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2019 DIGILAW 999 (KER)

Subbalekshmy v. Corporation of Thiruvananthapuram

2019-11-26

A.M.SHAFFIQUE, S.MANIKUMAR

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JUDGMENT : A.M. Shaffique. J. This appeal is filed against judgment dated 22/3/2019 in W.P(C) No.6447/18 by which the learned Single Judge having rejected the relief of the petitioner seeking a direction to quash Ext.P3, permitted the petitioner to submit an application u/S.67 of the Kerala Town and Country Planning Act, 2016 (hereinafter referred to as the ‘2016 Act’). 2. Learned counsel for the appellant Sri.G.S.Raghunath contends that the finding of the learned Single Judge that the 1971 Master Plan still holds the field cannot be sustained in view of the fact that an interim development plan had come into force after promulgation of 2016 Act. 3. The facts involved in the case would disclose that the petitioner being an owner of 2.33 Ares of land in Thycaud Village, Thiruvananthapuram applied for a building permit before the Thiruvananthapuram Corporation which was rejected as per Ext.P2 notice dated 12.12.2017 stating that there is a proposal to widen the road by 21 metres and the staircase provided in the front open space is in violation of Kerala Municipality Building Rules, 1999. She was asked to submit a revised plan. A revised plan was submitted by the petitioner, which again came to be rejected as per Ext.P3 notice dated 12/2/2018 stating that the revised plan does not take care of the proposed road widening of 21 metres and therefore the application cannot be considered. 4. The contention urged was that the aforesaid contention was taken by the Corporation on the basis of the sanctioned Master Plan of 1971 and during pendency of the said plan, several new buildings have come up and the petitioner was being discriminated. Petitioner sought for quashing Ext.P3 and a direction to compel the Corporation to consider the application submitted by the petitioner on 27.11.2017 for the grant of building permit as modified and in accordance with the Building Rules in force without taking into account the Master Plan of 1971. 5. During the pendency of the Writ Petition, petitioner produced certain additional documents along with the reply affidavit and also certain documents as Exts.P9 and P10. In the affidavit filed in support of Exts.P9 and P10, it is inter alia contended that the Corporation of Thiruvananthapuram prepared another Master Plan in the year 1993 by substituting the 1971 Master Plan. But the same was not approved by the Government. In the affidavit filed in support of Exts.P9 and P10, it is inter alia contended that the Corporation of Thiruvananthapuram prepared another Master Plan in the year 1993 by substituting the 1971 Master Plan. But the same was not approved by the Government. Thereafter on 24th June, 2011, it was decided to prepare a new Master Plan. A draft Master Plan was prepared by the Corporation in the year 2012, which was approved on 12th December, 2012. The said Master Plan was approved by the Government as per G.O.(MS) No.4107/13/LSGD dated 19/3/2013. The said Master Plan was published by Thiruvananthapuram Corporation on 8th March, 2013. Objections were invited from the public. Since several complaints were received from the people in the locality, the Government suspended the operation of the said Master Plan as per G.O(MS) No.53/14/LSGD dated 22/6/2014. Direction was issued by the Government to prepare another draft Master Plan. Thereafter, Thiruvananthapuram Corporation prepared another Master Plan which was approved as per Interim Development Order dated 11/9/2017, which is produced as Ext.P10. It is therefore the contention of the petitioner that the interim development plan alone is in force and the Corporation cannot place reliance upon the 1971 Master Plan and insist that the road could be widened for 20 metres. Learned counsel for the appellant also brought to our notice that as per Ext.P10, provision had been made for widening of roads. Some having a width of 45 metres, 27 metres, 24 metres, 21 metres, 18 metres, 16 metres etc. As far as Karamana to Kalady road is concerned, which according to the petitioner is the road referred to in Ext.P2 as Karamana - Thaliyil road, as per the interim development plan, the width of the road is only 16 metres. The proposal is only to widen the road by 16 metres and therefore, the Corporation cannot insist that the 1971 Master Plan still exists. It is therefore contended that the petitioner should not be asked to make an application u/S.67 of 2016 Act whereas the Corporation ought to consider the petitioner’s application with reference to Ext.P10 interim development plan of Thiruvananthapuram city. 6. During the pendency of the appeal, we have also impleaded the Principal Secretary to the Local Self Government Department as additional 3rd respondent. 7. 