WP(C).No. 3731 of 2012 (N)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **WEDNESDAY, THE 6TH DAY OF JUNE 2012/16TH JYAISHTA 1934** ## **WP(C).No. 3731 of 2012 (N)** **---------------------------------------** **PETITIONER:** - **------------------** **ABDUL NSAUSHAD, AKATHUTTU VEEDU, PAREEKANNI P.O., KOTHAMANGALAM, PIN-636 693, ERNAKULAM DISTRICT. REPRESENTED BY HIS POWER OF ATTORNEY HOLDER ALIKUNJU V.A.** ## **BY ADVS.SRI.JOMY GEORGE SRI.SEBASTIAN THOMAS SRI.P.REJINARK** ## **RESPONDENTS:** - **-----------------------** **1. KOTHAMANGALAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY,** - **KOTHAMANGALAM-636 693.** ## **2. THE SECRETARY,** - **KOTHAMANGALAM MUNICIPALITY, KOTHAMANGALAM-639 693.** **3. SENIOR TOWN PLANNER, ERNAKULAM-682 016.** ## **4. THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM-695 001.** **5. SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM-695 001.** **6. STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **BY ADV. SRI.V.M.KURIAN BY ADV. SRI.MATHEW B. KURIAN BY ADV. SRI.K.T.THOMAS BY ADV. GOVERNMENT PLEADER SRI.M.P.JAYASANKAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.04.2012, THE COURT ON 06-06-2012, DELIVERED THE FOLLOWING:** **MG** ## **WP(C).No. 3731 of 2012 (N) ---------------------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1:COPY OF THE TITLE DEED OF THE PETITIONER'S PROPERTY. EXT.P2:COPY OF THE TAX RECEIPT DATED 07.04.2011. EXT.P3:COPY OF THE SKETCH OF THE PROPERTY ISSUED BY TALUK SURVEYOR KOTHAMANGALAM. EXT.P4:COPY OF THE LETTER DATED 03.07.2010 SENT BY THE 2N RESPONDENT TO THE 3RD RESPONDENT. EXT.P5:COPY OF THE LETER DATED 07.04.2011 SENT BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT. EXT.P6:COPY OF THE LETTER DATED 16.05.2011 SENT BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT. EXT.P7:COPY OF THE REPRESENTATION DATED 06.06.2011 SUBMITTED BY THE PETITIONER BEFORE THE MINISTER FOR INDUSTRIES, IT AND URBAN AFFAIRS. EXT.P8:COPY OF THE LETTER SENT BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT ON 17.08.2011. EXT.P9:COPY O THE LETTER DATED 16.01.2012 SENT BY THE 5TH RESPONDENT TO THE PETITIONER. EXT.P10:COPY OF THE JUDGMENT DATED 23.12.2011 IN W.P.(C)NO.22185/2009 OF THIS HON'BLE COURT.** ## **RESPONDENT'S EXHIBITS: NIL** ## **//TRUE COPY//** **PA TO JUDGE** **MG** C.K.ABDUL REHIM,J. ------------------------------WP(C).NO. 3731 of 2012 --------------------------------Dated this the 6th day of June, 2012 ## JUDGMENT The petitioner applied for building permit for construction of a commercial building in a property owned by him situated within the limits of the 1[st] respondent Municipality. The 2[nd] respondent had forwarded the application to the 3[rd] respondent seeking exemption from the zonal classification. As per request made by the 2[nd] respondent, eventhough the property is included in the residential zone as per the DTP scheme, considering importance of the locality the area need not be retained as residential zone and that the council of the Municipality had taken decision to recommend for permitting construction of shop-cum- residential building in the property. As per EXt.P5 the 3[rd] respondent had forwarded the application to the 4[th] respondent recommending for sanctioning the permit. But the 4[th] respondent had rejected the application through Ext.P6 stating that, construction of commercial buildings having area upto 150 sq. meters alone can be permitted in the residential zone. It is also stated that there WP(C).3731 /2012 2 is no provision enabling grant of zoning exemption. Eventhough the petitioner had approached the Government seeking reconsideration of Ext.P6, it was declined through Ext.P9. 2. Contention of the petitioner is that the denial of permit on the basis of the zonal classification contained in the DTP scheme prepared under the Town Planning Act, is not sustainable. It is also contended that the Town Planning Scheme formulated by the respondent Municipality has not been approved by the Government and no final sanction has been given nor any notification has been published as contemplated under section 12 (5) of the Act. Therefore it is contended that DTP scheme has not came into force and the denial of building permit on that ground is unjust and arbitrary. Further contention is that the provisions of the Town Planning Act 1939 as well as the Madras Town Planning Act 1920 cannot survive in view of part IX A of the Constitution of India and the Kerala Municipality Act 1994. Learned counsel for the petitioner contended that the property in question is situated in an area where there are a lot of commercial constructions and that the nature of the area no WP(C).3731 /2012 3 more remains as a residential zone. Hence on a practical approach there is no purpose in denying the permit, is the contention. 