W.P.(C) Nos.13239 of 2023 & 13423 of 2023 – Dr. Suresh Kumar Aravind and M. Aravindakshan v The Thiruvananthapuram Corporation and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS`** ``` WEDNESDAY, THE 8[TH] DAY OF NOVEMBER 2023 / 17TH KARTHIKA, 1945 ``` ## **`WP(C) NO. 13239 OF 2023`** ## **`PETITIONER:`** ``` DR SURESH KUMAR ARAVIND, AGED 60 YEARS S/O M. ARAVINDAKSHAN, RESIDING AT RUMA SULESH, T.C. 69/2040, KAMALESWARAM ROAD, MANACAUDU VILLAGE, MANACAUDU P.O, THIRUVANANTHAPURAM DISTRICT PIN 695009 REPRESENTED BY POWER OF ATTORNEY HOLDER M. ``` ``` ARAVINDAKSHAN, AGED 89 YEARS, S/O MADHAVAN RESIDING AT RUMA SULESH, T.C. 69/2040, KAMALESWARAM ROAD, MANACAUDU VILLAGE, MANACAUDU P.O, THIRUVANANTHAPURAM DISTRICT PIN 695 009, PIN - 695009 ``` ``` BY ADVS. ``` - `A.JANI(KOLLAM)` - `S.SREEKUMAR (SR.)(S-571)` ## **`RESPONDENTS:`** - `1 THE THIRUVANANTHAPURAM CORPORATION, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM CORPORATION OFFICE, THIRUVANANTHAPURAM DISTRICT, PIN - 695033` - `2 THE TOWN PLANNER, THIRUVANANTHAPURAM REGIONAL TOWN PLANNING OFFICE, FIRST FLOOR, UPPER ZONE HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM, PIN - 695001` - `3 THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM DISTRICT, OFFICE OF THE CHIEF TOWN PLANNING OFFICER, THIRUVANANTHAPURAM, PIN - 695033` - `4 THE SECRETARY TO THE GOVERNMENT OF KERALA, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM, PIN - 695001` - `5 THE THIRUVANANTHAPURAM REVENUE DIVISIONAL OFFICER, OFFICE OF THE R.D.O, THIRUVANANTHAPURAM, COLLECTORATE,, PIN - 695001` - `BY ADVS.` - `SUMAN CHAKRAVARTHY ADVOCATE GENERAL OFFICE KERALA` ## **`OTHER PRESENT:`** 2 W.P.(C) Nos.13239 of 2023 & 13423 of 2023 ``` SPL.GP.K.R.DEEPA ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSIONON08.11.2023,ALONGWITH WP(C).13423/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) Nos.13239 of 2023 & 13423 of 2023 3 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 8[TH] DAY OF NOVEMBER 2023 / 17TH KARTHIKA, 1945 ``` ``` WP(C) NO. 13423 OF 2023 ``` ## **`PETITIONERS:`** ``` M. ARAVINDAKSHAN, AGED 89 YEARS S/O MADHAVAN, RESIDING AT RUMA SULESH, T.C. 60/2040, KAMALESWARAM ROAD, MANACAUDU VILLAGE, MANACAUDU P.O, THIRUVANANTHAPURAM DISTRICT, PIN - 695009 ``` ``` BY ADVS. A.JANI(KOLLAM) S.SREEKUMAR (SR.)(S-571) ``` ## **`RESPONDENTS:`** - `1 THE THIRUVANANTHAPURAM CORPORATION, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM CORPORATION OFFICE, THIRUVANANTHAPURAM DISTRICT, PIN - 695033` - `2 THE TOWN PLANNER, THIRUVANANTHAPURAM REGIONAL TOWN PLANNING OFFICE, FIRST FLOOR, UPPER ZONE HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM, PIN - 695001` - `3 THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM DISTRICT, OFFICE OF THE CHIEF TOWN PLANNING OFFICER, THIRUVANANTHAPURAM, PIN - 695033` - `4 THE SECRETARY TO THE GOVERNMENT OF KERALA, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM, PIN - 695001` - `5 THE THIRUVANANTHAPURAM REVENUE DIVISIONAL OFFICER,` ``` OFFICE OF THE R.D.O, THIRUVANANTHAPURAM, COLLECTORATE,, PIN - 695001 ``` 4 W.P.(C) Nos.13239 of 2023 & 13423 of 2023 ``` BY ADVS. SUMAN CHAKRAVARTHY ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSIONON08.11.2023,ALONGWITH WP(C).13239/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) Nos.13239 of 2023 & 13423 of 2023 5 ## BECHU KURIAN THOMAS, J. ----------------------------------------W.P.