IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 WA.No. 2173 of 2008() --------------------- AGAINST THE JUDGEMENT IN WPC.8101/2007 .................... APPELLANT(S): RESPONDENT -------------------- SREE PADMANABHA PROPERTY DEVELOPERS PRIVATE LTD, T.C. 40/142, FIRST PUTHEN STREET MANACAUD, THIRUVANANTHAPURAM 695 009 REPRESENTED BY THE MANAGING DIRECTOR L.V.MURALI. BY ADV. SRI.GEORGE THOMAS (MEVADA) RESPONDENT(S): -------------------- 1. THIRUVANANTHAPURAM CITIZENS PROTECTION FORUM, REGISTER NO.1351/1990 PADMA NAGAR, FORT, THIRUVANANTHAPURAM -23 REPRESENTED BY THE PRESIDENT M.KRISHNAN NAIR. 2. TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. 3. CORPORATION OF THIRUVANANTHAPURAM THIRUVANANTHAPURAM, REP. BY THE SECRETARY. 4. STATE OF KERALA REP. BY THE SECRETARY LOCAL SELF GOVERNMENT DEPARTMENT SECRETARIAT, TRIVANDRUM. BY ADV. SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE FOR R3 BY ADV. SRI.P.K.MANOJKUMAR FOR R3 BY GOVERNMENT PLEADER SRI.C.M.SURESH BABU FOR R2 & 4 BY ADV. SRI.M.RAJASEKHARAN NAYAR FOR R1 BY ADV. SMT.K.N.RAJANI FOR R1 BY ADV. SRI.RADHIKA RAJASEKHARAN P. FOR R1 BY ADV. SMT.ANILA PETER FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25/02/2010, ALONG WITH WA NO. 2269 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN, Ag.C.J. & C.N.RAMACHANDRAN NAIR, J. ------------------------------- W.A.Nos.2173 & 2269 of 2008 ------------------------------- Dated this the 25th day of February, 2010 J U D G M E N T Raman, Ag.C.J. The writ appeals are preferred by the third respondent against the common judgment, dated 5.9.2008, rendered in two writ petitions, W.P.(C) Nos.8101/2007 and 24546/2007, which were filed challenging the common order of the Tribunal for Local Self Government Institutions in Appeal No.340/2006. The issued involved being the same, we heard these writ appeals together and dispose of the same by this common judgment. 2. W.P.(C) No.8101/07 was filed by the Thiruvananthapuram Citizens' Protection Forum, a registered Association, whereas, W.P.(C) No.24546 of 2007 was filed by the Corporation of Thiruvananthapuram. The challenge in the writ petitions were against the common order of the Tribunal for Local Self Government Institutions in Appeal No.340/2006, which W.A.Nos.2173 and 2269 of 2008 2 was an appeal filed by the appellant herein. The learned Single Judge while disposing of the matters has referred to the pleadings and documents as contained in W.P.(C) No.8101 of 2007 and hence for the limited purpose of disposal of these appeals, facts as stated in W.P.(C) No.8101/2007 will be referred to, except where additional facts are necessary with reference to the pleading in the other writ petition. 3. The appellant purchased 14.700 cents of land with a building thereon, by sale deed dated 10.3.2005. He made an application to the Corporation soon after the purchase for construction of a building. Even before the sale in favour of the appellant, the building permit was already issued to the assignor. There was already a dispute however as to whether the original permit issued to the assignor was for a three storied building or for a eight storied building. That need not disturb us as it is not relevant for the disposal of these cases. Soon after the purchase, the appellant made an application for transfer of the permit, application was moved before the Trivandrum Corporation , and the Corporation gave necessary permit as evidenced by Ext.P8 dated 1.4.2005. The existing building in the W.A.Nos.2173 and 2269 of 2008 3 site was demolished and construction of the new building started. At this stage, the petitioner Society who is the first respondent in W.A.No.2173 of 2008 made a representation to the Government and Ext.P1 was issued by the government dated 10.6.2005. According to the first respondent, the information was conveyed to the Secretary of the Corporation that construction violates some of the provisions under the Town Planning Scheme, as according to them, there is a restriction in the height of the building to be limited to 8 metres and that the plot is located in the residential zone. There is a further complaint that the Corporation did not seek advice of the Art and Heritage Commission. 4. The Corporation, on receipt of Ext.P1, issued a stop memo dated 14.6.2005 directing the appellant to stop further construction. This was appealed by the appellant to the Tribunal for Local Self Government Institutions (hereinafter referred to as 'the Tribunal' for short) and the Tribunal stayed the operation of the stop memo, thereby enabling the appellant to resume to continue the construction. The first respondent, writ petitioner, also got himself impleaded in the proceedings W.A.Nos.2173 and 2269 of 2008 4 before the Tribunal. Since the interim order was not vacated by the Tribunal, first respondent approached this Court by filing W.P.