ABDUL NSAUSHAD Vs. KOTHAMANGALAM MUNICIPALITY

JUDGEMENT

(1.) THE petitioner applied for building permit for construction of a commercial building in a property owned by him situated within the limits of the 1st respondent Municipality. THE 2nd respondent had forwarded the application to the 3rd respondent seeking exemption from the zonal classification. As per request made by the 2nd respondent, eventhough the property is included in the residential zone as per the DTP scheme, considering importance of the locality the area need not be retained as residential zone and that the council of the Municipality had taken decision to recommend for permitting construction of shop-cum- residential building in the property. As per EXt.P5 the 3rd respondent had forwarded the application to the 4th respondent recommending for sanctioning the permit. But the 4th respondent had rejected the application through Ext.P6 stating that, construction of commercial buildings having area upto 150 sq. meters alone can be permitted in the residential zone. It is also stated that there is no provision enabling grant of zoning exemption. Eventhough the petitioner had approached the Government seeking reconsideration of Ext.P6, it was declined through Ext.P9.

(2.) CONTENTION of the petitioner is that the denial of permit on the basis of the zonal classification contained in the DTP scheme prepared under the Town Planning Act, is not sustainable. It is also contended that the Town Planning Scheme formulated by the respondent Municipality has not been approved by the Government and no final sanction has been given nor any notification has been published as contemplated under section 12 (5) of the Act. Therefore it is contended that DTP scheme has not came into force and the denial of building permit on that ground is unjust and arbitrary. Further contention is that the provisions of the Town Planning Act 1939 as well as the Madras Town Planning Act 1920 cannot survive in view of part IX A of the Constitution of India and the Kerala Municipality Act 1994. Learned counsel for the petitioner contended that the property in question is situated in an area where there are a lot of commercial constructions and that the nature of the area no more remains as a residential zone. Hence on a practical approach there is no purpose in denying the permit, is the contention.

(3.) A learned Judge of this court in the case in Nasar vs. Malappuram Municipality (2009(3) KLT 92)observed that the Municipality cannot reject the application for building permit on the ground that the DTP scheme does not provide for grant of building permit as it would be in violation of classification of areas into different zones, which are ear-marked for different purposes. It is held that any attempt to curb rights of the owner of land until publication of statutory notifications and declarations for acquisition of the land, would result in infraction of the right to property envisaged under Article 300A of the Constitution. It would result in violation of equality principle in the matter of enforcement of laws as is contained in Article 14 of the Constitution. Any demand to create a rider over the title of the owner of the property under the pretext of a town planning scheme which has not become operational by acquisition would essentially be oppressive and would not be countenanced on the face of Article 14 of the Constitution, is the finding. However, the decision in Nazar's case (cited supra) has been clarified in a review petition through the decision reported in Secretary to Government vs. Nazar (1010(1) KLT 286). It is held that any statement of law in the said decision would not apply to cases which do not involve acquisition of land for the purpose of the town planning scheme.