(C) Nos.13239 of 2023 & 13423 of 2023 ---------------------------------------Dated this the 8[th] day of November, 2023 ## JUDGMENT A father and son have approached this Court seeking similar reliefs relating to their respective properties. W.P.(C) Nos.13239 of 2023 is filed by the son while W.P.(C) Nos.13423 of 2023 is filed by the father. Sri. Aravindakshan - the father, owned 42 cents in old Sy.No.2570 and 58 cents in old Sy.no.2571 of Muttathara Village. Subsequently, Sri. Aravindakshan conveyed the 42 cents in Sy.No.2570 to his son Dr. Suresh Kumar and thereafter, they are in possession of their respective properties. Since both the properties were shown in the BTR as paddy land, applications were filed to correct the entries under section 27A of the Kerala Conservation of Paddy Land and Wetland Act 2008. By order dated 28-05-2022, the Revenue Divisional Officer directed the entries to be corrected as dry land instead of paddy. Subsequent to the said order, mutation has been effected in the name of the respective petitioners in relation to their properties and they have paid taxes also. W.P.(C) Nos.13239 of 2023 & 13423 of 2023 6 2. While so, both petitioners applied for grant of approval of the layout. However, by Ext.P9 order dated 20-022023, produced in W.P.(C)No.13423/2023 as Ext.P9 and as Ext.P10 in W.P.(C)No.13239/23, the applications were pointed out as containing two defects. It was intimated that unless those defects were rectified, the applications will be dismissed. The defects pointed out were (i) concurrence from the RDO is to be produced and (ii) as per the sanctioned Master Plan, the property falls in a ‘green strip’ and therefore concurrence of the Regional Town Planning Officer is necessary. Petitioners challenge the aforesaid two orders in the two writ petitions. 3. Sri. S. Sreekumar, the learned Senior counsel assisted by Adv. Jani A., the learned counsel for the petitioners submitted that the impugned orders referring to the two defects are totally arbitrary and without any basis. It was submitted that the RDO had already granted sanction to change the entries in the BTR which has been carried out and tax had even been accepted. As far as the 2nd defect is concerned, it was submitted that the sanctioned Master Plan is not in existence and only an Interim Development Order (for short 'IDO') dated 11-9-2017, alone is in force which permits constructions upto 33.3% of the area. Reliance in support of the above contention was placed on Ext.P13 and Ext.P11 the W.P.(C) Nos.13239 of 2023 & 13423 of 2023 7 which is the scheme approved under the IDO. It is therefore submitted that petitioners may be directed to be issued with the layout approval in tune with the IDO. 4. Smt. K.R.Deepa, the learned Special Government Pleader submitted, on the basis of the counter affidavit filed on behalf of the 3[rd] respondent that the sanctioned Master Plan of 21-06-1971 treats the property of the petitioners in old Sy.No.2570 of Muttathara Village as a Green strip/Agricultural zone and though this clam was varied by a General Town Planning Scheme of 2007, subsequently, due to the freezing of the draft Master Plan prepared in 2013, the 1971 Master Plan revives and therefore construction can be carried out on the basis of the said Master plan alone. It was also pointed out that under Rule 3(iii) of the Kerala Municipality Building Rules, 2019,(for short ‘the Building Rules') the Master Plan will prevail over the respective provisions of the Building Rules and since the 1971 master plan is in force, the petitioners will have to be abide by the same. 5. Sri. Suman Chakravarthy, the learned Standing Counsel for the 1st respondent submitted, relying upon a statement filed by him, that, as per the IDO, the area falls in the Green Development Plan and the conversions and W.P.