Kerala High Court
The State Of Kerala vs Shareef V on 23 February, 2021
Equivalent citations: AIRONLINE 2021 KER 520
Author: Shaji P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
WA.No.265 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
TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942
WA.No.265 OF 2021
AGAINST THE JUDGMENT IN WP(C) 17072/2019(H) OF HIGH COURT OF
KERALA
APPELLANT/S:
1 THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, LOCAL SELF
GOVERNMENT DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE TOWN PLANNER,
KOZHIKODE REGION, KUDFC BUILDING,
CHAKKORATHUKULAM, WEST HILL POST, KOZHIKODE-
673005.
BY SRI. TEKCHAND, SENIOR GOVERNMENT PLEADER
RESPONDENT/S:
1 SHAREEF V.
S/O. AHAMMED KUTTY, EXCEL PLAZA, PETTA, FEROKE,
KOZHIKODE-673631.
2 THE KOZHIKODE CORPORATION,
MANANCHIRA, KOZHIKODE-673032, REPRESENTED BY ITS
SECRETARY.
R1 BY ADV. SRI.E.C.AHAMED FAZIL
R1 BY ADV. SRI.K.P.SUFIYAN
R2 BY ADV. SRI.G.SANTHOSH KUMAR (P).
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
23.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA.No.265 OF 2021 -2-
CR
JUDGMENT
Dated this the 23rd day of February, 2021 Shaji P. Chaly, J.
State of Kerala and one of its officials have preferred this appeal challenging the judgment of the learned Single Judge in W. P. (C) No. 17072 of 2019 dated 29.10.2019, whereby the learned Single Judge disposed of the writ petition, directing the Secretary of the Kozhikode Corporation, to reconsider the building permit application submitted by the writ petitioner, dehors the first condition contained therein in respect of zoning as residential area, and to pass an appropriate order, after complying with all necessary and imperative requirements under the applicable building rules and other statutes, rules and regulations, as are relevant.
2. It is made clear in the judgment that what was considered was only the validity of Ext. P2 order passed by the Secretary of the Corporation dated 09.05.2019, declining building permit to the writ WA.No.265 OF 2021 -3- petitioner, basically for the reason that the property in question owned by the writ petitioner and for which the building permit was sought, is included in the DTP scheme as a residential area, whereas the application was seeking permit for construction of a commercial building . The said findings were rendered by the learned Single Judge after finding that a new master plan has come into force, and therefore, any development of Kozhikode city in conflict with the said plan is impermissible, and further held that merely because there is an old DTP scheme, it is clearly in conflict with the new master plan, and therefore, the petitioner's application cannot be rejected or kept pending ad infinitum. It is thus challenging the legality and correctness of the said judgment, the appeal is preferred.
3. The thrust of the contention advanced in the appeal is that the imperative provisions contained under Section 61 of the Kerala Town and Country Planning Act, 2016 (hereinafter called 'Act 2016'), would show that the use and development of the land should be in conformity with the master plan and detailed town planning schemes, and further that note appended to the said Section would unequivocally show that when a detailed town planning scheme and master plan operates in an area, the provisions of the detailed town WA.No.265 OF 2021 -4- planning scheme shall prevail over the master plan. Therefore it is contended that in the case at hand, the area in question is categorized as a residential zone, as per the detailed town planning scheme. That apart, as per the varied scheme promulgated in accordance with G. O. (Ms) No. 306/50/LSGD dated 29.09.2015, commercial buildings upto 150 sq. m. alone are permissible in the residential zone. However, the application submitted by the writ petitioner is for construction of a commercial building having an area of 3301.01 m2, which is not permissible, and therefore, the learned Single Judge has egregiously erred in issuing directions in violation of Section 61 of the Act 2016.
4. Learned Government Pleader has also relied upon the judgments rendered by this Court, as well as the Hon'ble Apex Court, in regard to the manner in which the regulations contained under the town planning schemes are to be taken into account, while considering an application for building permit.
