Kerala High Court
The Palakkad Municipality vs Devadas on 3 August, 2021
Bench: S.Manikumar, Shaji P.Chaly
WA.No.847 OF 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 5TH DAY OF AUGUST 2021 / 14TH SRAVANA, 1943
WA NO. 847 OF 2021
AGAINST THE ORDER/JUDGMENT IN WP(C) 133/2021 OF HIGH COURT OF
KERALA, ERNAKULAM
APPELLANTS/RESPONDENTS 1 AND 2:
1 THE PALAKKAD MUNICIPALITY,
REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE,
PALAKAKD-678 001.
2 THE SECRETARY, PALAKKAD MUNICIPALITY,
MUNICIPAL OFFICE, PALAKAKD-678 001.
BY ADV BINOY VASUDEVAN
RESPONDENTS/PETITIONER & RESPONDENTS 3 & 4:
1 DEVADAS,
S/O.SUBRAMANIAN, PULIKKAL HOUSE, KOPTTEKAD P.O.,
MALAMPUZHA-678 732, MALAMPUZHA, PALAKKAD DISTRICT,
REPRESENTED BY IT POWER OF ATTORNEY HOLDER,
RAJITH.K.A., S/O.ARAVINDAKSHAN, AGED 54 YEARS,
PALIKANDATH HOUSE, KINASSERI P.O., KADUMTHIRUTHI,
PALAKKAD DISTRICT-678 707.
2 THE DISTRICT TOWN PLANNING OFFICER,
PALAKKAD, CIVIL STATION, PALAKKAD-678 001.
3 THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL
SELF GOVERNMENT, THIRUVANANTHAPURAM-695 001.
BY ADVS.
R1 BY SRI.JACOB SEBATIAN
SRI.K.V.WINSTON
SMT.ANU JACOB
R2 & R3 BY SRI.TEK CHAND, SENIOR GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
05.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA.No.847 OF 2021 2
CR
JUDGMENT
Dated this the 5th day of August, 2021 SHAJI P.CHALY,J .
This appeal is preferred by the 1st and 2nd respondents in the writ petition viz., Palakkad Municipality and its Secretary, challenging the judgment of the learned Single Judge in W.P.(C) No.133 of 2021 dated 18.1.2021, whereby the learned Single Judge partly allowed the writ petition, quashed Exhibit P2 order passed by the Secretary of Palakkad Municipality - 2 nd appellant, declining building permit sought for by the writ petitioner on the ground that the property offered for construction is situated within the Ayyapuram - Ramanathapuram Approved DTP Scheme; the property is seen included in the data bank as a paddy field; and there is proposal for widening the road in front of the property to 30 mtrs. Therefore the writ petitioner was directed to re- submit the plan leaving 5 meters for widening, 4.5 meters. building line, and with a setback of 9.5 mtrs.
2. Writ petitioner was further cautioned that he shall not make any construction in the property without obtaining a valid permission and the same will result in demolition of the building as well as initiation of proceedings. The learned Single Judge has further directed the Municipality to consider the WA.No.847 OF 2021 3 permit application, untrammelled by the stipulations in the DTP Scheme pertaining to the land in question and pass orders on the application within three weeks from the date of receipt of a copy of the judgment, if need be after hearing the writ petitioner. It is thus challenging the legality and correctness of the said judgment, the appeal is preferred.
3. At the outset, learned counsel for the appellants submitted that the Scheme viz; Ayyapuram - Ramanathapuram Approved DTP Scheme shown in Exhibit P2 impugned order was a mistake, and the property is actually situated in the Scheme for Kalvakulam Area Palghat. It was further submitted that, from Exhibit P4 proceedings of the Revenue Divisional Officer, Palakkad dated 20.10.2020 bearing No.RDO PKD/168/2020-J1, it is evident that the property having an extent of 0.0789 hectares situated in re-survey No.3215/1, Block No.2/75 of Palakkad - III Village belonging to the writ petitioner was removed from the data bank prepared as per the provisions of the Kerala Conservation of Paddy land and Wetland Act, 2008 (hereinafter called Act 2008) on imposing certain conditions. Therefore it is clear that the deficiency pointed out in Exhibit P2 impugned, rejection order by the Secretary of the Municipality in regard to the property being a paddy field in the data bank as per the provision of the Act 2008, stands removed. In that view of the matter the sole question, even according to the learned counsel for the Municipality, remains for WA.No.847 OF 2021 4 consideration is whether the learned Single Judge was right in directing the Municipality to consider the application untrammelled by the stipulations in the DTP scheme pertaining to the land in question.
