Partly allowed

Maria Oommen, v. State of Kerala

Kerala HC20 Oct 2021WA/1226/2021

Case brief

AI extract

What is this about?

An appeal against a judgment holding Town Planning Scheme regulations valid and directing consideration of a building permit under Section 67 of the Kerala Town and Country Planning Act. The High Court modified the direction. The Court held the Scheme is valid, Section 67 was misapplied, and the applicant may apply for a permit under standard rules.

What did the court decide?

The writ appeal is disposed of. The appellant is permitted to submit an application for a building permit to be considered under statutory rules within one month.

Maria Oommen, Vs State of Kerala — Landlord and Tenant | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 20^TH DAY OF OCTOBER 2021 / 28TH ASWINA, 1943

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WA NO. 1226 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 22340/2020 OF HIGH COURT OF KERALA, ERNAKULAM

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APPELLANT:

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MARIA OOMMEN, AGED 41 YEARS PUTHUPALLY HOUSE, SUDARSHAN NAGAR, JAGATHY, THIRUVANANTHAPURAM 695 014. BY ADVS. PAUL JACOB (P) SHERU JOSEPH ADHIL HARIS

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, MINISTRY OF LOCAL SELF GOVERNMENT, ROOM NO.403, 4TH FLOOR, SECRETARIAT ANNEXE PALAYAM, THIRUVANANTHAPURAM - 695 001.

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2 MUNICPAL CORPORATION OF THIRUVANANTHAPURAM, VIKAS BHAVAN P.O. THIRUVANANTHAPURAM,KERALA, INDIA, PIN 695033,REPRESENTED BY ITS SECRETARY.

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3 TOWN PLANNER, REGIONAL TOWN PLANNING OFFICE , 1ST FLOOR, UPPER ZONE, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM 695 001. BY ADVS.

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SRI.K.P.HARISH, SENIOR GOVERNMENT PLEADER FOR R1 AND R3 SRI.N.NANDAKUMAR MENON (SENIOR) FOR R2

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20.10.2021,

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THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A. No. 1226/2021

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JUDGMENT

Dated this the 20^th day of October, 2021

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S. MANIKUMAR, CJ.

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On 27^th September, 2021, we passed the following order:

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“ ORDER

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Instant writ appeal is filed challenging the judgment in W.P.(C)No.22340 of 2020 dated 1.9.2021.

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Writ petition was filed challenging Regulation 11(3) of the General Town Planning Scheme for Trivandrum, as well as Ext.P11 order, where the petitioner's application for a building permit was rejected taking note of Regulation 11(3) of General Town Planning Scheme for Trivandrum. Following reliefs were sought for in the writ petition:

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i) issue a writ of mandamus or other appropriate writ, order or direction in the nature of a declaration quashing Regulation 11(3) of the General Town Planning Scheme for Trivandrum. ii) issue a writ of mandamus in the nature of a declaration declaring that Regulation 11(2)(i) permits construction of single family residential building of floor area up to 300 sq.meters in areas which are substantially built up, under Trivandrum Town Planning Scheme area.

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On an earlier occasion, petitioner had approached this court by filing W.P.(C)No.8520/2020 challenging the non consideration of the petitioner's application under Regulation 11(2)(i) of the General Town Planning Scheme for Trivandrum.

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Said writ petition was disposed of by the writ court on

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18.3.2020 with a direction to the Town Planner, Regional Town Planning Office, Thiruvananthapuram/third respondent to consider the application filed by the petitioner under Regulation 11(2)(i) of the General Town Planning Scheme for Trivandrum.

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It is evident from materials on records that vide Ext.P9, petitioner filed a fresh Building Permit application for constructing 262.19 Sq.Mts. Area. However, the said application was again rejected as per Ext.P11 order dated 27.8.2020 issued by the Town Planner, Regional Town Planning Office, Thiruvananthapuram.

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Learned Single Judge, after considering the rival contentions passed the judgment impugned on 1.9.2021. Relevant portions read as under:

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“8. As this writ petition is based on similar set of facts and since it relates to the same Corporation, I deem it appropriate to dispose of this writ petition following the said Judgment in Surathmaja v. Thiruvananthapuram Corporation (supra). Resultantly, 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.

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Needless to say, if the purchase notice of the petitioner is 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 dehors the stipulations of the Master Plan, as expeditiously as 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.

