Strict Distinction Between Residential And Non-Residential Areas Is Challenging In Era Of Rapid Urbanisation: Kerala High Court

“In the context of globalization and rapid urban development, particularly with the growth of trade, commerce, and city life, drawing a clear distinction between residential and non-residential premises in towns, cities, and metropolitan areas has become increasingly challenging. With space being a scarce resource, people are compelled to make the most efficient use of the available land. As a result, commercial establishments have inevitably emerged even within residential areas. Such commercial usage is no longer seen as an exception but rather as a practical necessity of modern urban living. The current lifestyle – characterized by time constraints, long commutes, and a preference for convenient access to essential service- has led to a growing demand for schools, colleges, shops, banks, hospitals, nursing homes, religious places, and other facilities within residential neighbourhoods. Many housing societies now make express provisions for such mixed usage, and this trend is not only accepted but often welcomed by majority of the residents.”

The instant petition was filed by some residents of the Giri Nagar Housing Colony against some other members converting the residential area into commercial space. The petitioners submitted that the concerned property was initially allotted to the Ernakulam Co-operation Housing Society and the patta issued by the government stated that the said land will only be used for constructing residential buildings.

They submitted that the houses constructed on the said land were allotted to the members of the Society who came within the income range of low to middle. The Society constructed residential buildings on the land and they were handed over to the members after obtaining a due amount. The petitioners submitted that as per the sale deed, the land shall be used only for residential purpose and shall not do anything to cause nuisance to other residents of the colony.

It was submitted that over the passage of time, many residential houses were rented out to commercial offices and permits were issued for reconstruction of the residential building into commercial spaces. It was contended that even the Corporation gave permit to such use when it was contrary to the condition in the patta and the sale deed. It was argued that such conversion was against the provisions of Land Assignment Act and Rules.

They further contended that the inaction on the part of the authorities is hampering their right to lead a harmonious life not affected by congestion, loss of privacy, air and noise pollution and a total sense of security.

The respondents contended that the society has already approached the Government seeking to invoke powers under Rule 24 of Kerala Land Assignment Rules 1964 and to grant exemption to the society from condition No.1(2) of Ext.P5 patta which is even now pending consideration by the Government.

The court held that the purpose of the assignment was completed when the Society handed over the buildings to its members. The Court also took into account the contention that the plots has now become unaffordable to the middle-income group.

The Court noted that many members have approached the society for their tenants to continue as their survival depends on them. The Court observed that this humanitarian aspect needs to be considered while deciding the matter. The Court opined that the petitioners who may be better placed financially may not be bothered about the situation of other members and they might be only bothered about their rights under Article 14 and 21.

The Court further observed that objecting non-residential use in residential societies is ignoring the practical realities of modern urban living. The Court further opined that those objections arise from “personal grievance or vested interests rather than genuine community concerns.”

The Court further observed that since the land was originally allotted by the society, the petitioner should have resorted to the remedies under Co-operative Societies Act before approaching the High Court, as the dispute raised in the writ petition primarily comes as a dispute between the society and its members. 

While dismissing the plea, the Court however cautioned that it was not flagging off an enmassed conversion to commercial occupancy. The Court said that the government and Cochin corporation shall be vigilant against further conversion and consider the effect on the right of the residents to a decent life under Article 21.

Case No: WP(C) 1816 of 2025 & COC751 of 2022

Case Title: Kurian Abraham and Others v State of Kerala and Others & Connected matters

Citation: 2025 LiveLaw (Ker) 279

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