ABDUL GAFOOR Vs. STATE OF KERALA

JUDGEMENT

(1.) The above writ petitions relate to permission for construction of building in the Guruvayur Municipality. The issues involved are intrinsically connected and the writ petitions are being disposed of together.

(2.) The petitioner is the co-owner of 4.72117 Acres of land in Sy.Nos.21/7, 22/6, 22/3, 20/3, 22/5, 20/2 and 23/2 of Chavakkad Village. An application for development permit for construction of residential buildings was submitted on 27/8/2013 before the Municipality. The application was rejected as per Ext.P1 order dtd. 10/9/2013 stating that the properties which the petitioner wanted to develop are included in the master plan as industrial zone and railway zone. According to the petitioner, the master plan was of the year 1976, drawn up at a time when the Guruvayur Municipality was not having a railway station. Later, the Rail service was extended to Guruvayur. It is submitted that the Railway Station and the railway line are located far away from the property of the petitioner. Since there was no requirement for acquiring the property or classifying the property as a railway zone, the petitioner challenged Ext.P1 in W.P.(C)No.23324 of 2013. By Ext.P2 judgment, this Court allowed the writ petition and directed the Municipality to consider the application for a building permit afresh. This Court noticed that putting a rider on the rights of a landowner to utilise his property in any manner as deemed fit by him on the basis of a Master Plan that has not been implemented by follow-up land acquisition proceedings, is impermissible. Subsequently, the District Town Planner wrote Ext.P3 to the Secretary of the Municipality pointing out certain defects in the application submitted by the petitioner. The 7th defect pointed out is that the master plan shows the area as an industrial zone and shows a railway line to pass through the property. The 8th defect pointed out is that as per the published master plan, the property is a recreation space. On 4/1/2016, the Secretary wrote Ext.P4 to the District Town Planner forwarding Ext.P2 judgment of this Court and after rectifying the defects pointed out. However, on 18/3/2016, the District Town Planner issued Ext.P5 rejecting the plan showing that even though the requirement of the railway is no longer there, the purpose of industry still holds good, and hence building permit cannot be granted. The petitioner submitted Ext.P6 representation seeking the Secretary to reconsider the issue. On 26/7/2016, the Municipality issued Ext.P7 to the petitioner asking him to produce four sets of plans after curing the defects pointed out by the District Town Planner. The petitioner resubmitted the plan along with Ext.P8 covering letter on 11/8/2016. On 22/1/2018, by Ext.P9, the request was again rejected by the Secretary of the Municipality stating that as per the approved master plan, the properties are included in the residential industrial zone and the layout cannot be approved. Ext.P10 is the request submitted under the Right to Information Act seeking information about the existence of the master plan and other details regarding it. Ext.P11 dtd. 7/3/2018 is the reply given to Ext.P10, wherein it is stated that there is no new master plan which has come into existence. In answer to the query regarding the earlier master plan and the restrictions under the same, it was informed that the master plan is contained in G.O. (Ms.)No.2/2010/LSGD dtd. 1/1/2010. Ext.P12 is the above said Government Order. It is seen that in the industrial user zone apart from permitted uses there are restricted uses for which permission can be granted, which includes several totally unconnected aspects like daycare, creche, nursery, Kinder Garden, primary school, Vocational Training Institute, lodges, crematorium, parking grounds. Parks and open spaces are separately identified as a zone. So also, recreation zone is also separately identified. The petitioner has challenged Exts.P1 and P9 in the writ petition and seeks a direction to respondents 3 and 4 to allow the lay out proposal submitted by the petitioner.

(3.) The 3rd respondent has filed a counter affidavit. It is submitted that the Town Planning Scheme was initially sanctioned on 2/2/1996. It is stated that the Zoning Regulations of the Scheme was varied by Ext.P12 Government Order to make the zoning compatible with the present developments. It is further stated that going by the provisions of the Kerala Town Planning Act, 2016, which has been brought into force with effect from 23/9/2013, the master plan which had been sanctioned prior to the Act are deemed to be sanctioned under the Act and they are to remain in force till a new plan comes into force. It is further stated that the zoning regulations were revised in 2010 and the revised master plan was also prepared, but the same is still pending approval of the Government. Curiously, it is stated in paragraph 7 that the respondents have received legal opinion that since neither the Chief Town Planner nor the District Town Planner was made parties to the writ petition, the judgment of this Court was not binding on it. Ext.P2 shows that the Secretary to Government of the Town Planning and Local Self Government Department is a party to the writ petition and the State cannot take a stand that the judgment is not binding on the State. It is further submitted that the new master plan was published for Guruvayur Municipality on 5/4/2011 as per G.O.(Ms)No.3430/10/LSGD and that as per the said plan, the property of the petitioner comes under 'recreational in Zone-3 Urban activity zone'. It is further submitted that residential use is permissible with the concurrence of the Town Planner or Chief Town Planner. It is also stated that the said revised master plan is not yet approved.