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2019 DIGILAW 87 (KER)

Gilbert A. X. v. State of Kerala

2019-01-25

A.K.JAYASANKARAN NAMBIAR, HRISHIKESH ROY

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JUDGMENT : HRISHIKESH ROY, J. 1. Heard Sri. Franklin Chellath, the learned counsel for the petitioner. The respondents 1 to 3 are represented by the learned State Attorney Sri. K.V. Sohan. The Corporation of Cochin [4th respondent] is represented by Adv. Sri. Millu Dandapani. The Greater Cochin Development Authority [5th respondent] is represented by Adv. Sri. Paul Jacob. 2. This Public Interest Litigation is filed questioning the constitutional validity of the Ordinance No. 4/2016 relating to town and country planning affairs, promulgated by the State Governor on 9.1.2016 as also the legislative exercise through which the Kerala Town and Country Planning Act, 2016 [hereinafter referred to as “the 2016 Act ”] was enacted. While the challenge to the promulgation of the Ordinance may have become redundant by virtue of the subsequent enactment, the learned counsel for the petitioner would submit that the defects noted by this Court in the Town Planning Act, 1939 [hereinafter referred to as “the 1939 Act ”] as also the Madras Town Planning Act, 1920 [hereinafter referred to as “the 1920 Act ”] in Shivaprasad vs. State of Kerala, 2011 (1) KLT 690 : 2011 (2) KLJ 1 , continue to prevail in the 2016 Act. 3. It is the contention of the petitioner that, by virtue of the constitutional amendment introducing Part IXA in the Constitution through the 74th Amendment Act, 1992 with effect from 1.6.1993, the Municipalities have been vested with powers and authorities under Article 243W read with the XIIth Schedule of the Constitution, and under the Constitutional Scheme, the Town Planning Authority can have no role in the preparation of General Town Planning Schemes and the Detailed Town Planning Schemes, at the Municipalities and the Panchayat level. 4. The learned counsel then refers to sub section (ix) of the Repeal and Saving under Section 113 of the 2016 Act, to point out that the Development authority constituted under the repealed enactments, under the 1939 Act, continue to have a major role in the preparation of the Development schemes and the Town Planning in the metropolitan areas but this is not envisaged under the constitutional norms, as mandated by the 74th Amendment and the legislative exercise, undertaken through the enactment of the 2016 Act. 5. 5. On the basis of the above submission, the petitioner seeks a declaration that powers conferred upon the Planning Board to advise the District Planning Committee on how to proceed with the Town Planning Scheme, the constitution of development authorities and giving powers, overriding the powers of the District Planning Committee and revival of the Town planning authorities is clearly contrary, to the declaration of law made by this Court in Shivaprasad's case (supra), and accordingly, appropriate declaration should be made by the Court. 6. Countering the said submissions of the learned counsel for the petitioner, the learned State Attorney would submit that the 2016 enactment, brought into effect from 23.9.2013 to replace the Ordinance, is in conformity with the constitutional provisions. He points out that the 'Development Authority' constituted under Section 51 of the 2016 Act is to exercise powers in performing functions under Section 56 of the 2016 Act, and it is clearly provided in Section 56 that the powers and functions are to be exercised by the Development Authority, subject to the provisions of the Kerala Municipality Act, 1994, and the Kerala Panchayat Raj Act, 1994. 7. The State Attorney submits that the primary responsibility of preparation of the Detailed Town Planning Scheme within the Municipal and Panchayat areas is vested on the Panchayat, and under Section 33, the Department of Town and Country Planning has just an advisory role, for the Municipal Corporation. The Government Advocate produces the three Notifications dated 16.12.2016, 17.4.2018 and 6.1.2017, to point out that, in exercise of the powers conferred by Section 51 of the 2016 Act, the Greater Cochin Development Authority has been constituted to exercise the powers and functions under Section 56 of the 2016 Act, for the areas specified in the Schedule. Similarly, the Goshree Island Development Authority is constituted to exercise the powers and functions under Section 56 for the area specified in the Schedule to the Notification. Likewise, the Thiruvananthapuram Development Authority is also constituted to perform the powers and functions under Section 56 for the area specified in the Schedule to the Notification. Similarly, the Goshree Island Development Authority is constituted to exercise the powers and functions under Section 56 for the area specified in the Schedule to the Notification. Likewise, the Thiruvananthapuram Development Authority is also constituted to perform the powers and functions under Section 56 for the area specified in the Schedule to the Notification. Referring to the ambit of the power of these three Development Authorities, the State Attorney would argue that they are to exercise their powers within the domain, as envisaged under Section 56 of the 2016 Act, and they are not expected or authorised to function as Authorities, under the Repealed Town Planning Act of 1939. 8. This Court, in Shivaprasad's case (supra), was considering the question whether the provisions of the Town Planning Act, 1939 and the Madras Town Planning Act can survive, in the light of Part IXA of the Constitution as also the Municipality Act, 1994 and whether the earlier Acts were beset with inadequacies compared with the constitutional norms as also the Municipality Act, 1994. Referring specifically to the inconsistent provisions in the Town Planning Act, the learned Judge observed that the provisions of the Town Planning Act differ in material particulars and are at variance with substantive provisions of the Municipality Act, 1994. In particular, it was highlighted that there was a greater power vested upon the authorities under the erstwhile Town Planning Act in the matter of Notification of Schemes and Preparation of Master plan over Municipal areas which were inconsistent with the constitutional provisions and also in variance with the Municipality Act, 1994. It was also pointed out that the aspect of spatial planning, which was a concept under the Municipality Act, is not a concept recognized under the erstwhile Town Planning Act, and to this extent, there is repugnance in the power vested upon the authority in the Town Planning Act, vis-a-vis the authority under the Municipality Act. 9. Taking note of the defects highlighted by the learned Single Judge in Shivaprasad's case (supra), when we look at the provisions in the 2016 Act, what strikes us is that the 2016 Act provides for constitution of the State Town and Country Planning Board and Section 4 stipulates the powers available to the Board. 