W.P.(C) Nos. 17033/2013 (D) and 17733/2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **THURSDAY, THE 14TH DAY OF AUGUST 2014/23RD SRAVANA, 1936** ## **WP(C).No. 17033 of 2013 (D)** **----------------------------** ## **PETITIONERS:** **---------------------** ## **1. JACOB VAIDYAN,** - **S/O. LATE KOCHUOOMEN VAIDYAN, NADUYVILA KIZHAKKATHIL PUTHEN VEEDU, MYNAGAPALLY P.O., KOLLAM DISTRICT.** ## **2. SUSAN VAIDYAN,** - **W/O. JACOB VAIDYAN, NADUVILA KIZHAKKATHIL PUTHEN VEEDU, MYNAGAPALLY P.O., KOLLAM DISTRICT.** **BY ADVS.SRI.DEVAN RAMACHANDRAN SRI.BIJU VARGHESE ABRAHAM** ## **RESPONDENTS:** **------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, DEPARTMENT OF KERALA, THIRUVANANTHAPURAM-695 001.** **3. THE DISTRICT TOWN PLANNER, KOLLAM-691 001.** ## **4. KOLLAM CORPORATION,** - **REPRESENTED BY ITS SECRETARY, KOLLAM CORPORATION, KOLLAM-691 001.** **5. THE ASSISTANT EXECUTIVE ENGINEER, KOLLAM CORPORATION-691 001.** **R1 TO R3 BY SPL. GOVERNMENT PLEADER SRI.JAISANKAR R4 & R5 BY ADV. SRI.M.K.CHANDRA MOHAN DAS,SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/07/2014 ALONG WITH WPC.NO. 17733/2013,THE COURT ON 14/08/2014 DELIVERED THE FOLLOWING:** **Kss** ## **WP(C).No. 17033 of 2013 (D)** **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** ## **----------------------------------------** **EXT.P1 : COPY OF THE SANCTIONED TOWN PLANNING SCHEME OF KOLLAM TOWN DATED NIL.** **EXT.P2 : COPY OF GO(P)NO.37/08, DTD.8.2.2008.** **EXT.P3 : COPY OF THE COMMUNICATION ISSUED BY THE 5TH RESPONDENT TO THE PETITIONERS, DTD.5.3.2013.** **EXT.P4 : COPY OF THE DETAILED TOWN PLANNING SCHEME SANCTIONED AS PER GO(MS)NO.63/88/LAD.** **EXT.P5 : COPY OF A SKETCH PREPARED BY THE PETITIONERS.** **EXT.P6 : PHOTOGRAPH OF THE LAND OF THE PETITIONERS, THE ADJACENT LANDS AND THE BUILDINGS.** **EXT.P7 : COPY OF THE ORDER PW2/BA.13/09-10 DTD.1.11.2010.** **EXT.P8 : COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO.20070/2009, DTD.18.9.2009.** ## **RESPONDENT(S)' EXHIBITS:** **------------------------------------------** **EXT.R4(A): COPY OF THE GOVERNMENT ORDFER NO.G.O.(MS) NO.69/2010/LSGD DATED 6/04/2010.** **EXT.R4(B): COPY OF THE CIRCULAR NO.C1-2085/94 DATED 25/04/1994 ISSUED BY THE CHIEF TOWN PLANNER.** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **A.V.RAMAKRISHNA PILLAI, J.** = = = = = = = = = = = = = = = = = = = = W.P(C) Nos.17033 & 17733 of 2013 = = = = = = = = = = = = = = = = = = = = = Dated this the 14[th] day of August, 2014 ## **JUDGMENT** The petitioners who are owning two pieces of land within the local limits of Kollam Corporation have come up before this Court aggrieved by the rejection of their applications for building permit by the respondent Corporation. 2. The applications by the petitioners were for constructing commercial buildings. The respondent Corporation took the stand that the properties of the petitioners come within the industrial zone as per Development Plan for Quilon published in the year 1983. The petitioner in W.P(C) No.17733/2013 has come up before this for the second time. In the previous writ petition filed by him as W.P(C) No.18608/2012, this Court set aside the previous order of rejection by the respondent Corporation and directed them to reconsider the issue in the light of the principles laid down in the judgment of this WP(C)s.17033 & 17733/13 ## **-:2:-** Court in W.P(C) No.20070/2009. However, disregarding the directions, the request was again rejected by the Secretary of the respondent Corporation on the basis of the Detailed Town Planning (DTP) Scheme. ## 3. In the counter affidavit filed by respondents 1 and 2, they have contended as follows: The major aspect of a Town Planning Scheme is zoning regulations by which construction activities are regulated on zonal basis. The scheme is being implemented from the date of its notification by imposing regulatory provisions for construction activities by way of zoning regulations. The sanctioned Detailed Town Planning Scheme was prepared based on scientific studies and in consultation with the Municipal Council. The Development Plan is intended for the planned development of the area and hence the proposals of the Development Plan have to be retained as such. The Town Planning Schemes are prepared for the benefit of the public and will prevail over individual interest. Implementation of various components of Town Planning Scheme generally takes time depending upon the funds available. The Supreme Court in various judgments (Shanti Sports Club v. Union of India (2009), Friends Colony Development Committee v. State of Orissa (2004) etc.) upheld the importance of the Town WP(C)s.17033 & 17733/13 ## **-:3:-** Planning Schemes/Planned development and hence tampering of proposals in Town Planning Schemes for individual interest should not be supported. ## 4. In the detailed counter affidavit filed by the respondent Corporation, they have contended as follows: As per Section 509 of the Kerala Municipality Act and Rules an appeal can be preferred to the Council against any notice issued or any order passed or action taken by the Chairperson or the Secretary under any of the provisions of the Kerala Municipality Act other than sections 390, 391, 395, 406 and 408 or the Rules or bye laws or regulations made thereunder. As per sub clause 6 of the same section, an appeal can be preferred to the tribunal for Local Self Government Institutions against any decision passed by the Council or any order or notice issued by the Chair person or Secretary on the basis of such decision. The petitioners have not availed any of such statutory remedies. Therefore, they contended that writ petition is not maintainable and liable to be dismissed. The Corporation does not grant permit for construction of commercial buildings in residential zone. The petitioners' property are situated by the side of the Road from Taluk office to Civil Station which is a part of NH 47 road. As per the Master Plan this road is included under the category of major roads. As per the detailed Town Planning Scheme commercial buildings are not permitted in residential zone. The above said Taluk Office-Civil Station Road is proposed to be widened by 25 metres. **-:4:-** WP(C)s.17033 & 17733/13 As per Section 12(3) of the Town Planning Act, the sanctioning of schemes is the prerogative of the Government and the Government is the appropriate authority for considering the objections and suggestions, if any, and making such enquiry as it thinks fit, sanction the same with or without modifications, or may return the scheme for re-consideration. After complying with all the statutory requirements, the Government accorded final sanction to the development plan for Kollam vide Order No. GO(MS) No.69/2010 LSGD dated 6.4.2010. Copy of the Government Order dated 6.4.2010 is produced as Ext.R3(a). Therefore, the Corportion has no jurisdiction to ignore, violate, annul or modify the town planning scheme approved by the Government. If the petitioner is aggrieved by any orders passed by the respondent Corporation in compliance with the Town Planning Scheme approved by the Government he should take up the matter with the Government for appropriate relief. Even if the Government proposes to revise the plan the Government are bound to comply with all the above said formalities for revising/modifying the plan as mandated under Section 13 of the Town Planning Act. The Master Plan of the city is conceived and formulated after elaborate scientific study on the basis of modern concepts. The study is not a political exercise. It is the scientific study of competent experts in the field. Ignoring the provisions of the Master Plan and Detailed Plan would ultimately affect the interest of the public. As per the provisions of the Town Planning Act the Local Authorities are bound to abide by the regulations of the scheme. Till a scheme is varied by a subsequent scheme the provisions of the scheme would prevail. A GTP Scheme WP(C)s.17033 & 17733/13 ## **-:5:-** can be varied only by a GTP Scheme and DTP Scheme by another DTP Scheme. In areas where both the schemes are operative, the provisions of the DTP Scheme will prevail. Even though the GTP Scheme is varied, it will not have prevalence over the provisions of the DTP Scheme in force. This position has been explained in Circular No.C1-2085/94 dated 25.4.1994 issued by the Chief Town Planner. Copy of the circular is produced as Ext.R3(b). The developmental plans and schemes are prepared after inviting objections and suggestion from the public and all concerned. Huge amount of public money and man power were utilised for preparing such schemes. Any developing society cannot dispense with such schemes and plans to contain the developmental aspirations without causing certain hardships to the citizen. 5. Arguments have been heard. 6. For convenience of discussion, the parties and exhibits can be referred to as they are arrayed in W.P(C) No.17033/2013. 