4. The paramount contention advanced by the appellant Municipality in the appeal is that the learned Single Judge had interfered with the statutory functions and duties of the local authority regulated as per the provisions of the Kerala Municipality Act, 1994 and the Rules framed thereunder including Kerala Municipality Building Rules. It was also submitted that the property of the writ petitioner is situated in an important link road connecting two National Highways within the jurisdiction of the Municipality and therefore, the Municipality is contemplating to widen the said road to 30 mtrs., which is highly necessary for the development of the Palakkad town. It was further contended that the learned Single Judge ought to have granted liberty to the Municipality to peruse the application submitted by the writ petitioner in order to identify the situations available for consideration in regard to the statutory requirements. That apart it was also submitted that the learned Single Judge was not right in directing the Municipality to ignore the existing DTP Scheme applicable to the area wherein the land in question is situated.
5. On the other hand, learned counsel for writ petitioner submitted that there is no approved DTP Scheme for the area in question and the Scheme WA.No.847 OF 2021 5 produced by the appellant Municipality in the appeal proceedings along with a memo dated 22nd July, 2021 are only draft Schemes which cannot be made applicable to the property in question. That apart it was contended that whatever material deficiency pointed out in Exhibit P2 order of the Secretary of the Municipality to reject the permit, in regard to the property included in the data bank as per the provisions of the Kerala Conservation of Paddy land and Wetland Act, 2008, stands removed by virtue of the order passed by the Revenue Divisional Officer exercising the powers conferred under Act, 2008.
6. We have heard, learned counsel for the appellants Sri.Binoy Vasudevan, learned Senior Government Pleader Sri.Tek Chand, Sri.Jacob Sebastian for the writ petitioner /1st respondent, and perused the pleadings and materials on record.
7. In our considered opinion the issue is basically guided by the provisions of the Kerala Municipality Act, 1994, the building Rules thereto and certain provisions of the Kerala Town and Country Planning Act 2016. The Kerala Municipality Building Rules 1999, which was applicable at the time of consideration of the permit application submitted by the writ petitioner, is now replaced by the Kerala Municipality Building Rules, 2019 on and w.e.f.1.10.2020. However even as per rule 3A of Kerala Municipality Building Rules, 1999, it was made clear that notwithstanding anything contained in Rules, 1999, provisions or WA.No.847 OF 2021 6 regulations in any Town Planning Scheme in force under the Town Planning Act would prevail over respective provisions of the Rules, 1999 wherever such scheme exists. Also the rule 3(3) of the Kerala Municipality Building Rules , 2019, dealing with the provisions in the Master Plan, Detailed Town Planning Scheme etc. specifies that notwithstanding anything contained in Rules, 2019, provisions or regulations in Master Plan/Detailed Town Planning Scheme/Interim Development Order in force under the Kerala Town and Country Planning Act, 2016 ( 9 of 2016) shall prevail over the respective provisions of the Rules, 2019 wherever such Plan/Scheme/Order exist. Therefore, one thing is clear, wherever and whenever there is a Master Plan or Detailed Town Planning Scheme in force, that has to be given preference over Kerala Municipality Building Rules, 1999 or the Kerala Municipality Building Rules, 2019 to the extent the scheme governs the field. After analysing the judgment of the learned Single Judge and the facts and figures we need only to consider one issue i.e., the legality of the direction given by the learned Single Judge to the Municipality to consider the building permit application of the writ petitioner untrammelled by the DTP Scheme existing. But fact remains, no DTP Schemes were produced before the learned Single Judge by any of the parties in order to identify as to whether the land in question is hit by any existing Schemes in force, probably for the reason that even the 2nd relief sought for by the petitioner in the writ WA.No.847 OF 2021 7 petition was to " call for the Detailed Town planning Scheme and approved Master Plan of the Municipality and quash it in so far as it relates to the property of the petitioner by issuing a writ of certiorari ", and therefore in effect the parties proceeded taking it for granted that an approved Scheme exists for the area or property in question. This may also be the reason why the learned Single Judge directed the Municipality to consider the application untrammelled by any applicable DTP Scheme pertaining to the property in question. Be that as it may, since the parties have argued the matter in detail we propose to consider the pros and cons of the issues.
