IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 WP(C).No. 20070 of 2009(C) -------------------------------------- PETITIONER(S): --------------------- JAMES JOSEPH, MALIEAKAL HOUSE, NO.72, ARADHANA NAGAR, KOLLAM-691 001. BY ADV. MR.P.B.SURESH KUMAR MR.K.P.SUJESH KUMAR MR.K.N.SASIDHARAN NAIR SMT.SANDHYA RADHAKRISHNAN SMT.M.SRUTHY RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. THE CHIEF TOWN PLANNER, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 4. THE DISTRICT TOWN PLANNER, KOLLAM. 5. KOLLAM CORPORATION, REPRESENTED BY ITS SECRETARY, KOLLAM CORPORATION, KOLLAM. 6. THE TOWN PLANNING OFFICER, KOLLAM CORPORATION, KOLLAM. R1 TO R4 BY GOVERNMENT PLEADER MR.P. NARAYANAN. R5 & R6 BY ADV. MR.C. UNNIKRISHNAN, SC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 20070/2009-C APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SANCTIONED TOWN PLANNING SCHEME OF KOLLAM TOWN DATED NIL. EXT.P2: COPY OF THE G.O.(P) NO.37/08 DATED 08/02/2008. EXT.P3: COPY OF THE COMMUNICATION ISSUED BY THE SIXTH RESPONDENT TO THE PETITIONER DATED 03/07/2009. EXT.P4: COPY OF THE DETAILED TOWN PLANNING SCHEME SANCTIONED AS PER G.O. (MS)NO.63/88/LAD. EXT.P5: COPY OF THE SKETCH PREPARED BY THE PETITIONER SHOWING THE NATURE OF THE BUILDINGS ON EITHER SIDE OF THE ROAD CONNECTING KOLLAM TALUK OFFICE AND KOLLAM CIVIL STATION. EXT.P6: COPY OF THE PHOTOGRAPH OF THE LAND OF THE PETITIONER, THE ADJACENT LANDS AND THE BUILDINGS THEREIN. EXT.P7: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WP(C) NO. 10166/2008 DATED 04/04/2008. EXT.P8: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WP(C) NO. 92/2007 DATED 29/10/2007. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. P.N.RAVINDRAN,J. ---------------------------------------- W.P.(C) No. 20070 of 2009 - C ---------------------------------------- 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 petitioner W.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 vaa