(C) No.26408/2005, which was disposed of directing the Tribunal to reconsider the matter and dispose of the same in accordance with law. However, this Court directed the appellant to stop further construction in the mean while. Thereafter, the Tribunal reconsidered the matter and passed an order declining to vacate the stay. Later, the appeal itself was head and allowed without prejudice to the authority of the Corporation to took appropriate action in the matter, if there was any statutory violation in issuing Ext.P8 building permit. That order was challenged in W.P.(C) No.31409/2005 and by Ext.P2 judgment, the Corporation was directed to consider the objection of the first respondent herein as regards the permit issued and the construction that is being carried on by the appellant. The views of the Government has also to be looked into while taking a decision. 5. It was contended on behalf of the first respondent herein that he requested the Secretary to issue a copy of the plan submitted by the appellant herein. However, W.A.Nos.2173 and 2269 of 2008 5 being unsuccessful, he submitted an application requesting the Secretary to appoint an expert Commission and obtain a report. Ultimately, Ext.P7 order was issued by the Corporation cancelling Ext.P8 permit. Ext.P7, dated 11.8.2006, is a proceeding issued by the Secretary of Corporation, Thiruvananthapuram, after hearing all the parties. It proceeds to state that the Government in the counter affidavit in W.P.(C) No.31409 of 2005 had taken the stand that the plot in which the building is being constructed comes within the heritage zone and also a detailed town planning scheme. In that, the Government further seems to have stated that the buildings in the area is to be more or less in conformity with the Architectural style of the ancient buildings in the area and the proposed high rise building is not in conformity with the provisions of the Detailed Town Planning Scheme. The Corporation further proceeds to state that the earlier permit issued, Ext.P8, was on a mistaken belief and overlooking the fact that the area is covered by the Heritage Zone. It is further stated that the Corporation was also under the mistaken belief that the plot in question does not come within the DTP Scheme and that the plot in the Survey No.683 W.A.Nos.2173 and 2269 of 2008 6 falls in the heritage zone. For these reasons, the building permit issued by Ext.P8 was cancelled and the appellant was directed to stop further construction. 6. Challenging Ext.P7, appellant preferred an appeal before the Tribunal as Appeal No.340/2006 and Ext.P10 order was passed allowing the appeal, setting aside Ext.P7 and restoring Ext.P8 permit. It was challenging the order passed by the Tribunal that both the first respondent herein as also the Corporation of Thiruvananthapuram preferred separate writ petitions. 7. Referring to the order passed by the Tribunal, the learned Single Judge held that the finding of the Tribunal that in the absence of a notification under Section 383 of the Kerala Municipality Act, notifying the property covered by Ext.R3(a), prescribing any particular form or fashion of construction, revocation of the permit on the ground that concurrence of Art and Heritage Commission was necessary, is incorrect. After referring to Rule 154 of the Kerala Municipality Building Rules, the Tribunal held that it is only advisory in nature. The Tribunal W.A.Nos.2173 and 2269 of 2008 7 made yet another finding that there is absolutely no material to conclude that Sy.No.683 of Vanchiyoor Village was also a property coming within the heritage zone. There was also no evidence to show that the notification dated 19.1.1982 under the Town Planning Act was issued after following the procedural formalities in this regard. The Tribunal further found that in the absence of a valid draft scheme affecting the property in force on the dte of the building permit, the order revoking the permit on the ground of omission to note the draft scheme is incorrect. On behalf of the first respondent, it was contended that the area in question is included in the heritage zone. The Corporation took the stand that as per Ext.P1 letter, the area is covered by the DTP scheme and within the heritage zone, and therefore, the order cancelling the permit is justified. 