IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 15TH MARCH 2010 / 24TH PHALGUNA 1931 WP(C).No. 34075 of 2009(D) -------------------------- PETITIONER(S): --------------- R.RAVI KUMAR, AMBAZHAVELIL, EROOR SOUTH, KEERIKKADU P.O, ALAPPUZHA. BY ADV. SRI.S.RAMESH BABU RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF TOWN PLANNER, PALAYAM, THIRUVANANTHAPURAM. 3. ALAPPUZHA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, ALAPPUZHA. 4. THE ART AND HERITAGE COMMISSION, REPRESENTED BY THE CHIEF TOWN PLANNER, PALAYAM, THIRUVANANTHAPURAM. MS.K.R.DEEPA, GOVERNMENT PLEADER MR.M.K.CHANDRAMOHANDAS, SC FOR MUNICIPALITY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.34075/2009 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF THE BUILDING PERMIT NO.E3B-630/06-07 DATED 14/08/2007. P2 : COPY OF COMMUNICATION OF THE CHIEF TOWN PLANNER DATED 05/07/2008. P3 : COPY OF ORDER DATED 15/11/2008. P4 : COPY OF BUILDING PERMIT DDATED 13/05/2009. P5 : COPY OF COMMUNICATION DATED 19/01/2009. P6 : COPY OF ORDER DATED 14/07/2009. P7 : COPY OF BUILDING PERMIT DATED 07/09/2009. P8 : COPY OF COMMUNICATION DATED 25/08/2009 ISSUED BY THE PUBLIC INFORMATION OFFICER. P9 : COPY OF G.O.(Rt.) NO.3978/97/LAD DATED 02/12/1997. P10 : COPY OF ROUGH SKETCH OF THE AREA. P11 : COPY OF APPLICATION DATED 09/10/2009. P11(a) : COPY OF APPLICATION DATED 16/09/2009. P12 : COPY OF RESPONSE OF THE PUBLIC INFORMATION OFFICER, TOWN PLANNING OFFICE, ALAPPUZHA DATED 23/11/2009. P13 : COPY of RESOLUTION PASSED BY THE ALAPPUZHA DEVELOPMENT AUTHORITY UNDER SECTION 7 AS OBTAINED UNDER THE RIGHT TO INFORMATION ACT. P14 : COPY OF THE APPLIATION UNDER THE RIGHT TO INFORMATION ACT PREFERRED BY THE PETITIONER DATED 08/10/2009. P14(a) : COPY OF THE APPLICATION UNDER THE RIGHT TO INFORMATION ACT PREFERRED BY THE PETITIONER DATED 20/11/2009. P15 : COPY OF THE REPLY DATED 23/11/2009. P16 : COPY OF THE MAP. RESPONDENT'S EXHIBITS R2(a) : COPY OF COMMUNICATION DATED 10/07/2000. R2(b) : COPY OF THE ZONING REGULATION OF THE DTP SCHEME OF MULLAKKAL TEMPLE AND ENVIRONS. //TRUE COPY// jg PA TO JUDGE. ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.34075 of 2009 (D) --------------------------------- Dated, this the 15th day of March, 2010 J U D G M E N T The petitioner owns 17.5 cents of land in survey Nos.813/17A1 & 813/17B of Mullakkal Village, coming within the jurisdiction of the 3rd respondent Municipality. 2. For the purpose of constructing a commercial building, the petitioner applied for a building permit, and was issued Ext.P1 permit for the construction of cellar, ground, first and second floors. Construction was completed and thereafter the petitioner applied for a building permit to construct additional 4 floors. On receipt of this application, the Municipality forwarded the same to the 2nd respondent, the Chief Town Planner. The Chief Town Planner considered the application and issued Ext.P2 recommending the application of the petitioner, but imposing certain conditions. One of the conditions imposed in Ext.P2 is that the overall height of the construction including the existing up to the topmost point of the proposed construction shall not exceed 9 metres from the street WP(C) No.34075/2009 -2- level. Subsequently, the 2nd respondent issued Ext.P3 order clarifying Ext.P2 that the overall height of the construction including the existing up to the topmost point of the proposed construction shall not exceed 9 metres from the street level within 50 metres of the land, on the side of a canal. 3. Accordingly, the Municipality issued Ext.P4 building permit incorporating the aforesaid condition imposed by the Chief Town Planner. Aggrieved by the aforesaid condition, the petitioner filed Appeal No.432/2009 before the Tribunal for Local self Government Institutions. By Ext.P6 order, the Tribunal set aside Ext.P4 building permit, and the Secretary of the Municipality was directed to pass fresh orders in accordance with law. Accordingly, Ext.P7 building permit was issued by the Municipality again incorporating the condition impugned by the petitioner. 4. On receipt of Ext.P7, on behalf of the petitioner an application under the provisions of the Right to Information Act was made, requesting the Chief Town Planner to disclose the basis on which the impugned condition was ordered to be incorporated in the building permit. Thereupon Ext.P8 was issued informing that in WP(C) No.34075/2009 -3- terms of the Master Plan published by G.O.(Rt.) No.3978/97/LAD dated 02/12/1997, restrictions have been imposed within 25 metres of both the banks of Navigable canals, which area has also been declared as the Architectural Control Zone. It is also stated that 50 metres on the banks of canals in the 7 areas mentioned therein are covered by the Detailed Town Planning Scheme. 5. It was thereupon that the petitioner filed this writ petition mainly praying to quash Exts.P3 & P7 to the extent it imposes special condition referred to above, and to declare that the restriction in the matter of construction above 9 metres is illegal and unjustifiable. Consequently, the petitioner seeks a direction to the respondents to issue building permit without the conditions referred to above. 6. Although, the petitioner is also impugning the validity of Rule 155(2)(i)& (ii) of the Kerala Municipality Building Rules, 1999, I do not think it necessary to consider the said contention for the disposal of this writ petition. 