Pyas Thomas vs The Secretary
2021 Latest Caselaw 3662 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

     TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942

                       WP(C).No.29214 OF 2015(B)


PETITIONER:

               PYAS THOMAS
               AGED 49 YEARS
               MANAGING PARTNER, M/S. SHALOM SHOPPING COMPLEX,
               KAROTTU PUTHENPURAYIL, PALAKKUZHA, MUVATTUPUZHA
               TALUK.

               BY ADVS.
               SRI.MATHEW JOHN (K)
               SHRI.DOMSON J.VATTAKUZHY

RESPONDENTS:

      1        THE SECRETARY
               LOCAL SELF GOVERNMENT (RD) DEPARTMENT,
               THIRUVANANTHAPURAM 695001.

      2        THE CHIEF TOWN PLANNER
               THIRUVANANTHAPURAM 695001.

      3        THE SENIOR TOWN PLANNER
               ERNAKULAM 682011.

      4        THE MUVATTUPUZHA MUNICIPALITY
               MUNICIPAL OFFICE, MUVATTUPUZHA   686661, REPRESENTED
               BY THE SECRETARY.

      5        THE SECRETARY
               MUVATTUPUZHA MUNICIPALITY, MUNICIPAL OFFICE,
               MUVATTUPUZHA 686661.

               R1 TO R3 BY ADV.SMT.G.RANJITA, GOVERNMENT PLEADER
               R4-5 BY SRI.V.M.KURIAN, SC, MUVATTUPUZHA MUNICIPALITY
               R4-5 BY SRI.L.RAM MOHAN, SC, MUVATTUPUZHA
               MUNICIPALITY


     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD             ON
02.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.29214 OF 2015(B)

                                        2




                       W.P.(C) No.29214 of 2015
                    ------------------------------------------


                              JUDGMENT

Petitioner owns, along with others, a land measuring 1.72

Acres situated within the limits of the fourth respondent, the

Muvattupuzha Municipality (the Municipality). The owners of the land

preferred an application for building permit to put up a commercial

complex in the said land. As the structure proposed by the petitioner

and others was one for which layout approval of the competent

authority was required under the building rules, the Municipality

forwarded the application to the competent authority for layout

approval, viz, the second respondent and the second respondent, in

turn, granted layout approval for the project. Thereupon, the

Municipality issued the building permit sought by the petitioner and

others. Ext.P7 is the building permit issued on 16.03.2010. While the

construction of the building was proceeding on the strength of Ext.P7

building permit, the owners decided to have a few theatres also in the

second floor of the complex and they have, therefore, applied for a

revised building permit. Since the nature of occupancy of the building

was proposed to be changed, the application submitted by the owners

in this regard was again sent to the second respondent by the WP(C).No.29214 OF 2015(B)

Municipality for revised layout approval. Ext.P10 is the

recommendation made in this regard by the Secretary of the

Municipality. On the said recommendation, the second respondent

directed the third respondent to ascertain and report as to whether the

construction is in conformity with the published town planning

schemes for the Municipality namely Central Area DTP Schemes and

DTP Schemes for bus stand complex. Ext.P12 is the communication

issued by the second respondent in this regard. On a query from the

third respondent based on the said communication, the Municipality

issued Ext.P14 communication to the second respondent stating that

the particulars of the DTP schemes referred to in Ext.P12 are not

available in the Municipality. Thereupon, though the second

respondent had called upon the third respondent to find out the

particulars of the DTP schemes referred to above, both the Municipality

and the third respondent expressed their inability to find out the

particulars of the DTP schemes. Since the particulars of the DTP

schemes could not be traced, the second respondent, as per Ext.P19,

referred the recommendation of the Municipality for revised layout

approval to the Committee constituted by the Government for

appropriate recommendations as to the changes to be brought in the

various master plans and the DTP schemes sanctioned by the

Government. The petitioner is aggrieved by Ext.P19 decision of the WP(C).No.29214 OF 2015(B)

second respondent.

2. On 21.10.2015 this court passed the following interim

order.

"Provisional permission shall be granted to the petitioner on the basis of the revised building permit application put in by him. The permission would be subject to the result of the writ petition. The petitioner can construct on the basis of the provisional permission at his own risk and cost."

