Sathish B. v. Palakkad Municipality

_**WP(C).3077/19**_ 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 11TH DAY OF OCTOBER 2019 / 19TH ASWINA, 1941** ## **WP(C).No.3077 OF 2019(H)** ## **PETITIONER/S:** **SATHISH B. AGED 40 YEARS S/O.U BALASUBRAMANIAN, RESIDING AT LAKSHMI, KARNAKI NAGAR, PALAKKAD, VADAKKANTHARA.P.O., KERALA-678013.** **BY ADVS. SRI.JOLLY JOHN SMT.LIZA MEGHAN CYRIAC SMT.C.S.RESHMI SRI.K.J.SHARATH KUMAR SMT.SANGEETHA THOMAS SMT.PREETHU PRADEEP** ## **RESPONDENT/S:** **1 PALAKKAD MUNICIPALITY, PALAKKAD, KERALA-678001, REPRESENTED BY ITS SECRETARY. 2 ADDL.R2. DISTRICT TOWN PLANNING OFFICER, DISTRICT PLANNING OFFICE, (PLANNING WING) NODAL OFFICE, PALAKKAD - KODUVAYUR, MEENAKSHIPURAM HWY.** **IS IMPLEADED AS ADDL.R2 AS PER ORDER DATED 5-4-19 IN I.A.NO.2/19.** **R1 BY ADV. SRI.T.C.SURESH MENON R1 BY ADV. SRI.BINOY VASUDEVAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**WP(C).3077/19**_ 2 ## **JUDGMENT** The writ petition is filed challenging Ext.P9 by which the first respondent Municipality rejected the application for building permit submitted by the petitioner. The reasons stated in Ext.P9 are threefold: (i) the property where the building is proposed to be constructed is part of an unauthorised lay out (ii) the property falls under 'agriculture (paddy) zone' as per the approved master plan (iii) the plan is not in accordance with the Kerala Municipality Building Rules, 1999. 2. As per the averments in the writ petition, the property of the petitioner admeasuring 5 Ares covered by Ext.P1 document has been dry land since time immemorial. However, the property was wrongly described as _'nilam'_ in the revenue records. Even though, at the instance of the previous owner of the property, a large tract of land including the petitioner's property, was declared as “land not cultivated with paddy for the past 50 years and thus not subject to the provisions of the Kerala Land Utilisation (KLU) order”, the land was included in the draft data bank as 'paddy land'. Even though an application for rectifying the anomaly was submitted before the _**WP(C).3077/19**_ 3 Local Level Monitoring Committee (LLMC), no action was taken and hence, W.P.(C) No.36755 of 2017 was filed. By Ext.P2 judgment, this Court allowed the writ petition directing the LLMC to take a decision in the light of the orders by which the property was declared to have been converted as dry land prior to the KLU Order. Again the petitioner approached this Court in W.P.(C) No.1869 of 2018, when the first respondent Municipality refused to take a decision on the application for building permit. By Ext.P4, this Court disposed the writ petition directing the LLMC to pass orders on the application submitted by the petitioner within six weeks, without seeking the assistance of KSREC, since in the previous judgment, it was already found that the petitioner's land is neither paddy land nor wet land. It was further directed that on the petitioner producing a copy of the order passed by the LLMC, the first respondent Municipality shall consider the same and pass orders on the application for building permit submitted by the petitioner. The petitioner was also permitted to produce the order to be passed by the LLMC, together with the orders obtained under the KLU Order, before the Land Tax Authorities for causing a fresh assessment and _**WP(C).3077/19**_ 4 consequential change in classification of the land in the basic tax register. Appeal filed against Ext.P4 judgment by the LLMC was dismissed by Ext.P5, specifically noting that the land in the case was included in the data bank by mistake and therefore, it is only appropriate that the mistake is corrected at the earliest. Finally, the LLMC issued proceedings removing the petitioner's properties from the data bank. Thereupon, the petitioner filed a revised building permit, which stands rejected as per Ext.P9. 3. The petitioner challenges the findings in Ext.P9 on the ground that his property is lying as dry land, which fact has been accepted in Exts.P3 and P4 judgments and therefore, a separate lay out development permit is not required. The other ground of challenge is that rejection of the application for building permit, based on a master plan prepared in accordance with the provisions of the Town Planning Act which has become obsolete, is illegal. Challenge is also made on the ground that even though one of the reasons stated in Exhibit P9 is that the plan is not in accordance with the provisions of the KMBR, it is not stated as to which provision of the KMBR is violated. _**WP(C).3077/19**_ 5 4. On behalf of the first a respondent Municipality, statement is filed stating that the Municipality is not in a position to issue building permit for the reason that as per the existing master plan, the property is within the agricultural zone. The second respondent District Town Planning Officer has filed a counter affidavit contending that as per Rule 4(1) of the KMBR, no person shall develop or redevelop any parcel of land or cause the same to be done without first obtaining a permit for each such development or redevelopment from the Secretary. It is also submitted that the Secretary can issue a building permit only in accordance with the sanctioned master plan and the Kerala Municipal Building Rules and other prevailing rules. 5. Heard Sri.Jolly John, learned counsel for the petitioner, Sri.Binoy Vasudevan, learned Standing Counsel for the first respondent Municipality and the learned Government Pleader. 