Allowed

Surathmaja v. Thiruvananthapuram Corporation

Kerala HC12 Dec 2019WP(C)/5106/2019

Case brief

AI extract

What is this about?

Single judge held that permanent 'Green Strip' reservation in a Master Plan divests owners of usage rights, violating Article 300A. Petitioner allowed to issue Section 67 purchase notice; if rejected, building permit must be granted regardless of zoning.

What did the court decide?

Petitioner allowed to issue purchase notice under Section 67. If rejected/not answered, Corporation ordered to consider building permit application de hors Master Plan.

Surathmaja Vs Thiruvananthapuram Corporation — Municipal and Town Planning | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

¶4

THURSDAY, THE 12TH DAY OF DECEMBER 2019 / 21ST AGRAHAYANA, 1941

¶5

WP(C).No.5106 OF 2019(K)

¶6

PETITIONER:

¶7

SURATHMAJA, AGED 55 YEARS D/O KRISHNAN, 31/406 (1), ANJU NIVAS, ANAYARA P.O., THIRUVANANTHAPURAM.

¶8

SRI.V.M.KRISHNAKUMAR

¶9

RESPONDENTS:

¶10

1 THIRUVANANTHAPURAM CORPORATION REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, THIRUVANANTHAPURAM, PIN-695 001.

¶11

2 REGIONAL TOWN PLANNER OFFICE OF REGIONAL TOWN PLANNER, THIRUVANANTHAPURAM, PIN-695 035.

¶12

SRI.N.NANDAKUMARA MENON (SR.) SRI.P.K.MANOJKUMAR,SC. SR.GP. - RAJASEKHARAN NAIR

¶13

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶14

WP(C).No.5106 OF 2019(K)

“CR”

JUDGMENT

Many Master Plans and Detailed Town Planning Schemes, which deal with spatial planning, provide for “Green Strips” to be maintained in the Town/City to which it relates, thus imposing a permanent embargo in constructing or developing the properties included in such zones.

¶19

The terse but significant legal issue buoyed from among the midst of the short facts in this writ petition is whether the owner of such a land obtains any relief in law or whether he/she will be constrained to live under the rigor of the “zoning” without being entitled to develop the property in question for all time to come; or at least, until such time as the Master Plan or Detailed Town Planning Scheme is varied.

¶20

Corollarily and axiomatically, the concept of a “Green Strip” will need to be examined and its impact on the owners of properties included in such.

¶21

The apercus of the essential facts first.

¶22

This writ petition has been filed by the petitioner

¶23

WP(C).No.5106 OF 2019(K)

¶24

¶25

alleging that her application for Building Permit, accompanied by Ext.P2 building plan, has not yet been considered by the Secretary of the Corporation, merely for the reason that the area where his property is situated has been designated as a “Green Strip” under the Thiruvananthapuram City Master Plan and that no construction can, therefore, be permitted thereon. The petitioner asserts that this is untenable in law, particularly going by the declaration made by a Division Bench of this Court in Chief Town Planner v. SBT Officer's Housing Cooperative Society (W.A.No.972/2016), a copy of which has been appended to this writ petition as Ext.P9, wherein it has been luculently declared that the area in question has ceased to be a “Green Strip” and that the new Master Plan is not in existence for the Thiruvananthapuram City. The petitioner, therefore, prays that the Secretary of the Thiruvananthapuram Corporation be directed to reconsider her application for building permit in terms of law.

¶26

In response, the learned senior counsel, Sri.Nanadakumara Menon, instructed by Sri.Manoj Kumar, learned standing counsel for the Thiruvananthapuram Corporation, submitted that since the area in question has

¶27

WP(C).No.5106 OF 2019(K)

¶28

¶29

been reserved as a “Green Strip” in the Master Plan, the Secretary has referred the matter to the second respondent - Regional Town Planner for appropriate orders. The learned senior counsel says that as long as the Master Plan remains in force and as long as this area has been shown as a “Green Strip” area therein, the Secretary of the Corporation cannot grant any order contrary to it. He, therefore, prays that this writ petition be dismissed.

