Guruvayoor Municipality v Kunaisumma and Government of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT :- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 WA.No.2201 of 2008 ----------------------------------AGAINST THE JUDGEMENT IN WPC.22265/2008 Dated 25/08/2008 .................... ## APPELLANT/2ND RESPONDENT:- --------------------------------------------- GURUVAYOOR MUNICIPALITY, GURUVAYOOR, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.K.K.CHANDRAN PILLAI SRI.A.S.SAJUSH PAUL. ## RESPONDENTS/ PETITIONER AND IST RESPONDENT:- ---------------------------------------------------------------------------- 1. KUNJAISUMMA, W/O.A.T. SAIDU MOHAMMED, PALATHUMVEETIL HOUSE, (WHITEWAY), ORUMANAYUR.P.O, VIA CHAVAKKAD, THRISSUR DISTRICT, REPRESENTED BY HER POWER OF ATTORNEY HOLDER A.T. SAID MOHAMMED. 2. GOVERNMENT OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT (RB) SECTION, THIRUVANANTHAPURAM. R1 BY ADV. SRI.KRISHNAKUMAR MANGOT. SRI.S.SREEDEV. R2 BY SENIOR GOVERNMENT PLEADER SMT.K.MEERA. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **H.L.DATTU, C.J. & A.K.BASHEER, J.** ----------------------------------------------------- ## **W.A.No.2201 of 2008** ---------------------------------------------Dated, this the 20[th] day of November, 2008 ## **JUDGMENT** ## **H.L.Dattu, C.J.** This writ appeal is directed against the orders passed by the learned Single Judge in W.P.(C) No.22265/2008 dated 25[th] August, 2008. By the impugned order, the learned Single Judge has allowed the writ petition and has directed the second respondent/Guruvayoor Municipality to consider the application filed by the petitioner for grant of permit to construct a non-residential complex in a residential area in accordance with the order passed by the State Government [Ext.P5(b)] dated 31.3.2005. 2. The facts in brief are: The request for building permit for construction of a commercial complex made by the petitioner was originally rejected by the Guruvayur Municipality on the ground that the area is earmarked as residential area, parking and open area under the Town Planning Scheme. Aggrieved by the said rejection order passed by the Municipality, the petitioner had approached the Secretary to the State Government for grant of exemption from the Town Planning Scheme. The Secretary to the Government, after consultation with the Town W.A.No.2201/2008 -2- Planner, Thrissur and Chief Town Planner has passed Ext.P5(b) order dated 31.3.2005, and, in that has granted exemption to the construction of a commercial building from the Zoning Regulation of the Town Planning Scheme, subject to the condition that the proposed construction should satisfy the provisions of the Building Rules, and, further, the minimum of 4.2m open space should be provided for the proposed construction. In the order it is also stated that, the petitioner should obtain development permit and building permit from the Secretary of the Guruvayur Municipality before commencing the construction. 3. The petitioner, thereafter, had made necessary application before the Municipality. 4. The competent authority of the Municipality has consulted the State Government as to whether the prayer made by the petitioner in her application can be granted. The State Government, by its order dated 1.10.2007 (Ext.P8) has advised the Secretary of the Municipality that, such permission cannot be granted in view of the judgment of a Division Bench of this Court in the case of _**(Sayeesh Kumar Vs. State of Kerala (2005 (4) KLT 1027)**_ disposed of on 7[th] November, 2005. 5. The Secretary of the Municipality, based on the advice W.A.No.2201/2008 -3- received by him from the Secretary to the Government, by his order dated 8.1.2008 has rejected the petitioner's application. 6. The petitioner, being aggrieved by Ext.P8 order passed by the State Government and Ext.P7 order passed by the Municipality pursuant to the advice rendered by the State Government in Ext.P8 order, has approached this Court for the following reliefs. They are: firstly, to quash Exts.P7 and P8 orders passed by the Municipality and State Government, and, secondly, to direct the Municipality to consider the application of the petitioner to construct the commercial complex in the plot belonging to her, in compliance with Ext.P5 (b) order dated 31.3.2005. 7. The learned Single Judge, being of the opinion that, Ext.P5(b) order was prior to the orders passed by this Court, has directed the Municipality to consider the application of the petitioner in the light of Ext.P5(b) order passed by the State Government dated 31.3.2005. In the order passed, there is no other discussion with regard to any other grounds canvassed by the petitioner in the writ petition. 8. The second respondent/Guruvayur Municipality is before us, _inter alia_ , calling in question the correctness or otherwise of the orders passed by the learned Single Judge. W.A.No.2201/2008 -4- 9. Sri.K.K.Chandran Pillai, learned counsel appearing for the Municipality would submit that, the directions issued by the learned Single Judge to consider the application of the petitioner for grant of permit to construct a non-residential complex in a residential complex relying upon Ext.P5(b) order passed by the State Government dated 31.3.2005 is contrary to the law declared by a Bench of this Court in the case of _**(Sayeesh Kumar Vs. State of Kerala (2005 (4) KLT 1027).**_ 10. Per contra, learned counsel Sri.Krishnakumar Mangot appearing for the contesting respondent in the appeal would submit, that, the learned single Judge was justified in directing the Municipality to consider the application filed by the petitioner for grant of permit to construct a non-residential complex in a residential area, for the reason that, the State Government had already granted exemption to the petitioner from the Zoning Regulation of the Town Planning Scheme by passing Ext.P5(b) order dated 31.3.2005. It is further stated that, the judgment rendered by this Court in _**Sayeesh Kumar'**_ s case _(supra)_ was on 7[th] November, 2005, and, therefore, the authorities cannot be applying the principles declared in the aforesaid decision. The learned counsel also tries to point out the other grounds urged by him in the writ petition. But, we are afraid we can consider those grounds for the reason W.A.No.2201/2008 -5- that those grounds were never argued before the learned Single Judge. That only means that the petitioner had given up those contentions urged in the writ petition. 