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Judgment
Shaji P. Chaly,J.
The appeal is preferred by the 4th respondent in W.P.(C) No. 11620 of 2020 challenging the judgment of the learned single Judge dated 09.12.2020, whereby the learned single Judge allowed the writ petition and directed the appellant Grama Panchayat to consider the building permit application submitted by the first respondent/writ petitioner in accordance with the Master Plan prevailing for the Panchayat. It was further held that when the matters coming under the Master Plan and the DTP scheme overlapped each other, the Master Plan would prevail and that it is only when the DTP scheme is prepared subsequent to the Master Plan, the DTP scheme will prevail over the Master Plan. It is, thus, challenging the legality and correctness of the said judgment, the appeal is preferred.
Brief material facts for the disposal of the appeal are as follows:
The writ petitioner is the owner of an extent of 3.24 Ares of property situated in Survey No. 420/2-3, Block No. 6 of Arpookara village, Kottayam District. According to the first respondent/writ petitioner, the property was purchased with a view to put up a commercial building and he has filed an application for building permit before the Secretary of the Grama Panchayat together with all necessary documents.
The case of the writ petitioner was that the aforesaid land falls in the 'Residential Mixed Zone' under the 'Development Plan for the Medical College Area' and therefore, a complete commercial construction is permitted in the said zone. However, the Secretary of the Panchayat considered Ext. P2 application, but rejected the same holding that the land is in the residential zone and falls within the Detailed Town Planning Scheme for the south of the Medical College area and only a limited extent of commercial area is possible, evident from Ext. P7 order.
The contention put forth by the first respondent/writ petitioner was that the plan for the south of the Medical College area was notified as per G.O.(Ms) No. 10/94/LAD dated 19.01.1994; but, thereafter, the plan for the Medical college area, including the area comprised under the plan for the south of Medical College area was published on 22nd January, 1998 as per G.O.(Ms) No. 19/1998/LAD dated 22.01.1998. It is also the case of the first respondent/writ petitioner that a further notification was brought "with the residential mixed zone" for varying G.O.(MS) No. 245/2010/LSGD dated 01.11.2010. It is further submitted that the Development Plan for the Medical College area is subsequent in point of time to the 'Detailed Town Planning Scheme' for the south of Medical College area and therefore, the subsequent plan comprises of and integrates the area under multiple local authorities and includes a larger area taking into its fold and including the area falling under the plan area for South of Medical College and the true nature of subsequent plan is comprehensive in nature.
It is further submitted that though the first respondent/writ petitioner approached the Town Planner, Kottayam requiring him to affirm that the area falls in the Residential Mixed Zone, the Town Planner holds the view that the south of Medical College area plan prevails over the Medical College area plan, as per Ext. P11. Therefore, according to the first respondent/writ petitioner, the application for building permit rejected based on a misconception and an incorrect understanding of the scope of the plan itself is, arbitrary and illegal.
The learned single Judge, after assimilating the factual and legal situations, was of the opinion that the very object of the Town Planning Act is promotion of planned development and regulation of growth of urban and rural areas in the State; that there is no dispute to the fact that under master plan, the writ petitioner's land comes under the mixed residential zone; when there is a category change, from that of DTP Scheme in subsequent master plan, the construction can be permitted in accordance with the master plan; and that in residential zone, the activities are allowed in a most restrictive manner, which is relaxed in mixed residential zone. It was also held that the focus of exercise under the Town Planning Act is to secure the objectives of planning which is more proximate to the area at the time of construction or development; that it is intended to reflect the planning and not to deflect the planning; Note to Section 61 of the Kerala Town and Country Planning Act, 2016 cannot be made applicable in such cases; and that Note has to be understood with reference to the scheme of enactment, that is to say, when a DTP Scheme is framed within the framework of master plan.