3. Heard; Sri.,V.M.Kurian, Standing Counsel appearing for respondents 1 and 2 and Sri.P.Jayasankar, learned Special Government Pleader . 4. Since denial of permit is based on violation of the zonal classification under the DTP scheme envisaged through the Master Plan formulated by the respondent Municipality under the Town Planning Act 1930, it is necessary to evaluate the legal position settled through various precedents by the Hon'ble apex court and this court. In the decision of the Hon'ble Supreme Court in **Raju S. Jethmalani vs. State of Maharashtra and others (2005 (11) SCC 222)** it is held that, though land belonging to private persons can be included in development plans, unless the land is acquired by the State Government or the Municipal Corporation to effectuate the public purposes such development plan cannot be implemented, and the land owner cannot be deprived of using the property for any other purposes. WP(C).3731 /2012 4 When the Government or Municipal Corporation fails to acquire the land, the private persons cannot be deprived of the use of the land, is the edictum. A Division Bench of this court in **Padmini** **vs. State of Kerala (1999 (3) KLT 465)** observed that the Municipality has no authority to reject the application for building permit on the ground that the land is proposed to be acquired. Referring to section 393 of the Kerala Municipality Act it is observed that, the application can be rejected only if the land is under acquisition proceedings. This court held that the Municipality cannot freeze the land for any indefinite period on the pretext that they are taking steps to acquire the land. 5. A learned Judge of this court in the case in **Nasar vs. Malappuram Municipality (2009(3) KLT 92)** observed that the Municipality cannot reject the application for building permit on the ground that the DTP scheme does not provide for grant of building permit as it would be in violation of classification of areas into different zones, which are ear-marked for different purposes. It is held that any attempt to curb rights of the owner of land until publication of statutory notifications and WP(C).3731 /2012 5 declarations for acquisition of the land, would result in infraction of the right to property envisaged under Article 300A of the Constitution. It would result in violation of equality principle in the matter of enforcement of laws as is contained in Article 14 of the Constitution. Any demand to create a rider over the title of the owner of the property under the pretext of a town planning scheme which has not become operational by acquisition would essentially be oppressive and would not be countenanced on the face of Article 14 of the Constitution, is the finding. However, the decision in Nazar's case (cited supra) has been clarified in a review petition through the decision reported in **Secretary to Government vs. Nazar (1010(1) KLT 286)** . It is held that any statement of law in the said decision would not apply to cases which do not involve acquisition of land for the purpose of the town planning scheme. 6. Sri.P.Jayasankar, learned Special Government Pleader raised contention stating that the zonal classification envisaged in the DTP scheme formulated under the Town Planning Act is intended only for providing special planning and regulations and WP(C).3731 /2012 6 it does not involve any development which need acquisition of land. Referring to the decision of the Hon'ble Supreme Court in **Friends Colony Development Committee vs. State of Orissa and others (2004 (8) SCC 733)** it is contended that although development plans restrict freedom of individual property owners to use their property, merely for that reason it cannot be termed as an arbitrary and unreasonable restriction. Private interest in such cases stands subordinated to public good. Power to plan development of cities and to regulate building activity therein was upheld as a power vested on the State and it cannot be said as an infraction to the rights of private owners. Referring to a Full Bench decision of this court in **Francis vs. Chalakudy Municipality (1999(3) KLT 560) FB)** it is contended that merely because there is failure for acquisition of land within the time limit prescribed in a scheme notified under section 12 of the Town Planning Act, it will not lapse. Hence it is argued that the contention of the petitioner that the scheme has not been approved or notified is of no consequence. WP(C).3731 /2012 7 7. Learned Special Government Pleader further pointed out that in **Sayeesh Kumar vs. State of Kerala (2005 (4) KLT 1027)** it is categorically held that the Town Planning Act does not confer power on the Government to tamper with any approved development scheme and that no power is vested on the Government to grant individual exemption. Hence it is contended that the denial of permit on the basis of the zonal classification is absolutely legal and justified. 