Faby v. Chalakudy Municipality

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI FRIDAY, THE 26TH DAY OF SEPTEMBER 2014/4TH ASWINA, 1936 WP(C).No. 25765 of 2013 (U) ---------------------------- PETITIONER : -----------FABY, S/O. VARGHESE,AGED 37 YEARS, KIDANGAN HOUSE, MURINGOOR CHALAKUDY. BY ADVS.SRI.RENJITH THAMPAN (SR.) SMT.P.R.REENA RESPONDENTS: ------------ 1. CHALAKUDY MUNICIPALITY, MUNICIPAL OFFICE, CHALAKUDY, THRISSUR DISTRICT PIN 680307, REPRESENTED BY ITS SECRETARY. 2. SECRETARY, CHALAKUDY MUNICIPALITY, MUNICIPAL OFFICE, CHALAKUDY THRISSUR DISTRICT, PIN 680307. 3. STATE OF KERALA REPRESENTED BY ITS SECRETARY LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM. Addl.4. DISTRICT TOWN PLANNER O/O. THE DISTRICT TOWN PLANNER, THRISSUR. (ADDL. R4 IS IMPLEADED AS PER ORDER DATED 03.04.2014 IN IA.4171/2014) R1 & 2 BY ADV. SRI.SHEEJO CHACKO, SC, CHALAKUDY MUNICIPALITY R. BY ADV. GOVERNMENT PLEADER SRI E.M.ABDUL KHADIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25765 of 2013 (U) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------- EXHIBIT P1- TRUE COPY OF THE SALE DEED NO. 2261/2011 DATED 24-05-2011. EXHIBIT P1(A)- TRUE COPY OF THE SALE DEED NO. 896/2011 DATED 22-2-2011. EXHIBIT P1(B)- TRUE COPY OF THE SALE DEED NO. 2262/2011 DATED 24-5-2011. EXHIBIT P2- TRUE COPY OF THE INTIMATION TO THE PETITIONER ISSUED BY THE CHALAKUDY MUNICIPALITY DATED 27-7-2013. EXHIBIT P3- TRUE COPY OF THE JUDGMENT IN WPC NO. 27998/2012 DATED 19-06-2013. EXHIBIT P4- TRUE COPY OF THE JUDGMENT IN WPC NO. 1592/2013 DATED 06-02-2013. EXHIBIT P5- TRUE COPY OF THE JUDGMENT IN WPC NO. 31370/2009 DATED 24-08-2011. EXHIBIT P6- TRUE COPY OF THE JUDGMENT IN WPC NO. 27577/2009 DATED 17-11-2012. EXHIBIT P7- TRUE COPY OF THE DECISION REPORTED IN 2010(3) KHC 974. EXHIBIT P8- TRUE COPY OF THE DECISION REPORTED IN 2011(4) KHC 844. RESPONDENT'S EXHIBITS - NIL ----------------------- TRUE COPY p.s.to judge css/ ## **A.V.RAMAKRISHNA PILLAI, J** --------------------------------------------- W.P.(C) No.25765 of 2013 --------------------------------------------Dated this the 26[th] day of September, 2014 ## **JUDGMENT** Ext.P2, by which the respondent Municipality has refused to grant building permit to the petitioner, is under challenge in this writ petition. 2. The petitioner, his father and wife are the owners in possession of an extent of 22 cents of land comprised in Sy.Nos.455/3 and 456/7 of East Chalakudy village which are lying as a contiguous plot. It is very close to South Junction, Chalakkudy and is lying between the buildings where the branches of Catholic Syrian Bank and South Indian Bank are housed. It is a commercially important area. As the petitioner and other owners intended to construct a commercial building in the aforesaid property, they filed an application for building permit for the WPC No.25765 of 2013 2 construction of a commercial building. This was declined by the respondent Municipality by Ext.P2 on the ground that in the revenue records, the land is shown as Nilam and as per the Town Planning Scheme, the land is earmarked as an area to be acquired for industrial use. The petitioner alleges that the said land is a dry land for more than 25 years and the Town Planning Scheme of the Chalakkudy Municipality was formulated in the year 1974 and no action was taken by the Municipality for implementing the said scheme. It is with this background, the petitioner has come up before this Court. 3. In the counter affidavit filed by the State, they would contend that the surrounding area of the property of the petitioner is a vacant space and it was zoned as area to be acquired for industrial use in the Detailed Town Planning Scheme. They would admit that few commercial buildings are located in the nearby areas on the basis of the exemption WPC No.25765 of 2013 3 given by the Government from zoning regulations. They would contend that the proposed construction is in violation of the zoning regulations of the sanctioned DTP scheme. The denial of the permit by the Municipality is justifiable; it was contended. 4. The respondent Municipality has filed a detailed counter affidavit contending as follows: The petitioner has applied for grant of a building permit for the construction of a commercial building in Sy.No.455/3 and 456/7 of east Chalakudy Village and the respondent Municipality has considered the application. On scrutiny, it was found that the property belonging to the petitioner is an area to be acquired for industrial use as per the Detailed Town Planning Scheme framed by the Municipality. Further, the land belonging to the petitioner was found 'Nilam' disentitling the petitioner to obtain a building permit. Accordingly, Municipality has rejected the application for grant of building permit by Ext.P2. It was stated that WPC No.25765 of 2013 4 Detailed Town Planning Scheme for the market area of the Chalakudy Municipality was sanctioned in the year 1983 with the intention of planned development in the central area of the town. The grant of license will be a violation of the sanctioned Detailed Town Planning Scheme. The rejection of the application was to protect the public interest of overall development of the town. It was further pointed out that a Division Bench of this Court held that the Act does not confer power on the Government to tamper with approved development scheme and Government has no power to grant individual exemption. The