6. During the pendency of the appeal, we have also impleaded the Principal Secretary to the Local Self Government Department as additional 3rd respondent. 7. Counter affidavit has been filed by additional 3rd respondent inter alia stating that the proposed Land Use Map and Zoning Regulations of the draft Master Plan prepared in the year 2013 was replaced by an Interim Development Order (Ext.P10) invoking power u/S.63(4) of 2016 Act. However it is contended that the permit for building construction can be accorded only as per the provisions of the sanctioned Master Plan, unless the published draft Master Plan is sanctioned by Government in accordance with the provisions of 2016 Act. In fact, in the affidavit filed by the Government, they supported the stand taken by the Corporation. 8. In a statement filed on behalf of the Corporation, it is stated that in so far as the building plan submitted by the petitioner did not contain the road permitted as per the sanctioned Master Plan, the same cannot be allowed by the Corporation and the Corporation shall consider an application only if it is submitted in accordance with the sanctioned Master Plan and the Building Rules. In an additional statement it is stated that the property in question has not been included in the Master Plan of 1971 and that apart, it was contended that no draft Master Plan has been approved by the Government for the area in question. In an additional statement filed before this Court, it was contented that the Interim Development Order is not applicable to the property belonging to the appellant and the sanctioned Master Plan of 1971 is still applicable which is based on the information received from the Assistant Engineer and the Public Works Overseer of the Chief Town Planner. 9. We heard learned Senior Counsel Sri.Nandakumara Menon appearing on behalf of the Corporation and Senior Government Pleader Sri.Aravind Kumar Babu appearing for the additional 3rd respondent. 10. There is no dispute about the fact that if a Master Plan for a city is in force, it cannot be varied unless there is a modification to the Master Plan. In the present case, the factual aspects are not in dispute. We shall come straight away to Ext.P10 which is an Interim Development Order issued by the Government as per G.O(MS) No.180/2017/LSGD dated 11.9.2017, which reads as under: “ORDER “1. In the present case, the factual aspects are not in dispute. We shall come straight away to Ext.P10 which is an Interim Development Order issued by the Government as per G.O(MS) No.180/2017/LSGD dated 11.9.2017, which reads as under: “ORDER “1. As per the Government Order read as second paper above, Government have accorded sanction for the publication of Thiruvananthapuram Master Plan, 2031. The Draft Master Plan was being enforced from 23rd April, 2013 that was frozen vide G.O. read as 3rd paper above. Thereafter as per the G.O. read as 4th paper above the Government Order read as 3rd paper above was modified to the effect that residential, commercial, industrial used and other permissible projects shall be permitted as per the provisions of the published Master Plan for Thiruvananthapuram. 2. In the meeting held on 26.11.2016 read as 5th above, it was decided that a new Master Plan for Thiruvananthapuram shall be prepared and published and Interim Development Order be prepared by the Corporation of Thiruvananthapuram considering the objections and suggestions received on the Master Plan published in 2013 for controlling developments during the period upto the time when the new Master Plan is sanctioned. 3. The Corporation of Thiruvananthapuram has prepared and approved Interim Development Order as per resolution No.1(2) dated 14/3/2017 and as per letter read 6th, the Interim Development Order has been forwarded to Government for sanction. 4. Government have examined the Interim Development Order approved by the Corporation of Thiruvananthapuram and the recommendations of the Chief Town Planner (Planning) received as per letter read as 8th above and are pleased to approve the Interim Development Order under Section 63(4) of the Kerala Town and Country Planning Act, 2016 (Act No.9 of 2016), as follows: Interim Development Order (Under Section 63(4) of the Town and Country Planning Act, 2016 (Act No.9 of 2016)). The Report and Maps of Thiruvananthapuram Master Plan, 2031 published vide Gazette Notification No.17 Vol.II dated 23.4.2013 will come into operation forthwith with the following modifications: 1. The Proposed Land Use - 2031 Map attached to this Order will replace the Proposed Land Use-2031 map of the Thiruvananthapuram Master Plan, 2031 already published. 2. The Chapter 29 attached to this Order will replace the Chapter 29 of the report of Thiruvananthapuram Master Plan, 2031 published. The Proposed Land Use - 2031 Map attached to this Order will replace the Proposed Land Use-2031 map of the Thiruvananthapuram Master Plan, 2031 already published. 