8. The learned Single Judge found that the property in question cannot be said to be included in the heritage zone. Ext.P5 is a notification issued under the provisions of the Kerala Ancient Monuments and Archaeological Sites and Remains Act, 1968, which gives only a notice of the Government's intention to declare it as a protected monuments, and further even if the W.A.Nos.2173 and 2269 of 2008 8 notification is accepted to be one declaring heritage zone, such declaration has to be confined to the monuments and extent of sites mentioned therein. In the absence of any case from the first respondent that the sale deed, Ext.R3(a), as per which the property was purchased comes within the boundaries indicated in respect of the said notification, that finding has become final, as there is no appeal preferred by the first respondent herein against the said finding. After referring to Section 383 of the Municipalities Act and despite the finding entered by the Tribunal, the Corporation has no case as to whether any notification has been issued thereunder. At any rate, no materials are produced to show that such a notification is in existence. 9. The other factor which induced the Corporation to issue Ext.P7 is the DTP Scheme. There was no notification as such issued or finalised as required under the Town Planning Act. But it was contended that even if there is a draft notification as referred to by the Tribunal in Ext.P10, though not approved, the area in question was covered by the Town Planning Scheme notified on 21.6.1971 and subsequently varied W.A.Nos.2173 and 2269 of 2008 9 by Notification dated 19.12.1975. The learned Single Judge held that if that be so, the finding of the Tribunal that in the absence of a valid scheme, revocation of the permit on the ground that it offended the scheme cannot be correct. In other words, except referring to the contention, no finding as such was made by the learned Single Judge in this regard. 10. Now, yet another contention raised by the first respondent is that construction made is contrary to the Building Rules. We will refer to this contention later at the appropriate place. 11. The learned Single Judge in the above factual matrix entered a finding that Ext.P10 order passed by the Tribunal cannot be sustained and set aside the same by way of remand to the same authority for reconsideration. 12. The two points which requires to be considered by us are whether there is any DTP Scheme in force, and if so, there is any restriction in the matter of construction. W.A.Nos.2173 and 2269 of 2008 10 13. Chapter III of the Town Planning Act provides for making variation and revocation of schemes. Sub-section (1) of Section 7 of Town Planning Act provides that a municipal council may, at any time, by resolution, decide to prepare a scheme in respect of any land, within the municipal area, or in its vicinity outside such area, or to adopt with or without modifications a draft scheme proposed by all or any of the owners of any such land. The Chairman shall then have a plan prepared showing the land proposed to be included in the scheme, the surrounding lands and any existing streets. Sub- sections 2 and 3 are not relevant for our purpose. 14. As per Section 8 of the Town Planning Act, the resolution under section 7 shall be published by notification in the prescribed manner by the chairman, and such notification shall state that a copy of the plan is kept for the inspection of the public at all reasonable hours at the municipal officer. Sub- section (1) of Section 9 of the Act provides that if the resolution is to make a scheme, the municipal council shall, within twelve months from the date of the notification under section 8 or within such further period, not exceeding twelve W.A.Nos.2173 and 2269 of 2008 11 months, as the Government may allow, and after consulting, in the prescribed manner, the owners of lands and buildings in the area affected, prepare and publish a draft scheme. 