Ashok Bhushan, Ag.CJ
These two writ appeals have been filed against the same judgment dated 14/08/2014 delivered by learned Single Judge in W.P.C.No.17033/2013 as well as W.P.C.No.17733/2013. Petitioner, being aggrieved by the rejection of the application for building permit, has filed these writ petitions.
2. The facts of both these writ petitions need to be noted in brief:
W.P.C.No.17033 of 2013 The application submitted by the petitioner for building permit was rejected by the Corporation by Ext.P3 order dated 05/03/2013 in which the following was communicated to the petitioner.
“On inspection of the application and plan referred above the following defects have been noted and therefore the application and plan are rejected.
On inspection of the property it is found that as per the DTP Scheme the proposed construction comes within the property in industrial zone. As zone variation order is not applicable, commercial building cannot be permitted in Industrial Zone.”
3. Aggrieved by the said order, petitioner has filed this writ petition for the following reliefs:
“i. Issue a Writ of Certiorari or any other appropriate writ, direction or order, calling for the records leading to Exhibit P3 Order of the Fifth Respondent and quashing the same.
ii. Issue a Writ of Mandamus or any other appropriate Writ, direction or order commanding the Fourth Respondent to issue the Building Permit sought for by the petitioners in the application dated 26/02/2013 referred to in Exhibit P3 order, within a time limit to be prescribed by this Hon'ble Court.”
4. In the counter affidavit filed by the Corporation as well as the Government, it was stated that the petitioner has the remedy of filing an appeal against the order rejecting the building plan. It was further stated that as per Detailed Town Planning Scheme (for short 'DTP Scheme'), commercial buildings are not permitted in industrial zone. Reference of an order of the State Government giving sanction to a development plan for Kollam vide order dated 06/04/2010 has also been made and the said order was produced. It was stated that as per the Town Planning Act (IV of 1108), the local authorities are bound to abide by the regulations of the Scheme. Reference of DTP Scheme has also been made in the counter affidavit. It has been stated that development plan in the scheme are prepared after obtaining instructions from the public and no one can be allowed to use the property contrary to the scheme and the plan. W.P.C.No.17733/2013
5. Petitioner claims to be owner in possession of 21 cents of dry land in Re.Sy.Nos.101, 100, 99 of Kollam East Village. The property is claimed to be surrounded by big commercial buildings. The building is claimed to be purchased by document No.2457/2010. The application submitted for building permit was rejected by Ext.P3 intimation dated 20/08/2011. While rejecting the application, following was communicated to the petitioner:
“On inspection of the application and plan referred above the following defects have been noted and therefore the application and plan are rejected.
On inspection of the property it is found that the property situates of Old Sy.No.7998 by the side of East Palace, Kachery road of Kollam Corporation. It is included in the residential zone. As per the said scheme only a construction of 75m2 only can be permitted. DTP Scheme has to be complied with wherever it is in force. Therefore it is informed that your application cannot be considered.”
6. Petitioner challenged the said order before this Court by filing W.P.C.No.18608/2012. Petitioner had also placed reliance on another judgment delivered by this Court in W.P.C.No.20070/2009 where the application for building plan was rejected for the same reason. This Court, vide its judgment dated 15/10/2012, disposed of W.P.C.No.18608/2012 observing that petitioner shall also be extended the benefit of the judgment of this Court in W.P.C.No.20070/2009 and the application of the petitioner for building permit shall be considered accordingly. Alleging non-compliance of the direction, petitioner has filed contempt application. Subsequently, by Ext.P8 order dated 15/06/2013, petitioner was informed that the application need not be considered. Following reasons were given in the communication.
“On inspection of the application for construction of commercial building in Re.Sy.No.164/99, 164/100, 164/101, 164/5-2 in Kollam East Village, Division 45 received from you vide reference (1) above. The said property is included in the residential zone. Therefore as no approval has been obtained from the DTP to construct the building for commercial purpose the same has been forwarded to the Chief Town Planner along with copy of the order of the Hon'ble High Court. Accordingly as per reference (2) above a reply has been received vide reference (2) above informing that the said construction does not come within the permitted or restricted uses as per the zonal restriction of the Detailed Town Planning Scheme and therefore the said application need not be considered.”
7. Petitioner, by means of W.P.C.No.17733/2013, challenged Ext.P8 and also sought for a mandamus commanding the respondents to grant building permit to him. Counter affidavit was filed by the Corporation as well as by the Government. The learned Single Judge by the judgment dated 14/08/2014 allowed the writ petition quashing Ext.P3 in W.P.C.No.17033 of 2013 and Ext.P8 in W.P.C.No.17733/2013. Corporation was directed to consider the application of the petitioners for building permit and to issue permit, if the application is otherwise in order. The learned Single Judge, while considering the case, has also observed in paragraph 16 that a categorisation of the petitioners' land as industrial zone, as per Ext.P4 scheme is arbitrary, unreasonable and hence unenforceable.