true copy of the judgment in WPC No.8740/97 reported in _**Sayeesh Kumar**_ v _**State of Kerala**_ (2005 (4) KLT 1027) is produced as Ext.R1(a). The direction of this Court regarding zonal exemption is still existing; it was contended. It is further stated that this Court had occasion to consider the scope of granting building WPC No.25765 of 2013 5 permits in areas where Town Planning Scheme under the Act is in force and this Court has held that where a Town Planning Scheme under the Act is in force, provisions or regulations thereunder shall prevail over the provisions of the Municipality Building Rules. The Secretary of the Municipal Corporation, while issuing building permits should ensure that construction does not breach provisions of any other law which also includes a validly framed and duly notified scheme under the Town Planning Act. Hence the scheme notified under the Act assumes the nature of law that regulates future construction in the area and binding on subsequent purchasers of such land and users. Further, Rule 3A of the Kerala Municipality Building Rules, which came into force with effect from 16.12.2009 clarifies that wherever a Town Planning Scheme under the Town Planning Act is in force, the provisions or regulations thereunder shall prevail over the respective provisions of the Kerala Municipality WPC No.25765 of 2013 6 Building Rules. The true copy of the decision reported in _**Philip George C.**_ v _**State of Kerala and others**_ (2014(2) KHC 220) is produced as Ext.R1(b). Thus, the Secretary of the Municipal Corporation is statutorily obliged to ensure that the construction in respect of which permit is issued does not breach the provisions of any law; it was contended. Moreover, the Governor has promulgated the Kerala Town and Country Planning Ordinance, 2013 and as per Section 42 of the said Ordinance, an existing plan or Detailed Town Planning Scheme to be deemed a Master Plan or a detailed Town Planning Scheme under this ordinance. The Detailed Town Planning Scheme for the Chalakudy Market Area was sanctioned vide G.O. (MS) No.192/83 LAD dated 5.11.83 covering an area of 46 Hectares with the laudable objective of planned development of the area, widening of roads, extension of planned residential WPC No.25765 of 2013 7 development and improvements to the market. The true copy of the relevant page of G.O.(MS) No.192/83 is produced as Ext.R1(c). It is pointed out that Ext.R1(c) was never challenged before this Court and Rule 3A of the Kerala Municipality Building Rules, 1999 brought into force with effect from 16.12.2009 is also not challenged in any manner. The scheme notified under Section 12 will not lapse on the non-implementation of the scheme within a prescribed period as per the decision reported in _**Francis**_ v _**Chalakkudy Municipality**_ (1999(3) KLT 560(F.B.); it was contended. Pursuant to Ext.R1(a) judgment, the Principal Secretary to Government has issued an order cancelling the exemption orders granted after 23.11.2005. The true copy of the order dated G.O.(MS) No.201/2007 dated 1.9.2007 is produced as Ext.R1(d). Moreover, the respondent Municipality has received a letter dated 17.5.2007 referring to Ext.R1(a) judgment and pointing to its declaratory nature. True copy of WPC No.25765 of 2013 8 the letter dated 17.5.2007 is produced as Ext.R1(e). True copy of the letter dated 14.1.2008 is also produced as Ext.R1(f). The claim of the petitioner that his property is not nilam and the petitioner's land is pucca dry land and there is no cultivation for the last 25 years is denied. Therefore, they prayed for a dismissal of the writ petition. 5. I have heard the learned senior counsel for the petitioner, the learned Government Pleader and the learned standing counsel for the respondent Municipality. 6. The petitioner's application was rejected for two reasons: The first reason is that as per revenue records, the property is classified as paddy field. This Court in _**Shahanaz Shukkoor**_ v _**Chelannur Grama Panchayat**_ (2009(3) KLT 899) has held that a mere description of an item of property as nilam (paddy field) or wetland, in revenue records, is insufficient to assume that the land cannot be used WPC No.25765 of 2013 9 for any purpose other than those for which a paddy field or wetland can be used. This is because of the Kerala Conservation of Paddy Land and Wetland Act, 2008 deals with the conversion of lands, which are wetland or paddy fields, on the basis of actual fact situation and not depending on the description of the property in the revenue records. 7. In the instant case, even according to the State, the property and the surrounding properties are lying vacant. The property is situated on the side of old National Highway. Government does not have a case that the property is a cultivating paddy field. They have admitted that commercial buildings have come up in the locality on the basis of exemption granted. 