6. As rightly contended by the learned Counsel for the petitioner, inasmuch as his property has already been developed, the objection on the ground that he has not obtained a development permit, cannot be sustained. The petitioner has produced Ext.P10, _**WP(C).3077/19**_ 6 which is the true copy of the draft master plan prepared by the Municipality as per the Kerala Town and Country Planning Act, 2016 and uploaded in the website. It is contended that as per Ext.P10, the area where the petitioner's property is situated is demarcated as residential area and hence, the objection on the premise that the petitioner's land falls within agricultural zone no longer subsist. It is hence prayed that the Municipality may be directed to reconsider the petitioner's application, based on Ext.P10 draft master plan. 7. The learned Standing Counsel for the Municipality submits that the building permit cannot be granted in terms of Ext.P10 unless and until the draft master plan is finalised. In the nature of the contention, it would be apposite to consider the decision of this Court in **Kannur Municipality and another v. Nafeesa Yousuf and others [ILR 2015 (3) Ker. 1057]** . In _**Kannur Municipality**_ , an application for building permit was rejected on the ground that as per the master plan published by the Municipality, there was a proposal to widen the road and therefore the building could be constructed only after leaving the requisite distance from the central line of the road in accordance with the proposal. The _**WP(C).3077/19**_ 7 petitioner therein relied on the decisions in _**Padmini v. State of Kerala [ILR 1999 (3) Ker.761]**_ and _**Raju S.Jethmalani and others v. State of Maharashtra and others [(2005) 11 SCC 222]**_ to contend that the rejection of an application for building permit based on a proposed master plan/acquisition is unsustainable. The plea was accepted and the writ petition allowed. Aggrieved, the Kannur Municipality filed appeal and the Division Bench, on consideration of the relevant provisions of the Town and Country Planning Ordinance, 51 of 2013 [now the Town and Country Planning Act, 2016] held as follows: _“16. Once the draft master plan has been published in terms of subsection (4) of S.29 of Ordinance 51 of 2013, in terms of sub-section (11) the provisions thereof shall continue in operation until the master plan is sanctioned. A copy of the master plan is placed before us for perusal. The learned counsel relied upon table 28.1 which gives details of the 21 meter wide road and it is stated that the proposed width of the Pambanmadhavan road is 21 meters._ _17. It is therefore clear from the statutory provisions relating to preparation of master plan and the restrictive clauses after coming into operation of the master plan that 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 the master plan or Detailed Town Planning schemes under the Ordinance. It is also not in dispute that the date of coming into operation of the plan for the purpose of S.45 shall be the date of publication of_ _**WP(C).3077/19**_ 8 _the notice in the official gazette intimating the fact of sanction of the plan by the Government._ _18. At this juncture, we may also refer to judgment of the Full Bench reported in Francis v. Chalakudy Municipality, 1999 KHC 641 : 1999 (3) KLT 560 : ILR 2000 (1) Ker. 32 : AIR 2000 Ker. 39. After referring to the provisions of the Town Planning Act, 1108 and the existence of a scheme, the Full Bench held at Paragraph 22 as under:_ _“22. But we do feel that the very object of framing a town planning scheme would tend to get defeated if the scheme is not implemented within a reasonable period. The Town Planning Act concerned, does not provide for the lapsing of the scheme sanctioned under it and notified under it on the ground that the same had not been implemented within a stipulated period. S.15(3) of the Act restricts the period of restriction imposed by that Section to two years in case the draft scheme is not prepared within two years of the publication of the notification of the resolution under S.8 of the Act the restriction will close. Though S.16 of the Act imposes an obligation on the owners of the land coming within the scheme not to do anything in their lands which will impede the implementation of the scheme notified, under S.12 of the Act, it imposes no time limit on such restriction. The undefinite life given to a scheme notified under the Act without insistence on its implementation within a time frame certainly brings hardship to the owners of land included in the scheme. It may be necessary for the second respondent and the concerned authorities to consider whether a specific period shall not be statutorily prescribed for the implementation of a scheme notified under the Act after due sanction of it by the Government so as to free the owners from the shackles of restriction. But, that of course, is a matter for the legislature and we can only point out that it appears to be necessary for the State to consider whether any such safeguard in the matter of enjoyment of his own land shall not be provided to the citizen by compelling the concerned Municipality to implement the scheme within a period to be fixed by the stature itself.”