9. Taking note of the defects highlighted by the learned Single Judge in Shivaprasad's case (supra), when we look at the provisions in the 2016 Act, what strikes us is that the 2016 Act provides for constitution of the State Town and Country Planning Board and Section 4 stipulates the powers available to the Board. The Section 8 provides for the long terms policies and strategies for spatial development where Section 9 stipulates the procedure for preparation, publication and sanctioning of the perspective plan for the State. The Chapter III of the Act provides for preparation of plans for the District by the District Planning Committees, constituted under Section 53 of the Kerala Municipality Act, 1994. The Chapter IV provides for preparation of plans for the metropolitan areas by the Metropolitan Planning Committees stipulated under Section 54 of the Kerala Municipality Act 1994. The Chapter V provides for plan for local planning areas i.e. the area under the jurisdiction of the Municipal Corporation, Panchayat etc. The Chapter VI provides for Joint Planning Committee and also Plans for Joint Planning Area, in particular where the concerned area encompasses more than one Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat, either in full or in part. The Chapter VII provides for Detailed Town Planning Schemes. The Chapter VIII provides for the power of review, revision, variation and revocation of perspective plan, master plan and detailed town planning scheme by the respective local bodies. Overriding power is conferred on the Government under Section 50(3) to vary a plan sanctioned under the 2016 Act only after publishing a draft notification and calling for objections from the concerned local bodies and also from other stakeholders. 10. The Development Authorities contemplated under Chapter IX are expected to exercise the powers and functions under Section 56 of the 2016 Act, and it is clear enough that the powers given to such Development Authority is subject to the provisions of the Kerala Municipality Act and also the Kerala Panchayat Raj Act. The stipulation in Section 56 makes it clear that the power given to the Development authority under Chapter IX is subject to the powers to be exercised under the Municipality Act and the Kerala Panchayat Raj Act. This being a relevant provision, is extracted herein-below for ready reference: “56. The stipulation in Section 56 makes it clear that the power given to the Development authority under Chapter IX is subject to the powers to be exercised under the Municipality Act and the Kerala Panchayat Raj Act. This being a relevant provision, is extracted herein-below for ready reference: “56. Powers and functions of Development Authority - Subject to the provisions of the Kerala Municipality Act, 1994 (20 of 1994) and the Kerala Panchayat Raj Act, 1994 (13 of 1994), the powers and functions of a Development Authority shall include the following:- (i) preparation and implementation of land re-adjustment or land pooling or land banking schemes for the purpose of implementation of projects in the Development Authority area, in tune with the provisions of this Act. (ii) promoting planned development as envisaged in the Plans for the development authority area, through tools like Transfer of Development Rights, accommodation reservation etc. (iii) set-up special function agencies, if required, and guide, direct and assist them on matters pertaining to their respective functions. (iv) co-ordination of implementation of Plans under this Act in the Development Authority area.” 11. It can be seen from the provisions of the 2016 Act that the powers exercised by the authority under the repealed Town Planning enactment do not exist anymore in the said authority, under the 2016 Act, and currently their role is confined to guiding and advising the Municipal Corporation, Municipal Councils as well as the Panchayat authorities. Therefore, it cannot be said that the Department of Town and Country Planning would exercise the said powers in matters of planning, as they were exercising under the repealed enactments. We are clearly of the view that under the 2016 enactment, the role of the Town and Country Planning Department is limited to the role envisaged under the Constitutional Scheme, as expressed in the Kerala Municipality Act, 1994, the validity of which is not the subject matter of challenge, in these proceedings. 12. While it is true that by virtue of Section 113 (2) (ix) of the 2016 Act, any Development Authority constituted under the repealed enactment shall be deemed to be a development authority constituted under the 2016 Act, we are quite sure that the authority under the 2016 Act, is expected to work within the parameters laid down under the 2016 Act and is not to look into the 1939 Act, as the source of its power. 13. In view of the above discussion, insofar as the challenge to the Ordinance is concerned, the same need not be answered by us, in view of the subsequent legislative enactment in the shape of the 2016 Act. We also find that the 2016 Act does not suffer from the infirmities, alleged in the writ petition. In fact, we are of the considered view that the infirmities pointed out by the learned Judge in Shivaprasad's case (supra) have been adequately addressed by the legislative enactment, by limiting the power of the Development Authorities in the Town Planning Department vis-a-vis the local authorities, and confining their role to one that is purely advisory in nature, and therefore, consistent with the constitutional norms, and it does not in any way militate against the primary role over the Municipal and Panchayat authorities. 14. With the above finding, the Writ Petition is found to be devoid of any merit, and is accordingly dismissed.