8. Learned counsel for the appellant Municipality has invited our attention to Annexure A order issued by the State Government dated 20.11.1986 in regard to the development plan for Palakkad Town, and from the sanction accorded in Annexure A, it is clear that pursuant to a request forwarded by the Chief Town Planner on 1.10.2016 by virtue of the powers conferred under sub-section (2) of section 14 of the Madras Town Planning Act, 1920, Government have examined the scheme in detail and sanctioned the General Town Planning Scheme for Palakkad Town under sub-section (3) of section 14 of the Madras Town Planning Act, 1920, which was applicable to the State of Kerala till the introduction of the Kerala Town and Country Planning Act, 2016.
9. The letter shows that a copy of the scheme book as approved by the WA.No.847 OF 2021 8 Government was also forwarded to the Secretary, Palakkad Development Authority. It is also clear from the letter dated 20.11.1986 appended to Annexure A Government Order that the Government of Kerala have sanctioned the General Town Planning Scheme for Palakkad Town and the Government Order sanctioning such scheme was published as required under sub-section (5) of section 14 of the Madras Town Planning Act, 1920 and further the general public was given the liberty for inspection of the scheme for a period of one month from the date of publication of the notification in the gazette.
10. Material on record available from Annexure C Government Order dated 6th February, 2016 published in the gazette dated 15 th February, 2016 bearing No.371 discloses that, the notification dated 20 th November, 1986 i.e., Annexure A was published as SRO No.92/87 in the Kerala Gazette No.4 dated 27th January, 1987 which sanctioned the Development Plan (General Town Planning Scheme) for Palakkad Town under section 14 of the Madras Town Planning Act, 1920. It is also clear from Annexure C that the Government vide notification under G.O.(MS) No.210/09/LSGD dated 11th November, 2009 and published as S.R.O No.970/2009 in the Kerala Gazette Extraordinary No.2160 dated 20th November, 2009, sanctioned the variation of the said development plan to the extent required under clause (b) of sub-section 2 of section 15 of Madras Town Planning Act, 1920. The said scheme is produced as Annexure B WA.No.847 OF 2021 9 in the appeal.
11. That apart the State Government have further varied zoning regulations of the said development plan to the extent required and sanctioned vide notification issued under GO(MS) No.132/2013/LSGD dated 30th March, 2013 and numbered as S.R.O No.269/2013 in the Kerala Gazette Extraordinary No.956 dated 2nd April, 2013 by virtue of the provisions conferred under clause (b) of sub-section (2) of section 15 of the Madras Town Planning Act, 1920 r/w sub-rule (1) of rules, 72 of Madras Town Planning Rules, 1933.
12. While so the State Government have promulgated the Kerala Town and Country Planning Act, 2016 which shall be deemed to have come into force on and w.e.f 23rd September2013, though notified in the Gazette on 17th March 2016. There, by virtue of sub-section (1) of section 113 of the Act, 2016 dealing with repeal and saving, with effect from the commencement of the Act, 2016, the Town Planning Act, 1108 ME, the Travancore Town and Country Planning Act, 1120, the Madras Town Planning Act, 1920 and the Kerala Town and Country Planning Ordinance, 2016 shall stand repealed. In spite of repeal of the acts as above, sub-section 2(i) thereto makes it clear that notwithstanding such repeal any Draft Town Planning Scheme for an area including the Master Plan or Development Plan or the Draft Detailed Town Planning Scheme published under the repealed acts shall be deemed to be a WA.No.847 OF 2021 10 Draft Master Plan or Draft Detailed Town Planning Scheme, as the case may be, published under Act, 2016 and further clause (ii) thereto makes it emphatic that any General Town Planning Scheme for an area including Master Plan or Development Plan or Detailed Town Planning Scheme sanctioned under the repealed acts shall be deemed to be Master Plan or Detailed Town Planning Scheme, as the case may be, sanctioned under the Act. Therefore in view of the said formulation of law even section 61 of the Act 2016 may come into play, which emphasises that the use and development of land to be in conformity with Master Plans and Detailed Town planning Schemes under the act. Note thereto further makes it clear that provisions of Detailed Town Planning Schemes shall prevail over the provisions of the Master Plans where both plans are in force.
13. On a conjoint reading of the provisions of law discussed above it is clear that if and when there is a scheme in force, the scheme will have predominance over other statutory provisions and the rules thereto, which thus means the Kerala Municipality Building Rules referred to above is subject to any existing Scheme applicable and consequently a building permit application can be considered only taking into account the Scheme. Therefore, we are of the view that the direction issued by the learned Single Judge to consider the building permit application submitted by the writ petitioner de WA.No.847 OF 2021 11 hors any DTP Scheme available/ existing for the property or the area may not be correct. It is also clear from the discussion made above that a Town Planning Scheme is existing for the development of the Palakkad Town, Kalvakulam area, and whether it applies to the property in question belonging to the writ petitioner is a matter for consideration of the Secretary of the Palakkad Municipality, who alone is/was vested with powers under the Kerala Municipality Act, 1994, the erstwhile Kerala Municipality Building Rules, 1999, and the Kerala Municipality Building Rules, 2019, while considering the building permit application.