8. The Corporation, aggrieved by the said order, has come up in this appeal. Sri.M.K.Chandra Mohan Das, learned counsel for the Corporation, in support of the appeals contended that the order of the Corporation rejecting the application for building permit was in accordance with law. It is a duly approved scheme under Section 12 of the Town Planning Act and DTP Scheme. It is submitted that according to the DTP Scheme, the area earmarked has to be permitted to be used for the purpose as indicated in the scheme. Any application praying for building permit contrary to the said purpose has to be rejected. It is submitted that the learned Single Judge without there being any challenge to the scheme, has observed that this scheme is arbitrary, illegal and unenforceable. It is submitted that the said observations are not required to be made since neither there was challenge to the Scheme nor there is any illegality in the Scheme inviting any such observation. It is also submitted that by the direction of the learned Single Judge, Corporation has been given no discretion to consider the application as per the approved scheme and the DTP Scheme. Hence Corporation is aggrieved by the judgment and has come up in appeal.
9. Adv.Sri.Devan Ramachandran, learned counsel for the petitioner in W.P.C.No.17033/2013, submitted that petitioner does not intend to make any construction contrary to the purpose for which the area is earmarked. He submits that the Scheme which has been notified by the State Government under Section 12 of the Town Planning Act is a statutory scheme and the petitioner does not intend to make any construction contrary to the same. He submits that the petitioner's plot is situated in the industrial area for which no dispute is being raised in the present writ petition and the building permit which has been sought for, for construction, is incidental to the industrial use/other permitted use, the Corporation cannot refuse to sanction the same. He has also referred to a notice which has been given by the Corporation during the pendency of the appeal which has been brought on record by I.A.No.1198/2014. The Learned counsel for the petitioner submits that now, by notice dated 18/11/2014, petitioner has been asked to submit an affidavit stating the nature of business he proposes to start in the said land and the same has to be mentioned in the revised plan. Learned counsel for the petitioner submits that he intends to submit revised plan in conformity with the land used in the area. Hence, no other issue is raised. He submits that observations made in paragraph 16 of the judgment were observations which cannot be read as annulling the scheme. He submits that there was no challenge to the scheme in the writ petition.
10. Learned counsel appearing for the petitioner in W.P.C.No.17733/2013, in support of the submission, contended that the Corporation is bound by earlier judgment of this Court which was inter-parte where this Court had already directed the Corporation to consider the application of the petitioner vide its judgment dated 15/10/2012 in W.P.C.No.18608/2012. It is submitted that this Court, by the said judgment, directed the Corporation to extend the benefit of the judgment dated 18/09/2009 of this Court in James Joseph v. State of Kerala [W.P.C.No.20070/2009] to the petitioner also. He submitted that Corporation did not file an appeal against the judgment dated 15/10/2012. Hence it cannot get over the said judgment and reject the application on the same reason by which the earlier writ petition was rejected. The Learned counsel for the petitioner, refuting the submission of the Corporation, contended that the area where the petitioner's property is situated is surrounded by commercial buildings both on the side of the property and across the road and Corporation cannot justify its rejection on the ground that the area cannot be permitted to be constructed for a commercial purpose.
11. We have considered the submissions of the learned counsel for the parties and perused the records.
12. The Scheme and Detailed Town Plan which have been referred and relied on by the Corporation are the Scheme and Plan which have been prepared under the Town Planning Act (IV of 1108). Corporation has referred to the Scheme which has been sanctioned by the State Government in exercise of power under Section 12 of the Act. In the records of W.A.No.1662/2014, reference of Government Order dated 06/04/2010 has been mentioned by which the State Government has sanctioned the revised plan as submitted by letter dated 31/03/2010 namely Development Plan (General Town Planning Scheme) for Kollam. Learned counsel for the Corporation has explained that, apart from General Development Plan, Detailed Development Plan has also been prepared for particular areas giving the details of the development which is to be undertaken by the Corporation.
13. In the facts of the case which are brought on record, it does appear that the statutory scheme as approved under Section 12 is in operation in the area in question. Section 16 of the Act provides for obligations of owners after sanction of the scheme. Section 16 of the Act is extracted hereunder:
“16. Obligation on owners to comply with scheme after sanction.- From the date of the notification of Our Government sanctioning a scheme under section 12, all owners of lands and buildings in the area affected by the scheme who propose to construct or reconstruct or in any way alter or add to buildings shall conform in every particular with the requirements of such scheme; and no building shall be constructed or reconstructed in any area in which building is expressly forbidden in the scheme, or which is reserved in the scheme for any purpose incompatible with building.”
