Kerala High Court
The Kollam District Town Planner vs M/S. Fort-In Ifra Developers Private ... on 19 November, 2020
Author: Shaji P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
W.A.No. 1406/2020 : 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 19TH DAY OF NOVEMBER 2020 / 28TH KARTHIKA, 1942
WA.No.1406 OF 2020
AGAINST THE JUDGMENT DATED 28.10.2019 IN WP(C) 11422/2019(C) OF HIGH
COURT OF KERALA
APPELLANT/2ND RESPONDENT:
THE KOLLAM DISTRICT TOWN PLANNER
OFFICE OF THE KOLLAM DISTRICT TOWN PLANNER, NH 47,
KARBALA, KOLLAM, PIN - 691 001.
BY SRI. ARAVIND KUMAR BABU, SR. GOVERNMENT PLEADER
RESPONDENTS/PETITIONER AND THE FIRST RESPONDENT:
1 M/S. FORT-IN IFRA DEVELOPERS PRIVATE LIMTED,
A COMPANY REGISTERED UNDER THE INDIAN COMPANIES ACT,
1956, HAVING REGISTERED OFFICE AT RAVI'S ARCADE , 3RD
FLOOR, KOLLAM, KERALA, PIN - 691 013, HAVING REGISTER NO.
CIN U4520KL2007PTCO20967 ISSUED BY REGISTRAR OF
COMPANIES, KERALA, REPRESENTED BY ITS AUTHORIZED
SIGNATORY ARUN RAO.M.G., AGED 32 YEARS, S/O.GOVINDA RAO,
2 THE KOLLAM CORPORATION,
REPRESENTED BY ITS SECRETARY, KOLLAM CORPORATION OFFICE,
NEAR KOLLAM RAILWAY STATION, KARBALA, KOLLAM,
PIN - 691 001.
R2 BY SHRI.M.K.CHANDRAMOHAN DAS,SC,KOLLAM CORP
SRI.A.JANI, FOR R1,
SRI.C.S.MANILAL,FOR R2
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.11.2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No. 1406/2020 : 2:
Dated this the 19th day of November, 2020.
JUDGMENT
SHAJI P. CHALY, J.
The captioned writ appeal is filed by the second respondent in the writ petition namely the District Town Planner, Kollam challenging the judgment of the learned single Judge dated 28.10.2019 in W.P.(C) No.11422 of 2019, whereby the writ petition filed by the first respondent Company incorporated under the Companies Act, 1956 was allowed and directions were issued in terms of Section 67 of the Kerala Town and Country Planning Act, 2016 ('Act, 2016' for short) and the relevant portion of the judgment reads thus:
6. When I consider the afore submissions, it is beyond contest that the primary objection against the petitioner's application is that they have not provided for enough set back so as to have the road in front of them developed in future as per the DTP Scheme. However, it is also conceded that this DTP Scheme has been in force for the last more than two decades but that no steps have been taken by any of the Authorities to develop the road to a 10 metre one. I am, therefore, of the view that the petitioner cannot be asked to wait ad infinitum until the DTP Scheme is implemented, particularly when they assert that the road in question can be widened only if large scale acquisition of various other properties is made, which are on its either side; and that W.A.No. 1406/2020 : 3: the petitioner must be given the opportunity of making a suitable application under Section 67 of the Kerala Town and Country Planning Act, so as to enable the Corporation to then act as per its terms and take a final decision on their application for building permit.
Resultantly, I order this writ petition, granting liberty to the petitioner to make an application under Section 67(1) of the Kerala Town and Country Planning Act; and if this is done within a period of two weeks from the date of receipt of a copy of this judgment, the Corporation will consider the same in terms of law within the statutory period; and if, for any reason, the said application is rejected or not acted upon within the statutory period, then the Secretary of the Corporation will be obligated to consider the petitioner's application for building permit de hors the DTP Scheme and to then issue appropriate order thereon, as expeditiously as is possible, but not later than two months after the statutory period for consideration of the application under Section 67 of the afore mentioned Act, expires."
2. The paramount contention advanced by the appellant is that the observations and directions in the judgment is against the materials on record, that as per Section 113 of the Act, 2016, any Town Planning Scheme sanctioned under the repealed Town Planning Acts will be deemed to be a Town Planning Scheme sanctioned under the Act, 2016 and therefore, the DTP scheme published under G.O. (MS) No. 171/10/LSGD dated 07.08.2010 for Kadappakkada and surrounding areas of Kollam Town is still valid. According to the W.A.No. 1406/2020 : 4: appellant, the said DTP scheme is not of two decades old, antiquated and obsolescent as held by the learned single Judge to set aside the order passed by the Kollam Corporation rejecting the application for building permit for the non-compliance of the direction to leave sufficient set back for the road to be widened to 10 meters as per the DTP scheme.
