IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20070 of 2009(C)
1. JAMES JOSEPH, MALIEAKAL HOUSE, NO.72,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. THE SECRETARY TO GOVERNMENT,
3. THE CHIEF TOWN PLANNER,
4. THE DISTRICT TOWN PLANNER, KOLLAM.
5. KOLLAM CORPORATION,
6. THE TOWN PLANNING OFFICER,
For Petitioner :SRI.P.B.SURESH KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :18/09/2009
O R D E R
P.N.RAVINDRAN,J.
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W.P.(C) No. 20070 of 2009 – C
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Dated 18th September, 2009
Judgment
Heard Sri.P.B.Suresh Kumar, the learned counsel appearing for
the petitioner, Sri.P.Narayanan, the learned Government Pleader
appearing for respondents 1 to 4 and Sri.C.Unnikrishnan, the
learned standing counsel appearing for respondents 5 and 6.
2. The petitioner owns a parcel of land, 14.90 cents in extent,
situated in Re-survey No.8/2 of Kollam West Village. The land is
situated in a commercially important part of Kollam Corporation.
Ext.P6 photograph produced along with the writ petition shows that
the land belonging to the petitioner is situated between two
commercial buildings seen therein. The petitioner is presently
running a business in electronics goods under the name and style
“Maliyekal Electronics” in a rented building. With a view to put up a
commercial building so as to shift his business and also to put his
lands to better use, the petitioner applied to the Kollam Corporation
for the grant of a building permit. That application was rejected by
the Kollam Corporation and the decision communicated to the
petitioner by Ext.P3 letter dated 3.7.2009 wherein it is stated that
W.P.(C) No.20070/2009 2
as per the Detailed Town Planning Scheme for the improvement of
the road from Taluk Office junction to the Civil Station junction
prepared by the Department of Town Planning of the Government of
Kerala and published by the Kollam Development Authority, the
area where the petitioner’s land is situated, is declared as an
industrial zone and a commercial building cannot be permitted to be
put up in the industrial zone. In this writ petition, the petitioner
challenges Ext.P3 and seeks a writ in the nature of mandamus
commanding the fifth respondent to issue a building permit to him
on the application dated 18.6.2009 referred to in Ext.P3 letter,
within a time limit to be fixed by this Court. The petitioner has also
prayed for other reliefs.
3. The petitioner submits that though as per Ext.P1 Town
Planning Scheme for Kollam Town approved by the Government,
the area where the land is situated was categorized as an industrial
zone, later, by Ext.P2 Government order, Ext.P1 Town Planning
Scheme for Kollam Town was modified and the Government
permitted construction of commercial buildings in the lands lying by
the side roads having a width of 12 metres. The petitioner submits
that he is therefore entitled to have a building permit issued to him,
if the application is otherwise in order. The petitioner also contends
W.P.(C) No.20070/2009 3
that the mere fact that Ext.P4 Detailed Town Planning Scheme for
the improvement of the road lying by the side of his property,
prepared by the Department of Town Planning of the Government of
Kerala and published by the Kollam Development Authority is in
force, is not a reason to deny him a building permit. He contends
that though the scheme was framed and approved by the
Government 20 years back, steps have not been taken to
implement the Scheme and as no notification under the Land
Acquisition Act has been issued in respect of his lands, a building
permit cannot be denied to him. He relies on the decision of a
learned single Judge of this Court in Nazar v. Malappuram
Municipality (2009 (3) KLT 92).
4. The learned standing counsel appearing for the Kollam
Corporation has filed a statement dated 14.9.2009. Paragraphs 2 to
5 thereof read as follows:
“2. It is submitted that the land belongs to
the petitioner is situated in the ‘Industrial Zone’ as
per Ext.P1 Master Plan/Development Plan for
Kollam Town sanctioned in 1986 and he wanted to
construct a commercial building. As per Ext.P2
dated 08.02.2008, the Govt. varied Ext.P1 to the
extent provided therein. In view of the relaxations
provided in the General Guidelines in Ext.P2,
petitioner could construct a commercial building in
his land notwithstanding the fact that the land is in
Industrial zone. But, Ext.P4 Detailed Town Planning
Scheme (DTPS) is also applicable to the petitionerW.P.(C) No.20070/2009 4
since his land is situated in Ext.P4 DTPS area. As a
matter of fact, where there is a conflict between
DTPS and Master Plan, DTPS would prevail as it is a
detailed scheme for the particular small area within
the Master Plan area. Since there is no relaxation
provided in the Ext.P4 DTP Scheme sanctioned in
1988, the zoning regulation spelt out therein should
be strictly followed and consequently the petitioner
could construct an industrial building alone.
3. For the development of Kollam Town
Ext.P1 Development Plan/Master Plan as varied by
Ext.P2 and 4 DTP Schemes including Ext.P4 is in
force now. Since no relaxation is sanctioned in
Ext.P4 land other 3 DTP Schemes by the Govt., the
Corporation is bound by Ext.P4 DTPS.
