Pyas Thomas v. Secretary Local Self Government (RD) Department, Thiruvananthapuram; Chief Town Planner, Thiruvananthapuram; Senior Town Planner, Ernakulam; Muvattupuzha Municipality; Secretary, Muvattupuzha Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942** ## **WP(C).No.29214 OF 2015(B)** ## **PETITIONER:** **PYAS THOMAS AGED 49 YEARS** **MANAGING PARTNER, M/S. SHALOM SHOPPING COMPLEX, KAROTTU PUTHENPURAYIL, PALAKKUZHA, MUVATTUPUZHA TALUK.** **BY ADVS. SRI.MATHEW JOHN (K) SHRI.DOMSON J.VATTAKUZHY** ## **RESPONDENTS:** - **1 THE SECRETARY LOCAL SELF GOVERNMENT (RD) DEPARTMENT, THIRUVANANTHAPURAM 695001.** - **2 THE CHIEF TOWN PLANNER THIRUVANANTHAPURAM 695001.** - **3 THE SENIOR TOWN PLANNER ERNAKULAM 682011.** - **4 THE MUVATTUPUZHA MUNICIPALITY MUNICIPAL OFFICE, MUVATTUPUZHA 686661, REPRESENTED BY THE SECRETARY.** - **5 THE SECRETARY MUVATTUPUZHA MUNICIPALITY, MUNICIPAL OFFICE, MUVATTUPUZHA 686661.** - **R1 TO R3 BY ADV.SMT.G.RANJITA, GOVERNMENT PLEADER R4-5 BY SRI.V.M.KURIAN, SC, MUVATTUPUZHA MUNICIPALITY R4-5 BY SRI.L.RAM MOHAN, SC, MUVATTUPUZHA MUNICIPALITY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.29214 OF 2015(B) 2 ## **W.P.(C) No.29214 of 2015** ## **------------------------------------------** ## **J U D G M E N T** Petitioner owns, along with others, a land measuring 1.72 Acres situated within the limits of the fourth respondent, the Muvattupuzha Municipality (the Municipality). The owners of the land preferred an application for building permit to put up a commercial complex in the said land. As the structure proposed by the petitioner and others was one for which layout approval of the competent authority was required under the building rules, the Municipality forwarded the application to the competent authority for layout approval, viz, the second respondent and the second respondent, in turn, granted layout approval for the project. Thereupon, the Municipality issued the building permit sought by the petitioner and others. Ext.P7 is the building permit issued on 16.03.2010. While the construction of the building was proceeding on the strength of Ext.P7 building permit, the owners decided to have a few theatres also in the second floor of the complex and they have, therefore, applied for a revised building permit. Since the nature of occupancy of the building was proposed to be changed, the application submitted by the owners in this regard was again sent to the second respondent by the WP(C).No.29214 OF 2015(B) 3 Municipality for revised layout approval. Ext.P10 is the recommendation made in this regard by the Secretary of the Municipality. On the said recommendation, the second respondent directed the third respondent to ascertain and report as to whether the construction is in conformity with the published town planning schemes for the Municipality namely Central Area DTP Schemes and DTP Schemes for bus stand complex. Ext.P12 is the communication issued by the second respondent in this regard. On a query from the third respondent based on the said communication, the Municipality issued Ext.P14 communication to the second respondent stating that the particulars of the DTP schemes referred to in Ext.P12 are not available in the Municipality. Thereupon, though the second respondent had called upon the third respondent to find out the particulars of the DTP schemes referred to above, both the Municipality and the third respondent expressed their inability to find out the particulars of the DTP schemes. Since the particulars of the DTP schemes could not be traced, the second respondent, as per Ext.P19, referred the recommendation of the Municipality for revised layout approval to the Committee constituted by the Government for appropriate recommendations as to the changes to be brought in the various master plans and the DTP schemes sanctioned by the Government. The petitioner is aggrieved by Ext.P19 decision of the WP(C).No.29214 OF 2015(B) 4 ## second respondent. 