3. It is also pointed out that the writ petitioner proposes the construction of a multi-storied building consisting of 2 basement floors exclusively for car parking, ground floor, first floor, second floor and third floor as commercial complex and fourth and fifth floors for Theater complex and it is also contended that even without a detailed Town Planning Scheme, the insistence for the set back of 10 meters for the widening of the road cannot be attributed as arbitrary, illegal and unwarranted. Contentions are also raised that the directions issued in terms of Section 67 of Act, 2016 cannot be factually and legally sustained.
4. That apart, it was also contended that the State Government had filed a counter affidavit contending that as per the sanctioned Town Planning Scheme for Kadappakkada and surroundings, the site falls within the area to be reserved for residential use zone, and that aspect though noted and extracted by the learned Single Judge, was W.A.No. 1406/2020 : 5: not adjudicated. Therefore, it was submitted that even if acquisition is required in terms of Section 67 (1) of Act, 2016, for a 10 meters wide road, the issue with respect to the construction of a commercial building in the residential area earmarked in the DTP scheme is a matter to be adjudicated by this Court.
5. We have heard learned Senior Government Pleader Sri. Aravanid Kumar Babu, Sri. A. Jani for the first respondent/writ petitioner and Sri. C.S. Manilal representing the Standing Counsel for the Kollam Corporation, and perused the pleadings and materials on record.
6. Learned Government Pleader has addressed arguments based on the submissions recorded above. Learned counsel appearing for the first respondent/writ petitioner submitted that many commercial buildings have come up in the area in question where the DTP scheme is applicable and therefore, rejection of an application on the ground that the area is a residential zone cannot be sustained and it was accordingly, that the learned single Judge did not consider the said issue raised by the Government. It was also pointed out that at present, the area is a mixed zone and therefore, the contentions put forth by the Government as against the same cannot be sustained. W.A.No. 1406/2020 : 6:
7. Learned counsel appearing for the Kollam Corporation submitted that at present, 10 meter wide road is only envisaged and it is yet to be constructed.
8. We have evaluated the rival submissions made across the Bar. The issues raised are basically guided by Sections 67 and 113 of Act, 2016 . Section 113 deals with 'repeal and saving' and sub-Section (1) thereto stipulates that with effect on and from the commencement of this Act, the Town Planning Act, 1108 ME (Act IV of 1108 ME), the Travancore Town and Country Planning Act, 1120 (Act XXI of 1120 ME), the Madras Town Planning Act, 1920 (Madras Act VII of 1920) and the Kerala Town and Country Planning Ordinance, 2016 (4 of 2016) are repealed. However, as per sub-Section (2), notwithstanding such repeal, (i) 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; and (ii) 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 the Act, W.A.No. 1406/2020 : 7: 2016.
9. Therefore, one thing is clear that though the respective Acts were repealed consequent the introduction of Act 2016, by virtue of sub-Section (2), any draft Town Planning Scheme and other development plans and any General Town Planning Scheme and the Master Plan or Development Plan are all protected under Act, 2016. It is an admitted fact that the application submitted by the writ petitioner was rejected as per Ext.P2 also for the reasons among other reasons, that as per the concerned Town Planning Scheme, a 10 meter wide road is envisaged and therefore, the writ petitioner has to submit a new plan by making suitable alterations in the plan submitted and that under the approved DTP scheme the construction falls under the area to be reserved for residential use zone. In order to understand the issue properly, Section 67 of Act, 2016 is extracted hereunder :
67. Obligation to acquire land in certain cases. - (1) Where any land is designated for compulsory acquisition in a Master Plan or Detailed Town Planning Scheme sanctioned under this Act and no acquisition proceedings are initiated for such land under the Land Acquisition Act in force in the State within a period of two years from the date of coming into operation of the Plan, the owner or person affected may serve on the Municipal Corporation. Municipal Council, Town Panchayat or Village Panchayat concerned, within such time and in such manner, as may be prescribed, a notice (hereinafter referred to W.A.No. 1406/2020 : 8: as "the purchase notice") requiring the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned to purchase the interest in the land in accordance with the provisions of this Act;
(2) On receipt of any purchase notice under sub-section (1), as soon as possible, but not later than sixty days from the date of receipt of the purchase notice, the Municipal Corporation, Municipal Council. Town Panchayat or Village Panchayat, as the case may be, through a resolution decide to acquire the land, where the land is designated for compulsory acquisition for the purpose of the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat. (3) Where the land is designated for compulsory acquisition for the purpose of any Government Department or Quasi-government Agency, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat shall forward such notice to the Government. (4) In case the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned decides not to acquire the land, it shall initiate variation of the plan suitably in accordance with this Act.
