(2012) 255 KLR 244 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM TUESDAY, THE 12TH DAY OF JUNE 2012/22ND JYAISHTA 1934 WP(C).No. 25284 of 2011 (I) ------------------------------------- PETITIONER(S): ------------------------- NADAYI MOHANAN, S/O.CHATHUKUTTY, 'NISARG', THIRUVANGAD AMSOM, VAYALALAM DESOM THIRUVANGAD P.O., KANNUR DISTRICT. BY ADVS.SRI.M.SASINDRAN SRI.V.VENUGOPAL RESPONDENT(S): -------------------------- 1. THE THALASSERY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, THALASSERY KANNUR DISTRICT-670 101. 2. THE SECRETARY, THALASSERY MUNICIPALITY, THALASSERY, KANNUR DISTRICT-670 101. 3. THE ASSISTANT ENGINEER, NORTH DIVISION, THALASSERY MUNICIPALITY, THALASSERY-670101 KANNUR DISTRICT. 4. THE CHIEF TOWN PLANNER, TOWN AND COUNTRY PLANNING DEPARTMENT OFFICER OF THE CHIEF TOWN PLANNER THIRUVANANTHAPURAM-695001. 5. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695001. BY ADV. SRI.I.V.PRAMOD R5 BY SPL. GOVERNMENT PLEADER SRI. P. JAYASANKAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER(S) EXHIBITS :-
RESPONDENTS' EXHIBITS :- NIL /TRUE COPY/ P.A. TO JUDGE DCS C.K. ABDUL REHIM, J. ------------------------------------------------- W.P.(c) No. 25284 OF 2011-I ------------------------------------------------- DATED THIS THE 12th DAY OF JUNE, 2012 Head Note:- Kerala Municipality Act, 1995 - Section 406 (1) - Application for building permit rejected - Agriculture zone - Thalassery Town Development Plan - Denial of building permit on the basis of spatial planning and zonal classification contained in the DTP scheme formulated under the Madras Town Planning Act, 1920 long before the 74th amendment to the Constitution of India and before enactment of the Kerala Municipality Act, 1994, cannot survive at this point of time. J U D G M E N T Application for building permit submitted by the petitioner for construction of residential house in a property owned by him having an extent of 6.36 cents has been rejected through Ext.P3 letter issued by the 1st respondent Municipality. The reason for rejection mentioned in Ext.P3 is that the property wherein the construction is proposed is included in the "Agriculture zone" as per the part variation scheme, 2007 submitted to the 'Thalassery Town Development Plan'. The petitioner is challenging Ext.P3. Further grievance of the petitioner is against proceedings initiated against him under Section 406 (1) of the Kerala Municipality Act, 1995 alleging unauthorised construction and the apprehended action of forceful demolition of the construction, inspite of submission of detailed objections submitted. 2. Contention of the petitioner is that the detailed town planning scheme was approved as early as in the year 1983 and it was formulated on the basis of the status prevailed as in the year 1973. But no steps pursuant to sanctioning of the development plan has been taken till date for implementation of the scheme. Petitioner relies on Exts.P4 and P5 inorder to show that the respondent Municipality themselves have expressed difficulties in implementation of the scheme. According to the petitioner the area wherein the property is situated is covered by a large number of constructions, both residential and commercial, and the locality does not remain as 'agriculture zone'. The petitioner had produced relevant extract of the notification issued by the Government fixing fair value of the property, which will indicate that the property is classified as residential plot. It is also contended that the property in question was not included in the Data Bank prepared under the Kerala Conservation of Paddy Land and Wet Land Act, 2008. According to the petitioner the area in question cannot be treated as agricultural zone and the proposal has become obsolete and unworkable. Hence the rejection for the reason assigned cannot be sustained, is the contention. 3. In the counter affidavit filed on behalf of the 4th respondent it is admitted that the development plan was sanctioned as early as on 29-11-1983 and a part variation has sanctioned on 05-08-2008. It is contended that the property belonging to the petitioner is included in the area zoned for agricultural use'. It is also contended that as per Section 15 of the Madras Town Planning Act, 1920, a town planning scheme sanctioned can be varied or reviewed by subsequent scheme and the reservation of the land for different use under the development plan is legal and sustainable. It is contended that as per the provisions under the Kerala Municipality Building Rules, 1999 regulations of town planning scheme in force will prevail in the area where such scheme exist. Hence rejection of the application is legal and sustainable, is the contention. 4. Heard counsel for the petitioner and Sri. P. Jayasanker, learned special Government Pleader appearing on behalf of respondents 4 and 5. 5. 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 V. 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 by 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. 