14. In fact the issue insofar as the intricacies of an existing Master Plan/ Scheme was considered by this Division Bench in District Town Planner v. Joby M.C. and Others [2020(6)KHC 455 = [2020(6)KLT 600] and held as follows:
"9. On an analysis of Section 61 of Act 2016 and the note thereto, we have no doubt that if there is a Town Planning Scheme prevailing for an area, it will have supremacy over the Master Plan existing for the area. However, the basic contention advanced by the learned counsel for the writ petitioners is that in order to start a lorry terminal, acquisition of the property in question is required. But, no steps were taken by the Thrissur Municipal Corporation to acquire the property and therefore, the writ petitioners are entitled as of right for consideration of their application in accordance with law and without creating any fetter on the basis of the WA.No.847 OF 2021 12 instant Town Planning Scheme. However, we do not think that the said contention is correct in view of the inhibitions created under Sections 61 and 113 of Act 2016 extracted above. But, in our considered view, as contented by learned counsel for the writ petitioners, there is a way out from the situation by resorting to Section 67 of Act 2016, since in the fact scenario the stipulations contained thereunder are bound to be followed by the Municipal Corporation in the event of the writ petitioners issuing a statutory purchase notice in contemplation of law. Therefore, it can be seen that the issue in question is actually guided by Section 67 of Act 2016 as extracted above, which provision takes care of the Master Plan or a detailed Town Planning Scheme sanctioned under Act, 2016, and whereby liberty is granted to the Municipal Corporation to acquire the properties in terms of the Master Plan or detailed Town Planning Scheme within two years from the date of coming into operation of the plan. It is an admitted fact that no steps were taken by the Municipal Corporation or the State Government to acquire the property within the period prescribed under Section 67 of Act, 2016. Therefore, the writ petitioners are entitled, as of right, to issue a purchase notice to the Municipal Corporation requiring the Municipal Corporation to purchase the property. Sub-Section (2) of Section 67 of Act, 2016 makes it clear that the Municipal Corporation will have to take a decision not later than sixty days from the date of receipt of the purchase notice, through a resolution to acquire the land, where the land is designated for compulsory acquisition for the purpose of the Municipal Corporation. Which thus means, if the Municipal Corporation is not taking a decision as is mandatorily insisted upon as per Section 67(2) of Act, 2016 necessarily, the other provisions of Section 67 of Act, 2016 will come into operation and eventually, the writ petitioners are entitled to get their permit applications considered in accordance with law. We are also of the opinion that even though the Town Planning Acts, which were existing in the State WA.No.847 OF 2021 13 of Kerala, are repealed by virtue of Section 113 of Act 2016, an exception is carved out under sub-Section (2) of Section 113, whereby any Master plan or detailed Town Planning Scheme, published under the repealed Acts shall be deemed to be a Master Plan or a Detailed Town Planning Scheme, as the case may be, as if the same are published under the Act, 2016. Therefore, we find force in the contention advanced by the learned Senior Government Pleader relying upon Sections 61 and 113 of Act, 2016 that the finding recorded by the learned Single Judge to consider the building permit application if the Master Plan is not published within four months is not legally sustainable. But, fact remains, the writ petitioners are entitled, as of right, to exercise the option provided under Section 67 of Act, 2016 by issuing a purchase notice in contemplation of law since the Municipal Corporation. Thus, it can also be seen that the intention of the legislature by incorporating Section 67 in Act, 2016 is with the avowed object of protecting the interest of all stakeholders and in the larger public interest of developmental activities. But, at the same time, it is also an indicator clearly expressing that an owner of the property cannot be kept in limbo in the guise of public interest and town planning. This is more so in view of the constitutional right of the owner of a property conferred under Article 300A of the Constitution of India, whereby no person shall be deprived of property save by authority of law, which includes the right of an owner of a property to commercially exploit the property and venture in business in accordance with law."