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Ordered accordingly.”

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Attention of this court was drawn to a notification issued by the Local Self Government Department i.e., G.O. (MS)No,144/07/LSGD dated 31^st May 2007, in particular to Appendix C of zoning regulations and paragraph 11, deals with Zoning Regulations, which reads as under:

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11.0 Green strip or Agricultural reservation:

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11.1 Uses permitted (1):

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Paddy fields, all land put to agricultural uses, pastures grazing grounds, fodder cultivation, brick kilns, cobikhana and removal of clay/gravel up to a depth of 1m below the level of land surrounding the agricultural area, Zoological and Botanical gardens, Bird Sanctury, Plant Nursery, Fish Farm, Seed Farm, Pump house wells & Irrigation Ponds, Storage of Agricultural Produces and seeds, Green houses and existing religious uses.

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11.2 Uses restricted (2):

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(i) Dairy and poultry farms, Single family residential buildings of floor area up to 300 sq.m in areas which are substantially built up with lawful residential buildings on the date of this notification and public utility and service areas.

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(ii) Milk processing plants, storage and processing in farm producs, service and repair of frm machinery, burial grounds and cremation grounds and religious uses.

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Usage of items coming under column (i) shall be restricted by the executive authority with concurrence of the Town Planner of the State Town Planning Service having jurisdiction over the area.

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Usage of items coming under column (ii) shall be restricted by the executive by the executive authority with the concurrence of the Chief Town Planner to Government.

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11.3 Uses prohibited (3): Any other use not specified in rows (1) and (2).

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Notwithstanding anything contained in the rows (1) and (2), a depth of land, upto 20m on both sides of Karamana and Killi

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Rivers and up to 10m on both sides of Amayizhanjan Thodu, TS Canal and other major Thodus will be retailed as construction free zone.

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Inviting attention of this court to the abovesaid Scheme, Mr.Paul Jacob, learned counsel for the appellant submitted that regulation 11.2 permits the appellant to construct a single family residential building of floor area of 300 sq.meters, as the area is already substantially build up.

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According to him, uses prohibited (3), under paragraph 11.3 of the General Town Planning Scheme for Trivandrum cannot be made applicable to the restricted usage of certain areas covered under paragraph 11.2.

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It is his further contention that if paragraph 11.3, which deals with uses prohibited (3) has to be made applicable to paragraph 11.1 and 11.2, then the provisions would be unworkable.

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Section 67 of the Kerala Town and Country Planning Act, 2016 reads thus:

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“67. Obligation to acquire land in certain cases. - (1) Where any land is designated for compulsory acquisition in a Master Plan or Detailed Town Planning Scheme sanctioned under this Act and no acquisition proceedings are initiated for such land under the Land Acquisition Act in force in the State within a period of two years from the date of coming into operation of the Plan, the owner or person affected may serve on the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned, within such time and in such manner, as may be prescribed, a notice (hereinafter referred to as "the purchase notice") requiring the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned to purchase the interest in the land in accordance with the provisions of this Act;

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(2) On receipt of any purchase notice under subsection (1), as soon as possible, but not later than sixty days from the date of receipt of the purchase notice, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat, as the case may be, through a resolution decide to acquire the land, where the land is designated for compulsory acquisition for the purpose of the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat.

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(3) Where the land is designated for compulsory acquisition for the purpose of any Government Department or Quasi-government Agency, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat shall forward such notice to the Government.

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(4) In case the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned decides not to acquire the land, it shall initiate variation of the plan suitably in accordance with this Act.

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(5) In case the land acquisition could not be effected within a period of two years from the date of resolution to acquire the land, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall initiate variation of the plan suitably in accordance with this Act.

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(6) On receipt of a purchase notice under sub-section (3), the Government shall in consultation with the Government Department or Quasi-government Agency concerned, not later than six months from the date of receipt of the purchase notice, confirm the purchase notice. In any other case, Government may require the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned to vary the plan suitably in accordance with this Act:

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Provided that in case the land acquisition could not be effected within a period of two years from the date of confirmation of the purchase notice, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall initiate variation of the plan suitably in accordance with this Act under intimation to the Government.

