P.P ANDRU v. State of Kerala

BY SRI. RAMESH CHANDER, SENIOR GOVERNMENT PLEADER BY SRI.SANTHOSH KUMAR G., SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.12.2023, THE COURT ON 04.01.2024 DELIVERED THE FOLLOWING : WP(C) NO. 22527 OF 2023 3 BECHU KURIAN THOMAS, J. =-=-=-=-=-=-=-=-=-=-=-=-=-= W.P.(C) No.22527 of 2023 =-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 4th day of January, 2024 JUDGMENT Petitioners seek for a direction to quash Ext.P3 order rejecting their application for a building permit, pointing out the existence of an alleged Detailed Town Planning Scheme for Ward No.17.

Petitioners are the owners of 810.61 Sq.mtrs of land in Survey No.553/2 of Kasaba Village, Kozhikode District. With the intention of constructing a commercial cum residential building, they applied for a building permit. However, by the impugned order dated 27.06.2023, their application for permit was rejected, pointing out that as per the Detailed Town Planning Scheme (for short, ‘the DTP Scheme’), the area falls in a residential zone and, therefore, a commercial building cannot be constructed.

Petitioners contend that as per the newly sanctioned Master Plan for Kozhikode Corporation, the area is earmarked as commercial and further that, all around the petitioners’ property, commercial buildings like hotels, theatres, and banks exist as evident from Ext.P5 photographs. Petitioners also averred that the road in front of their property is one of the busiest commercial parts of the city, with the new Bus Station and the KSRTC Bus Station located on the side of the road. It was further stated WP(C) NO. 22527 OF 2023 4 that their property is situated in front of a massive shopping complex comprising several showrooms, including a hotel, and there are hardly any residents to regard the property as a residential zone. It was also stated that it is no longer healthy for people to live in such a busy commercial area surrounded by various commercial establishments and therefore a realistic approach has to be taken by not regarding the area any longer as a residential zone and the Government must make suitable changes in the DTP Scheme to make it in conformity with the ground realities.

A counter affidavit has been filed by the 3rd respondent stating that as per Rule 3A of Kerala Municipality Building Rules, 1999, the provisions of the Town Planning Scheme will prevail over the Building Rules and since as per the approved DTP Scheme now in existence, only commercial buildings upto 150 Sq.mtrs alone can be permitted within the area under consideration.

It is further stated that petitioners’ plot falls under the ‘Area to be acquired for planned, residential development and rehabilitation of evicted parties’ where only a commercial building of 150 Sq.mtrs. alone can be permitted. It is stated that since the proposed building is a commercial building having an area of 2588.4 Sq.mtrs., the permission could not be accorded. It is however stated that as per the sanctioned Urban Area Master Plan, 2035, petitioners’ plot falls under commercial zone. However, as per Section 61 of the Kerala Town and Country WP(C) NO. 22527 OF 2023 5 Planning Act, 2016 when both Master Plan and DTP Schemes are in existence, the DTP Scheme will have precedence over the Master Plan. It is further stated that as per Section 50 of the aforesaid Act, the sanctioned DTP Scheme can be varied only by another DTP Scheme and the department is in the process of revising the DTP Scheme and provision to permit constructions based on current development scenario has already been incorporated in the proposed Scheme. It is further stated that the proposed building can be approved by the Secretary of the Kozhikode Corporation at the concurrence of the Chief Town Planner, if the petitioners submit rectified plans in accordance with the Kerala Municipality Building Rules, 2019. It is also stated that an area cannot be classified as a commercial area based on one or two surrounding buildings and since the zoning regulations under the DTP Scheme are required to be satisfied, applications that are contrary to the scheme cannot be allowed.

