Kerala High Court
Suseela vs Thiruvananthapuram Corporation on 23 February, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 23RD DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943
WP(C) NO. 28821 OF 2020
PETITIONER:
SUSEELA
AGED 68 YEARS
W/O.MADHUSOODANAN NAIR, TC 9/1775,
PATTANIKUNNU LANE, SASTHAMANGALAM,
THIRUVANANTHAPURAM.
BY ADVS.
SRI V.G.ARUN (K/795/2004)
SRI NEERAJ NARAYAN
MS.V.JAYA RAGI
SRI R.HARIKRISHNAN (KAMBISSERIL)
RESPONDENTS:
1 THIRUVANANTHAPURAM CORPORATION,
REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE,
THIRUVANANTHAPURAM, PIN- 695 033.
2 SECRETARY, THIRUVANANTHAPURAM CORPORATION
CORPORATION OFFICE,
THIRUVANANTHAPURAM, PIN - 695 033.
3 DISTRICT TOWN PLANNER
OFFICE OF THE DISTRICT TOWN PLANNER,
THIRUVANANTHAPURAM, PIN - 695 043.
4 THE STATE GOVERNMENT, REPRESENTED BY ITS SECRETARY,
LOCAL SELF GOVERNMENT (URBAN) DEPARTMENT,
ROOM NO:201 A, 2ND FLOOR, ANNEX I,
SECRETARIAT, THIRUVANANTHAPURAM 695001.
(IS IMPLEADED AS PER ORDER DATED 22/7/2021
IN I.A 1/2021.)
BY ADVS.
R1 & R2 BY SRI.N.NANDAKUMARA MENON (SR.)
SHRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION
R3 & R4 BY GOVERNMENT PLEADER SRI B.S.SYAMANTHAK
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 01.12.2021, THE COURT ON 23.2.2022 DELIVERED
THE FOLLOWING:
W.P.(C)No.28821 of 2020 -2-
"CR"
T.R. RAVI, J.
--------------------------------------------
W.P.(C)No.28821 of 2020
--------------------------------------------
Dated this the 23rd day of February, 2022
JUDGMENT
The case of the petitioner is as follows;
2. The petitioner owns 10.25 Ares of land in re-survey
No.BL.4416 corresponding to old survey No.258/3 of
Sasthamangalam Village. He submitted Ext.P2 application on
20.11.2018 before the 1st respondent for issuance of a building
permit. The application was for construction of a 14 storeyed
building of a total area of 6037.38M2. When no decision was taken
by the 1st respondent on the application, the petitioner enquired
about the cause for the delay and was informed that the area was
earmarked as a commercial zone in the Master Plan of 1971 of the
Thiruvananthapuram Corporation (hereinafter referred to as MP
1971). The petitioner filed W.P.(C)No.31626/2019, which was
disposed of by this Court by judgment dated 05.12.2019 directing
the Corporation to pass orders on the application for building
permit in the light of the Interim Development Order (hereinafter
referred to as IDO) which had been issued under Section 63 of the
Kerala Town and Country Planning Act, 2016 (hereinafter referred
to as the 2016 Act), as per GO(MS)No.180/2017/LSGD dated
11.9.2017. The Government Order has been produced as Ext.P4.
Pursuant to the directions issued by this Court, the 1 st respondent
issued Ext.P6 order rejecting the application stating that even as
per the new Master Plan, the area is included in the commercial
zone and that the Master Plan does not permit construction of a
residential building in a commercial zone. According to the
petitioner, the law permits the construction of a residential
apartment building with commercial space in the ground floors, in
areas coming under the commercial zone. The petitioner hence
submitted a revised plan and a request as per Ext.P9. Ext.P10 is
the receipt issued by the 1 st respondent acknowledging the receipt
of the revised plan. The petitioner hence seeks to quash Ext.P6
and prays for a direction to consider Ext.P9 request.
