Thursday, 3 December 2015

Whether municipality can reject building permission on the ground of proposed Development plan?

  The Kerala High Court on Thursday, 30 July 2015 in a judgment titled ‘Havva T.P. Vs. Tirur Municipality‘ has opined that the Municipality is not at liberty to saddle the land owners by the proposed public purpose provided under a Detailed Town Plan Scheme (D.T.P.), without the land being acquired by the State Government or the Municipality for the purpose notified under the Scheme.
   On a reading of Rule 3, it is clear that the

applicability of the rule is for the purpose of carrying out

construction of public or private buildings and for other related

purposes. Therefore, the stipulation contained under Rule 3A

with regard to the supremacy of the Town Planning Scheme

can only be relating to the Rules regarding construction of the

buildings provided under Rule 3 referred supra. So also, in all

the afore cited judgments rendered by the Hon'ble Apex Court

as well as this Court, the Courts were largely considering the

question of Town Planning Schemes propounded under the

Town Planning Acts with reference to Article 300A of the

Constitution and held that without acquisition of the land, the

schemes so launched cannot be put into effect. Therefore,

the contention put forth by the Respondent that consequent to

introduction of Rule 3A, the Respondent was justified in

declining permit cannot be sustained. According to me, such a

principle was evolved by the Courts taking into account the

protection provided for enjoyment of the property conferred

under Article 300A of the Constitution.


     Taking into account all these circumstances and

settled legal position in accordance with the principles so laid

down by the Courts in the judgments cited supra, I am of the

considered opinion that the stand adopted by the Respondent -

Municipality that permit cannot be granted consequent on the

pendency of D.T.P. Scheme can never be sustained under law.



     Therefore, I set aside Ext.P3 order passed by the

Respondent - Municipality and direct the Municipality to take a

decision in the application submitted by the petitioners seeking

permit for construction of the building on production of

requisite order from the competent authority under the

K.L.U.O for use of the land for a different purpose in

accordance with law, taking into account the observations

made above.
                     IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                               PRESENT:

                         THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

                 THURSDAY, THE 30TH DAY OF JULY,2015
                                   W.P.(C).No. 4050 of 2014 (E)
                                   

         HAVVA T.P,
Vs

            TIRUR MUNCIPALITY,
            

      This writ petition is filed by the petitioners seeking to

quash Ext.P3 order passed by the Respondent-Municipality

declining permit for construction of a basement plus two

storied building applied for by the petitioners.

      2. Brief facts required for disposal of the writ petition are

as follows:

      3.   Petitioners are the owners in possession of 7.5 cents

of property comprised in Re-survey No.213/2 of Thrikkandiyur

Village, Malappuram District. Petitioners became vested with

the said property as per registered Partition Deed bearing

No.2990/1999 of the office of the Sub Registrar, Tirur. The

said property was a paddy field ('nilam') earlier and

immediately after the registration of the above partition deed,

the same was filled up and converted as a garden land. This

fact of developing the land by conversion of the same from

paddy field to garden land is proved by Ext.P2 Data Bank

prepared under the Kerala Conservation of Paddy Land and

W.P.(C) No.4050 of 2014           2

Wetland Act No.28 of 2008 (for short, Act No.28 of 2008). It

was also contended that the remaining properties abutting the

property of the petitioners are all developed into garden land

even at the time of the above mentioned partition deed.

      4.    It was further contended that in order to put up a

residential building in the aforesaid property, they had applied

for a building permit to the Municipality. But the Respondent

Municipality rejected the application for building permit stating

that the property is narrated as "Nanja" as per the possession

certificate issued by the Village authorities and further that the

road included in the DTP Scheme Map-I named as CC Road

with 12 meters width was proposed through the property of

the petitioners. Therefore, on both the above grounds, the

permit sought for by the petitioners for construction of the

building was declined by the Municipality as per Ext.P3 order

dated 08.11.2013. It is thus aggrieved by the said order, the

petitioners have approached this Court seeking to quash

Ext.P3 and for other related reliefs.

