Kerala High Court
K.K.Faisal vs State Of Kerala on 10 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942
WP(C).No.26802 OF 2020(A)
PETITIONERS:
1 K.K.FAISAL,
AGED 41 YEARS
S/O ABDUL KHADER,
KANDATHIL HOUSE, THALAPPALAM KARA, ERATTUPETTA
VILLAGE, KOTTAYAM DISTRICT, KULATHOOKKADAVU P O,
686579,
MON-9048293999.
2 K A MOHAMMED AFSAL
AGED 38 YEARS
S/O ABDUL KHADER,
KANDATHIL HOUSE, THALAPPALAM KARA, ERATTUPETTA
VILLAGE, KOTTAYAM DISTRICT, KULATHOOKKADAVU P O,
686579
3 K A RASHID
AGED 33 YEARS
S/O ABDUL KHADER,
KANDATHIL HOUSE, THALAPPALAM KARA, ERATTUPETTA
VILLAGE, KOTTAYAM DISTRICT, KULATHOOKKADAVU P O,
686579
BY ADVS.
SRI.V.RAJENDRAN (PERUMBAVOOR)
SRI.N.RAJESH
SHRI.GOPAKUMAR P.
RESPONDENTS:
1 STATE OF KERALA
REP. BY PRINCIPAL SECRETARY, DEPARTMENT OF LOCAL
ADMINISTRATION, SECRETARIAT, THIRUVANANTHAPURAM-
695001.
2 ERATTUPETTA MUNICIPALITY
ERATTUPETTA-686121,
REPRESENTED BY SECRETARY.
3 ASSISTANT ENGINEER LSGD
(ENGINEERING WING) ERATTUPETTA MUNICIPALITY,
ERATTUPETTA-686121.
WP(C).No.26802 OF 2020(A)
2
4 DISTRICT TOWN PLANNER
LSGD PLANNING, ST. ANTONY'S COMPLEX-II, NEAR
MUNICIPAL BUS STAND,
NAGAMPADAM, KOTTAYAM-686001.
R2-3 BY ADV. SRI.V.K.MOHAMMED YOUSUF, SC
R4 BY ADV.SMT.G.RANJITA, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.26802 OF 2020(A)
3
W.P.(C) No.26802 of 2020
-------------------------------------------
JUDGMENT
Petitioners are siblings. They own together 99.40 Ares of land in
Erattupetta Village. The land is situated within the limits of Erattupetta
Municipality. The petitioners propose to construct three residential buildings
and allied structures in the said land. On the application preferred by the
petitioners for building permit for the said purpose, the Municipality issued
Ext.P5 communication stating that the building permit sought cannot be
granted since a portion of the land is included in the draft master plan
prepared under the Town and Country Planning Act, 2016 (the Act) for
establishing park, open spaces, toilets etc. in the municipal area. Ext.P5
communication is under challenge in the writ petition.
2. Statements have been filed in the matter by the
Municipality as also the fourth respondent, the District Town Planner.
3. Heard the learned counsel for the petitioners, the learned
Government Pleader as also the learned counsel for the Municipality.
4. The fact that a draft master plan has been prepared for
development of the Municipal area in terms of the provisions of the Act is not
in dispute. Though the learned counsel for Municipality submits that the
draft of the master plan which has been approved by the competent
authority for publication under Section 36(3) of the Act has been forwarded
WP(C).No.26802 OF 2020(A)
for publication, the fact that the same is yet to be published is not
disputed. The question therefore is whether the Municipality is justified in
rejecting the application for building permit on the ground that a portion of
the land of the petitioners is included in the draft of the master plan
approved for publication.
5. The provision of the Act which is relevant in the context of
resolving the question aforesaid is Section 63. Section 63 reads thus:
"63. Interim Development Orders and the restrictions after
notifying the intention to prepare Plans. - (1) Notwithstanding
anything contained in this Act, with the general object of controlling
interim development of land included in any planning area in respect of
which a decision has been taken by a resolution to prepare a plan or
notified for preparing Detailed Town Planning Scheme under this Act,
the Municipal Corporation, Municipal Council, Town Panchayat, Village
Panchayat or Joint Planning Committee, as the case may be, may
prepare Interim Development Orders and forward the same to the
Government for sanction.