It is seen that in the light of the said interim order, a portion of the

construction has been completed and the petitioner has applied for a

partial completion certificate. The said request was not considered by

the Municipality. In the circumstances, this court passed the following

interim on 22.01.2016 on I.A. No.29 of 2016 filed by the petitioner in

this regard :

"This is an application for direction to issue completion certificate as requested in Ext.P21.

The learned counsel for the petitioner submits that orders may be issued to number the building in question.

Heard the learned counsel for the petitioner and the learned counsel for the respondents.

There shall be an interim direction to number the building subject to the result of the orders to be passed in the writ petition."

Pursuant to the said order, partial occupancy of the building was

permitted by the Municipality. Thereafter, the remaining part of the

building was also completed and on completion of the remaining part,

the Municipality permitted the petitioner to occupy the said part as WP(C).No.29214 OF 2015(B)

well in the light of an interim order passed by this court similar to the

one dated 22.01.2016.

3. A counter affidavit has been filed by the third

respondent in the matter contending that in terms of the building rules

applicable, construction in areas covered by DTP schemes shall be in

accordance with the schemes and that since the particulars of the DTP

schemes are not available, steps are to be taken by the Municipality

for revising the published DTP schemes as per The Kerala Town and

Country Planning Act, 2016.

4. Heard the learned counsel for the petitioner, the

learned Government Pleader as also the learned Standing Counsel for

the Municipality.

5. On 20.01.2021, when this matter was taken up, this

court entertained a doubt as to whether there exists any impediment

other than the impediments on account of the DTP schemes for

considering the application for revised layout approval sought in

respect of the building. An interim order was passed therefore on the

said day directing the Government Pleader to ascertain and report as

to the particulars of such impediments. In response to the said interim

order, the learned Government Pleader submitted today that there are

no impediments whatsoever for considering the application for revised

layout approval in respect of the building other than the impediments WP(C).No.29214 OF 2015(B)

on account of the DTP schemes.

6. The short question arises for consideration therefore is

as to whether the second respondent was justified in refusing to grant

revised layout approval sought in respect of the building.

7. As noted, before issuing building permit to the

petitioner, on a reference from the Municipality, the second respondent

granted layout approval for the building and it is on the strength of

the said layout approval that the Municipality has issued building

permit to the petitioner. As indicated, revised layout approval was

necessitated for the building as there was a change as regards the

occupancy in relation to a portion of the building. Earlier, the said

portion was intended for commercial occupancy and the petitioner

wanted to change the same to assembly occupancy for establishing a

few theatres. There is no case for the second respondent that the DTP

schemes stand in the way of changing the occupancy. Instead, the

case of the second respondent is as to whether the very building is

permissible in the light of the DTP schemes. In so far as the petitioner

was given layout approval for the building once and since the

petitioner has proceeded with the construction substantially based on

the said layout approval, according to me, the second respondent is

precluded from declining the revised layout approval sought in respect

of the building.

WP(C).No.29214 OF 2015(B)

8. Be that as it may. As noted, the revised layout

approval sought in respect of the building was not granted on account

of the DTP schemes namely Central Area DTP Schemes and DTP

Schemes for bus stand complex published for the municipal area. In

Ext.P12 communication, the second respondent has stated that the

building in the nature of one proposed by the petitioner is permissible

in terms of the Central Area DTP Scheme. The doubt expressed in the

said communication is only concerning the DTP Schemes for bus stand

complex. Ext.P19 communication indicates that the doubt now stands

in relation to the said scheme is as to whether the land where the

building is constructed is one proposed to be acquired for the road to

the proposed bus stand complex as per the said DTP Scheme. The

materials on record indicate that the aforesaid DTP schemes are not

sanctioned DTP schemes, though they were published. The materials

also indicate that the said schemes were published almost 40 years

ago. In other words, the road widening proposal in the DTP scheme

referred to in Ext.P19 is a proposal made in a draft DTP scheme

published about 40 years ago. According to me, the said DTP schemes

which have not been sanctioned even after 40 years of its publication

are to be treated as obsolete and unenforceable since such proposals

cannot now be enforced [See Francis v. Chalakudy Municipality,

1999(3) KLT 560 (FB)]. The DTP schemes shall be held to be obsolete WP(C).No.29214 OF 2015(B)

and unenforceable also for the reason that the particulars of those are

not available either with the Municipality or with the Town Planning

Department of the State Government. In the said view of the matter,

according to me, the second respondent ought to have granted the

revised layout approval sought in respect of the building of the

petitioner.