      5.    The Municipality has filed a counter affidavit

virtually supporting the stand taken in Ext.P3 order and also

contended that there was no illegal action on the part of the

W.P.(C) No.4050 of 2014          3

Municipality in order to grant permit to the petitioners to carry

out the construction of the building proposed.           What I

understand from the contentions put forth by the Respondent

was that since under the possession certificate, the property is

described as 'Nanja', [according to Counsel for the petitioners,

'Nanja' means a low lying 'Nilam' (paddy field)] and further

that there is a road proposed as per the Detailed Town Plan

Scheme (D.T.P. Scheme), they are unable to grant permission

to the petitioners to put up construction of the multi-storied

building. The Respondent has also contended that as per the

permit sought for, the building has basement plus two floors,

and same is a commercial building and therefore the

contention of the writ petitioners that they have submitted the

application and plan for a residential building was not true or

correct. It was also contended that under the D.T.P Scheme,

the property of the petitioners is situated in a mixed zone and

therefore they are not entitled to carry out the construction of

a commercial building in the said zone.

      6.   Heard Sri. M.I.Johnson, learned counsel appearing

for  the   petitioners  and   Sri.P.K.Vijayamohanan,     learned

Standing Counsel for the Municipality.

W.P.(C) No.4050 of 2014          4

     7.    On perusal of Ext.P3 impugned order passed by the

Respondent, permit was declined on two grounds:

     (1) the possession certificate produced along with the

application for permit shows that the property is "Nanja"; and

     (2)    the property for which the petitioners sought

permission for construction of the building is included in the

Map-I of Detailed Town Planning Scheme for the purpose of

construction of a road in 12 meters width named as CC Road.

     8.    In order to ascertain the situation as comprehended

by the Respondent in its counter affidavit, I have gone through

the same and found that the Respondent has not disputed the

contention put forth by the petitioners that the property was

developed prior to the introduction of Act No.28 of 2008 by the

State Government, but contended that even if the land was

converted so, no permission was sought for conversion of the

same and therefore the Municipality had no obligation to grant

permit to the petitioners. On verification of Ext.P2 Draft Data

Bank prepared by the Trikkandiyur Village, which is not

disputed by the Respondent, the Survey No.213/2 that is the

property belonging to the petitioners is included in Sl.No.739

and in the column against to which the approximate date of

W.P.(C) No.4050 of 2014          5

conversion is mentioned, it is shown that "above 10-15 years".

Therefore, according to the Data Bank prepared, the

petitioners property is converted as a dry land prior to the

introduction of Act No. 28 of 2008, and the property is

incorporated in the data bank prepared under said Act knowing

fully well that the same was a converted land prior to the

introduction of the Act. But, that by itself will not enable the

petitioners to seek permit since for the purpose of use of land

for a different purpose, petitioners require appropriate sanction

from the authority under the Kerala Land Utilization Order,

1967 (for short, 'K.L.U.O').

      9.    Under these circumstances, the learned counsel for

the petitioners has invited my attention to the judgment of the

Hon'ble Apex Court in 'Revenue Divisional Officer v. Jalaja

Dileep' [ 2015 (1) KLT 984 (SC)], in order to canvass for the

proposition that the properties which are already developed

and converted as dry land prior to the introduction of Act

No.28 of 2008 does not suffer from any disqualification for

carrying out construction activities as prohibited under Act

No.28 of 2008.      It was further contended by the learned

counsel that the Hon'ble Apex Court has not prohibited the

W.P.(C) No.4050 of 2014            6

construction of buildings in such properties but only stipulated

that consequent to conversion, such alteration of the nature of

the property shall be got approved by making appropriate

applications before the authority under the K.L.U.O, 1967. In

order to evaluate the situation properly, it is only proper that

paragraph 17 of the said judgment is extracted here:

           "17.   "Paddy land" and "Wetlands" are defined

     under    Sections   2(xii) and   2(xviii)  of  the   Act

     respectively. As per Section 5(4), the Committee shall

     inter alia prepare a Data Bank with details of cultivable

     paddy land within the jurisdiction of the Committee. If

     the land is not included in the Data Bank or Draft Data

     Bank prepared under the Kerala Cultivation of Paddy

     Land and Wetland Act, 2008 and if it is not a "Paddy

     land" or "Wetland" as defined under Act 28 of 2008, at

     the time of commencement of the Act 12 (sic Act 28)

     of 2008 and the classification of land is noted as

     "Nilam" in the revenue records, the provision of Kerala

     Land Utilization Order, 1967 will be applicable to such

     land and the Collector as defined in Clause 2(a) of

     K.L.U. Order 1967 has the power to grant permission

     to utilize the land for other purposes.    As stated in

     Clause 2(a) of K.L.U. Order, Collectors shall examine

     such request for residential purpose, on merits on a

     case to case basis.