2. On 21.10.2015 this court passed the following interim order. “Provisional permission shall be granted to the petitioner on the basis of the revised building permit application put in by him. The permission would be subject to the result of the writ petition. The petitioner can construct on the basis of the provisional permission at his own risk and cost.” It is seen that in the light of the said interim order, a portion of the construction has been completed and the petitioner has applied for a partial completion certificate. The said request was not considered by the Municipality. In the circumstances, this court passed the following interim on 22.01.2016 on I.A. No.29 of 2016 filed by the petitioner in this regard : “This is an application for direction to issue completion certificate as requested in Ext.P21. The learned counsel for the petitioner submits that orders may be issued to number the building in question. Heard the learned counsel for the petitioner and the learned counsel for the respondents. There shall be an interim direction to number the building subject to the result of the orders to be passed in the writ petition.” Pursuant to the said order, partial occupancy of the building was permitted by the Municipality. Thereafter, the remaining part of the building was also completed and on completion of the remaining part, the Municipality permitted the petitioner to occupy the said part as WP(C).No.29214 OF 2015(B) 5 well in the light of an interim order passed by this court similar to the one dated 22.01.2016. 3. A counter affidavit has been filed by the third respondent in the matter contending that in terms of the building rules applicable, construction in areas covered by DTP schemes shall be in accordance with the schemes and that since the particulars of the DTP schemes are not available, steps are to be taken by the Municipality for revising the published DTP schemes as per The Kerala Town and Country Planning Act, 2016. 4. Heard the learned counsel for the petitioner, the learned Government Pleader as also the learned Standing Counsel for the Municipality. 5. On 20.01.2021, when this matter was taken up, this court entertained a doubt as to whether there exists any impediment other than the impediments on account of the DTP schemes for considering the application for revised layout approval sought in respect of the building. An interim order was passed therefore on the said day directing the Government Pleader to ascertain and report as to the particulars of such impediments. In response to the said interim order, the learned Government Pleader submitted today that there are no impediments whatsoever for considering the application for revised layout approval in respect of the building other than the impediments WP(C).No.29214 OF 2015(B) 6 on account of the DTP schemes. 6. The short question arises for consideration therefore is as to whether the second respondent was justified in refusing to grant revised layout approval sought in respect of the building. 7. As noted, before issuing building permit to the petitioner, on a reference from the Municipality, the second respondent granted layout approval for the building and it is on the strength of the said layout approval that the Municipality has issued building permit to the petitioner. As indicated, revised layout approval was necessitated for the building as there was a change as regards the occupancy in relation to a portion of the building. Earlier, the said portion was intended for commercial occupancy and the petitioner wanted to change the same to assembly occupancy for establishing a few theatres. There is no case for the second respondent that the DTP schemes stand in the way of changing the occupancy. Instead, the case of the second respondent is as to whether the very building is permissible in the light of the DTP schemes. In so far as the petitioner was given layout approval for the building once and since the petitioner has proceeded with the construction substantially based on the said layout approval, according to me, the second respondent is precluded from declining the revised layout approval sought in respect of the building. WP(C).No.29214 OF 2015(B) 7 8. Be that as it may. As noted, the revised layout approval sought in respect of the building was not granted on account of the DTP schemes namely Central Area DTP Schemes and DTP Schemes for bus stand complex published for the municipal area. In Ext.P12 communication, the second respondent has stated that the building in the nature of one proposed by the petitioner is permissible in terms of the Central Area DTP Scheme. The doubt expressed in the said communication is only concerning the DTP Schemes for bus stand complex. Ext.P19 communication indicates that the doubt now stands in relation to the said scheme is as to whether the land where