¶30

Sri.Rajasekharan Nair, the learned Senior Government Pleader appearing on behalf of the second respondent, submits that a counter affidavit has been filed on record wherein it has been clearly stated as under:

¶31

“As presented in the writ petition, the petitioner's plot in Sy.No.861 of Kadakampalli Village falls in Green Strip/Agriculture reservation zone as per the Development Plan of Trivandrum sanctioned vide G.O(Rt.)No.921/71/LAD dated 21.06.1971, which is deemed to be the master plan for the area as per Section 113 of the Kerala Town and Country Planning Act, 2016. As per the zoning regulations, shops and commercial uses are not permissible in the said zone.

¶32

This plan was varied as General Town Planning Scheme for Trivandrum vide:G.O(MS)No.144/07/LSGD dated 31.05.2007 and its Appendix C-Zoning regulation Clause 11.0 deals with Green Strip/Agriculture reservation. As per the said guidelines, Dairy Farms, single family residential buildings of floor area up to 300 sq.m in areas which was substantially built up with lawful residential buildings on the date of notification and public utility and service areas comes under the restricted use

¶33

WP(C).No.5106 OF 2019(K)

¶34

¶35

in the said zone. Such uses shall be permitted by the executive authority with the concurrence of the Town Planner of the State Town Planning Service having jurisdiction over the area. The petitioner had proposed to construct a shop room having area 100m² . This proposal falling in the commercial occupancy is not permissible as per the zoning regulations of the sanctioned Master Plan. Since the petitioner's application does not comply with the provisions of the sanctioned master plan applicable for the area, the proposed building cannot be permitted.

¶36

As per the Interim Development Order (IDO) of Trivandrum sanctioned vide G.O.(MS)No.181/2017/LSGD dated 11.09.2017 for the entire Thiruvananthapuram Corporation area; the same encompasses the petitioner's area also. The petitioner's property in Sy.No.861 of Kadakampally Village falls in mixed residential zone. Though as per the zoning regulations of the Interim Development Order the petitioner's building is permissible, at present the plan valid for the petitioner's area is the sanctioned master plan and its provisions are to be adhered to till another plan is sanctioned for the said area as per the stipulated procedure in the Kerala Town and Country Planning Act 2016. As per Section 36 Sub Section 12 Proviso 1 of the Kerala Town and Country Planning Act 2016, in cases where a sanctioned Master Plan already exists, it is provisions shall only apply until the published Master Plan is sanctioned in accordance with this Act. However as specified in the note under Section 63(1) of the Act, the expression 'Interim Development' means development during the period between the date of decision taken to prepare a plan under the Act and the date of coming into operation of the Plan in the case of Master Plan. 'The date of coming into operation of the plan' for the purpose of Section 61 is defined as the date of publication of the notice in the official gazette intimating the fact of sanction of the plan by the Government as per Section 62 of the Act.

¶37

Hence for the area under question, a sanctioned master plan is already in force and the interim development order will come into force only after it gets sanctioned as per the provisions in the Act. Also, as per Section 36(12) proviso(1) in cases where a sanctioned master plan already exists, its provisions shall only apply until the published master plan is sanctioned in

¶38

WP(C).No.5106 OF 2019(K)

¶39

¶40

accordance with the Act. Therefore the plan applicable for the petitioner's area as of now is the sanctioned master plan and its provisions have to be abided by and adhered to until it gets revoked by another sanctioned master plan.

¶41

Hence, the provisions of the sanctioned master plan have to be adhered until the published master plan gets sanctioned observing the procedures mentioned in the Kerala Town and Country Planning Act 2016.”

¶42

The learned Senior Government Pleader then submits that the afore position of law has been further reinforced by a Division Bench of this Court in Regional Town Planner v. Muhammed Rasheed [2019 (3) KLT 433] and therefore, that the petitioner cannot now assert that the Master Plan for the Thiruvananthapuram Corporation is not in force. He thus prays that the petitioner be directed to submit a plan adhering to the zonal regulations as per the said Master Plan.