           x      x    x      x    x    x      x

           x      x    x      x    x    x      x"

W.P.(C) No.4050 of 2014          7

     10. Therefore, on a reading of paragraph 17 of the said

judgment, it is categoric and clear that a 'Nilam' (paddy field)

or wet land which was developed before the introduction of Act

No. 28 of 2008, the land will not be imposed with any

prohibition contemplated under Act 28 of 2008.        But, such

property owners will have to make suitable applications to the

competent authority under K.L.U.O, 1967 for utilizing such

lands for other purposes. The Hon'ble Apex Court has also

directed the Collectors discharging functions under the K.L.U.O

shall examine such requests on merits and on a case to case

basis and take appropriate decision.

     11. After rendering so, in paragraph 18 of the said

judgment, it was held that if a property is included in the Data

Bank or the draft Data Bank prepared under Act No.28 of 2008

as a "paddy land" or "wet land" and the classification of the

land is noted as "Nilam" in revenue records, the provisions of

Act No. 28 of 2008 would apply.       Further, it was held that

there is ample provision within the Act itself to grant

permission for such land for residential purpose or public

purpose as defined in the Act and as elaborated if the property

is not included in the data bank as 'paddy land' or 'wet land' as

W.P.(C) No.4050 of 2014            8

defined under Act No. 28 of 2008, it is still governed by the

provisions of K.L.U.O, 1967. In that view of the matter, I am

of the considered opinion that admittedly the property under

which the construction is sought for is a converted land prior to

the introduction of Act No. 28 of 2008 as is evident from

Ext.P2 Data Bank prepared by the appropriate authority under

Act No.28 of 2008, which aspect is also not disputed by the

Respondent specifically in the counter affidavit.

      12. In that circumstances, learned counsel for the

petitioners has also brought my attention to the judgment of a

learned Single Judge of this Court in 'Beena Johnson v.

Revenue Divisional Officer, Idukki and Another' [2015 (3)

KHC 727], wherein the very same question with regard to the

land utilization order was considered taking into account the

various judgments rendered by this Court under the subject

issue and also the judgment of the Hon'ble Apex Court cited

supra.     The learned Single Judge, after appreciating the

circumstances, held in paragraph 22 as follows:

            "22. x     x     x     x    x     x    x

             However the fact remains that in the BTR, the

      land is described as 'Nilam'. In such circumstance, the

      petitioner would have to make an application under the

W.P.(C) No.4050 of 2014          9

      KLUO before the Sub Collector and on such application

      being made, the same shall be considered in accordance

      with law and in accordance with the observations made

      herein above."

      13. Therefore,     taking    into   account     all   these

circumstances, I am of the considered opinion that so far as

the first reason contained in Ext.P3 with regard to the

description of the land in the possesion certificate as "Nanja" is

concerned, the petitioners can rectify the same by filing

suitable application before the appropriate authority under the

K.L.U.O and secure such permission.

      14. So far as the next question with regard to the

inclusion of the property in the Detailed Town Planning Scheme

and the mixed zone was concerned, even according to the

Municipality, the property was situated in a mixed zone.

Therefore that by itself shows that the petitioners were

entitled to put up construction of commercial building and in

that view of the matter, the contention made by the

Respondent Municipality that since the area is a mixed zone

and not a commercial zone, the petitioners are not entitled to

put up commercial structure cannot be said to be correct.

Anyhow, I am not entering into a finding on that factual

W.P.(C) No.4050 of 2014          10

aspect, which can be settled by the Municipality on verification

of the application for permit and the plan submitted by the

petitioners.

      15. But, again, it was contended by the Municipality

that since under the D.T.P. Scheme, a road is proposed viz.

C.C. Road with 12 meters width as per G.O.(P) No.179/92/LAD

dated 02.07.1992, permit could not be granted and therefore

they were right in rejecting the application seeking permit.