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 dictum. A Division Bench of this court in Padmini V. State of Kerala (1999 (3) KLT 465) observed that the Municipality has no authority to reject 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. 6. A learned Judge of this court in the case in Nasar V. 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 earmarked for different purposes. It is held that any attempt to curb rights of the owner of land until publication of statutory notifications and 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 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 V. Nazar (2010 (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. 7. Sri. P.Jayasankar, learned Special Government Pleader raised contentions 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 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 V. 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 V. Chalakudy Municipality (1999(3) KLT 560) 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 notified and implemented is of no consequence. 8. Learned Special Government Pleader further pointed out that in Sayeesh Kumar V. State of Kerala (2005 (4) KLT 1027) it is categorically held that the Town Planning Act does not confer any power on the Government to tamper with an 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. 9. From the settled legal 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 any 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 the rights of private owners. 10. But the more crucial question emerging 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 under the Madras Town Planning Act, 1920 can survive in view of the 74th 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 has 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 in 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 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 the power conferred on the local self government Institution as envisaged under Part IX-A read with Rule 30 (2) (3) of the Municipality Act, 1994. The scheme under the Municipality Act is completely in variance with the provisions of the Town Planning Acts and 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 the development plans with respect 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 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 a 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 Kerala 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 74th amendment to the Constitution. The learned Judge in Sivaprasad's case (cited supra) envisaged 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 became 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. 11. In this context the learned counsel for the petitioner had also brought to my attention a Division Bench decision of this court in Gopalakrishnan V. State of Kerala (2011 (3) KLT 317). It is held therein that, if in an area earmarked as 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 became unworkable, because a lot of constructions has been permitted contrary to the spatial regulation. Hence it is contended that, at any rate the zonal regulation envisaged under the town planning scheme which has not been implemented or notified, cannot be sustained. 12. Learned special Government Pleader submitted that the decision in Sivaprasad's case (cited supra) is pending challenge in a Writ Appeal and a Division Bench of this court had stayed the 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. 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 this 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. 13. In view of the above discussions I am of the considered opinion that the denial of building permit on the basis of spatial planning and zonal classification contained in the DTP scheme formulated under the Madras Town Planning Act, 1920 long before the 74th amendment to the Constitution of India and before enactment of the Kerala Municipality Act, 1994, cannot survive at this point of time. 14. In the result Ext.P3 is hereby quashed as unsustainable. The 2nd respondent is directed to consider the application for building permit submitted by the petitioner and to dispose of the same afresh, notwithstanding the zonal classification envisaged under the DTP scheme. Needless to say that the building permit shall be granted if the petitioner is otherwise eligible and if the application is otherwise in order. 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. 15. In view of the directions issued for re- consideration of the application for Building Permit, I am of the opinion that all further proceedings pursuant to Exts.P7 and P7 (a) need to be kept in abeyance. Therefore, the respondents 1 and 2 are directed to keep in abeyance all further proceedings pursuant to Exts.P7 and P7 (a), until a decision on the application for building permit is taken pursuant to the directions contained herein above. Needless to say that further steps in this regard shall be subject to such decision. Sd/- C.K. ABDUL REHIM, JUDGE. AMG True copy P.A to Judge |