3. Ext.P4 was issued prior to Ext.P2 application for permit.
Ext.P4 shows that a draft Master Plan had been prepared and
brought into force on 23.4.2013, but the same was frozen as per
GO(MS)No.53/14/LSGD dated 26.2.2014. It would appear that the
order by which the Master Plan of 2013(hereinafter referred to as
MP 2013) was frozen was later modified to the effect that
residential, commercial, industrial uses and other permissible
projects shall be permitted as per the provisions of the published
Master Plan for Thiruvananthapuram. On 26.11.2016, a meeting
under the Chairmanship of the Hon'ble Minister for Local Self
Government Department was held, wherein it was decided that a
new Master Plan for Thiruvananthapuram shall be prepared and
published and an IDO shall be prepared considering the objections
and suggestions received on MP2013, for the purpose of controlling
the developments during the period upto the time when the new
Master Plan is sanctioned. The order further says that the IDO was
prepared and forwarded to the Government for sanction and the
Government has sanctioned the same. Ext.P4 shows that the IDO
has been issued under Section 63(4) of the 2016 Act and that the
report and maps of MP2013 published vide Gazette notification
No.17 Vol.II dated 23.4.2013, will come into operation forthwith
with certain modifications. The Proposed Land Use - 2031 map
and Chapter 29 of the IDO were to replace the map and Chapter
29 of MP 2013.
4. Chapter 29 referred above deals with Zoning
Regulations. A copy of the same has been produced as Ext.P7.
Clause 3.16.1.2 of Ext.P7 shows that residential apartments with
commercial space in the lower floors is a permitted activity in the
existing/proposed commercial zones. It also shows that as
restricted activity, there can be construction of residential buildings
having more than 300M2 area.
5. On 20.11.2019, the Government vide Ext.P8 circular
issued directions for the purpose of bringing into force the Kerala
Municipality Building Rules, 2019. As per the circular, applications
submitted upto 7.11.2019 and applications which had been
returned before 7.11.2019 for the purpose of re-submission after
making corrections, would be covered by the Kerala Municipality
Building Rules, 1999 and the Kerala Panchayat Building Rules,
2011 as the case may be. It further says that where plans
submitted prior to 7.11.2019 had been returned for submission of
revised plan and the revised plan does not provide for increase of
the total area of construction, the old rules will prevail. According
to the petitioner, since 1st respondent's stand is that the property is
a commercial property, the 1st respondent should have considered
the application submitted by the petitioner as per Ext.P9, in the
light of Ext.P4, Ext.P7 and Ext.P8 circular.
6. The 1st respondent has filed a statement. According to
the 1st respondent, the area where the construction is proposed is
a commercial zone under MP 1971 and since the petitioner
proposed to construct a residential apartment, the application
could not be considered favourably. It is further submitted that
even as per the IDO, major portion of the area is included as a
commercial zone and only a small portion will come within the
residential zone. Regarding the application Ext.P9 and revised
plan referred to in Ext.P10, it is submitted that as per the
Government Order GO(MS)No.144/2007 only a residential building
upto 300M2 can be constructed in the property coming under the
commercial zone. The statement does not answer the question
whether a residential building with commercial space can be
constructed in the property.
7. The 3rd respondent District Town Planner has also filed a
counter affidavit wherein it is stated that as per the Zoning
Regulations, apartments are not permissible in the commercial
zone. Regarding the IDO, it is stated that it is only an interim
measure to govern development during the period between the
date of notification of the intention in the Gazette to prepare a plan
and the date of publication of the draft plan in the official Gazette
under the Act in the case of Master Plan. It is further submitted
that the date of coming into operation of the plan for the purpose
of the Section is defined as the date of publication of the notice in
the Official Gazette inviting objections and suggestions under the
provisions of the Act. It is further submitted that as per Section
36(12) proviso (1), in cases where sanctioned Master Plan already
exists its provisions shall apply until the published Master Plan is
sanctioned in accordance with the provisions of the Act.
8. The petitioner has filed a reply affidavit pointing out that
as per the IDO Ext.P4, Sy.No.258 comes under both commercial
and residential zones and hence, there should be no reason why
the 1st respondent should deny the grant of a building permit. It is
further submitted that even if the property is in a commercial
zone, as per clause 3.16.1.2 in Ext.P7, residential apartment
buildings with commercial space in the ground floor is a permitted
activity. It is further pointed out that as per Ext.P8 Circular,
Government has clarified that building permit applications which
had been filed prior to 7.11.2019 and were defective can be re-
submitted and the old rule will apply.
9. Heard Sri V.G.Arun on behalf of the petitioner,
Sri N. Nandakumara Menon, Senior Advocate, instructed by
Sri P.K.Manoj Kumar on behalf of the 1st and 2nd respondents and
Sri B.S.Syamanthak, Government Pleader, on behalf of the
respondents 3 and 4.
10. Section 63 of the 2016 Act as originally enacted reads
as follows:
"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.