      16. Learned counsel for the petitioners, to meet the said

contention put forth by the Municipality, has invited my

attention to the judgment of the Hon'ble Apex Court in 'Raju

S. Jethmalani and Others v. State of Maharashtra and

Others' [(2005) 11 SCC 222] = [2005 KHC 1983] and

contended that merely because a Town Planning Scheme was

launched by the State Government on the basis of old Town

Planning Act the Scheme cannot be pressed into service for the

purpose of declining permit to the petitioners.      In the said

case, Hon'ble Apex Court was considering the question of the

inclusion of the land in development Plans and the parameters

required for sustaining such Schemes and I think it is only

appropriate that the relevant portion of paragraph 3 of the said

W.P.(C) No.4050 of 2014            11

judgment is extracted for a proper evaluation of the findings.

           "3.   x     x     x     x     x      x

                 x     x     x     x     x      x

              The question is whether without acquiring the

     land the Government can deprive a person of his use of

     the land. This in our opinion, cannot be done. It would

     have been possible for the Municipal Corporation and

     the Government of Maharashtra to acquire the land in

     order to provide civic amenities.        But the land in

     question has not been acquired. We are quite conscious

     of the fact that the open park and garden are necessary

     for the residents of the area. But at the same time we

     cannot lose sight of the fact that a citizen is deprived of

     his rights without following proper procedure of law.

                 x     x     x     x     x      x

                 x     x     x     x     x      x"

     17. The principle that was evolved by the Hon'ble Apex

Court in the said judgment was that in order to implement the

development plan, the land should be acquired by the State

Government or Municipal Corporation to effectuate the public

purpose and the land owner cannot be deprived from using the

property for any other purpose under the guise of the Town

Planning Scheme.        So also, learned counsel invited my

attention to the judgments of this Court in 'Abdul Kabeer v.

Malappuram        Municipality'      [2012      (3)    KLT      106],

'Muhammed Subair v. Corporation of Kozhikode' [2015

W.P.(C) No.4050 of 2014           12

(2) KLT 757] and 'Muthoot Finance Ltd. (M/s.), Kochi v.

Corporation of Cochin and Others' [2015 (2) KHC 491] and

contended that in all the judgments cited supra, this Court

considered the question of development plans vis-a-vis the

right of the Municipality to deprive the properties from being

developed in the guise of D.T.P Scheme. In those judgments,

this Court has categorically held that no property right can be

interdicted and ipso facto no building permit can be refused on

the basis of D.T.P. Scheme or on a mere proposal for

acquisition of land. So also, the aspect of construction being

carried out in a mixed zone was also considered in 'Muthoot

Finance Ltd. case' (supra) and held in paragraph 18 as

follows:

           "18. Indeed, it is not disputed that the area is

     densely constructed, albeit, after due sanction from the

     respondent Corporation; nor is it disputed that the area

     comes under mixed use. But the fact remains that the

     survey numbers in which the petitioner's property is

     situated lie in 'Ground and Public Open Space Zone'.

     The property in question is shown in Kochi City Structure

     Plan as a place earmarked for public utility.       It is

     axiomatic that in any master plan, various areas may be

     marked as public utility places or as lung spaces or

     recreational open spaces. The places thus shown may

     belong to the Corporation or to any individuals. To sub-

W.P.(C) No.4050 of 2014          13

     serve the public purpose, the properties owned by

     individuals, having been earmarked for public use, are,

     in fact, required to be acquired before they could be

     dedicated for the declared purpose.      In the present

     instance,   no   acquisition  proceedings   have   been

     initiated."

     18. So also, in the decision reported in 'Padmini v.

State of Kerala' [1999 (3) KLT 465], it was held in paragraph

8 that in the instant case it is not in dispute that there was no

proposal to acquire the land in question on the date of the

appellant's submitting the application for permission to

construct a residential building on 16.01.1996 or when he

again applied for permission to construct the building on

23.12.1997 which was rejected by the Municipality by the

endorsement as contained in Ext.P3 and no notification under

Sec.4(1) of the Act was issued. Therefore, the Municipality

had no authority to reject the application on the ground that

the land is proposed to be acquired.           Therefore, on an

appreciation of the factual situation contained in this case, it is

therefore clear that as on the date of submitting the

application seeking permission to construct building in the case

on   hand,    there   was   no   proposal    for  acquisition   as

contemplated under law.