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(7) If no order has been passed by the Government

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within a period of six months from the date of receipt of the purchase notice, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall, suo moto initiate variation of the plan suitably in accordance with this Act:

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Provided that where variation proceedings of the Plan are initiated under this section, the Secretary of the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall, in consultation with the Chief Town Planner, take suitable decision on any application for land development permit received under section 64.”

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Posed with a question as to whether Section 67 of the Kerala Town and Country Planning Act, 2016 is applicable to the facts of this case, Mr.Paul Jacob, learned counsel for the appellant submitted that the observation of the writ court may not be correct and Section 67 of the Kerala Town and Country Planning Act is not applicable. Submission of the learned counsel for the appellant is placed on record.

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At this juncture, let us consider some of the decisions, as to how, a clause, section or regulation has to be read and interpreted in the context, in which, it is used.

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(i) In Samrao v. District Magistrate, Thana reported in AIR 1952 SC 324, the Apex Court held as under:

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“It is the duty of the Courts to give effect to the meaning of an Act, when the meaning can be fairly gathered from the words used, that is to say, if one construction will lead to an absurdity while another will give effect to what common sense would show was obviously intended, the construction which would defeat the ends of the Act, must be rejected even if the same words used in the same section, and even the same sentence, have to be construed differently. Indeed the law goes so far as to require the Courts sometimes even to modify the grammatical and ordinary sense of the words if by doing so absurdity and inconsistency can be avoided.”

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(ii) It is well settled that a statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act, so as to make a consistent enactment of the whole statute. Such a construction has the merit of avoiding any inconsistency or repugancy either within the statute or between a Section or other parts of the statute. [Ref. Raj Krishna v. Bonod Kanungo reported in AIR 1954 SC 202].

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(iii) In Rananjaya Singh v. Baji Nath Singh reported in AIR 1954 SC 749, the Apex Court held that,

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“The spirit of law may well be an illusive and unsafe guide in the interpretation of the statutes and the supposed spirit can certainly not be given effect to in opposition to the plain language of the sections of the Act, and the rules made thereunder. If all that can be said of these statutory provisions is that construed according to the ordinary, grammatical and natural meaning of their language they work injustice, the appeal must be made to the Parliament and not to the Supreme Court.”

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(iv) In The State of Bihar v. Hira Lal Kejriwal reported in AIR 1960 SC 47, the Hon'ble Supreme Court, at Paragraph 6, held as under:

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“To ascertain the meaning of a section it is not permissible to omit any part of it: the whole section should be read together and an attempt should be made to reconcile both the parts. ......The first part gives life to that Order, and, therefore, the acts authorised under that Order can be done subsequent to the coming into force of the Ordinance. ......The second part appears to have been enacted for the purpose of avoiding this difficulty or, at any rate, to dispel the ambiguity.”

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(v) In S.Gurmej Singh v. S.Pratap Singh reported in AIR 1960 SC 122, the Hon'ble Supreme Court, at Paragraph 9, held as follows:

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“It is an elementary rule that construction of a section is to be made of all the parts together and not of one part only by itself, and that phrases are to be construed according to the rules of grammar.”

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(vi) In A.R.Antulay v. Ramdas Sriniwas Nayak reported in 1984 (2) SCC 500, the Hon'ble Supreme Court held that,

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“It is a well established cannon of construction that the court should read the section as it is and cannot rewrite it to suit its convenience; nor does any cannon of construction permit the court to read the section in such manner as to render it to some extent otiose.”

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(vii) In Balasinor Nagrik Co-operative Bank Ltd., v. Babubhai Shankerlal Pandya reported in 1987 (1) SCC 606, the Hon'ble Supreme Court, at Paragraph 4, held as follows:

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“It is an elementary rule that construction of a section is to be made of all parts together. It is not permissible to omit any part of it. For, the principle that the statute must be read as a whole is equally applicable to different parts of the same section. .......It also provides for the manner of the exercise of such power. .......... Sub-section (1) of Section 36 is made subject to the fulfillment of the conditions prerequisite,”

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(viii) In Balasinor Nagrik Co-operative Bank's case (cited supra), the Apex Court held that precise functions of the two provisos to a Section has to be read together. The Supreme Court held that sub-Section (1) of Section 36 is made subject to defeasance clause engrafted in the first provision. If the guiding principle enunciated in Balasinor Nagrik Co-operative Bank's case (cited supra), is applied to Section 408 Cr.P.C., then it would certainly convey that the Sessions Judge can transfer only a case from a lower Court and not from a Court of equal jurisdiction.

