Whether Building Permit can be Declined merely on the Ground of the Proposal for Acquisition of the Land contained in the sanctioned Town Planning Scheme

Town and Country Planning Act, 2016 (Kerala) - Ss. 61 & 67 - Municipality Act, 1994 (Kerala) - S. 393 - Municipality Building Rules, 1999 (Kerala) - Rr. 3A, 11, & 25 - Grant of building permits - Approval of site and plans and issue of permit - Use and development of land to be in conformity with Master Plans and Detailed Town Planning Schemes - Obligation to acquire land in certain cases - Grounds on which approval of sight or permission to construct or reconstruct building may be refused - Provisions in the Town Planning Scheme shall prevail - Minimum distance between central line of a street and building - Discussed.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.B.SURESH KUMAR, J.

W.P.(C) Nos.30905 & 37945 of 2017

Dated 15th January, 2018 

PETITIONER

N.T. ABUL HAKEEM

BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD 

RESPONDENT

1. MANJERI MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, MANJERI - 676 121.

2. THE DISTRICT TOWN PLANNER, OFFICER OF THE DISTRICT TOWN PLANNER MALAPPURAM- 676 505 

BY SRI.K.SHIBILI NAHA, SC, 

J U D G M E N T 

The issue arises for consideration in these matters is common and as such, they are disposed of by this common judgment.

2. W.P.(C).No.30905 of 2017 is a writ petition instituted challenging Ext.P3 communication of the Secretary of the respondent Municipality, by which the petitioner was informed that the building permit sought by him cannot be granted, as a portion of the property where the petitioner proposes to put up the building is required to be acquired in terms of the sanctioned Town Planning Scheme mentioned therein for formation of a new road.

3. W.P.(C).No.37945 of 2017 is a writ petition instituted challenging Ext.P4 communication issued by the Assistant Engineer of the first respondent Municipality, by which the petitioners were informed that the building permit sought by them cannot be granted as their property referred to therein is earmarked for acquisition in terms of the sanctioned Town Planning Scheme mentioned therein for the development of a bus stand.

4. The case of the petitioners is that in so far as the properties of the petitioners are yet to be acquired for implementing the sanctioned schemes, the building permits sought by them cannot be declined merely on the ground of the proposal for acquisition of the lands contained in the sanctioned Town Planning Schemes. They rely on the various decisions of this Court including the decision in Padmini v. State of Kerala (1999 (3) KLT 465) and the decision of the Apex Court in Raju S.Jethmalani v. State of Maharashtra and others [(2015) 11 SCC 222], in support of the said case.

5. Heard the learned counsel for the petitioners, the learned counsel for the local bodies involved in the matters and the learned Government Pleader, who has appeared for the State in W.P.(C) No.37945 of 2017.

6. The question falls for consideration is whether building permit can be declined merely on the ground of the proposal for acquisition of the land contained in the sanctioned Town Planning Scheme.

7. The grant of building permits sought by the petitioners in these matters is governed by the Kerala Municipality Act, 1994 (the Municipality Act) and the Kerala Municipality Building Rules, 1999 (the Building Rules). The relevant provision in the Municipality Act is sub-section (1) of Section 393, which reads thus : 

"393. Grounds on which approval of sight or permission to construct or reconstruct building may be refused.— (1) The grounds on which approval of site for construction or reconstruction of a building or permission to construct or reconstruct a building shall be refused are the following, namely:— 

(i) that the work or use of the site for the work or any of the particulars comprised in the site plan, ground plan, elevations, sections or specifications would contravene provisions of any law, or any order, rule, declaration or bye-law made under such law; 

(ii) that the application for such permission does not contain the particulars or is not prepared in the manner required by any rule or bye-law made under this Act; 

(iii) that any of the documents referred to in section 387 has not been signed as required by rules or bye-laws made under this Act; 

(iv) that any information or document required by the Secretary under the rules or bye-laws made under this Act has not been duly furnished; 

(v) that the streets or roads have not been made as required under section 359; 

(vi) that the proposed building would be an encroachment upon a land belonging to the Government or the Municipality; or 

(vii) that the land is under acquisition proceedings.

The relevant provisions in the Building Rules are Rules 3A, Subrule (1) of Rule 11 and Sub-rule (2) of Rule 25, which read thus : 

"3A. Provisions in the Town Planning Scheme shall prevail.-- Notwithstanding anything contained in these rules, provisions or regulations in any Town Planning Scheme in force under Town Planning Act shall prevail over the respective provisions of these rules wherever such schemes exist.

xxx xxx xxx xxx 

11. Approval of site and plans and issue of permit.- (1) The Secretary shall, after inspection of the site and verification of the site plan and documents, if convinced of the bonafides of the ownership of the site, and that the site plan, drawings and specifications conforms to the site and the provisions of these rules or bye laws made under the Act and any other law, approve the site and site plan.

xxx xxx xxx xxx 

25. Minimum distance between central line of a street and building .

x x x x x 

(2) Any restriction under street alignment or building line or both, if any, fixed for area and restriction under any development plan or any detailed town planning scheme or approved road widening proposal or any other rules or byelaws shall also apply simultaneously to all buildings in addition to the provisions contained in sub rule (1)." 

Another legislation which is relevant in the context is the Kerala Town and Country Planning Act, 2016 (the Town Planning Act). Section 61 of the Town Planning Act which deals with the use and development of land reads thus; 

"61. Use and development of land to be in conformity with Master Plans and Detailed Town Planning Schemes under this Act.—After the coming into operation of a Master Plan or Detailed Town Planning Scheme under this Act, no person shall use or cause to use any land or carry out development in any land, or change the use of land otherwise than in conformity with or with prejudicial to the Master Plans and Detailed Town Planning Schemes under this Act.

Note:—Provisions of Detailed Town Planning Schemes shall prevail over the provisions of the Master Plans where both Plans are in force in an area." 

In the light of the repeal and saving provision contained in Section 113 of the Town Planning Act, all the town planning schemes sanctioned under the various town planning legislations which were in force in the State prior to the introduction of the said statute shall be deemed to be town planning schemes sanctioned under the said statute. In Philip George v. State of Kerala (2014 (2) KLT 116), this Court held that the secretaries of the local authorities, who are bound to ensure that the construction permitted in terms of the building permit issued does not breach the provisions of any law, are bound to ensure that the construction permitted does not breach the provisions of the sanctioned Town Planning Schemes also, for, the same would also fall within the ambit of the expression “other law” contained in Section 393 of the Municipality Act and Rule 11 of the Building Rules. In the light of the said statutory provisions, it is, therefore, clear that a building permit cannot be issued by a local authority, if the same contravenes the provisions of a sanctioned town planning scheme. Relying on the above mentioned provisions of the Municipality Act, the Building Rules and the Town Planning Act, a Division Bench of this Court has held in W.A.No.109 of 2015 that the decisions in Padmini (supra) and Raju S.Jethmalani (supra) will not come to the aid of the petitioners for claiming building permits to put up buildings in contravention of the provisions of the Town Planning Schemes.

8. It is seen that unlike the town planning legislations which were prevailing in the State, the Town Planning Act contains appropriate provisions for de-reserving lands earmarked in terms of the sanctioned town planning schemes for acquisition for various development activities such as formation of new roads, widening of the existing roads etc. Section 67 of the Town Planning Act is the provision dealing with de-reservation. The said Section reads thus; 

"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; 

(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.

(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.

(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.

(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.

(6) On receipt of a purchase notice under subsection (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: 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.

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

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.” 

As far as a land earmarked for development project of the local body in terms of the sanctioned town planning scheme is concerned, sub-section (1) of Section 67 creates an obligation on the local body to initiate proceedings for acquisition of the land within two years. The said provision provides that if action is not taken to initiate proceedings for acquisition of the land within two years, the owner of the land will be entitled to serve a notice to the local body requiring the local body to purchase the interest of the owner in the land. Sub-section (2) of the said section provides that within 60 days from the date of receipt of the purchase notice provided for under sub-section (1), the local body shall decide by resolution to acquire the land. Sub-section (4) of the said section clarifies that in case the local body decides not to acquire the land, it shall initiate steps for variation of the plan suitably in accordance with the provisions contained in the Town Planning Act. In other words, if the local body, on receipt of purchase notice decides not to acquire the land for the development project mentioned in the town planning scheme, since the local body is bound to initiate proceedings for variation of the scheme, there cannot be any doubt that the owner of the property will be entitled to the building permit sought by him, if he is otherwise entitled for the same. If the provisions contained in Section 67 of the Town Planning Act are viewed in the light of the fundamental rights guaranteed to the citizens, it is beyond dispute that the provisions therein are mandatory. If the provisions contained in Section 67 are understood as mandatory, needless to say that if the Municipality does not pass a resolution either to acquire the land or not to acquire the land, the owner of the land will be entitled to the building permit sought by him immediately after sixty days, if he is otherwise entitled for the same. The reason being that in case a resolution is not adopted by the local body either way, a presumption can be drawn that the local authority does not intend to acquire the land. The provision in subsection (5) of Section 67 that the local body shall initiate steps for variation of the plan, in case the land acquisition could not be effected within a period of two years from the date of the resolution to acquire the land, indicates that in case the local body decides to acquire the land on receipt of the purchase notice, the owner of the land is entitled to building permit immediately on the expiry of the said period of two years, if the land has not been acquired within the said period and if he is otherwise entitled for the same.

9. It is evident from sub-section (1) of Section 67 of the Town Planning Act that the purchase notice provided for therein has to be issued in the manner prescribed. It is seen that Rules containing the prescription, if any, of the manner in which the purchase notice has to be given is yet to be framed. It is trite that non-framing of the Rules does not affect the enforceability of the statutory provision.

10. In the circumstances, the writ petitions are disposed of permitting the petitioners to issue notices to the local bodies concerned requiring them to purchase the interest in the lands for the implementation of the development projects mentioned in the communications issued to the petitioners in response to their applications for building permits. Needless to say that if the local bodies, on receipt of purchase notices, decide not to acquire the lands for the development projects mentioned in the communications referred to above or do not pass any resolution either to acquire or not to acquire the lands within sixty days from the date of receipt of the purchases notices, the petitioners shall be issued building permits sought by them immediately thereafter, if they are otherwise entitled for the same. In case the local bodies decide to acquire the lands by a resolution within sixty days from the date of receipt of the purchase notices, the owners of the lands will be entitled to building permits applied for by them, immediately on the expiry of two years from the date of resolutions, if the lands have not been acquired within the said period and if they are otherwise entitled for the same.