Scheme by the 3^rd respondent Housing Board. The property was allotted originally to a different allottee who constructed the residential building and sold it to third parties, and ultimately, the property was purchased by the petitioner’s mother in 2001 and settled in favour of the petitioner in 2005.

The petitioner states that she had leased out the ground floor of the building to two doctors for conducting a Dental Clinic with an outpatient facility pursuant to Ext.P6 lease agreement, which, according to the petitioner, is not a “commercial activity” and hence can very well be permitted in the residential zone. The afore tenants, it is stated, are running a Dental Clinic under the name and style “Ashtamudi Wellness,” and the 1st respondent herein, who is the neighbour of the property, raised a dispute with reference to the occupancy certificate issued by the 2^nd respondent Corporation. The occupancy certificate was originally as a “residential” one and later converted as “commercial one” at the request of the petitioner. The afore Tribunal by Ext.P16 issued the following directions:

“17. It may be a fact that in Kollam Corporation this particular area comes under mixed zone and in a mixed zone non- residential activity also is permissible. It is doubtful when a number of residence have come up on the basis of a scheme developed by the Housing Board how the area would be included in the mixed zone. Whatever may it be when the Housing Board has issued a very specific circular as already stated above the Secretary prior to granting change of occupancy should have given due weight to the same.

18. Hence even though I may not straight away cancel the occupancy certificate granted to the 3^rd respondent I will have to direct the Secretary to reconsider the entire aspects in the light of the discussions made herein, in the light of the judgment of the Hon’ble High Court and the circular referred already above and if any error was committed by the Secretary in the matter of granting occupancy to the 3^rd respondent that error will have to be rectified. I also will have to issue direction to the Secretary not to grant any sort of licenses or permits to the 3^rd respondent or the persons in occupation of the building of the 3^rd respondent for running any commercial or other activity therein till a final decision as above is taken.”

It is challenging the afore finding in Ext.P16 that the captioned writ petition is filed by the petitioner.

3. I have heard the learned counsel for the petitioner and the learned counsel for the respondents herein.

4. The short issue arising for consideration is as to the sustainability or otherwise of the findings contained in Ext.P16. The facts are not in dispute. The petitioner is in possession of a property and the residential building therein, which was part of the Chinnakkada Housing Accommodation Scheme. The occupancy was issued to the afore residential building