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(ix) In T.N.State Electricity Board v. Central Electricity Regulatory Commission reported in 2007 (7) SCC 636, the Supreme Court held that, “

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“Resort can be had to the legislative intent for the purpose of interpreting a provision of law, when the language employed by the legislature is doubtful or susceptible of meanings more than one. However, when the language is plain and explicit and does not admit of any doubtful interpretation, the Supreme Court cannot, by reference to an assumed legislative intent expand the meaning of

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an expression employed by the legislature and therein include such category of persons as the legislature has not chosen to do.”

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(x) In Ansal Properties & Industries Ltd. v. State of Haryana , reported in (2009) 3 SCC 553, the Supreme Court held that, “It is a well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. The language employed in a statute is determinative factor of legislative intent. If the language of the enactment is clear and unambiguous, it would not be proper for the courts to add any words thereto and evolve some legislative intent, not found in the statute.

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In Ganga Prasad Verma (Dr.) v. State of Bihar [1995 Supp (1) SCC 192], it has been held that: (SCC p. 195, para 5)

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“5. Where the language of the Act is clear and explicit, the court must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature.”

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Let us consider some of the decisions, as to how, a Section

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has to be read and interpreted in the context, in which, it is used.

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(i) In D.N.Banerji v. P.R.Mukherjee reported in AIR 1953 SC 58, the Supreme Court held that the same word may mean one thing in one context and another in a different context.

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(ii) In the case of Reserve Bank of India v. Peerless G.F., & Co., Ltd ., AIR 1987 SC 1023, the Apex Court held :

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"Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words

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may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place."

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(iii) In Balram Kumawat v. Union of India reported in 2003 (7) SCC 628, the Supreme Court held that, “Contextual reading is a well-known proposition of interpretation of statute. The classes of a statute should be construed with reference to the context vis-a-vis the other provisions so as to make a consistent enactment of the whole statute relating to the subject-matter. The rule of "ex visceribus actus" should be resorted to in a situation of this nature.”

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(iv) In State of Gujarat v. Salimbhai Abdulgaffar Shaikh reported in 2003 (8) SCC 50, the Supreme Court held that, “Broadly speaking, therefore, an appeal is a proceeding taken to rectify an erroneous decision of a Court by submitting the question to a higher Court.......

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........It is well settled principle that the intention of the legislature must be found by reading the Statute as a whole. Every clause of Statute should be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole Statute. It is also the duty of the Court to find out the true intention of the legislature and to ascertain the purpose of Statute and give full meaning to the same. The different provisions in the Statute should not be interpreted in abstract but should be construed keeping in mind the whole enactment and the dominant purpose that it may express.”

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Giving due consideration to the provisions extracted and the decisions stated supra, prima facie, we do not have any

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difficulty in arriving at the conclusion that all the provisions have to be read together and that there could be a construction of a single family residential building of floor area upto 300 sq.m. in areas in question, subject to para 11.3.

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Going through the materials on record, it is evident that the writ court has directed the Corporation to consider the petitioner's application. We deem it fit to observe that the Municipal Corporation and the State Government, ought to have moved this court, for striking down the operative portion of impugned judgment, which has not been done till now. Reasons are not known.

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Mr. Harish. K.P., learned Senior Government Pleader is directed to furnish the connected writ appeal numbers pending before this court, on this issue.”

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Registry is directed to post the Writ Appeal on 20.10.2021. ”

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Pursuant to the above, Mr. K.P.Harish, learned Senior

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Government Pleader, submitted a list of connected writ appeals viz., W.A. Nos.1303/2019, 1316/2019, 546/2020, 1000/2020, 932/2020, 1132/2020, 1133/2020 and 423/2021. He further submitted that W.A. No.1000 of 2020 is filed against the judgment dated 12.12.2019 in W.P.(C) No.5106 of 2019, wherein directions were issued under Section 67 of the Kerala Town and Country Planning Act, 2016.

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We have given due consideration to the challenge made to Regulation 11.3 of the General Town Planning Scheme for Trivandrum. Going through the provisions of the Scheme framed, we

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do not find any violation of the Constitution of India, or the statutory provisions, under which the Scheme is framed. Thus, we hold that Regulation 11.3 of the General Town Planning Scheme for Trivandrum is Constitutionally valid, and accordingly, the challenge fails.

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Admittedly, in the case on hand, Regulation 11.2 of the General Town Planning Scheme for Trivandrum, permits construction of a single family residential buildings of floor area upto 300 sq.ms, in areas, which are substantially built up with lawful residential buildings on the date of notification and public utility and service areas.

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Going through Section 67 of the Kerala Town and Country Planning Act, 2016, it is abundantly clear that the said statutory provision deals with, where any land is designated for compulsory acquisition, in a Master Plan or Detailed Town Planning Scheme, sanctioned under the Kerala Town and Country Planning Act, 2016 and no acquisition proceedings are initiated for such land, under the Land Acquisition Act in force in the State, within a period of two years from the date of coming into operation of the Plan, and if any such steps are not taken, then the owner or person affected can serve on the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned, within such time and in such manner, as may be prescribed, a notice (hereinafter referred to as “the purchase notice”) requiring the local body concerned, to purchase the

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interest in the land, in accordance with the provisions of the Kerala Town and Country Planning Act, 2016. Section 67 of the said Act provides for action to be taken subsequent to the receipt of the purchase notice.

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During the course of hearing on 27^th September, 2021, we have also recorded the submission of Mr. Paul Jacob, learned counsel for appellant, that Section 67 of the Kerala Town and Country Planning Act, 2016, is not applicable to the facts of this case. Today, learned Senior Government Pleader Mr. K.P.Harish, has also endorsed the abovesaid submission.

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In the light of the regulations of the General Town Planning Scheme for Trivandrum, sanctioned vide G.O.Rt.) No.921/71/LAD dated 21.06.1971 and varied vide G.O.(Ms) No.144/07/LSGD dated 31.05.2007, Section 67 of the Kerala Town and Country Planning Act, 2016, and the discussions made above, we are of the view that the direction of the writ court in W.P.(C) No.22340 of 2020 dated 1.9.2021 insofar as, consideration to Section 67 of the Act, 2016, requires interference and modification.

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Therefore, we permit the appellant to submit an application for grant of building permit, and if any such application is filed to the competent authority within one month from the date of receipt of a

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copy of this judgment, the same shall be considered in accordance with the provisions of the Kerala Municipality Building Rules, 2019 and the General Town Planning Scheme for Trivandrum, within a further period of one month from the date of receipt of such application.

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Section 50 of the Kerala Town and Country Planning Act,

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2016 reads as under:

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“ 50. Review, revision, variation and revocation of Plans prepared under the Act .—(1) Immediately after the expiry of ten years from the date of sanction of a Perspective Plan, Master Plan or Detailed Town Planning Scheme under this Act or at an earlier date with the concurrence of the Government, the State Town and Country Planning Commission, the District Planning Committee, Metropolitan Planning Committee, Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat, as the case may be, shall review, revise or get revised such Plan incorporating such modifications as may be considered necessary and get it sanctioned in accordance with the provisions of this Act:

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Provided that a Master Plan or a Detailed Town Planning Scheme shall be revoked by a subsequent Master Plan or Detailed Town Planning Scheme, as the case may be;

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(2) The authority concerned may, after such review, vary a Plan in part and get such varied Plan sanctioned in accordance with the provisions of this Act.

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(3) Notwithstanding anything contained in this Act, Government may, if if deems necessary, at any time, by notification in the Gazette, vary a Plan sanctioned under this Act:

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Provided that before issuing such notification, Government shall publish a draft of such notification in the prescribed manner and shall circulate copy thereof to the authority concerned and shall consider any objection or suggestion which may be received on such

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draft from such authority or any person interested in the Plan and may make such modification as the Government consider proper.”

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Taking note of the abovesaid provision, we also grant

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liberty to the appellant, to move an application under Section 50 of the Kerala Town and Country Planning Act, 2016, before the competent authority, seeking for modification of the Scheme, since the appellant has a contention that irrespective of the General Town Planning Scheme for Trivandrum, permits have been granted.

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With the above directions and modifications, the writ appeal is

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disposed of.

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Sd/-

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S. MANIKUMAR, CHIEF JUSTICE.

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Sd/-

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SHAJI P. CHALY,