¶43

Even when I hear the learned senior counsel for the Thiruvananthapuram Corporation and the learned Senior Government Pleader on the afore lines, it is without doubt that Ext.P9 judgment has declared that the Master Plan for the Thiruvananthapuram City is not in existence and therefore, that zonal regulations therein are not applicable. However, as rightly pointed out by the learned Senior Government Pleader,

¶44

WP(C).No.5106 OF 2019(K)

¶45

¶46

in Mohammed Rasheed (supra), another Division Bench of this Court appears to have declared the law slightly to the contrary in the following lines:

¶47

“A validly framed and duly notified scheme under a Town Planning Act would come within the ambit of the term “other law” for the purposes of the Kerala Municipality Building Rules or the Kerala Panchayat Building Rules, and it was to clarify this aspect that R.3A was inserted in the Kerala Municipality Building Rules and a similar provision inserted in the Kerala Panchayat Building Rules. It would also follow that, in an area that has been developed in accordance with the Scheme that was validly prepared and duly notified in accordance with the provisions of the Town Planning Act, future constructions would have to adhere to the terms of the Scheme itself is altered or varied by the State Government in accordance with the provisions of the Town and Country Planning Act. The mandate and purport of the Scheme so framed assumes the nature of a law that regulates future construction in the area and would also bind subsequent purchasers of land and users thereof. It may not also be out of place to mention, in this context, that the earmarking of the areas into residential/industrial/commercial/agricultural or keeping apart areas for parks, roads, etc. is an exercise that is done in public interest and hence, the private interest of the land owners who seek to put up particular construction would have to necessarily yield to the overriding public interest that informs the provisions of the DTP Scheme.”

¶48

I am, consequentially, of the view that it will not be prudent for this Court at this stage to hold that the Master Plan for the Thiruvananthapuram City is not in existence.

¶49

That said, the sequential question is whether the

¶50

WP(C).No.5106 OF 2019(K)

¶51

¶52

petitioner virtually loses all her rights over the property in question, she being legally incapacitated from dealing with it any manner - it being included in the “Green Strip”.

¶53

The specific contention of Sri.V.M.Krishnakumar, learned counsel for the petitioner on this issue is that since the provisions of the Master Plan for the Thiruvananthapuram City reserves the area in question as a “Green Zone”, it is indubitable that the respondent - Corporation will require to acquire the property of the petitioner, if it is to be maintained as such for the times to come.

¶54

Of course, the submissions of the learned senior counsel, Sri.Nanadakumara Menon, in answer to this is that since the Master Plan provides only for a zonal reservation, it does not require the Corporation to acquire the land, particularly because the area has been shown as a “Green Strip” area for the benefit of the general public.

¶55

I am afraid that I cannot accede to this contention because, when an area has been reserved as a “Green Strip” area, it really means that the owner of the property is divested of any entitlement to make any construction thereon or to deal

¶56

WP(C).No.5106 OF 2019(K)

¶57

¶58

with in any manner. This is in contra-distinction to zoning requirements which stipulate the development of an area in a particular manner, namely, “residential”, “commercial”, “mixed-use” etc., whereby the right of an owner to deal with his/her property is not taken away but only prescribes certain restrictions for it in larger public interest. The requirement in the Master Plan to preserve an area or property as a “Green Strip” for all times is a permanent inhibition on an owner's right to use the said property and it thus falls foul of the provisions of Article 300A of the Constitution of India. Any permanent prohibition or inhibition against the right of an owner with respect to a property owned by him/her cannot obtain the imprimatur of this Court, being guided by the constitutional imperatives; and I am certainly of the view that when such an inhibition is brought in, either through the Master Plan or through a Detailed Town Planning Scheme, it operates perpetually; and therefore that the land becomes compulsorily acquirable, if the zonal requirements in such manner has to be maintained.