7. According to the petitioner, there is no Master Plan or Detailed Town Planning Scheme concerning the area, published as WP(C) No.34075/2009 -4- contemplated under the provisions of the Town Planning Act. It is also his contention that the 9 metres restriction imposed by Ext.P3 has not been imposed by the Art and Heritage Commission constituted under Rule 154 of the Kerala Municipality Building Rules. 8. As far the Master Plan is concerned, according to the learned counsel for the petitioner, before a finalised master plan can come into force, the procedures as contemplated under Sections 8 to 12 of the Town Planning Act have to be complied with. Section 8 provides for notification of resolution of the Municipality to make or adopt a town planning scheme. Section 9 provides for publication of draft scheme, and Section 12 provides sanctioning of the Scheme by the Government. According to the learned counsel for the petitioner, apart from Ext.P9 order issued by the Government as contemplated under Section 9(1) in regard to publication of a draft scheme, a sanctioned scheme has not been published as required under Section 12(5) of the Act. On this basis, it is contended that there is no master plan in force as provided under the Town Planning Act, in so far as the Alappuzha Municipality is concerned. WP(C) No.34075/2009 -5- 9. The learned Government Pleader appearing for the Municipality concedes to this position. Therefore, I must accept the contention of the learned counsel for the petitioner that there is no Master Plan in force in so far as the Alappuzha Municipality is concerned, and therefore, the statement in Ext.P8 that 25 metres on either banks of the Navigable canals have been declared as Architectural Control Zone in terms of the approved Master Plan published by the Government as per G.O.(Rt.)3978/97/LAD dated 02/12/1997 is absolutely incorrect. 10. The other question that survives to be considered is regarding the existence of Detailed Town Planning Scheme. Ext.P13 is the notification issued under Section 8 of the Town Planning Act, notifying the resolution of the Municipality to make or adopt a Town Planning Scheme. It is stated that in paragraph 3 of the counter affidavit filed by respondents 1 & 2, that the petitioner's property falls within the area of the Detailed Town Planning Scheme for Mullakkal Temple and Environs, published by the Alappuzha Development Authority on 02/08/1993. However, from Ext.P15 dated 23/11/2009 issued from the office of the 2nd respondent in WP(C) No.34075/2009 -6- response to an application made on behalf of the petitioner under the provisions of the Right to Information Act, it is evident that the Government have not approved the Detailed Town Planning Scheme as claimed by the respondents. If that be so, there is no approved Detailed Town Planning Scheme also and the statement in Ext.P8 to the contrary is incorrect. 11. The learned Government Pleader, however, invited my attention to Rule 27(vi) and Rule 80 of the Kerala Municipality Building Rules and contended that even a published Scheme has its own effect. He also invited my attention to Rule 30 of the Building Rules, which uses the words “scheme prepared”. However, in this context, Section 15 of the Town Planning Act, which provides for restriction of activities after a declaration is made, is of relevance. Sub Section (3) of the said Section provides that restriction imposed by Section 15 shall cease to operate in the event of the failure to prepare a draft scheme within two years of the date of publication of the notification under Section 8 or 10 or in the event, the Government refusing to sanction the Scheme under Section 12. Therefore, even if it is assumed that a published or a prepared WP(C) No.34075/2009 -7- scheme imposed restrictions, that cannot continue beyond what is contemplated under Section 15(3) of the Town Planning Act. So viewed, it must be held that the Detailed Town Planning Scheme is inapplicable to Alappuzha Municipality and if that be so, any restriction consequent upon the publication of the Scheme has also ceased to be effective in view of the provisions contained in Section 15(3) of the Town Planning Act. 12. Now what remains is whether the 9 metre restriction imposed in Exts.P3 & P7 has any validity. As can be seen from Ext.P3, this restriction was imposed for the first time by the 2nd respondent. From the submissions made and the pleadings in the writ petition, it would appear that such a restriction was imposed based on the recommendation of the Art and Heritage Commission. However, in Ext.R2(a) letter issued by the Chief Town Planner indicating the restrictions imposed by the Art and Heritage Commission, or in any other records produced by the respondents in the writ petition, is there anything infer that such a restriction has been imposed by the Art and Heritage Commission. Therefore, in the absence of any material produced by the respondents in the WP(C) No.34075/2009 -8- writ petition to sustain this restriction imposed, the 9 metres restriction imposed by the Chief Town Planner in Ext.P3 and reiterated in Ext.P7 has to be held as illegal. Therefore, the 9 metres restriction imposed cannot be attached any legal sanctity. In view of the discussions as above, the petitioner is entitled to succeed. Accordingly, this writ petition is disposed of quashing Exts.P3 & P7 to the extent it imposes special condition, and the respondents are directed to permit construction of building in the petitioner's property in survey Nos.813/17A1 & 813/17B of Mullakkal Village, ignoring the conditions imposed in Exts.P3 & P7. This writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg