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Alex P. Abraham v. Thiruvananthapuram Corporation

Kerala HC20 Oct 2020WP(C)/7033/2020

Case brief

AI extract

What is this about?

The High Court held that the Interim Development Order, being approved by the Government, applies in lieu of the 1971 Master Plan. The Corp is directed to reconsider the application for apartment construction under this Order, subject to land nature and Building Rules.

What did the court decide?

Impugned order set aside; Corporation directed to reconsider matter afresh under the Interim Development Order and Building Rules.

Alex P. Abraham Vs Thiruvananthapuram Corporation — Municipal and Town Planning | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

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TUESDAY, THE 20TH DAY OF OCTOBER 2020 / 28TH ASWINA, 1942

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WP(C).No.7033 OF 2020(D)

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PETITIONER:

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ALEX P. ABRAHAM, AGED 57 YEARS, S/O. P.V.ABRAHAM, CRRA 41, CHALAKUZHY ROAD, PATTOM, THIRUVANANTHAPURAM

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BY ADV. SRI.V.M.KRISHNAKUMAR

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RESPONDENTS:

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1 THIRUVANANTHAPURAM CORPORATION REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, THIRUVANANTHAPURAM,PIN-695 033

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2 REGIONAL TOWN PLANNER, OFFICE OF REGIONAL TOWN PLANNER, THIRUVANATHAPURM,PIN-695 035

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R1-2 BY ADV. SRI.N.NANDAKUMARA MENON (SR.) R1-2 BY SRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION

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JESTIN MATHEW GP

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.7033 OF 2020(D)

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..2..

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JUDGMENT

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Dated this the 20th day of October 2020

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This writ petition is filed challenging Ext.P5 decision of the Thiruvananathapuram Corporation on an application for constructing an apartment complex. The application was rejected stating that the land where the construction is proposed to be undertaken is included in 'Green Strip Zone'. It is also stated that as per the BTR the land is classified as 'Nilam'.

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The petitioner's case is that in the light of Interim Development Order approved by the Government in respect of Thiruvananthapuram Corporation, there is no difficulty in considering the application as in the Interim Development Order, the area is earmarked as commercial zone.

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The learned Senior Counsel for the Corporation would submit that the master plan has not been superseded by any fresh master plan. The Interim Development Order, therefore, cannot be

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..3..

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WP(C).No.7033 OF 2020(D)

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relied for re-consideration of the application.

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The learned Government Pleader seeks time to file counter affidavit on behalf of the 2^nd respondent.

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The Division Bench of this Court, in fact, in W.A. No.1776/2019 had considered the similar issue in respect of Thiruvananthapuram Corporation. In paragraphs 12 and 13 of the judgment, it was held as follows:

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“xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 12. Once the Interim Development Order is prepared by the Corporation and it is sent for approval to the Government, the Government shall in consultation with the Chief Town Planner approve the Interim Development Orders. The intention of such Interim Development Order is also clearly spelt out u/s 63(3) of the 2016 Act and the Interim Development Order shall remain in force until the coming into operation of the Master Plan. In the present case, going by Ext.P10 itself, it is rather clear that the draft Master Plan prepared on 23rd April 2013 has been frozen vide Government Order dated 28/2/2014 and it was decided to prepare a new Master Plan for Thiruvananthapuram in the meeting held on 26/11/2016. The Corporation of Thiruvananthapuram has prepared and approved the Interim Development Order as per its resolution dated 14/3/2017 and the Government had approved the same on the basis of recommendation of Chief Town Planner and accordingly, the Interim Development Order had been issued.

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WP(C).No.7033 OF 2020(D)

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..4..

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13. From the above facts, it is rather clear that, as matters stand now, the Interim Development Order alone applies to the fact situation and not the 1971 Master Plan until a new Master Plan comes into force, or the time for preparation of the Master Plan ceases as contemplated u/s 63(4). Though the learned Government Pleader tried to salvage the situation placing reliance on the proviso to S.36(12), we do not think that the above provision will render any assistance to the Government or the Corporation to contend that the 1971 Master Plan still continues to be in force. S.36(12) and the proviso reads as under:-

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“36. Procedure for preparation, publication and sanctioning of Master Plan - xxx (12) The provisions specified under Section 63 shall continue to be in operation until the Master Plan is sanctioned, even if the time limit prescribed under subsections (2) to (8) are not complied with: Provided that in cases where a sanctioned Master Plan already exists, its provisions shall only apply until the published Master Plan is sanctioned in accordance with this Act.”

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In fact, S.63 starts with a non obstante clause and therefore, any development during the interregnum period while the Master Plan is being finalised, has to be based on such Interim Development Orders and therefore, such an argument is unsustainable. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx”

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In the light of the Division Bench judgment, there may

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not be any difficulty for the Corporation to re-consider the matter

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afresh in accordance with the Interim Development Order and also in accordance with the Kerala Building Rules. However, this would

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be subject to the satisfaction in regard to the nature of the land and

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..5..

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WP(C).No.7033 OF 2020(D)

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the permission granted by the competent authority to utilise the land

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for such construction.

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Accordingly, the impugned order is set aside and the Corporation is directed to re-consider the matter afresh in accordance with Interim Development Order subject to satisfaction in regard to the nature of the land and also in accordance with the Building Rules.

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This writ petition is disposed of as above.

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Sd/-

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A.MUHAMED MUSTAQUE

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JUDGE

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WP(C).No.7033 OF 2020(D)

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..6..

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE ORDER NO.UEI/5928/17 DATED 16.11.2017 OF THE CORPORATION

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EXHIBIT P2 TRUE COPY OF PAGE 5 ,6 AND 7 OF APPROVED INTERIM DEVELOPMENT PERMIT AS REGARDS THIRUVANANTHAPURAM CORPORATION

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EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 17.09.2018 IN W.P(C) NO.1937 OF 2018

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EXHIBIT P4 TRUE COPY OF THE MINUTES OF THE MEETING DATED 04.2.2019 WITH COVERING LETTER ISSUED BY THE ADDITIONAL CHIEF SECRETARY DATED 26.12.2019

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EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS OF THE THIRUVANATHAPURAM CORPORATION DATED 04.12.2019

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EXHIBIT P6 TRUE COPY OF THE INTIMATION RECEIVED BY THE PETITIONER FROM AGRICULTURAL OFFICER, THIRUVANANTHAPURAM DATED 04.09.2019

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EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN WA NO.1776/2019 DATED 26.11.2019.

Alex P. Abraham v. Thiruvananthapuram Corporation

Case brief

What is this about?

What did the court decide?

Alex P. Abraham v. Thiruvananthapuram Corporation

Case brief

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What did the court decide?

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