Also in State of Kerala and others v. Shareef V. and ors. [2021 (2 ) KHC 224 = [2021(2)KLJ 224 ] this Division Bench held as follows:
"11. The contention advanced upon the said provision was that whenever a scheme is existing, contrary to the provisions of the Act, then by virtue of WA.No.847 OF 2021 14 the master plan, the scheme protected under S.113 can be given a go bye. We are unable to accept the said contention for the reason that S.61 of Act 2016, dealing with control of use and development of land, makes it clear that after the coming into operation of a master plan or detailed town planning scheme under the Act 2016, no person shall use or cause to use any land or carry out development in any land or change the use of land, otherwise than in conformity with or prejudicial to the master plans and detailed town planning schemes under the Act 2016. On an analysis of the said provision it is clear that a master plan cannot exist by itself without a scheme since the conjoint expression 'and' is used denoting that only a master plan and detailed town planning scheme together can operate in the field, which is the scheme of S.61 of Act 2016.
12. Further the note makes it clear that the provisions of detailed town planning scheme shall prevail over the provisions of the master plan, where both plan and scheme are in force in an area.
13. As pointed out earlier, a new master plan has come into force, however, the detailed town planning scheme, in consequence to the master plan so introduced, have not come into force, and thereupon, the old and existing detailed town planning scheme, protected under S.113 of Act 2016, will come into play. Viewed in that manner, it can be seen that the arguments advanced by learned counsel for the writ petitioner, relying upon clause (iii) of sub-s.(2) of S.113 of Act 2016, has no much force.
14. Therefore, interference with the judgment of the learned Single Judge to the extent it was held that consequent to introduction of the master plan in terms of S.61 of Act 2016, the old detailed town planning scheme has no force, and needs to set aside the same, and the judgment is to be modified accordingly.WA.No.847 OF 2021 15
15. To put it otherwise, the Secretary of the Municipal Corporation considering the application as directed by the learned Single Judge, is at liberty to take into account the detailed town planning scheme in force, as protected by S.113 of Act 2016. But we make it clear that the writ petitioner is at liberty to seek review, revision, variation and revocation of master plan and the detailed town planning scheme, by virtue of the provisions of S.50 of Act 2016, and also seek interim development orders governed by S.63 of Act 2016, and take up all the other grounds as is ordered by the learned Single Judge."
15. We are also informed that since in Exhibit P2 impugned order, the property was stated to be required for the purpose of widening a road the writ petitioner has already issued a purchase notice in contemplation of section 67 of the Town and Country Planning Act, whereby an obligation is created to acquire the land in certain cases by the Municipality. Accordingly the Municipality has to take a decision without failure as to whether it is intending to acquire the property in question for widening the road, which is an imperative requirement as per the prescriptions contained under section 67 of the Act 2016, including the time period of sixty days, prescribed for taking a decision. Even though the learned Senior Government Pleader Sri.Tek Chand submitted that by virtue of section 63 of the Kerala Town and Country Planning Act, 2016, the Secretary of the Municipality is entitled to look into any Draft Master Plan/Scheme, we are unable to agree with the same since section 63 of Act, 2016 will come into play only if any Interim Development Orders are WA.No.847 OF 2021 16 issued pending any draft Scheme and restrictions imposed after notifying the intention to prepare the plan. There is, no case for any of the parties to the proceedings that any Interim Development Orders were issued in regard to the Palakkad Town area.
16. Considering all the above legal and factual aspects we are of the clear opinion that the Municipality is entitled to succeed in the appeal partly. In that view of the matter we propose to modify the judgment to the extent directions were issued to the Municipality to consider the application untrammelled by any DTP Scheme. Therefore, the directions so contained in the judgment is vacated, and consequently the Secretary of the Municipality is directed to consider the building permit application submitted by the petitioner, at the earliest and at any rate within a month from the date of receipt of a copy of this judgment, if the time period prescribed under section 67 of the Act 2016 has expired, or else within one month from the expiry of the time period so fixed, after providing a notice of hearing to the writ petitioner, and most importantly taking into consideration the Scheme if any existing and applicable to the property in question or the area, purchase notice said to be issued by the writ petitioner, under section 67 of Act 2016, section 113, and other relevant provisions of the Kerala Town and Country Planning Act 2016 and the building rules in force. We make it clear that the above findings and WA.No.847 OF 2021 17 observations are made since rival submissions were raised with respect to the availability of town Planning Scheme for the area in question, where the property of the writ petitioner is situated, however the Secretary would be at liberty to take a decision in accordance with law, taking into account all relevant aspects and the laws applicable for the consideration of the building permit application, and the observations and the findings made in the operative portion of the Judgment .
Writ appeal is allowed partly.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY
smv JUDGE