(C) Nos.13239 of 2023 & 13423 of 2023 8 constructions on the land should be in terms of Clause 5.2.2 and Clause 5.2.5 of the IDO. It is further stated that as per the Revenue Divisional Officer’s order, consent has been given only for constructions below 3000 sq.ft and that clarifications from the RDO, as well as the Regional Town Planner, are necessary in view of the above conclusions that can be arrived at from the orders issued by the said two Authorities. 6. I have considered the rival contentions. 7. The primary question that arises for consideration is whether the Master Plan of 1971 prevails over the property of the petitioners situated in S.Nos.2570 and 2571 of Muttathatra Village. 8. Section 63 of the Kerala Town and Country Planning Act 2016 deals with IDO. A perusal of the said provision elucidates that the whole purpose of bringing out an IDO is to operate during the intervening period between the creation of a Master Plan and its approval. If the contention of the Government is accepted then notwithstanding the existance of interim development orders approved by the Government, reliance has to be placed on the master plan of 1971. The said contention is untenable for various reasons. 9. While approving the Interim development order, the Government had observed that the draft Master Plan prepared W.P.(C) Nos.13239 of 2023 & 13423 of 2023 9 in 2013 for Thiruvananthapuram had to be frozen due to objections from the public. When the draft Master Plan of 2013 was frozen due to objections from the public, it would be highly inequitable to restrict the rights of property owners based upon the master plan of 1971. 10. In fact it is on realizing the difficulties of the public that the Government decided to approve the IDO which as mentioned earlier, takes care of the intervening period between the creation of a new Master Plan and its approval. The said procedure for approving an IDO is a balance of the conflicting interests of the development of the town and the proprietary rights of individual owners. 11. Taking note of the need to have a regulated development of the land which is in tune with the present requirement, the Government approved the IDO on 11-092017. After approval of the said IDO in 2017, the Government cannot contend, even for argument sake that the 1971 Master Plan ought to be relied upon. 12. In fact, a Division Bench of this Court had, in an unreported judgment in Writ Appeal No.1776/2019 Subbalekshmy S. v. Corporation of Thiruvananthapuram referred to the very same Interim Development Order and held in paragraph 13 as follows: W.P.(C) Nos.13239 of 2023 & 13423 of 2023 10 _13. From the above facts, it is rather clear that, as matters stand now, the Interim Development Order alone applies to the fact situation and not the 1971 Master Plan until a new Master Plan comes into force, or the time for preparation of the Master Plan ceases as contemplated u/s 63(4). Though the learned Government Pleader tried to salvage the situation placing reliance on the proviso to S.36(12), we do not think that the above provision will render any assistance to the