15. By a combined reading of Sections 7 and 8, it can be seen that if a resolution is passed by the Municipal Council deciding to prepare a scheme of any land within the municipal area or in its vicinity outside such area, as the case may be, it has to publish a notification under Section 8, the purpose of which is to make the public aware of the same, so that objections thereto could be preferred by persons interested. Thereafter a draft scheme has to be published again under Section 9 and such draft scheme shall be published within 12 months of the notification under Section 8 or within such further period, not exceeding twelve months, as the Government may allow. Nobody has got a case that draft scheme was published within time. The learned Government Pleader however submits that a draft scheme was published as contemplated by Section 9 within time. W.A.Nos.2173 and 2269 of 2008 12 16. As per Section 12 of the Town Planning Act, the Government may, after considering the objections and suggestions, if any, and making such inquiry as they think fit, sanction the scheme with or without modifications, or may refuse to sanction the scheme or may return the scheme to the council for reconsideration. In this case, except the draft scheme forwarded to the Government, no approval has yet been granted by the Government in this regard. As such, there is no approved scheme by the Government as contemplated by Section 12 of the Town Planning Act. 17. Section 15 of the Town Planning Act deals with restrictions after declaration made under Section 8 or 10. It provides that, after the publication of a notification under Section 8 or Section 10, no person shall within the area included in the scheme erect or proceed with any building or work or remove, pull down or alter any building or part of a building or remove any earth, stone or material unless such person has applied for and obtained the necessary permission. Thus, the restriction is not an absolute prohibition for making erection or construction, but the restriction is more in a regulatory form W.A.Nos.2173 and 2269 of 2008 13 that such construction can only be made with a previous sanction from the Municipality concerned and there can be good reasons why municipality may refuse to grant such permission, when there is such a declaration under Section 8 or 10. But such restriction automatically lapses after the prescribed time under sub-section 3 thereof. Sub-section 3 of Section 15 provides that the restriction imposed by the Section 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 of Government refusing to sanction the scheme under Section 12. In this case, the scheme was not approved within a period of two years by the Government after the publication made under Section 10. Therefore, the restrictions as imposed under Section 15 also has cease to have any effect on the expiry of the two years period. We, therefore, find that though a draft scheme is formulated and submitted for sanction before the Government, in so far as the said scheme has not been sanctioned and notified by the Government under Section 12 and the two years period have already elapsed, the construction of the building in question and W.A.Nos.2173 and 2269 of 2008 14 the cancellation of the permit in terms of the provisions contained in the Town Planning Act is wrong and illegal. 18. Regarding the inclusion of the area in the heritage zone, even the learned Single Judge has found that the contention has no merit. In the course of argument, the learned Government Pleader submitted that there is a Town Planning Scheme notified earlier in 1971 which was revised in 2007. But it has been pointed out by the learned counsel for the appellant that the permit issued in this case was long prior to the approval of the notification issued in 1971, Ext.P8 is being issued as early as in 2005. 19. In the aforesaid facts and circumstances and the point for determination is being a legal question, we find there is no necessity for remanding the case back to the Tribunal. In view of what is stated above, we find that revocation of the permit by Ext.P7 is based on misconception of fact that there is a draft scheme in force which for the reasons already stated has been found against. W.A.Nos.2173 and 2269 of 2008 15 20. Now one more contention remains to be considered as raised by the first respondent, which we have referred to in paragraph 10, is that the construction is made in contravention of the Building Rules. The construction of the building is already over and before the Occupancy certificate is issued, the Corporation shall satisfy that the construction of the building is in accordance with the approved Plan and Rules, and only after satisfying the same that the Occupancy Certificate will be issued. In the result, we set aside the common judgment of the learned Single Judge and allow the appeals. However, in the circumstances of the case, there will be no order as to costs. P.R.RAMAN, Ag. CHIEF JUSTICE C.N.RAMACHANDRAN NAIR, JUDGE nj.