the building is constructed is one proposed to be acquired for the road to the proposed bus stand complex as per the said DTP Scheme. The materials on record indicate that the aforesaid DTP schemes are not sanctioned DTP schemes, though they were published. The materials also indicate that the said schemes were published almost 40 years ago. In other words, the road widening proposal in the DTP scheme referred to in Ext.P19 is a proposal made in a draft DTP scheme published about 40 years ago. According to me, the said DTP schemes which have not been sanctioned even after 40 years of its publication are to be treated as obsolete and unenforceable since such proposals cannot now be enforced [See **Francis v. Chalakudy Municipality,** 1999(3) KLT 560 (FB)]. The DTP schemes shall be held to be obsolete WP(C).No.29214 OF 2015(B) 8 and unenforceable also for the reason that the particulars of those are not available either with the Municipality or with the Town Planning Department of the State Government. In the said view of the matter, according to me, the second respondent ought to have granted the revised layout approval sought in respect of the building of the petitioner. In the result, the writ petition is allowed, Ext.P19 is quashed and the second respondent is directed to grant the revised layout approval sought in respect of the building of the petitioner as recommended by the Municipality as per Ext.P10, within a period of one month. Needless to say, once the layout approval is granted, the construction of the building of the petitioner made pursuant to the interim order passed by this court shall be regularised. **Sd/-** **P.B.SURESH KUMAR** Mn ## **JUDGE** WP(C).No.29214 OF 2015(B) 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**EXHIBIT-P1-TRUE COPY OF THE NOC DATED**| |---|---| ||**19/06/2010 ISSUED BY THE EXECUTIVE**| ||**ENGINEER.**| |**EXHIBIT P2**|**EXHIBIT-P2-TRUE COPY OF THE REPLY BY THE**| ||**2ND RESPONDENT DATED 22/02/2011 TO THE 3RD**| ||**RESPONDENT.**| |**EXHIBIT P3**|**EXHIBIT-P3-TRUE COPY OF THE COMMUNICATION**| ||**BY THE SENIOR TOWN PLANNE DATED 26/05/2011**| ||**TO THE 5TH RESPONDENT.**| |**EXHIBIT P4**|**EXHIBIT-P4-TRUE COPY OF THE LETTER BY THE**| ||**5TH RESPONDENT DATED 13/06/2011 TO THE 3RD**| ||**RESPONDENT.**| |**EXHIBIT P5**|**EXHIBIT-P5-TRUE COPY OF THE COMMUNICATION**| ||**BY THE SENIOR TOWN PLANNER DATED 21/06/2011**| ||**TO THE 2ND RESPONDENT.**| |**EXHIBIT P6**|**EXHIBIT-P6-TRUE COPY OF THE PROCEEDINGS OF**| ||**THE 2ND RESPONDENT DATED 03/08/2011.**| |**EXHIBIT P7**|**EXHIBIT-P7-TRUE COPY OF THE BUILDING PERMIT**| ||**DATED 02/09/2011.**| |**EXHIBIT P8**|**EXHIBIT-P8-TRUE COPY OF THE APPLICATION**| ||**DATED 17/05/2015 SUBMITTED BY THE**| ||**PETITIONER FOR NOTIFICATION**| |**EXHIBIT P9**|**EXHIBIT-P9-TRUE COPY OF THE APPLICATION**| ||**ALONG WITH THE REVISED PLAN DATED**| ||**07/10/2014.**| |**EXHIBIT P10**|**EXHIBIT-P10-TRUE COPY OF THE PROCEEDINGS OF**| ||**THE 5TH RESPONDENT DATED 20/10/2014**| ||**RECOMMENDING SANCTION OF THE PETITIONER'S**| ||**APPLICATION**| |**EXHIBIT P11**|**EXHIBIT-P11-TRUE COPY OF THE LETTER OF THE**| ||**3RD RESPONDENT ADDRESED TO THE 2ND**| ||**RESPONDENT DATED 01/01/2015.**| |**EXHIBIT P12**|**EXHIBIT-P12-TRUE COPY OF THE LETTER DATED**| ||**20/02/2015 ISSUED BY THE 2ND RESPONDENT TO**| ||**THE 3RD RESPONDENT.**| WP(C).No.29214 OF 2015(B) 10 ## **EXHIBIT P13** **EXHIBIT-P13-TRUE COPY OF THE LETTER BY THE PETITIONER DATED 16/03/2015 TO THE 2ND RESPONDENT.** **EXHIBIT P14 EXHIBIT-P14-TRUE COPY OF THE LETTER OF THE 5TH RESPONDENT ADDRESSED TO THE 2ND RESPONDENT DATED 31/03/2015.** - **EXHIBIT P15 EXHIBIT-P15-TRUE COPY OF THE LETTER DATQED 18/06/2015 TO THE 2ND RESPONDENT BY THE PETITIONER.** **EXHIBIT P16 EXHIBIT-P16-TRUE COPY OF THE LETTER DATED 18/06/2015 BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT.** - **EXHIBIT P17 EXHIBIT-P17-TRUE COPY OF THE LETTER DATED 20/06/2015 BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT.** - **EXHIBIT P18 EXHIBIT-P18-TRUE COPY OF THE LETTER BY THE PETITIONER DATED 27/07/2015 TO THE IST RESPONDENT.** **EXHIBIT P19 EXHIBIT-P19-TRUE COPY OF THE LETTER DATED 31/08/2015 BY THE 2ND RESPONDENT TO THE IST RESPONDENT.** **EXHIBIT P20 EXHIBIT-P20-TRUE COPY OF THE LETTER BY THE IST RESPONDENT TO THE PETITIONER. EXHIBIT P21 A TRUE COPY OF THE APPLICATION DATED 19.12.2015 TO THE MUVATTUPUZHA MUNICIPALITY** //TRUE COPY// PA TO JUDGE