14. Section 16 of the Act came up for consideration of the Full Bench of this Court in Francis v. Chalakudy Municipality [1999(3) KLT 560]. One of the submissions raised before the Full Bench was since there is no time limit provided in the Scheme, the Scheme itself becomes arbitrary and cannot be operated after a long lapse of time. The Full Bench had noticed the said submission and observed in paragraph 22 of the judgment that it is for the Government to consider the said issue. Paragraph 22 is extracted below:
“22. But we do feel that the very object of framing a town planning scheme would tend to get defeated if the scheme is not implemented within a reasonable period. The Town Planning Act concerned, does not provide for the lapsing of the scheme sanctioned under it and notified under it on the ground that the same had not been implemented within a stipulated period. S.15(3) of the Act restricts the period of restriction imposed by that Section to two years in case the draft scheme is not prepared within two years of the publication of the notification of the resolution under S.* of the Act the restriction will close. Though S.16 of the Act imposes an obligation on the owners of the land coming within the scheme not to do anything in their lands which will impede the implementation of the scheme notified, under S.12 of the Act, it imposes no time limit on such restriction. The undefinite life given to a scheme notified under the Act without insistence on its implementation within a time frame certainly brings hardship to the owners of land included in the scheme. It may be necessary for the second respondent and the concerned authorities to consider whether a specific period shall not be statutorily prescribed for the implementation of a scheme notified under the Act after due sanction of it by the Government so as to free the owners from the shackles of restriction. But, that of course, is a matter for the legislature and we can only point out that it appears to be necessary for the State to consider whether any such safeguard in the matter of enjoyment of his own land shall not be provided to the citizen by compelling the concerned Municipality to implement the scheme within a period to be fixed by the statute itself.”
15. Learned counsel for the Corporation has also relied on the judgment of the Apex Court in Esha Ekta Apartments Co-operative Housing Society Ltd. v. Municipal Corporation of Mumbai [2013(5) SCC 357]. The Apex Court, in the said judgment, has noticed violation of the Planned development scheme in various Municipal Corporations of the country and in paragraph 1 of the judgment, the following observations are made:
“1. In the last five decades, the provisions contained in various municipal laws for planned development of the areas to which such laws are applicable have been violated with impunity in all the cities, big or small, and those entrusted with the task of ensuring implementation of the master plan, etc. have miserably failed to perform their duties. It is highly regrettable that this is so despite the fact that this Court has, keeping in view the imperatives of preserving the ecology and environment of the area and protecting the rights of the citizens, repeatedly cautioned the authorities concerned against arbitrary regularisation of illegal constructions by way of compounding and otherwise.”
16. The Apex Court had issued various directions in Esha Ekta Apartments Co-operative Housing Society Ltd (supra), the issue of regularisation of the unauthorised/ illegal construction was also under consideration in the said case with which we have no concern in the present case. In paragraph 55, following has been laid down.
“55. It is thus evident that the 1963 Act obligates the promoter to obtain sanctions and approvals from the authority concerned and disclose the same to the flat buyers. The Act also provides for imposition of penalty on the promoters. However, the provisions contained therein do not entitle the flat buyers to seek a mandamus for regularisation of the unauthorised/illegal construction.”
17. Now, coming to the present case, it is relevant to note that in none of the writ petitions, there was any challenge to any Scheme sanctioned under Section 12 of the Town Planning Act. There being no challenge to any Scheme, the observation made by the learned Single Judge in paragraph 16 to the following effect.
“Categorization of the petitioner's land as industrial zone as per Ext.P4 scheme is arbitrary, unreasonable and hence unenforceable.”
The observation of the learned Single Judge that putting restriction on the right of the petitioner to put their land to beneficial use is violative of their right to property, also does not commend on us. The right to property under Article 300A is in no manner effected by the development plan or the scheme nor any such challenge is made in the writ petition. The development plan and the scheme regulating the use of any property, can in no manner be said to be irrational or arbitrary. Town Planning in the present day is becoming more and more necessary and for orderly living and sanitation, town planning has assumed more importance as on date. Thus Regulation of construction in a municipal area/area covered by scheme cannot be said to be interference of any right of an owner under Article 300A. We thus also do not approve the observation made by the learned Single Judge in paragraph 16 that the regulation of right of petitioner to beneficial use of their property is deprivation of their right. The scheme which is sanctioned under Section 12 or any other Detailed Development Scheme which has a statutory flavour in binding both on the Corporation as well as the petitioners who seek sanction of his building plan.
18. The Learned counsel for the petitioner (in W.P.C.No.17733/2013) is right in his submission that earlier direction of this Court passed in W.P.C.No.18608/2012 dated 15/10/2012 which was not appealed, has to be complied in letter and spirit by the Corporation. The Corporation, who allowed the said order to become final, cannot go beyond the said order which is inter parte and the application of the petitioner for building permit has to be considered as per the directions in the judgment dated 15/10/2012.
19. In view of the aforesaid discussion, we are of the view that the applications for building permit of both the petitioners are to be considered afresh and we maintain the order of the learned Single Judge setting aside Exts.P3 and P8. However, the observations as noted above, are disapproved.
In the result, these writ appeals are partly allowed. Corporation shall now proceed to consider the application for building permit of the petitioners in accordance with the observations made above.
(ASHOK BHUSHAN, ACTING CHIEF JUSTICE) (A.M.SHAFFIQUE, JUDGE) jsr