¶59

Therefore, when an area thus becomes compulsorily acquirable under the Master Plan, the owner of the property

¶60

WP(C).No.5106 OF 2019(K)

¶61

¶62

obviously gets a concomitant right to issue a purchase notice under Section 67 of the Kerala Town and Country Planning Act and if the same is rejected or not considered by the Corporation within the statutory period stipulated, then he/she gets entitled to have his/her application for building permit considered de hors the stipulations in the Master Plan. This position of law has been ineluctably declared by this Court in Regional Town Planner and Another v. Muhammed Rasheed and Others [2019 (3) KHC 987 ] and District Town Planner, Malappuram and Others v. Vinod and Others [2019 (3) KHC 673].

¶63

Resultantly and for the reasons above, I order this writ petition and leave liberty to the petitioner to issue to the respondent - Corporation an appropriate purchase notice under Section 67 of the Kerala Town and Country Planning Act; and if this is done within a period of two weeks from the date of receipt of a copy of this judgment, the competent Authority of the Corporation will consider the same and issue appropriate orders thereon within the statutory period specified.

¶64

Needless to say, if the purchase notice of the petitioner is

¶65

WP(C).No.5106 OF 2019(K)

¶66

¶67

either rejected or not answered by the competent Authority of the Corporation within the time frame fixed under the Kerala Town and Country Planning Act, then the Secretary of the Corporation will be obligated to consider the petitioner's application for building permit and issue appropriate orders thereon de hors the stipulations of the Master Plan, as expeditiously as is possible but within one month from the date on which the statutory period for consideration of the petitioner's application, under Section 67 of the Kerala Town and Country Planning Act, expires.

¶68

Sd/- DEVAN RAMACHANDRAN

¶69

JUDGE

¶70

Stu

¶71

WP(C).No.5106 OF 2019(K)

¶72

¶73

APPENDIX

¶74

PETITIONER'S EXHIBITS:

¶75

EXHIBIT P1	TRUE COPY OF THE 28.4.2018.	BASIC TAX RECEIPT DATED
EXHIBIT P2	TRUE COPY OF THE THE CORPORATION.	BUILDING PLAN SUBMITTED BEFORE
EXHIBIT P3	TRUE COPY OF THE BY THE THIRUVANAN	RECEIPT DATED 12.12.2018 ISSUED THAPURAM CORPORATION.
EXHIBIT P4	TRUE COPY OF THE PROPOSED LAND USE DEVELOPMENT PLAN CORPORATION APPRO NO.180/2017/LSGD	PART MAP OF SY.NO.861 OF THE MAP 2031 ATTACHED TO INTERIM FOR THIRUVANANTHAPURAM VED AS PER ..2GO(MS) DATED 11.9.2017.
EXHIBIT P5	TRUE COPY OF THE DEVELOPMENT ORDER	RELEVANT PORTION OF INTERIM DATED 11.9.2017.
EXHIBIT P6	TRUE COPY OF THE	1971 LAND USE MAP UP TO 1986.
EXHIBIT P7	TRUE COPY OF THE	LAND USE PLAN UP TO 2001.
EXHIBIT P8	TRUE COPY OF THE	PRESENT LAND USE MAP UP TO 2031.
EXHIBIT P9	TRUE COPY OF THE 29.11.2016.	JUDGMENT IN WA.NO.972/2016 DATED

¶76

RESPONDENTS' EXHIBITS : NIL

¶77

//TRUE COPY//

¶78

P.A TO JUDGE.

Surathmaja v. Thiruvananthapuram Corporation

Case brief

What is this about?

What did the court decide?

Surathmaja v. Thiruvananthapuram Corporation

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Aseena.T.M Vs the Revenue Divisional Officer(R.D.O.)

Vaniyamkulam Grama Panchayath Vs the District Collector

Princy Anto, Vs the Geologist

Naseema, Vs the Convener (Agriculture Officer)

Dr.M.a.Muhammed Afsal, Vs the Revenue Divisional Officer

Soudha Beevi Vs Kizhuvilam Grama Panchayat