Government or the Corporation to contend that the 1971 Master Plan still continues to be in force. S.36(12) and the proviso reads ad under:-_ _“36. Procedure for preparation, publication and sanctioning of Master Plan-_ _xxxx xxxx xxxx_ _(12) The provisions specified under S.63 shall continue to be in operation until the Master Plan is sanctioned, even if the time limit prescribed under sub-sections (2) to (8) are not complied with:_ _Provided that in cases where a sanctioned Master Plan already exists, its provisions shall only apply until the published Master Plan is sanctioned in accordance with this Act.”_ _In fact, S.63 starts with a non obstante clause and therefore, any development during the interregnum period while the Master Plan is being finalised, has to be based on such Interim Development Orders and therefore, such an argument is unsustainable._ 13. In view of the above binding declaration of law by the Division Bench of this Court, it needs no further W.P.(C) Nos.13239 of 2023 & 13423 of 2023 11 elucidation that it is only the interim development order that prevails and not the Master Plan of 1971. 14. As per Ext.P11, the scheme of the IDO petitioners' land in Sy.Nos.2570 and 2571 of Muttathatra Village, falls in the Green Planned Development Zone and is dealt with in Clause 5, requirung to satisfy the restrictions enumerated under Clause 5.2.2 alone. Therefore the petitioners' application for layout approval ought to be considered in tune with the different clauses of the interim development order especially Clause 5.2.2. 15. Hence I set aside Ext.P9 in W.P.(C)No.13239/2023 and Ext.P10 in W.P.(C)No.13423/2023 and direct the Competent Officer of the 1st respondent Corporation to consider the application of the petitioner for layout approval in accordance with the provisions of the IDO applicable to the area, as expeditiously as possible, at any rate, within a period of 60 days from the date of receipt of a copy of this judgment. These writ petitions are allowed as above. ## BECHU KURIAN THOMAS JUDGE AJM W.P.(C) Nos.13239 of 2023 & 13423 of 2023 12 ## **`APPENDIX OF WP(C) 13423/2023`** ``` PETITIONER EXHIBITS ``` |`Exhibit P1`|`A TRUE COPY OF THE SALE DEED NO:`| |---|---| ||`1795 DATED 11/07/1962 OF THE`| ||`THIRUVANANTHAPURAM S.R.O IN FAVOUR`| ||`OF THE WRIT PETITIONER`| |`Exhibit P2`|`A TRUE COPY OF THE SETTLEMENT DEED`| ||`NO: 3255 DATED 26/10/2022 EXECUTED`| ||`BY THE WRIT PETITIONER IN FAVOUR`| ||`OF HIS SON, DR. SURESH KUMAR`| ||`ARAVIND`| |`Exhibit P3`|`A TRUE COPY OF THE ORDER DATED`| ||`28/05/2022 IN FILE NO: 3150/I3/D`| ||`DIS ISSUED BY THE REVENUE`| ||`DIVISIONAL OFFICER,`| ||`THIRUVANANTHAPURAM,`| |`Exhibit P4`|`A TRUE COPY OF LAND TAX WITH`| ||`REGARD TO THE PROPERTY WITH THE`| ||`MUTTATHARA VILLAGE OFFICE AS PER`| ||`RECEIPT NO: KL01011412572/2022`| |`Exhibit P5`|`A TRUE COPY OF THANDAPPER ACCOUNT`| ||`EXTRACT NO: 8908/22 DATED`| ||`04/11/2022 ISSUED BY THE`| ||`MUTTATHARA VILLAGE OFFICE TO THE`| ||`WRIT PETITIONER`| |`Exhibit P6`|`A TRUE COPY OF LOCATION SKETCH NO:`| ||`8909/22 ISSUED BY THE MUTTATHARA`| ||`VILLAGE OFFICE TO THE WRIT`| ||`PETITIONER`| |`Exhibit P7`|`A TRUE COPY OF POSSESSION`| ||`CERTIFICATE NO: 8907 DATED`| ||`04/11/2022 ISSUED BY THE`| ||`MUTTATHARA VILLAGE OFFICER TO THE`| ||`WRIT PETITIONER`| |`Exhibit P8`|`A TRUE COPY OF THE APPLICATION`| ||`WITH THE PLAN SUBMITTED BY THE`| ||`WRIT PETITIONER BEFORE THE FIRST`| ||`RESPONDENT ON 05/12/2022 FOR`| ||`LAYOUT APPROVAL`| |`Exhibit P9`|`A TRUE COPY OF THE NOTICE DATED`| ||`20/02/2023 ISSUED BY THE ENGINEER`| ||`OF THE FIRST RESPONDENT AS PER`| ||`FILE NO: FE3/13A/66/22 TO THE WRIT`| ||`PETITIONER`| |`Exhibit P10`|`A TRUE COPY OF RELEVANT PORTION OF`| W.P.