5. Therefore it was contended that even though a new master plan is brought into force, consequential DTP scheme is not introduced, and therefore, Section 113 of Act 2016 would come into play, whereby, even though the erstwhile town planning acts, namely WA.No.265 OF 2021 -5- Town Planning Act 1108 ME, the Travancore Town and Country Planning Act 1120 ME, the Madras Town Planning Act, 1920 and the Kerala Town and Country Planning Ordinance, 2016, were repealed by virtue of sub-section (2), any draft general town planning scheme for an area, including master plan or development plan or a draft detailed town planning scheme, published under the repealed Acts, shall be deemed to be a draft master plan, or a draft detailed town planning scheme, as the case may be, published under the Act 2016. Further, any general town planning scheme for an area, including master plan or development plan or a detailed town planning scheme, sanctioned under the repealed Acts, shall be deemed to be a master plan or a detailed town planning scheme, as the case may be, sanctioned under Act 2016. Therefore the short question emerges for consideration is whether, mere introduction of a master plan as per Act 2016 would take away the rigour of protection provided to any detailed town planning scheme under Section 113 of Act 2016.
6. Bearing in mind the transitory provisions of Section 113 of Act 2016, we are of the clear opinion that mere introduction of a new master plan would not take away the protection provided under Section 113 of Act 2016.
WA.No.265 OF 2021 -6-
7. Viewed accordingly, even if the case of the writ petitioner is accepted that a new master plan was introduced, that will not dilute the provisions of Section 113, in any manner, or the introduction of the new master plan would divest the power conferred on the authorities under Section 113 of Act 2016 to consider any application for building permit relying upon the detailed town planning scheme. Which thus means, while considering an application for building permit, the Secretary of the local body is duty bound to take into account the detailed town planning scheme existing, by virtue of Section 113 of Act 2016 and the provisions of the Kerala Municipality Building Rules 1999 as it then existed, application being dated 29.03.2018.
8. In that view of the matter, we are of the considered opinion that the findings rendered by the learned Single Judge in the impugned judgment that consequent to the introduction of the new master plan under Section 61 of the Act 2016, the old detailed town planning scheme is not in force, is not correct. Therefore, we find force in the contention advanced by the appellants, that the findings rendered by the Single Judge in that regard is to be interfered with. Let us see why it is so.
WA.No.265 OF 2021 -7-
9. We have heard learned Senior Government Pleader Sri. Tekchand for appellant, Sri E.C.Ahmed Fazil for the respondent/ writ petitioner and Sri G. Santhosh Kumar for the Municipal corporation
10. Bearing in mind the above legal aspects put forth by the appellants, we have heard the learned counsel for the writ petitioner/ 1st respondent at length and he has taken us through Section 113 (2)
(iii) of Act 2016, dealing with the circumstances under which any rules, bye-laws, regulations or forms made, notifications, notice, order, scheme or direction, are to be considered if they are in conflict with the provisions of Act 2016, which reads thus:-
"any appointment, rules, bye-laws, regulations or forms made, notifications, notice, order, scheme or direction issued, tax, fee, fine or other penalty imposed, license, permission exemption granted or plans prepared under the repealed enactments and in force at such commencement, shall in so far as they are not inconsistent with the provisions of this Act, continue to be in force as if made, issued, imposed or granted, as the case may be, under the provisions of this Act, until superseded, amended or modified by any appointment, rules, by-laws or regulations, notifications, notice, order, scheme, direction, tax, fee, fine or other penalty, license, permissible or exemption made, issued, imposed, or granted or plans prepared, as the case may be, under WA.No.265 OF 2021 -8- this Act."
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 the master plan, the scheme protected under Section 113 can be given a go bye. We are unable to accept the said contention for the reason that Section 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 Section 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. WA.No.265 OF 2021 -9-
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 Section 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-section (2) of Section 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 Section 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.
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 Section 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 WA.No.265 OF 2021 -10- detailed town planning scheme, by virtue of the provisions of Section 50 of Act 2016, and also seek interim development orders governed by Section 63 of Act 2016, and take up all the other grounds as is ordered by the learned Single Judge.
Anyhow, a decision shall be taken in the application for building permit submitted by the writ petitioner, taking also into account representation if any submitted in regard to Sections 50 and 63 of Act 2016, within an outer limit of two months from the date of receipt of a copy of this judgment.
Writ appeal is allowed partly as above.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY JUDGE Eb ///TRUE COPY/// P. A TO JUDGE