(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 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. "
11. The Government subsequently amended the provisions
of the 2016 Act, by means of the Kerala Town and Country
Planning (Amendment) Act, 2021, which is deemed to have come
into force on 25.2.2021. The non obstante clause in Section 63
was omitted and changes were made regarding the period of
operation of the IDO. After the amendment, Section 63 reads as
follows:
"63. Interim Development Orders and the restrictions after
notifying the intention to prepare Plans.- (1) With the
general object of controlling interim development of land
included in any planning area in respect of which intention to
prepare a Master Plan or a Detailed Town Planning Scheme has
been notified 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:-The expression 'interim development' means development
during the period between the date of notification of intention in
the Gazette to prepare a Plan and the date of publication of the
draft plan in the Official Gazette under this Act.
(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. The fact of
approval of the Interim Development Order shall be notified in
the Gazette.
(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 publication of notice of the Plan in
the Official Gazette inviting objections and suggestions thereon
under the provisions of the Act."
12. The respondents contend that in the light of
amendment, Section 63 has to be read along with Section 36 of
the 2016 Act, which clearly says that where a sanctioned Master
Plan already exists, its provisions shall apply until the published
Master Plan is sanctioned in accordance with the provisions of the
Act. The 2016 Act has been made applicable with effect from
23.9.2013. Admittedly, no sanctioned Master Plan, prepared as per
the 2016 Act has been brought into force. MP 2013 was prepared
and published in April, 2013, prior to the date of coming into force
of the 2016 Act, but the same was frozen in 2014. The only
published Master Plan that existed at the time of coming into force
of the 2016 Act was hence MP 1971. Section 61 of the 2016 Act
requires that all use and development of land after the coming
into force of a Master Plan, shall be in conformity with the Master
Plan. Under Section 62, the date of coming into force of the plan
has been defined to mean the date of publication of notice in the
Official Gazette inviting objections and suggestions, under the
provisions of the Act. Even after the amendment, Section 63 of the
2016 Act provides for issuance of an IDO which is to apply during
the period specified therein. The omission of the words
"Notwithstanding anything contained in the Act" cannot be
understood to mean that in cases where a Master Plan had been
published under the repealed enactments, that have been saved
under the savings clause of the 2016 Act, it will continue to apply
as long as a sanctioned Master Plan is not published under the
2016 Act. Reading Section 36 and 63 of the 2016 harmoniously, I
am of the opinion that Section 36(12) cannot apply in cases where
an IDO has been published in accordance with Section 63.
13. In the decision in S.Subbalekshmy v. Corporation of
Thiruvananthapuram (W.A.No.1776 of 2019), which was
rendered on 26.11.2019, when the pre-amended Section 63 was in
force, this Court had categorically held that once the IDO has been
prepared and approved, it shall remain in operation until the
coming into operation of the Master Plan. The Division Bench held
that MP 1971 will not apply. The Division Bench negatived the
contention based on Section 36(12) on the reason that Section 63
begins with a non obstante clause. The conclusion of the Division
Bench still holds good despite the amendment brought to Section
63 by omission of the non obstante clause. Any other conclusion
will render the very provision for preparation of IDO otiose. Section
36 has to be understood as a provision which prescribes the
procedure for preparation, publication and sanctioning of Master
Plan. Section 63 on the other hand, has a different field of
operation, i.e., preparation of an IDO to take care of interim
developments. It is also relevant to note that the IDO was
prepared in 2016 and the amendment of Section 63 was five years
later in 2021. The amendment as made, does not have the effect
of cancelling or nullifying the IDO issued in 2016.
14. The Senior Counsel appearing for the Corporation relied
on the decision of a Division Bench of this Court in Asset Homes
(P) Ltd. v. State of Kerala reported in [2011 (2) KLT 1] and
the decision of the Hon'ble Supreme Court in Howrah Municipal
Corporation v. Ganges Rope Co. Ltd. & Ors. reported in
[(2004) 1 SCC 663] to submit that the rule which has to be
applied is the one which is in force at the time of issuance of the
permit and not the rule that was in force at the time of submission
of the application. The above proposition may not strictly apply in
the case of the petitioner, since both at the time of preferring the
application and till today, the IDO alone is in operation and no
other Master Plan has taken its place. Even though the Municipality
Rules had come into force in 2019, going by Ext.P8 circular, the
Kerala Municipality Building Rules, 1999 will apply in the case of
applications submitted prior to 07.11.2019, which is to be
re-submitted after curing defects. The circular also says that
where plans submitted prior to 07.11.2019 are returned for
re-submission after making necessary changes, and the revised
plan also does not contain any increase in the plinth area, Kerala
Municipality Building Rules, 1999 will apply. As such, it is not
necessary to go into the legal issues concluded by the judgments
in Asset Homes (P) Ltd. (supra) and Howrah Municipal
Corporation (supra).