_ _19. R.25(1) of KMBR specifies the minimum distance between the central line of the street and any building other than a compound wall or a_ _**WP(C).3077/19**_ 9 _fence. Sub Rule (2) of R.25 further indicates that any restriction under street alignment or building line or both, if any, fixed for area and restriction under any development plan or any Detailed Town Planning scheme or approved road widening proposal shall apply simultaneously to all buildings in addition to the provisions contained in sub Rule (1). Therefore, if a Master plan is prepared in terms with the Ordinance aforesaid and is applicable, necessarily the restrictions in the Master plan also applies in terms of R.25(2)._ _20. The learned Single Judge proceeded on the basis that in the absence of any acquisition of properties pursuant to Town Planning Scheme, the building permit cannot be refused. Of course, the above proposition depends upon the factual circumstances in each case. If there is any statutory restriction on the part of an applicant to construct the building during the finalisation of a Master plan or Town Planning Scheme, whether such a blanket observation can be made, is the question._ _21. It is apparent from the statutory provisions referred above that R.25(2) clearly restricts the Municipality from issuing a building permit contrary to the Master plan. S.29(11) of Ordinance No. 51/2013 gains importance which indicates that the provisions of Master plan published under sub Section (4) of S.29 shall continue to be in operation until the Master plan is sanctioned and even if the time limit prescribed under sub Sections (2) to (8) are not complied, the existence of publication of the draft Master plan in terms of S.29(4) cannot be disputed. The learned counsel has also placed before us a final report on the Master plan. In such circumstances, when the finalisation of the Master plan is pending consideration, we do not think that the Municipality has committed any error in issuing Ext. P2.”_ 8. In this context, Section 63 of the Kerala Town and Country Planning Act, 2016 assumes relevance. As per Section 63(1) of the Act, Local Self Government Institutions are empowered to prepare Interim Development Orders and forward the same to the _**WP(C).3077/19**_ 10 Government for sanction, pending finalisation of the detailed master plan. In Sub-section (2) the Government may, in consultation with the Chief Town Planner, approve the Interim Development Orders forwarded to it under sub-section (1) with or without modifications. On approval of the Interim Development Orders by the Government, the grant of building permits would be governed by the provisions contained in the Interim Development Orders. Sub-section (4) of Section 63 stipulates that the restrictions imposed by the Interim Development Orders shall cease to operate with the coming into operation of the master plan. As per third proviso to Section 63(4), where no Interim Development Orders are issued, use and development of land in the area shall be governed by the provisions of the published draft plan from the date of publication of the notice in the Official Gazette inviting objections and suggestions, if any, thereon under the provisions of the Act. 9. It is hence clear that once a draft master plan is published, consideration of the applications for building permit shall be in accordance with that plan, till the master plan is sanctioned. It is the specific case of the petitioner that in Ext.P10; the draft master _**WP(C).3077/19**_ 11 plan, the area where the petitioner's property is situated is demarcated as residential zone. If that be the case, it is only appropriate that the first respondent Municipality consider the petitioner's building permit in accordance with Ext.P10. In the result, the writ petition is disposed of directing the first respondent Municipality to reconsider the application for building permit dated 27.11.2018 submitted by the petitioner and take a decision, with reference to Ext.P10, within a period of one month from the date of receipt of a copy of this judgment. It is made clear that while reconsidering the application, the first respondent Municipality will be at liberty to consider as to whether the application and plan satisfy the mandatory requirements under the KMBR. No order as to costs. Sd/- 11.10.2019 **V.G.ARUN JUDGE** Scl/ _**WP(C).3077/19**_ 12 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE DOCUMENT NO.1234/2017 DATED 12.6.2017 OF PALAKKAD SUB REGISTRY. EXHIBIT P2 THE TRUE COPY OF THE JUDGMENT DATED 15.11.2017 PASSED BY THE HON'BLE HIGH COURT IN WRIT PETITION(CIVIL)36755/2017.** **EXHIBIT P3 THE TRUE COPY OF THE ONLINE APPLICATION SUBMITTED BY THE PETITIONER NO.1 BEFORE THE RESPONDENT. EXHIBIT P4 THE TRUE COPY OF THE JUDGMENT DATED 30.1.2018 IN WPC.1869/2018. EXHIBIT P5 THE TRUE COPY OF THE JUDGMENT DATED 3.8.2018 IN WA.1561/2018. EXHIBIT P6 THE TRUE COPY OF THE JUDGMENT DATED 15.11.2018 IN CONTEMPT CASE (CIVIL)NO.761/2018. EXHIBIT P7 THE TRUE COPY OF THE JUDGMENT DATED 18.7.2016 IN WPC.NO.4853 OF 2016. EXHIBIT P8 THE TRUE COPY OF THE JUDGMENT IN WPC.NO.9528 OF 2016. EXHIBIT P9 THE TRUE COPY OF THE ORDER NO.BA/387/1718/B4 DATED 14.1.2019 PASSED BY RESPONDENT REJECTING THE REVISED BUILDING PERMIT APPLICATION FILED BY THE PETITIONER. EXHIBIT P10 THE TRUE COPY OF THE DRAFT MASTER PLAN PREPARED BY THE 1ST RESPONDENT UNDER KERALA TOWN AND COUNTRY MASTER PLAN ACT 2016 AND UPLOADED IN THEIR WEBSITE; PERTAINING TO THE EXHIBIT P1 PROPERTY.**