8. The second reason for rejecting the application for building permit is that in the Town Planning Scheme, the petitioner's land is earmarked as area to be acquired for industrial use. 9. In support of the stand taken by the Municipality, the learned standing counsel for the respondent Municipality invited my attention to WPC No.25765 of 2013 10 Section 42 of the Kerala Town & Country Planning Ordinance (Ordinance No.41/2013) (hereinafter referred to as the Ordinance) and argued that any plan submitted after the date of promulgation of the aforesaid Ordinance has to comply with the provisions of draft master plan already published which shall be deemed to be the notification under Section 38(1) of the ordinance for the town. ## 10. Section 42 reads as under: _“Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat to necessarily make Detailed Town Planning Scheme in certain cases - Notwithstanding anything contained in this Ordinance, in respect of any area for which planned development is necessary but not initiated by the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned, the District Planning Committee or the Metropolitan Planning Committee, as the case may be, or the Government, may, after making such enquiry as may be deemed necessary, by a notification in the Official Gazette require the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat to prepare, publish and submit for sanction a_ WPC No.25765 of 2013 11 _detailed Town Planning Scheme as provided under this Ordinance and the notification so issued shall be deemed to be the notification of the intention to prepare the plan under sub-section (1) of Section 38”._ 11. Reliance was also placed in the decision of this Court in _**Francis**_ v _**Chalakkudy Municipality**_ (1999(3) KLT 560 (F.B.) 12. The learned senior counsel for the petitioner per contra referring to _**Francis**_ v _**Chalakudy Municipality**_ (1999(3) KLT 560(F.B.) argued that though the scheme notified under Section 12 of the Town Planning Act, 1108 will not lapse on the steps for acquisition not being taken within three years of the notification, the Full Bench while considering the issue in the aforesaid case referred to the decision of the Calcutta High Court in _**Ratan Chand Burman**_ v _**Calcutta Improvement Trust**_ (AIR 1991 Cal.282) which struck down the proceedings for acquisition under a Town Planning Scheme which was not executed even after lapse of 26 years of the scheme. There, WPC No.25765 of 2013 12 the Calcutta High Court, held that unexplained and inordinate delay is relevant, if not a conclusive factor in determining the colourable exercise of power in the context of land acquisition proceedings. 13. The learned senior counsel for the petitioner argued that the respondent Municipality in that case was not in a position to submit that the scheme would be implemented immediately so that the land concerned would be acquired for the purpose envisaged by the scheme within a specified time limit, though it was submitted that steps were being taken to implement the scheme. In the case on hand also, the respondent Municipality is not sure as to when the aforesaid scheme would be implemented. They have no case that any step has been initiated in that direction. 14. In _**Francis'**_ s _case_ (cited supra) the Full Bench further observed that the scheme in that case was notified on 6.3.1984 and the original WPC No.25765 of 2013 13 petition was filed after the lapse of 11 years from the date of that notification. Therefore, it was observed that in the context of indefiniteness in the implementation of the scheme and the stand adopted by the respondent Municipality, it may be open to the petitioner to challenge the scheme itself as having become arbitrary and unconstitutional since the restrictions imposed by the scheme have become oppressive and unreasonable. In this context, the learned counsel for the respondent Municipality has pointed out that the petitioner has not so far challenged the scheme. 15. However, such an opportunity would be available to the petitioner only when the proceedings for acquisition are initiated. The question whether the proceedings for acquisition, if any, initiated is constitutionally valid would arise only when the land in possession of the petitioner is sought to be acquired invoking the provisions of WPC No.25765 of 2013 14 Land Acquisition Act. 16. A Division Bench of this Court in _**Kalpetta Municipality**_ v. _**M. Mohandas and Others**_ [2011 (4) KHC 844] held that merely because a land is proposed to be acquired under the Town Planning Scheme, the building permit cannot be rejected. 17. The learned senior counsel for the petitioner invited my attention also to a Division Bench decision of this Court in _**Padmini**_ v. _**State of Kerala**_ [1999 (3) KLT 465] wherein it was held that no building permit can be refused to any person, because there is a proposal to acquire the land in future. Reliance was also placed on the decision of the Apex Court in _**Raju S. Jethmalani**_ v. _**State of Maharashtra**_ [(2005) 11 SCC 222] wherein it was held that refusing to grant permits relying on obsolete DTP schemes is a clear violation of the provisions of the Constitution. On a consideration of the entire materials now placed on record, this Court is of the definite WPC No.25765 of 2013 15 view that the petitioner is entitled to get the reliefs prayed for. Therefore, the writ petition is allowed. The respondent Municipality is directed to re-consider the application of the petitioner and grant building permit, in the light of what has been stated above, after making the inspection of the property for ascertaining the ground realities and after affording the petitioner an opportunity of being heard within a period of one month from the date of receipt of a copy of this judgment. **Sd/- A.V.RAMAKRISHNA PILLAI JUDGE** css/ true copy P.S.TO JUDGE