In the result, the writ petition is allowed, Ext.P19 is quashed

and the second respondent is directed to grant the revised layout

approval sought in respect of the building of the petitioner as

recommended by the Municipality as per Ext.P10, within a period of

one month. Needless to say, once the layout approval is granted, the

construction of the building of the petitioner made pursuant to the

interim order passed by this court shall be regularised.

Sd/-

                                               P.B.SURESH KUMAR

Mn                                                   JUDGE
 WP(C).No.29214 OF 2015(B)





                                APPENDIX
PETITIONER'S EXHIBITS:

EXHIBIT P1                  EXHIBIT-P1-TRUE COPY OF THE NOC DATED
                            19/06/2010 ISSUED BY THE EXECUTIVE
                            ENGINEER.

EXHIBIT P2                  EXHIBIT-P2-TRUE COPY OF THE REPLY BY THE

2ND RESPONDENT DATED 22/02/2011 TO THE 3RD RESPONDENT.

EXHIBIT P3 EXHIBIT-P3-TRUE COPY OF THE COMMUNICATION BY THE SENIOR TOWN PLANNE DATED 26/05/2011 TO THE 5TH RESPONDENT.

EXHIBIT P4 EXHIBIT-P4-TRUE COPY OF THE LETTER BY THE 5TH RESPONDENT DATED 13/06/2011 TO THE 3RD RESPONDENT.

EXHIBIT P5 EXHIBIT-P5-TRUE COPY OF THE COMMUNICATION BY THE SENIOR TOWN PLANNER DATED 21/06/2011 TO THE 2ND RESPONDENT.

EXHIBIT P6 EXHIBIT-P6-TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 03/08/2011.

EXHIBIT P7 EXHIBIT-P7-TRUE COPY OF THE BUILDING PERMIT DATED 02/09/2011.

EXHIBIT P8 EXHIBIT-P8-TRUE COPY OF THE APPLICATION DATED 17/05/2015 SUBMITTED BY THE PETITIONER FOR NOTIFICATION

EXHIBIT P9 EXHIBIT-P9-TRUE COPY OF THE APPLICATION ALONG WITH THE REVISED PLAN DATED 07/10/2014.

EXHIBIT P10 EXHIBIT-P10-TRUE COPY OF THE PROCEEDINGS OF THE 5TH RESPONDENT DATED 20/10/2014 RECOMMENDING SANCTION OF THE PETITIONER'S APPLICATION

EXHIBIT P11 EXHIBIT-P11-TRUE COPY OF THE LETTER OF THE 3RD RESPONDENT ADDRESED TO THE 2ND RESPONDENT DATED 01/01/2015.

EXHIBIT P12 EXHIBIT-P12-TRUE COPY OF THE LETTER DATED 20/02/2015 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT.

WP(C).No.29214 OF 2015(B)

EXHIBIT P13 EXHIBIT-P13-TRUE COPY OF THE LETTER BY THE PETITIONER DATED 16/03/2015 TO THE 2ND RESPONDENT.

EXHIBIT P14 EXHIBIT-P14-TRUE COPY OF THE LETTER OF THE 5TH RESPONDENT ADDRESSED TO THE 2ND RESPONDENT DATED 31/03/2015.

EXHIBIT P15 EXHIBIT-P15-TRUE COPY OF THE LETTER DATQED 18/06/2015 TO THE 2ND RESPONDENT BY THE PETITIONER.

EXHIBIT P16 EXHIBIT-P16-TRUE COPY OF THE LETTER DATED 18/06/2015 BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT.

EXHIBIT P17 EXHIBIT-P17-TRUE COPY OF THE LETTER DATED 20/06/2015 BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT.

EXHIBIT P18 EXHIBIT-P18-TRUE COPY OF THE LETTER BY THE PETITIONER DATED 27/07/2015 TO THE IST RESPONDENT.

EXHIBIT P19 EXHIBIT-P19-TRUE COPY OF THE LETTER DATED 31/08/2015 BY THE 2ND RESPONDENT TO THE IST RESPONDENT.

EXHIBIT P20 EXHIBIT-P20-TRUE COPY OF THE LETTER BY THE IST RESPONDENT TO THE PETITIONER.

EXHIBIT P21 A TRUE COPY OF THE APPLICATION DATED 19.12.2015 TO THE MUVATTUPUZHA MUNICIPALITY //TRUE COPY// PA TO JUDGE