8. From the settled precedents illustrated in the foregoing paragraphs, it is evident that the rights of private land owners cannot be deprived or oppressed in violation of protections envisaged in Article 300 A and Article 14 of the Constitution. But at the same time developmental plans restricting freedom of individual owners to use their property in any manner cannot be termed as totally arbitrary or unreasonable. In such case the restrictions imposed upon private interest stands subordinated to public good and such regulations comes within the power vested on the State. Those restrictions cannot be termed as infractions to rights of private owners. But the more crucial question WP(C).3731 /2012 8 emerges in the matter of deciding the case at hand is as to whether any town planning scheme (DTP scheme)formulated under the Town Planning Act, 1939 or Madras Town Planning Act, 1920 can survive in view of the 74[th] amendment to the Constitution inserted through Part IX-A and in view of the provisions contained in the Kerala Municipality Act, 1994. The above question have been elaborately dealt with by a learned Judge of this court in the decision in **Shivaprasad V. State of Kerala (2011 (1) KLT 690)** . It is held that the provisions of the Kerala Municipality Act, 1994 is in total variation of the Town Planning Acts. While analysing the issue, this court found that the provisions relating to various Standing Committees under the Municipality Act, being saddled with implementation of the Town Planning Scheme specifically provided under the Twelfth Schedule of Part IX-A of the Constitution and Item No.30 of the First Schedule to the Municipality Act, is totally different from the provisions contained in the Town Planning Acts. Considering other provisions, it is found that the Town Planning Department is having grater say under the Town Planning Act and the WP(C).3731 /2012 9 Government will have to sanction the scheme under Section 12 and to notify the same under Section 12 (5) and under Section 13. But this directly goes against local self government Institution as envisaged under Part IX-A read with Rule 30 (2) (3) of the Municipality Act, 1994. Having found that the scheme under the Municipality Act is completely in variance with the provisions of the Town Planning Acts, it cannot be harmoniously read along with the provisions contained in Part IX-A of the Constitution and the Kerala Municipality Act, 1994. Referring to various powers conferred on the Municipality under Section 51 (3) (4) of the Kerala Municipality Act, it is observed that those provisions are different in material particulars with the provisions contained in the Town Planning Acts and are at variance substantially. It is also observed that the provisions in Section 53 envisages 'District Planning Committee' to prepare development plans to matters of common interest between Panchayats and Municipalities including spatial planning and finalisation of integrated District Town Planning. These provisions run in contrary to the provisions contained in the Town Planning Acts, especially under Section 36 WP(C).3731 /2012 10 which envisages formation of Town Planning Committee. The learned Judge also referred to various other provisions which are in conflict with the Town Planning Acts. Ultimately it is observed that the provisions contained in the Town Planning Act, 1939 and in the Madras Town Planning Act 1920 has become unworkable in view of the conflicting provisions contained in the Kerala Municipality Act, 1994. Pointing out the urgent necessity to bring in comprehensive legislation for enabling the Municipalities to effectively bring in spatial planning scheme, it is observed that the glaring differences in the approach under the two enactments should get attention of the Government and Legislature. However it is held that the provisions in Town Planning Act, 1939 and Madras Town Planning Act, 1920 with regard to preparation of general town planning scheme and the detailed town planning schemes cannot survive in the light of Part IX-A of the Constitution of India and the