2. The Chapter 29 attached to this Order will replace the Chapter 29 of the report of Thiruvananthapuram Master Plan, 2031 published. The copy of the Proposed Land Use-2031 map is available for reference in the office of the Corporation of Thiruvananthapuram during working hours”. The proposal for widening of roads referred above also forms part of the aforesaid order coming under Chapter 29 and, as rightly pointed out by the learned counsel for appellant, the proposed road width from Karamana to Kalady road, is only 16 metres. 11. The only question to be considered is, in the light of Government Order dated 11.9.2017, whether the 1971 Master Plan or any other subsequent Master Plan holds the field. Interim Development Orders are issued u/S.63 of 2016 Act, which reads as under:- “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. (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 drat Plan: Provided also that where no such interim development orders are issued, use and development 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.” Needless to state that while a detailed Town Planning Scheme is under preparation, it is open for the Municipal Corporation to prepare an Interim Development Order and once it is sanctioned by the Government, the said plan shall control the interim development of land included in any planning area. Interim development is defined in the Note as “development during the period between the date of decision taken to prepare a plan under the 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 the Act and the date of coming into operation of the plan”. 12. Once the Interim Development Order is prepared by the Corporation and it is sent for approval to the Government, the Government shall in consultation with the Chief Town Planner approve the Interim Development Orders. The intention of such Interim Development Order is also clearly spelt out u/S 63(3) of the 2016 Act and the Interim Development Order shall remain in force until the coming into operation of the Master Plan. In the present case, going by Ext.P10 itself, it is rather clear that the draft Master Plan prepared on 23rd April 2013 has been frozen vide Government Order dated 28/2/2014 and it was decided to prepare a new Master Plan for Thiruvananthapuram in the meeting held on 26/11/2016. The Corporation of Thiruvananthapuram has prepared and approved the Interim Development Order as per its resolution dated 14/3/2017 and the Government had approved the same on the basis of recommendation of Chief Town Planner and accordingly, the Interim Development Order had been issued. 13. From the above facts, it is rather clear that, as matters stand now, the Interim Development Order alone applies to the fact situation and not the 1971 Master Plan until a new Master Plan comes into force, or the time for preparation of the Master Plan ceases as contemplated u/S.63(4). Though the learned Government Pleader tried to salvage the situation placing reliance on the proviso to S.36(12), we do not think that the above provision will render any assistance to the Government or the Corporation to contend that the 1971 Master Plan still continues to be in force. S.36(12) and the proviso reads as under:- “36. Though the learned Government Pleader tried to salvage the situation placing reliance on the proviso to S.36(12), we do not think that the above provision will render any assistance to the Government or the Corporation to contend that the 1971 Master Plan still continues to be in force. S.36(12) and the proviso reads as under:- “36. Procedure for preparation, publication and sanctioning of Master Plan- XXX (12) The provisions specified under Section 63 shall continue to be in operation until the Master Plan is sanctioned, even if the time limit prescribed under sub-sections (2) to (8) are not complied with: Provided that in cases where a sanctioned Master Plan already exists, its provisions shall only apply until the published Master Plan is sanctioned in accordance with this Act.” In fact, S.63 starts with a non obstante clause and therefore, any development during the interregnum period while the Master Plan is being finalised, has to be based on such Interim Development Orders and therefore, such an argument is unsustainable. 14. In the case on hand, Ext.P10 Interim Development Order holds the field and petitioner’s application for building permit is to be considered on the basis of Ext.P10. 15. In the result, we set aside the judgment of the learned Single Judge and the following directions are issued:- (i) That Exts.P2 and P3 are set aside. (ii) The petitioner shall submit a revised plan taking into account the width of the road as 16 metres and submit a plan to the Corporation. (iii) On receipt of the said revised plan, the Corporation shall consider the same in accordance with the Interim Development Order (Ext.P10) and other procedures prescribed under the Kerala Municipality Building Rules and issue appropriate orders within a period of one month from the date of receipt of the revised plan. Writ Appeal is allowed.