ABDUL KABEER Vs. MALAPPURAM MUNICIPALITY

JUDGEMENT

(1.) In all these Writ Petitions challenge is against rejection of Building Permits by the respective Municipalities/Corporations on the ground of zonal classifications under the Detailed Town Planning scheme (DTP scheme) formulated either under the Town Planning Act, 1939 or under the Madras Town Planning Act, 1920. The petitioners applied for building permits for construction of residential/commercial buildings. In one case the application is by a Devaswom for construction of a 'Kalyanamandapam' attached to a temple. The reason for rejection of building permit mentioned in the impugned orders are that, the properties where the constructions are proposed are included either in the 'residential zone' or in the 'paddy field zone' (agricultural zone) or in the 'dry cultivation area' etc. In most of the cases the DTP scheme in question was formulated long back, two to three decades ago. In some cases there are revised DTP schemes submitted in between. Contention raised by the petitioners are many folded. In cases where permits are rejected on the basis that the area is earmarked as residential zone, it is contended that a good number of commercial buildings exist. With respect to area mentioned as 'agricultural zone' (paddy field zone) it is contended with supporting documents that the area no more remains as agricultural area, but it is covered with full of commercial and residential buildings. In such cases it is contended that the scheme has become obsolete and unworkable due to the ground reality existing. In all the cases it is contended that the Municipality/Corporation concerned has not taken any effective steps to implement the scheme either by acquiring land or by effectuating the zonal regulations and spatial classifications. The petitioners have relied on various judgments wherein denial of building permit on identical issues has been quashed by this court. Further, contentions were raised with respect to the legal position which remains settled through various decisions of the Hon'ble Apex Court as well as this court One of the main argument raised is based on the 74th Amendment of the Constitution and introduction of Part-IXA. It is the contention that in view of the Part-IXA of the Constitution and the Kerala Municipality Act, 1994, any scheme formulated under the provisions of the Town Planning Act, 1939 or under the Madras Town Planning Act, 1920 cannot survive.

(2.) Heard; counsel appearing for the petitioners, standing counsel for respondent Municipalities/Corporations and Sri. P. Jayasankar, learned special Government Pleader who appeared on behalf of State Government.

(3.) Since denial of permit is based on violation of the zonal classification under the DTP scheme envisaged through the Master Plan formulated by the respondent Municipalities/Corporation under the Madras Town Planning Act, 1920, it is necessary to evaluate the legal position settled through various precedents by the Hon'ble Apex Court and this court. In the decision of the Hon'ble Supreme Court in Raju S. Jethmalani v. State of Maharashtra & Ors., 2005 11 SCC 222 it is held that, though land belonging to private persons can be included in development plans, unless the land is acquired by the State Government or by the Municipal Corporation to effectuate the public purposes such development plan cannot be implemented and the land owner cannot be deprived of using the property for any other purposes. When the Government or Municipal Corporation fails to acquire the land, the private persons cannot be deprived of the use of the land, is the dictum. A Division Bench of this court in Padmini v. State of Kerala,1999 3 KerLT 465 observed that the Municipality has no authority to reject application for building permit on the ground that the land is proposed to be acquired. Referring to Section 393 of the Kerala Municipality Act it is observed that, the application can be rejected only if the land is under acquisition proceedings. This court held that the Municipality cannot freeze the land for any indefinite period on the pretext that they are taking steps to acquire the land.