Municipality Act, 1994, especially in view of Article 243 ZF, which permits continuance of such inconsistent laws only for a period of one year, after commencement of the 74[th] amendment to the Constitution. The WP(C).3731 /2012 11 learned Judge in Sivaprasad's case (cited supra) envisages the need to bring out a uniform legislation on Town and Country planning for wider and effective preparations of spatial development plans, Regional Development plans, District Development Plans, Urban Development plans etc. Finding that the provisions of the Town Planning Acts and Section 51 (4) of the Municipality Act cannot survive together and become really unworkable, it was held that the Municipality can have recourse to the existing Town Planning Schemes and they can take appropriate decision in the matter with regard to adoption and continuance of the schemes till new arrangements are made. They can also resort to principles of spatial planning and introduce them in the meanwhile, after comprehensive District Town Planning is implemented. Thus it is found that the spatial planning envisaged under the DTP schemes which was formulated years back under the provisions of the Town Planning Act, 1939 or under the Madras Town Planning Act, 1920 cannot survive. 9. In this context the learned counsel for the petitioner had also brought to my attention a Division Bench decision of this WP(C).3731 /2012 12 court in **Gopalakrishnan V. State of Kerala (2011 (3) KLT 317)** . It is held therein that, if in an area earmarked as a residential zone large number of constructions for commercial purposes were permitted, whether under orders issued by the Government or not, then the only sensible thing for the Corporation to do is to take a realistic approach by not rendering the area any longer as a residential zone and request the Government to make suitable changes in the master plan to make it in conformity with the ground reality. It is pointed out that, in the case at hand the spatial regulation (spatial planning) envisaged years back through the DTP scheme has become unworkable, because a lot of constructions has been permitted contrary to the special regulations. Hence it is contended that, at any rate the zonal regulations envisaged under the town planning scheme which has not been implemented nor approved or notified, cannot be sustained. 10. Learned special Government Pleader submitted that the decision in Sivaprasad's case (cited supra) is pending challenged in a Writ Appeal and a Division Bench of this court had stayed the WP(C).3731 /2012 13 operation of the judgment. I take note of the fact that the decision in Sivaprasad's case is not a binding precedent on this court. But I perfectly agree with the legal ratio enunciated in the said decision. In a Division Bench of this court in **Abdu Rehiman** **V. District Collector, Malappuram (2009 (4) KLT 485** it is held that, even when a decision of a Division Bench is stayed by the Supreme Court, the single Judge of the court are bound to follow the decision of the Division Bench as it continues to be a binding precedent for them. In the case at hand, even though Sivaprasad's case is not binding on me, I find that the dictum emerging in the decision has been founded on strong legal basis, and it survives unless reversed. Hence, I hold that the provisions of the Town Planning Act, 1939 and the Madras Town Planning Act, 1920 cannot survive in view of Part IX A of the Constitution of India and in the light of the Kerala Municipality Act, 1994. 11. Therefore, I am of the view that the denial of building permit on the basis of the spatial planning and zonal classifications contained in the DTP schemes and Master plans formulated under the Town Planning Act, long before the 74[th] WP(C).3731 /2012 14 amendment of the constitution or before enactment of the Kerala Municipality Act, 1994, cannot survive at this point of time. 12. In view of the above discussions Exts.P6 and P9 cannot be sustained as legal and valid and hence those proceedings are hereby quashed. The Secretary of the 1[st] respondent Municipality is directed to consider the application for Building Permit submitted by the petitioner and to take a decision afresh, notwithstanding the zonal classifications envisaged under the DTP scheme. Needless to say that the permit shall be granted if the petitioner is otherwise eligible and if the application is otherwise in order. 13. A decision in this regard shall be taken at the earliest possible, at any rate within a period of one month from the date of receipt of a copy of this judgment ## C.K.ABDUL REHIM, JUDGE pmn/amg