W.P.(C) No.4050 of 2014            14

      19. After      appreciating     the   entire     facts  and

circumstances and the principles laid down in the aforesaid

judgments, I am of the considered opinion that the

Respondent Municipality is not at liberty to saddle the

petitioners by the proposed public purpose provided under a

D.T.P. Scheme, without the land being acquired by the State

Government or the Municipality for the purpose notified under

the Scheme.

      20. So also, by virtue of Article 300A                of the

Constitution, a civil right is conferred on every property owner

to possess the property and the same cannot be deprived

without authority of law. The Hon'ble Apex Court had occasion

to consider the said question in 'Bishamber v. State of Uttar

Pradesh' [AIR 1982 SC 33] and it was held in paragraph 41

thus:

           "41. There still remains the question whether the

      seizure of wheat amounts to deprivation of property

      without the authority of law. Art. 300A provides that no

      person shall be deprived of his property save by

      authority of law. The State Government cannot while

      taking recourse to the executive power of the State

      under Art. 162, deprive a person of his property. Such

      power can be exercised only by authority of law and not

      by a mere executive fiat or order. Article 162, as is

W.P.(C) No.4050 of 2014            15

     clear from the opening words, is subject to other

     provisions of the Constitution.        It is , therefore,

     necessarily subject to Art. 300A. The word 'law' in the

     context of Art. 300A must mean an Act of Parliament or

     of a State Legislature, a rule, or a statutory order,

     having the force of law, that is positive or State-made

     law.

           x     x     x      x     x     x    x

           x     x     x      x     x     x    x".

     21. In yet another decision in 'Jilubhai Nanbhai

Khachar & Others v. State of Gujarat & Others' [AIR 1995

SC 142], the Hon'ble Apex Court had occasion to consider the

extent of right conferred on a citizen under Article 300A of the

Constitution and held in paragraphs 32 and 48 as follows:

           "32. In Subodh Gopal's case [AIR 1954 SC 92]

     Patanjali Sastri, C.J., held that the word 'deprived' in Cl.

     (1) of Art. 31 cannot be narrowly construed. No cut and

     dry test can be formulated as to whether in a given case

     the owner is deprived of his property within the meaning

     of Art.31; each case must be decided as it arises on its

     own facts.   Broadly speaking it may be said that an

     abridgment would be so substantial as to amount to a

     deprivation within the meaning of Art. 31, if, in effect, it

     withheld   the   property    from   the  possession    and

     enjoyment by him or materially reduced its value. S.R.

     Das, J. as he then was, held that Cls. (1) and (2) of Art.

     31 dealt with the topic of 'eminent domain', the

     expressions 'taken possession of' or 'acquired' according

W.P.(C) No.4050 of 2014          16

     to Cl. (2) have the same meaning which the word

     'deprived' used in Cl. (1).   In other words, both the

     clauses are concerned with the deprivation of the

     property; taking possession of or acquired used in Cl.(2)

     is referable to deprivation of the property in Cl.(1).

     Taking possession or acquisition should be in the

     connotation of the acquisition or requisition of the

     property for public purpose.     Deprivation specifically

     referable to acquisition or requisition and not for any

     and every kind of deprivation. In Dwarka Das Srinivas

     of Bombay v. Solapur Spinning and Weaving Co. Ltd.,

     1954 SCR 674: (AIR 1954 SC 119), Mahajan, J., as he

     then was, similarly held that the word 'deprived' in Cl.

     (1) of Art. 31 and acquisition and taking possession in

     Cl.(2) have the same meaning delimiting the field of

     eminent domain, namely, compulsory acquisition of the

     property and given protection to private owners against

     the State action. S.R. Das, J. reiterated his view held in

     Subodh Gopal's case (AIR 1954 SC 92), Vivian Bose, J.

     held that the word 'taken possession of' or 'acquired' in

     Art. 31(2) have to be read along with the word

     'deprived' in Cl.(1).  Taking possession or acquisition

     amounts to deprivation within the meaning of Cl.(1).

     No hard and fast rule can be laid down.        Each must

     depend on its own facts. The word "law" used in Art.

     300A must be an Act of Parliament or of State

     Legislature, a rule or statutory order having force of

     law. The deprivation of the property shall be only by

     authority of law, be it an Act of Parliament or State

     Legislature, but not by executive fiat or an order.