(C) Nos.13239 of 2023 & 13423 of 2023 13 ``` MASTER PLAN THIRUVANANTHAPURAM 2031WAS PUBLISHED VIDE G.O. (MS) NO. 107/2013/LSGD DATED 19/03/2017, Exhibit P11A TRUE COPY OF THE MAP PUBLISHED PER EXHIBIT P10 Exhibit P12A TRUE COPY OF THE INTERIM DEVELOPMENT ORDER PUBLISHED ON 11/09/2017 AS G.O (MS) NO. 180/2017/LSGD Exhibit P13A TRUE COPY OF THE MASTER PLAN AS EXTRA ORDINARY GAZETTE DATED 02/06/2023 ISSUED BY THE GOVERNMENT OF KERALA NO E7/E14/E16/145043/13/VOL III Exhibit P14A TRUE COPY OF CIRCULAR NO:E7/145043/13 DATED 05/08/2023 ISSUED BY THE TRICUVANANTHAPURAM CORPORATION ``` W.P.(C) Nos.13239 of 2023 & 13423 of 2023 14 ## **`APPENDIX OF WP(C) 13239/2023`** ## `PETITIONER EXHIBITS` |`Exhibit P1`|`A TRUE COPY OF THE POWER OF`| |---|---| ||`ATTORNEY DATED 31/10/2022 NUMBERED`| ||`411/IV/2022 WITH THE PRINCIPAL SUB`| ||`REGISTRY OFFICE,`| ||`THIRUVANANTHAPURAM,`| |`Exhibit P2`|`A TRUE COPY OF THE SALE DEED NO:`| ||`1795 DATED 11/07/1962 OF THE`| ||`THIRUVANANTHAPURAM S.R.O IN FAVOUR`| ||`OF THE FATHER OF THE WRIT`| ||`PETITIONER`| |`Exhibit P3`|`A TRUE COPY OF THE SETTLEMENT DEED`| ||`NO: 3255 DATED 26/10/2022 EXECUTED`| ||`BY THE WRIT PETITIONER'S FATHER IN`| ||`FAVOUR OF WRIT PETITIONER`| |`Exhibit P4`|`A TRUE COPY OF THE ORDER DATED`| ||`28/05/2022 IN FILE NO: 3150/I3/D`| ||`DIS ISSUED BY THE REVENUE`| ||`DIVISIONAL OFFICER,`| ||`THIRUVANANTHAPURAM,`| |`Exhibit P5`|`A TRUE COPY OF WITH REGARD TO THE`| ||`LAND TAX RECEIPT THE MUTTATHARA`| ||`VILLAGE OFFICE AS PER RECEIPT NO:`| ||`KL01011414266/2022 DATED`| ||`26/10/2022`| |`Exhibit P6`|`A TRUE COPY OF THANDAPPER ACCOUNT`| ||`EXTRACT NO: 8911/22 DATED`| ||`04/11/2022 ISSUED BY THE`| ||`MUTTATHARA VILLAGE OFFICE TO THE`| ||`WRIT PETITIONER`| |`Exhibit P7`|`A TRUE COPY OF LOCATION SKETCH NO:`| ||`8912/22 ISSUED BY THE MUTTATHARA`| ||`VILLAGE OFFICE TO THE WRIT`| ||`PETITIONER`| |`Exhibit P8`|`A TRUE COPY OF POSSESSION`| ||`CERTIFICATE NO: 8910 DATED`| ||`04/11/2022 ISSUED BY THE`| ||`MUTTATHARA VILLAGE OFFICER TO THE`| ||`WRIT PETITIONER`| |`Exhibit P9`|`A TRUE COPY OF THE APPLICATION FOR`| ||`LAY OUT APPROVAL AND USAGE OF THE`| ||`PLOT WITH THE PLAN SUBMITTED BY`| ||`THE WRIT PETITIONER BEFORE THE`| ||`FIRST RESPONDENT ON 05/12/2022`| W.P.(C) Nos.13239 of 2023 & 13423 of 2023 15 |`Exhibit P10`|`A TRUE COPY OF THE NOTICE DATED`| |---|---| ||`20/02/2023 ISSUED BY THE ENGINEER`| ||`OF THE FIRST RESPONDENT AS PER`| ||`FILE NO: FE3/13A/66/22 TO THE WRIT`| ||`PETITIONER`| |`Exhibit P11`|`A TRUE COPY OF THE EXTRACT OF`| ||`RELEVANT PAGES OF`| ||`THIRUVANANTHAPURAM MASTER PLAN`| ||`2031 OF THIRUVANANTHAPURAM`| ||`CORPORATION AS PER GO(MS) NO`| ||`107/2013/LSGD DATED 19/03/2017`| |`Exhibit P12`|`A TRUE COPY OF THE MAP PUBLISHED`| ||`PER EXHIBIT P10`| |`Exhibit P13`|`TRUE COPY OF THE INTERIM`| ||`DEVELOPMENT ORDER PUBLISHED ON`| ||`11/09/2017 AS G.O (MS) NO.`| ||`180/2017/LSGD`| |`Exhibit P14`|`A TRUE COPY OF MASTER PLAN`| ||`PUBLISHED AS EXTRA ORDINARY`| ||`GAZETTE DATED 05/09/2023 BY THE`| ||`GOVERNMENT OF KERALA, NO:`| ||`E7/E14/E16/145043/VOL III`| |`Exhibit P15`|`A TRUE COPY OF CIRCULAR`| ||`NO:E7/145043/13 DATED 05/08/2023`| ||`ISSUED BY THE THIRUVANANTHAPURAM`| ||`CORPORATION`|