7. The properties of the petitioners in both the cases are situated within the planning area boundary of Ext.P1 scheme. The properties of the petitioners are situated on the side of a road having a width of 16 metres. It is relevant to note that Ext.P1 scheme is a Development Scheme (Master Plan) for Kollam town and Ext.P4 WP(C)s.17033 & 17733/13 **-:6:-** scheme is a DTP scheme which has been sanctioned for the purpose of giving effect to Ext.P1 scheme by improving the road connecting taluk office junction and civil station in consonance with the restrictions imposed in Ext.P1 scheme. Later, Ext.P2 order was issued relaxing the zoning regulations taking into account the DTP scheme sanctioned within the planning area boundary of the development plan also. Ext.P2 order categorically recites that all future developments within the planning area boundary of Ext.P1 scheme shall be in conformity with the provisions of Ext.P1 scheme. The relevant portion of Ext.P2 reads as follows:- _“(iii) Regulation of constructions on the sides of new roads/roads proposed for widening as per the scheme shall be governed by the distance from the centreline of the road, unless otherwise specified in any detailed Town Planning Schemes or detailed road alignments approved by the Chief Town Planner.”_ 8 _._ It was argued by the learned counsel for the petitioners that once the master plan is varied and restrictions are relaxed, the same would automatically apply to the lands in the planning area WP(C)s.17033 & 17733/13 **-:7:-** boundaries of all the DTP schemes brought into force till then which are within the planning area boundary of the master plan. It was pointed out that the restrictions in the DTP schemes which are saved as per Ext.P2 order are only restrictions imposed with regard to the constrictions on the side of the new roads. It was argued that the stand of the respondent Corporation and the State that the benefit of the relaxation provided for in Ext.P2 order would not be extended to the owners of the land in the planning area development of Ext.P4 scheme is misconceived and, therefore, unsustainable. 9. Section 6 of the Town Planning Act provides that a Town Planning Scheme shall determine the lines on which improvement and development of the area included in the scheme shall proceed. Insofar as Detailed Town Planning Schemes are schemes sanctioned within the planning area boundary of the Development Plan (Master Plan) for the purpose of giving effect to the Development Plan (Master Plan) of the Town, the same shall be in consonance with the Development Plan (Master Plan) as otherwise the same would defeat WP(C)s.17033 & 17733/13 **-:8:-** the provisions in Section 6 of the Act. 10. The learned counsel for the petitioners invited my attention to the decision of this Court in **James Joseph** v. **State of Kerala and Others** [W.P(C) No.20070/2009]. The said judgment is produced as Ext.P8 in W.P(C) No.17033/2013 and Ext.P2 in W.P(C) No.17733/ 2013, wherein the respondent Corporation was one of the respondents. In _**James Joseph's**_ case (supra), this Court at paragraph (8) made a reference to the decision of this Court in **Nazar** v. **Malappuram Municipality** [2009 (3) KLT 92]. Paragraph 8 of that judgment reads as follows; _“8. Further, a learned single Judge of this Court in_ _**Nazar** v._ _**Malappuram Municipality** [2009 (3) KLT 92], after analysing the case law on the point, held that acquisition of lands for the purpose of a Town Planning Scheme has to be done under the Land Acquisition Act, 1894 and that unless notifications and declarations under the Land Acquisition Act, 1894 are issued, any attempt to curb the rights of the land owners would result in infraction of their right to property under Article 300-A of the Constitution of India. It was also_ WP(C)s.17033 & 17733/13 **-:9:-** _held that any attempt to create a rider on the title of the land owner under the pretext of a Town Planning Scheme which has not become operational would be oppressive and cannot be sustained in the face of Article 14 of the Constitution of India.”_ 11. The learned standing counsel for the respondent Corporation would submit that the said observation is _per incurium_ as the decision of this Court in _**Nazar's**_ case (supra) was later reviewed in the decision reported in 2010 (1) KLT 286. While disposing of the review petition, this Court observed that **Nazar** v. **Malappuram Municipality** was rendered only with relation to the law where land acquisition becomes necessary and the judgment sought to be reviewed does not, in any manner, decide the issues referable to zoning and planning without the necessity of acquisition of land. 12. The argument advanced by the learned standing counsel for the respondent Corporation was that the