Note. - For the purpose of this section, the expression 'interim
development' means development during the period between the date
of decision taken to prepare a Plan under this Act and the date of
coming into operation of the Plan in the case of Master Plan and in the
case of Detailed Town Planning Scheme the period between the date of
notification of intention to prepare the Plan under this Act and the date
of coming into operation of the Plan.
(2) Government may, in consultation with the Chief Town Planner,
approve the Interim Development Orders forwarded to it under sub-
section (1) with or without modifications.
WP(C).No.26802 OF 2020(A)
(3) The main intention of the Plan shall be stated clearly in the Interim
Development Orders and it may also provide for all or any of the
following, namely:-
(a) circulation network and building lines;
(b) space standards;
(c) prohibiting the erection or re-erection of any building or construction
of any road or making of any excavation or permitting development of
land either unconditionally or subject to any condition specified in the
order;
(d) limiting the number of buildings, regulating the size, height, design
and external appearance of buildings;
(e) restricting the manner in which buildings may be used; and
(f) prohibiting building operations or regulating such operations in
respect of such matters as may be prescribed.
(4) The restrictions imposed by the Interim Development Orders shall
cease to operate with the coming into operation of the Plan:
Provided that the Interim Development Orders shall cease to
operate in the event of failure to publish the Plan within the time limit
prescribed for publication of the Plan under this Act:
Provided further that the Interim Development Orders shall cease
to operate in the event of failure to sanction the published Plan within
the time limit prescribed for the purpose under this Act and thereafter
the use and development of land in the area shall be governed by the
provisions of the published draft Plan:
Provided also that where no such interim development orders are
issued, use and development of land in the area shall be governed by
the provisions of the published draft Plan from the date of publication of
the notice in the Official Gazette inviting objections and suggestions, if
any, thereon under the provisions of this Act:
Provided also that in the case of a Master Plan or a Detailed Town
Planning Scheme deemed to have been published under this Act
provided in section 113, Government may, in consultation with the
WP(C).No.26802 OF 2020(A)
Chief Town Planner and the Local Self Government Institution
concerned, by order, issue Interim Development Orders for the purpose
of controlling use and development of land in the area."
As discernible from the extracted provision, the use and development of land
in an area covered by a draft master plan would be governed by the draft
master plan only from the date of publication of the notice in the Official
Gazette inviting objections and suggestions thereon. In other words, there
cannot be any restriction concerning use and development of a land covered
by a draft master plan before publication of the notice in the official gazette
inviting objections and suggestions.
6. Reverting to the facts, as noted, notice inviting objections
and suggestions to the draft master plan approved for publication under
Section 36(3) of the Act is yet to be published in the official gazette. If that
be so, according to me, the Municipality cannot refrain from considering the
application for building permit submitted by the petitioners. The question is
answered accordingly.
In the result, the writ petition is allowed, Ext.P5 communication is
quashed and the Municipality is directed to consider the application for
building permit referred to therein and grant the building permit to the
petitioners, if the application is otherwise in order, within two weeks from
the date of receipt of a copy of this judgment.
Sd/-
P.B.SURESH KUMAR
Mn JUDGE
WP(C).No.26802 OF 2020(A)
APPENDIX
PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF POSSESSION CERTIFICATE
NO.773/20 DATED 4.8.20 REGARDING THE
PROPERTIES OF THE PETITIONERS ISSUED FROM
ERATTUPETTA MUNICIPALITY.
EXHIBIT P2 TRUE COPY OF THE PERMIT APPLICATION FILED
BY THE PETITIONERS BEFORE THE 2ND
RESPONDENT ON 17/08/2020.
EXHIBIT P3 TRUE COPY OF NOTICE NO.G-5826 DATED 8/9/20
ISSUED BY THE 3RD RESPONDENT TO THE
PETITIONERS.
EXHIBIT P4 TRUE COPY OF NOTICE NOC BEARING
NO.G.3806/20 DATED 20.10.20 ISSUED BY
DISTRICT FIRE OFFICER, FIR AND RESCUE
SERVICES KOTTAYAM.
EXHIBIT P5 TRUE COPY OF INTIMATION ISSUED BY 3RD
RESPONDENT TO THE PETITIONERS BEARING NO.G-
5826 DATED 2.11.20.
EXHIBIT P6 TRUE COPY OF PETITION FILED BY 1ST
PETITIONER BEFORE 2ND RESPONDENT ON
13.11.20.
//TRUE COPY//
PA TO JUDGE