11. A Bench of this Court in _**Sayeesh Kumar'**_ s case (s _upra)_ has categorically stated that Town Planning Act confers no power to the State Government to tamper with the approved development scheme. It is further stated in the judgment that the Government has no power whatsoever to grant individual exemption from the provisions of the Zoning Regulation under the Town Planning Scheme. The observation made by this Court in this regard is as under: _“We are of the view, Town Planning Act confers no power on the Government to tamper with the approved development scheme. Government have no power to grant individual exemption. S.13 of the Town Planning Act only enables the Government to revoke the scheme as such and not to grant individual exemption orders. In our view, the action of the Government granting exemption is arbitrary and without authority of law. Apex Court in Virender Gaur v. State of Haryana, 1995 AIR SCW 306 had interfered with the sanction given for the construction of a Dharmasala contrary to the approved municipal scheme. Apex Court held that the_ ## W.A.No.2201/2008 -6- _grant of lease by the Government was clearly without authority of law and without jurisdiction. It was also pointed out that the open lands vested in the municipality were meant for the public amenity to the residents of the locality to maintain ecology, sanitation, recreational, play ground and ventilation purposes and the buildings directed to be constructed necessarily adversely affect the health and the environment, sanitation and produce other effects on the residents in the locality. The court held, the order passed by the Government and the action taken pursuant thereto by the municipality would clearly defeat the purpose of the scheme. A Division Bench of the Delhi High Court in B-Block Residents Welfare Association v.D.D.A., AIR 2003 Delhi 169 held that converting of residential area into commercial area cannot be justified.”_ 12. In the instant case, it is not in dispute nor can be disputed by the petitioner that the Town Planning Scheme is made applicable to the Guruvayur Municipality also. It is also not in dispute that the petitioner intends to construct a non-residential commercial complex in a residential area. Originally, the application for building permit filed by the petitioner had been rejected by the Guruvayur Municipality, on the ground that, the area on which the petitioner intends W.A.No.2201/2008 -7- to construct the non-residential complex is earmarked as residential area, parking and open area under the Town Planning Scheme. 13. The orders so passed by the Guruvayur Municipality was tinkered with by the State Government on the request of the petitioner. The State Government, while passing Ext.P5(b) order dated 31.3.2005, has granted exemption from the Zoning Regulations of the Town Planning Scheme. For the reasons best known, the Guruvayur Municipality had not implemented the orders passed by the State Government on 31.3.2005. 14. It so happens in the present case that, at the time of considering the petitioner's application, the Municipality is faced with the orders passed by a Division Bench of this Court, wherein this Court has categorically stated that individual exemption cannot be granted from the Town Planning Scheme, and, further it is stated that, Town Planning Act does not confer any powers on the State Government to tamper with the approved development scheme. In view of Ext.P5(b) order dated 31.3.2005 passed by the State Government and the law declared by this Court, it might have created some confusion in the minds of the authority while considering the application filed by the petitioner, and, therefore it had thought it fit to seek necessary advice from the State Government. W.A.No.2201/2008 -8- The State Government, in view of the decision of this Court in _**Sayeesh Kumar'**_ s case (s _upra)_ has advised the Municipality that the application of the petitioner for grant of permit to construct a non-residential complex in a residential area which is declared under the Town Planning Scheme cannot be granted. The advice of the State Government is taken note of by the Secretary, Guruvayur Municipality, and, in our opinion, has rightly rejected the request of the petitioner for grant of permit for the purpose of construction of a non-residential complex. 15. The learned Single Judge, being of the opinion that Ext.P5(b) order is earlier to the orders passed by this Court in _**Sayeesh Kumar'**_ s case (s _upra)_ , has directed the Municipality to pass fresh orders in the light of the orders passed by the State Government dated 31.3.2005. In our opinion, the learned Single Judge has committed an error for the reason that, once a law is declared by the Court, that law is applied to a scheme from the date on which the said scheme has come into existence unless the Court declares that the law declared by them is prospective. We hasten to add, that, this Court has no power to declare that a law has to come into force from the date of its judgment. In that view of the matter, we cannot sustain the orders passed by the learned Single Judge. Accordingly, we pass the following: W.A.No.2201/2008 -9- ## _**Order**_ (i). The Writ Appeal is allowed. (ii). The orders passed by the learned Single Judge in W.P.(C) No.22265/2008 dated 25[th] August, 2008 is set aside. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE MS/dk