In the counter affidavit filed by the 2nd respondent, it is stated that the application was submitted for the construction of a commercial cum residential building and since the area was included in the zone earmarked as a residential zone in the DTP scheme, the permit could not be granted apart from the absence of fire NOC and the PCB NOC. It is also stated that the judgments pointed out by the petitioners in individual cases ought not to be treated as general precedents, and in the absence of any revision of the DTP Scheme, the 2nd respondent cannot ignore the WP(C) NO. 22527 OF 2023 6 existing one.

I have heard the arguments of Sri. Ramesh Chander, the learned Senior Counsel, instructed by Sri. Bonnny Benny, the learned counsel for the petitioners apart from Sri.G.Santhosh Kumar, the learned Standing Counsel for respondents 2 and 3 as well as Smt.K. Amminikutty, the learned Senior Government Pleader.

Petitioners’ application for grant of a building permit has been rejected based upon the DTP Scheme in force. As per the existing DTP Scheme, the area is earmarked as a residential zone and intended to be acquired. Though the 3rd respondent has stated in the affidavit that the DTP Scheme is being revised and the existing ground realities are being taken into consideration, but the same has not yet come into effect.

Though the petitioners alleged that several commercial buildings are in existence in and around petitioners’ plot, it is evident that as per Section 113 of the Town and Country Planning Act, 2016 all the existing DTP Schemes have been revived and deemed to be in existence. As long as the existing DTP Scheme has not been revised, the said Scheme will prevail over not only the Kerala Municipality Building Rules but also the Master Plan. It is evident from the pleadings in the case that as per the Master Plan, 2035 notified for the Kozhikode Corporation, petitioners’ property comes within the purview of commercial zone. Therefore unless and until the DTP Scheme is modified, the petitioners cannot insist that they should be permitted to construct a commercial building more than WP(C) NO. 22527 OF 2023 7 the area permitted under law. As per the existing Scheme, only commercial buildings up to 150 Sq.mtrs. alone can be permitted. Therefore the application of the petitioners beyond 150 Sq.mtrs. cannot be sanctioned.

In the decisions in The State of Kerala and Ors. v. Shareef V. and Ors. [2021 (2) KHC 224] a Division Bench of this Court had held that the mere introduction of a Master Plan would not take away the rigour of protection provided to any detailed town planning scheme under section 113 of the Act. Further, and in Palakkad Municipality v. Devadas [2021 (5) KLT 6], the detailed town planning schemes will have predominance over other statutory provisions and the rules thereto and hence a building permit application can be considered only by taking into account the scheme in force.

Apart from the above, in the decision in Regional Town Planner v. Muhammed Rasheed [2019 (3) KLT 433], it was held that the Secretary of a local authority, while issuing building permits in terms of the respective rules, is statutorily obliged to ensure that the construction in respect of which the permit is issued does not breach the provisions of any law. A validly framed and duly notified scheme under a Town Planning Act would come within the ambit of the term "other law" for the purposes of the Kerala Municipality Building Rules or the Kerala Panchayat Building Rules, and it was to clarify this aspect that R.3A was inserted in the Kerala Municipality Building Rules and a similar provision WP(C) NO. 22527 OF 2023 8 inserted in the Kerala Panchayat Building Rules. It would also follow that, in an area that has been developed in accordance with the Scheme that was validly prepared and duly notified in accordance with the provisions of the Town Planning Act, future constructions would have to adhere to the terms of the Scheme and the plans approved thereunder. This must be so unless and until the Scheme itself is altered or varied by the State Government in accordance with the provisions of the Town and Country Planning Act. The mandate and purport of the Scheme so framed assumes the nature of a law that regulates future construction in the area and would also bind subsequent purchasers of land and users thereof. It may not also be out of place to mention, in this context, that the earmarking of the areas into residential/industrial/commercial/agricultural or keeping apart areas for parks, roads, etc., is an exercise that is done in public interest and hence, the private interest of the land owners who seek to put up particular construction would have to necessarily yield to the overriding public interest that informs the provisions of the DTP Scheme.

Thus, the claim of the petitioners that they can ignore the DTP scheme for the area and should be permitted construction immediately is not legally tenable.