     Deprivation of property is by acquisition or requisition or

W.P.(C) No.4050 of 2014           17

     taken possession of for a public purpose."

           "48.   The word "property" used in Article 300A

     must be understood in the context in which the

     sovereign power of eminent domain is exercised by the

     State and expropriated the property.        No abstract

     principles could be laid. Each case must be considered

     in the light of its own facts and setting. The phrase

     'deprivation of the property of a person' must equally be

     considered in the fact situation of a case. Deprivation

     connotes different concepts. Art. 300A gets attracted to

     an acquisition or taking possession of private property,

     by   necessary    implication  for  public purpose,    in

     accordance with the law made by the Parliament or of a

     State Legislature, a rule of a statutory order having

     force of law. It is inherent in every sovereign State by

     exercising its power of eminent domain to expropriate

     private property without owner's consent. Prima facie,

     State would be the Judge to decide whether a purpose is

     a public purpose. But it is not the sole Judge. This will

     be subject to judicial review and it is the duty of the

     Court to determine whether a particular purpose is a

     public purpose or not. Public interest has always been

     considered to be an essential ingredient of public

     purpose. But every public purpose does not fall under

     Art. 300A nor exercise of eminent domain and

     acquisition or taking possession under Art. 300A.

     Generally speaking preservation of public health or

     prevention of damage to life and property are

     considered to be public purposes.     Yet deprivation of

     property for any such purpose would not amount to

     acquisition or possession taken under Art. 300A.       It

W.P.(C) No.4050 of 2014            18

      would be by exercise of the Police power of the State.

      In other words, Art. 300A only limits the power of the

      State that no person shall be deprived of his property

      save by authority of law.      There is no deprivation

      without any sanction of law. Deprivation by any other

      mode is not acquisition or taking possession under Art.

      300A. In other words, if there is no law, there is no

      deprivation. Acquisition of mines, minerals and quarries

      is deprivation under Article 300A."

      22. Therefore, going by the law laid down by the

Hon'ble Apex Court, it is categoric and clear that either without

acquisition or requisition or taken possession of for a public

purpose, no citizen can be deprived of his property.

      23. So far as a property whether immovable or movable

is concerned, it is a precious and proud possession of a citizen

and he is entitled to enjoy the same by utilising it in a manner

suitable to him by respecting the authority propounded under

law. According to me, such a right was conferred under the

Constitution with the avowed object to deprecate inhuman

attitude of the State or other authorities against interfering in

the right of a citizen over his property without authority of law.

Therefore such civil right of the property owners cannot be

deprived by asserting futuristic public purpose, without the

same being acquired either by the State Government or the

W.P.(C) No.4050 of 2014           19

Municipality. Moreover, the owner of the property is entitled to

enjoy the same during his life time and if the development of

the property is deprived on the basis of alleged D.T.P. Scheme

proposed either by the Government or by the Municipality and

continuance of the same indefinitely, no person may be

entitled to enjoy the property putting it to profitable use during

his life time.   Therefore, according to me, the Respondent

Municipality cannot be allowed to take such a stringent stand

so as to fetter the right of the petitioners from developing their

property in accordance with the Municipal Building Rules.

       24. Moreover, the State and other authorities are duty

bound to act fairly to the citizens as envisioned under Article

14 of the Constitution. The State or any of the authorities are

not at liberty to prohibit an owner of a property from using or

utilising the same without resorting to acquisition of the

property in a manner known to law, without which, such

actions become arbitrary and therefore interferes with the

fundamental right conferred to a citizen under Article 14 of the

Constitution. In fact, Article 300A of the Constitution provides

protection to a citizen from being deprived of the property

otherwise than the authority of law. Bearing in mind the legal

W.P.(C) No.4050 of 2014          20

principles evolved by the Courts supra and tested the same

against the facts of this case, it is clear that the Respondent

Municipality went wrong in rejecting the application of the

petitioners seeking permission to construct a building in the

property owned by the petitioners under the pretext of D.T.P.

Scheme.

      25. The learned Standing Counsel for the Respondent-

Municipality has also brought my attention to Rule 3A of the

Kerala Municipality    Building Rules and contended that

consequent to the introduction of Rule 3A with effect from

16.12.2009, the D.T.P. Scheme launched by the State

Government is protected, since as per the said rule, the

provisions or regulations in any Town Planning Scheme (in

force) under the Town Planning Acts shall prevail over the

respective provisions of the K.M.B.R.