(5) In case the land acquisition could not be effected within a period of two years from the date of resolution to acquire the land, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall initiate variation of the plan suitably in accordance with this Act.
(6) On receipt of a purchase notice under sub-section (3), the W.A.No. 1406/2020 : 9: Government shall in consultation with the Government Department or Quasi-government Agency concerned, not later than six months from the date of receipt of the purchase notice, confirm the purchase notice. In any other case. Government may require the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned to vary the plan suitably in accordance with this Act:
Provided that in case the land acquisition could not be effected within a period of two years from the date of confirmation of the purchase notice, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall initiate variation of the plan suitably in accordance with this Act under intimation to the Government.
(7) If no order has been passed by the Government within a period of six months from the date of receipt of the purchase notice, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall, suo moto initiate variation of the plan suitably in accordance with this Act:
Provided that where variation proceedings of the Plan are initiated under this section, the Secretary of the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall, in consultation with the Chief Town Planner, take suitable decision on any application for land development permit received under section 64.
10. However, learned Senior Government Pleader submitted that, it is true, the provisions of Section 67 may apply to the instant W.A.No. 1406/2020 : 10: case, insofar as the acquisition of the land is concerned. But, fact remains, the area where the building is proposed to be constructed is a residential area and therefore, a blanket direction issued to consider the application for permit dehors the prevalence of the Town Planning Scheme, is not a legal order consequent to the provisions of the Kerala Municipality Building Rules, 1999, the Kerala Municipality Act, 1994 and the Act, 2016. We find sufficient force in the contention advanced by the learned Government Pleader that the said aspect raised by the Government in regard to the earmarking of an area as a residential zone was not considered by the learned single Judge, in spite of a specific contention raised to that effect. This we say because as per Rule 3A of the Kerala Municipality Building Rules 1999 (Rules, 1999) also, the provisions or regulations in any Town Planning Scheme in force under the Town Planning Act shall prevail over the respective provisions of the Rules, 1999 wherever such scheme exists . However, fact remains, by virtue of the provisions contained under the Act, 2016, the affected person is entitled to seek modification of the master plan or a detailed Town Planning Scheme in terms of Section 50 of the Act, 2016, which reads thus:
"50. Review, revision, variation and revocation of Plans prepared under the Act. - (1) Immediately after the expiry of ten years from the date of sanction of a Perspective Plan, Master Plan or W.A.No. 1406/2020 : 11: Detailed Town Planning Scheme under this Act or at an earlier date with the concurrence of the Government, the State Town and Country Planning Commission, the District Planning Committee, Metropolitan Planning Committee Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat as the case may be shall review, revise or get revised such Plan incorporating such modifications as may be considered necessary and get it sanctioned in accordance with the provisions of this Act:
Provided that a Master Plan or a Detailed Town Planning Scheme shall be revoked by a subsequent Master Plan or Detailed Town Planning Scheme, as the case may be;
(2) The authority concerned may, after such review, vary a Plan in part and get such varied Plan sanctioned in accordance with the provisions of this Act.
(3) Notwithstanding anything contained in this Act, Government may, if it deems necessary, at any time, by notification in the Gazette, vary a Plan sanctioned under this Act:
Provided that before issuing such notification, Government shall publish a draft of such notification in the prescribed manner and shall circulate copy thereof to the authority concerned and shall consider any objection or suggestion which may be received on such draft from such authority or any person interested in the Plan and may make such modification as the Government consider proper."
11. Taking into account all the above factual and legal aspects, we allow the appeal in part and direct the Secretary of the Kollam W.A.No. 1406/2020 : 12: Corporation to consider the application submitted by the writ petitioner for building permit after satisfying the requirements of Section 67(1) of Act, 2016 in terms of the directions issued by the learned single Judge, if not already done, taking into account the provisions of the Kerala Municipality Building Rules, 1999, the Kerala Municipality Act, 1994 and the Act, 2016 especially as discussed above. We also make it clear that the Secretary of the Kollam Corporation, while considering the application, shall bear in mind as to whether the area in question still remains as a residential zone or a mixed zone and as to whether the commercial buildings are constructed in the area within the DTP scheme referred to above. Accordingly, the judgment of the learned single Judge is modified to the above extent. In all other respects, the judgment of the learned single Judge would remain intact.
sd/-
S. MANIKUMAR, CHIEF JUSTICE.
sd/-
SHAJI P. CHALY, JUDGE.
rv