15. Coming to the case on hand, the petitioner's application
for Building permit was submitted on 20.11.2018, at a time when
the IDO was in force. By Ext.P6 the application was rejected
stating that both under the earlier DTP scheme and under the new
Master Plan, the area where the construction is proposed is a
commercial zone. Even according to the Corporation, major portion
of Sy.No.258 where the building is proposed to be constructed is
commercial zone and a small extent is residential zone. Chapter 29
of the IDO, which is produced as Ext.P7, clearly shows that in
commercial zone, residential apartments with commercial space in
lower floors and residential houses of 300M2 plinth area are
permitted activities. Construction of residential houses of more
than 300M2 is also included as restricted activity. In view of the
specific provisions contained in the IDO, the reasoning in Ext.P6 is
not legally sustainable and Ext.P6 is hence liable to be quashed.
However, that would not mean that Ext.P2 application for Building
permit is liable to be granted since the said application is only for a
residential apartment without commercial space. Going by Ext.P8
Circular dated 20.11.2019, for applications submitted prior to
7.11.2019, the Municipality Building Rules of 1999 would be
applicable. Once Ext.P6 is quashed, the application is revived for
fresh consideration and since Ext.P2 is an application submitted
prior to 7.11.2019, it is only fair that the petitioner is permitted to
revise the plan, to suit the requirements of the IDO. Since the
petitioner has already submitted a revised plan in accordance with
the IDO, which is applicable till a sanctioned Master plan becomes
available, as seen from Ext.P10, and made a request as Ext.P9,
and, since as per the revised plan there is no increase in the plinth
area shown in Ext.P2, I am of the opinion that interests of justice
requires that Ext.P2 as revised by Ext.P10 and Ext.P9 should be
considered afresh by the 1st respondent, in accordance with Ext.P4
IDO and Ext.P8 Circular.
16. In the result, the writ petition is allowed. Ext.P6 is
quashed. The respondents 1 and 2 are directed to reconsider the
application for building permit submitted by the petitioner in 2018,
as revised by Ext.P10 revised plan and Ext.P9 request, in
accordance with the provisions contained in Ext.P4 Interim
Development Order, at the earliest, at any rate within two months
from the date of receipt of a copy of this judgment.
Sd/-
T.R. RAVI
JUDGE
dsn
APPENDIX OF WP(C) 28821/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF BASIC TAX RECEIPT DATED
11/6/2018 ISSUED TO THE PETITIONER.
EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT APPLICATION
DATED 20/11/2018 SUBMITTED BY THE PETITIONER
THROUGH HER POWER OF ATTORNEY HOLDER RAJEEV.
EXHIBIT P3 PHOTOGRAPHS SHOWING PETITIONER'S PROPERTY AND
THE ADJACENT APARTMENT BUILDINGS.
EXHIBIT P4 TRUE COPY OF GO(MS) NO.180/2017/LSGD DATED
11/9/2017.
EXHIBIT P5 TRUE COPY OF THE PART MAP OF THE VICINITY
AROUND PETITIONER'S SITE AND THE PROPOSED
LAND USE MAP 2031 ATTACHED TO INTERIM
DEVELOPMENT PLAN FOR THIRUVANANTHAPURAM
CORPORATION APPROVED BY EXT.P4 GOVERNMENT
ORDER.
EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS DATED 19/10/2020
OF THE SECRETARY OF THE CORPORATION.
EXHIBIT P7 TRUE COPY OF RELEVANT PORTION OF THE TOWN
PLANNING STIPULATION AS PER THE INTERIM
DEVELOPMENT PLAN PASSED IN ACCORDANCE WITH
EXT.P4 GOVERNMENT ORDER.
EXHIBIT P8 TRUE COPY OF THE CIRCULAR NO.201/R.D1/2019
LSGD DATED 20/11/2019.
EXHIBIT P9 TRUE COPY OF THE COVERING LETTER DATED
17/12/2020 SUBMITTED BEFORE THE 2ND
RESPONDENT.
EXHIBIT P10 TRUE COPY OF RECEIPT NO.74769 DATED
18/12/2020 EVIDENCING SUBMISSION OF REVISED
PLAN.
EXHIBIT P11 TRUE COPY OF THE LETTER DATED 25/03/2020 OF
THE PRINCIPAL SECRETARY TO THE 2ND
RESPONDENT.