4. It is true that there is no Industrial
Buildings in either sides of the Road from Taluk
Office Jn. to Civil Station Jn., wherein petitioner’s
land is situated. But, it is true that other types of
buildings are available in the area and which may
have been constructed at a time when Govt.
themselves granted exemption from Zonal
regulation till Sayeesh Kumar’s case (2005 (4) KLT
1027).
5. The DTPS Ext.P4 also has been sanctioned
under S.12 of the Town Planning Act by the Govt.
as in the case of Ext.P1. Once such a scheme is
sanctioned, restrictions of S.16 of the Town
Planning Act will come into play and therefore a
building permit for construction of Commercial
building in the Industrial zone cannot be granted
unless Ext.P4 is varied by the Govt.”
5. Sri.C.Unnikrishnan, the learned standing counsel appearing
for the Kollam Corporation submits, with reference to the statement
filed by him, that in view of section 16 of the Town Planning Act, a
W.P.(C) No.20070/2009 5
building permit for the construction of a commercial building in an
industrial zone cannot be issued unless Ext.P4 Scheme is varied by
the Government.
6. I have considered the submissions made at the Bar by the
learned counsel appearing on either side. The Corporation of Kollam
does not dispute the fact that commercial buildings exist on either
side of the petitioner’s lands and that it lies by the side of the road
leading from Taluk Office junction to Civil Station junction. The
petitioner has categorically stated in the writ petition in the locality
where his land is situated there are only commercial buildings. That
averment is not controverted by the Kollam Corporation. From
Ext.P6 photograph, it can also be seen that commercial buildings
recently put up have come up on two sides of the petitioner’s lands.
Therefore, it is evident that even after Ext.P4 detailed Town
Planning Scheme was introduced, the Kollam Corporation has issued
building permits to persons owning lands lying on either side of the
petitioner’s lands. Further, the Kollam Corporation has no case that
after Ext.P4 Detailed Town Planning Scheme was approved, steps
have been taken by them under the provisions of the Land
Acquisition Act, 1894 to acquire the lands belonging to the
petitioner or lands in the neighbourhood for the purpose mentioned
W.P.(C) No.20070/2009 6
therein. The only contention put forward by the Kollam Corporation
is that as Ext.P4 Detailed Town Planning Scheme has been
sanctioned by the Government, in view of the restrictions imposed
by section 16 of the Town Planning Act, a building permit for the
construction of commercial building in an industrial zone cannot be
granted unless Ext.P4 is varied by the Government.
7. Ext.P4 is a Detailed Town Planning Scheme for the
improvement of the road leading from Taluk Office junction to Civil
Station junction in Kollam town. Even before the said Scheme was
framed and approved by the Government, the Government had
issued a Detailed Town Planning Scheme for the whole of Kollam
town, a copy of which is Ext.P1. As per Ext.P1 Scheme, the lands
belonging to the petitioner fall in an industrial zone. By Ext.P2
Government order dated 8.2.2008, Ext.P1 Development Scheme for
Kollam town was modified and the Government permitted
construction of commercial buildings in the lands classified as
industrial zone subject to the conditions stipulated therein. Ext.P2
Government order was issued on 12.2.2008 by the Local Self
Government Department. Ext.P4 Detailed Town Planning Scheme
was also approved by the Local Self Government Department. The
Government which issued Ext.P2 order cannot be said to be
W.P.(C) No.20070/2009 7
unaware of Ext.P4 Scheme and therefore, in my opinion, Ext.P2
Government order will have the effect of varying Ext.P4 Scheme. I
therefore hold that there is no merit in the stand taken by the
Kollam Corporation that a separate order of the Government varying
Ext.P4 is required.
8. Further, a learned single Judge of this Court has in Nazar v.
Malappuram Municipality (2009 (3) KLT 92), after analysing the
case law on the point, held that acquisition of lands for the purpose
of a Town Planning Scheme has to be done under the Land
Acquisition Act, 1894 and that unless notifications and declarations
under the Land Acquisiton Act, 1894 are issued, any attempt to curb
the rights of the land owners would result in infraction of their right
to property under Article 300-A of the Constitution of India. It was
also held that any attempt to create a rider on the title of the land
owner under the pretext of a Town Planning Scheme which has not
become operational would be oppressive and cannot be sustained in
the face of Article 14 of the Constitution of India.
I accordingly hold that the rejection of the petitioner’s
application for building permit for the reasons stated in Ext.P3
cannot be sustained. Ext.P3 and the decision referred to therein are
quashed and the Kollam Corporation is directed to reconsider the
W.P.(C) No.20070/2009 8
petitioner’s application for building permit and to issue a permit, if
the application is otherwise in order. While taking a decision in the
matter, the Kollam Corporation shall also have due regard to the
fact that new commercial buildings have been put up on either side
of the lands belonging to the petitioner, with the permission of the
Kollam Corporation. Orders on the petitioner’s application for
building permit shall be passed within six weeks from the date on
which the petitioner produces a certified copy of this judgment
before the Secretary, Kollam Corporation. If any defect has to be
cured or clarification given, the petitioner shall do the needful on
being informed of the same.
P.N.RAVINDRAN
Judge
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