aforesaid order in the review petition escaped the attention of the learned Single Judge while WP(C)s.17033 & 17733/13 **-:10:-** considering the _**James Joseph**_ **'s** case (supra). The said argument is not acceptable for two reasons. Firstly, _**James Joseph**_ **'s** case (supra) was not subjected to an appeal by the respondent Corporation. Secondly, even if the 8[th] paragraph in the judgment in _**James Joseph**_ **'s** case (supra) is not there, it will not affect the result of the case, as the decision was not based on **Nazar** v. **Malappuram Municipality** only. 13. By Ext.P2, certain relaxations were given. Relevant portion of Ext.P2 reads as follows; _“3.0._ _**Uses permitted** in a zone cover the uses that can be normally accommodated in the relevant zone. In some cases it may be possible to permit some other uses also which are not likely to affect the quality and environment in a zone specified for particular use; provided such cases have to be individually studied based on the performance, characteristics and special location factors, under the “Uses Restricted” category. Such cases which come under the category are classified as “Uses Restricted”. “Uses prohibited” enlist the various objectionable uses in each zone which_ WP(C)s.17033 & 17733/13 **-:11:-** _shall not be permitted under the normal circumstances.”_ 14. On a specific query put by me during the course of argument to the learned standing counsel for the respondent Corporation as to how many industrial units have come up on either side of the road between Kollam Taluk Office and Kollam Civil Station, the learned standing counsel could not point out even one unit. It is admitted that all the buildings by the side of the aforesaid road are either commercial or residential. That means, the respondent Corporation had granted permission for construction of commercial buildings in that area. 15. Inviting my attention to Ext.P6 photographs, the learned counsel for the petitioners submitted that just adjacent to the property of the petitioners in W.P(C) No.17033/2013, the respondent Corporation has granted permission to construct a commercial building where a shop by name “Maliyekkal Electronics” is functioning. WP(C)s.17033 & 17733/13 **-:12:-** 16. The categorisation of the petitioners' land as industrial zone, as per Ext.P4 scheme is arbitrary, unreasonable and hence, unenforceable. The stand taken by the respondents imposing such unreasonable restrictions on the right of the petitioners to put their land to beneficial use is violative of their right to property as the rejection order has the effect of depriving the petitioners' right to property without the authority of law which is prohibited under Article 300A of the Constitution. The respondents are not justified in holding the property rights of the petitioners at bay indefinitely on the plea that the land is included in the Master Plan drafted years back. The only ground on which the petitioners' application for building permit has been rejected is that according to the Master Plan, which was drafted years back, which admittedly has not even been attempted to be implemented, the petitioners' property are included in the industrial zone. 17. The petitioners are similarly circumstanced as the land owner in the case decided in Ext.P8 judgment in W.P(C) WP(C)s.17033 & 17733/13 ## **-:13:-** No.17033/2013. There is no reason for the respondents to treat the petitioners differently. 18. On a consideration of the entire materials now placed on record, this Court is of the view that the petitioners are entitled to get the reliefs as prayed for. In the result, the writ petitions are allowed. Ext.P3 in W.P (C) No.17033/2013 and Ext.P8 in W.P(C) No.17733/2013 are quashed. It is hereby declared that the rejection of the petitioners' application for building permit for the reason stated in the impugned orders cannot be sustained. The respondent Corporation is directed to reconsider the petitioners' application for building permit and to issue permit, if the application is otherwise in order. While passing the order, the respondent Corporation shall also have due regard to the fact that new commercial buildings have been put up on either side of the lands belonging to the petitioners, with the permission of the Corporation. WP(C)s.17033 & 17733/13 ## **-:14:-** Six weeks' time is granted to the respondent Corporation to process the application and to issue permits from the date of production of a certified copy of this judgment. Sd/- **A.V.RAMAKRISHNA PILLAI JUDGE** krj /True Copy/ P.A to Judge