      26. In order to understand the real purport of Rule 3A

of the Kerala Municipality Building Rules, 1999, Rule 3 and 3A

is extracted hereunder:

           "3. Applicability.-- These rules shall apply to,--

           (i) any public or private building described

      below, namely;-

W.P.(C) No.4050 of 2014           21

                  (a) where a building is newly erected,

     these rules shall apply to the designs and

     construction of the building;

                  (b) where the building is altered, these

     rules shall apply to the altered portion of the

     building;

                  (c) where the occupancy or use of a

     building is changed, these rules shall apply to all

     parts of the building affected by the change;

                  (d) where addition or extension is made

     to a building, the rules shall apply to the addition or

     extension only, but for calculation of floor area ratio

     and coverage permissible and for calculation of

     required off street parking area to be provided, the

     whole building (existing and the proposed) shall be

     taken into account;

                  (x x x)

           (ii) all lands which is proposed to be developed

     or redeveloped for construction of building;

                  x    x     x     x

           3A. Provisions in the Town Planning

     Scheme shall prevail.--Notwithstanding anything

     contained in these rules, provisions or regulations in

     any Town Planning Scheme (in force) under Town

     Planning Acts (xx) shall prevail over the respective

     provisions of these rules wherever such schemes

     exist."




      27. On a reading of Rule 3, it is clear that the

applicability of the rule is for the purpose of carrying out

construction of public or private buildings and for other related

purposes. Therefore, the stipulation contained under Rule 3A

with regard to the supremacy of the Town Planning Scheme

can only be relating to the Rules regarding construction of the

buildings provided under Rule 3 referred supra. So also, in all

the afore cited judgments rendered by the Hon'ble Apex Court

as well as this Court, the Courts were largely considering the

question of Town Planning Schemes propounded under the

Town Planning Acts with reference to Article 300A of the

Constitution and held that without acquisition of the land, the

schemes so launched cannot be put into effect. Therefore,

the contention put forth by the Respondent that consequent to

introduction of Rule 3A, the Respondent was justified in

declining permit cannot be sustained. According to me, such a

principle was evolved by the Courts taking into account the

protection provided for enjoyment of the property conferred

under Article 300A of the Constitution.


     28. Taking into account all these circumstances and

settled legal position in accordance with the principles so laid

down by the Courts in the judgments cited supra, I am of the

considered opinion that the stand adopted by the Respondent -

Municipality that permit cannot be granted consequent on the

pendency of D.T.P. Scheme can never be sustained under law.

I also bear in mind that the judgment in 'Abdul Kabeer's

case' referred supra was also a case concerned with

Malappuram Municipality.

     29. Therefore, I set aside Ext.P3 order passed by the

Respondent - Municipality and direct the Municipality to take a

decision in the application submitted by the petitioners seeking

permit for construction of the building on production of

requisite order from the competent authority under the

K.L.U.O for use of the land for a different purpose in

accordance with law, taking into account the observations

made above. This shall be done within a period of thirty days

from the date of production of K.L.U. order.

     30. The learned counsel for the petitioners has also

requested that even though the State or the competent

authority under the K.L.U.O are not parties in this writ petition,


there may be a direction to the said authority to consider the

application of the petitioners if and when they file the same. I

think such a prayer made by the counsel for the petitioners is

only just and legal and in order to avoid multiplicity of

proceedings, it is only proper that a direction can be issued to

the District Collector, Malappuram either to consider the

application by himself or the authority competent for that

purpose.

      31. The District Collector, Malappuram is suo motu

impleaded as additional 2nd Respondent and directed that if

and when an application is filed by the petitioners seeking

change of nature of land as provided under K.L.U.O, the same

shall be considered within a period of thirty days from the date

of receipt of such an application. I make it clear that I have

not made any observation on merits and the Additional 2nd

Respondent is free to take a decision after due verification of

the property and in accordance with law.

      The writ petition is disposed of as above.
                                               Sd/-
                                           SHAJI P. CHALY
                                              JUDGE
                             //true copy//


                            P.S. to Judge
St/-



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