Kerala High Court
Alex Raphel vs Rahesh Kumar R on 18 January, 2023
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
Wednesday, the 18th day of January 2023 / 28th Pousha, 1944
CON.CASE(C) NO. 61 OF 2023(S) IN WA 1722/2021
PETITIONER/RESPONDENT/PETITIONER:
ALEX RAPHEL, AGE 33, S/O RAPPAI, OLLUKKARAN HOUSE,
1197/25, KURIACHIRA P.O, THRISSUR - 680 006.
BY ADVS. M/S. A.R.NIMOD, M.A.AUGUSTINE.
RESPONDENT/APPELLANT/RESPONDENT:
RAHESH KUMAR R., SECRETARY,
THRISSUR CORPORATION, THRISSUR - 680 001.
BY ADV. SRI.SANTHOSH P.PODUVAL.
This Contempt of court case (civil) having come up for orders on
18.01.2023, the court on the same day passed the following:
P.T.O.
S. MANIKUMAR, CJ
&
SHAJI P. CHALY, J
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Cont. Case (C). No. 61 of 2023 (S)
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Dated this the 18th day of January, 2023
ORDER
S. Manikumar, CJ.
Contending inter alia that directions contained in W.A. No.1722 of 2021 dated 21.3.2022 have not been implemented in letter and spirit, this contempt case is filed.
2. Operative portion of the judgment dated 21.3.2022 in W.A. No.1722 of 2021 reads thus:
"9. In the instant case, the Master Plan has come into force. However, consequently, the DTP scheme in accordance with the Master Plan has not come into force. Whatever that be, as per Section 50 of the Act, 2016, the power is vested with the authority to review, revise, vary and revoke the plans prepared under the Act, 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 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 Cont. Case (C).61/2023 2 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 a 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."
10. Moreover, Section 61 of the Act, 2016 dealing with 'the use and development of land to be in conformity with Master Plans and Detailed Town Planning Schemes under the Act', specifies that after the coming into operation of a Master Plan or Detailed Town Planning Scheme under the Act, 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. But, the Note to the said provision makes it clear that the provisions of Detailed Town Planning Schemes shall prevail over the provisions of the Master Plans where both Plans are in force in an area.
11. True, even though a new DTP scheme is not brought into force consequent to the new Master Plan, the existing Detailed Town Planning Scheme for the area is in Cont. Case (C).61/2023 3 force consequent to the protection of the scheme under Section 113(2) of the Act, 2016. Be that as it may, since the authority is vested with the power to review the existing scheme in order to suit the Master Plan, it cannot be said that the directions issued by the learned single Judge is not a correct one.
12. Moreover, the writ petitioner has a contention that in the area in question, various buildings other than residential buildings are situated. Article 300A of the Constitution of India clearly specifies that no citizen can be deprived of a property otherwise than in accordance with law. Above all, Section 63 of the Act, 2016 empowers the Local Self Government Institutions to prepare interim development orders and forward the same to the Government with the general object of controlling interim development of land included in any planning area in respect of which a decision has been taken by a resolution to prepare a plan or notified for preparing Detailed Town Planning Scheme under the Act.
13. We are informed that an interim development order is existing in the appellant Corporation. Taking into account all the above aspects, we are of the clear opinion that it was bearing in mind the provisions of the Act, 2016 and other aspects that directions were issued by the learned single Judge to reconsider the application submitted by the writ petitioner seeking change of occupancy of the building in question from 'residential' to 'commercial'. Therefore, the judgment of the learned single Judge needs only a modification directing the appellants to Cont. Case (C).61/2023 4 seek necessary variation as provided under the Act, 2016, and also to take into account the developments that have taken place in the area in question, due to the construction of commercial buildings already. Apart from the same, no other interference is required to the judgment of the learned single Judge. Accordingly the appeal is disposed of as above. However, since the time period granted by the learned single Judge has already expired, we extend the time for complying with the directions by a period of one month from the date of receipt of a copy of this judgment."
3. Mr. Santhosh P. Poduval, learned Counsel for the Secretary, Thrissur Corporation takes notice and a counter affidavit be filed, touching upon the averments made in the contempt petition.
Post after two weeks.
Sd/-
S. Manikumar, Chief Justice Sd/-
Shaji P. Chaly, Judge sou.
18-01-2023 /True Copy/ Assistant Registrar