It is further held that DTP Scheme as well as Master Plan was for the planned development of the area around Kottayam Medical College; when the Government approved Master Plan and the area has been recategorised as mixed residential zone, the early categorization of the area as residential zone would cease to exist; the objectives of the Town Planning Scheme is for spatial development and the Government was very well aware of the consequences of re-categorization area as a mixed residential zone; if the Government wants to retain the area as a residential zone, that could have been done while sanctioning the master plan; on the other hand, the Government allowed re-categorization of the area as a residential mixed zone. Therefore, the owner of the land can enjoy his land in accordance with the recategorization of the land as a residential Mixed Zone failing which re-categorisation of Mixed residential zone would become redundant. It is, thus, aggrieved by the observations, findings and directions, the appeal is preferred by the Grama Panchayat.
The paramount contention advanced by the appellant Panchayat is that in the Detailed Town Planning Scheme for the south of Medical College (1994), the writ petitioner's site was included under residential zone and in the Development Plan for Kottayam Medical College area (Master Plan), varied and sanctioned on 19.05.2011, the property comes under Mixed Residential Zone. As per the DTP scheme, commercial building is permitted upto the plinth area of 150 sq. meters only with the consent of the Chief Town Planner; and that in the Mixed Residential zone under the Master Plan, the commercial building are permitted subject to the Building Rules. Therefore, basically the contention put forth by the appellant is that the writ petitioner's application for building permit cannot be considered in accordance with the Master Plan overlooking the DTP scheme, where it is categorised as a residential zone. That apart, it is contended that as per Section 61 of the Kerala Town and Country Planning Act, 2016 ('Act, 2016 for short), after the coming into operation of a Master Plan or Detailed Town Planning Scheme under the Act, 2016, 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 prejudicial to the Master Plans and Detailed Town Planning Schemes under the Act, 2016 and that the provisions of detailed Town Planning Schemes shall prevail over the provisions of the Master Plan, where both plans and schemes are in force for an area.
Therefore, the sum and substance of the contention advanced is that even though there exists the Development Plan for medical College area, the Detailed Town Planning Scheme for the south of Medical College prevails over the Development Plan for Medical College Area and hence, the provisions of the sanctioned detailed Town Planning Scheme for the south of Medical College is still valid and is in force, which is to be adhered to by any person seeking permit and the Panchayat Secretary is duty bound to consider the application taking into account the provisions of the detailed Town Planning Scheme vis-a-vis the Kerala Panchayat Building Rules in force. Therefore, the contention advanced is that as per clause 33.2.42 of the zoning regulation included in the Development Plan for the Medical College area, the provisions of the Detailed Town Planning Scheme will prevail over the regulations. Therefore, according to the appellant Panchayat, the rejection of the building permit application by the Secretary of the appellant Grama Panchayat is in accordance with law and the learned single Judge was not right in holding that when there is a new Master Plan, that will prevail over an existing scheme introduced prior to the introduction of the Master Plan.
We have heard, Sri. Blaze K. Jose learned counsel for the appellant, Sri. A. Kumar for the first respondent/writ petitioner, and Sri. Tek Chand, learned Senior Government Pleader for the State and its officials.
The predominant question that emerges for consideration is whether the findings rendered by the learned single Judge that a new Master Plan would have predominance over the erstwhile Detailed Town Planning Scheme is correct or not?
In order to understand the real implications of the said question, a reference to some of the provisions of the Act, 2016 would be relevant. Act, 2016 is an Act to provide for the promotion of the planned development and regulation of the growth of urban and rural areas in the State with focus on scientific spatial planning and to secure to their present and future inhabitants, sanitary conditions, amenity and convenience and for other matters connected therewith or incidental thereto. A detailed Town Planning Scheme is defined under Section 2(g) of the Act, 2016 to mean a comprehensive plan for a particular area within the local planning area, conceived within the framework of the Master Plan, if any, for the local planning area, providing detailed proposals for spatial development of such particular area indicating the manner in which the use of land and development therein shall be carried out.
The term 'master plan' is defined under Section 2(r) of the Act, 2016 to mean a comprehensive plan for a local planning area covering the whole area or part thereof or a joint planning area, as the case may be conceived within the framework of the perspective plan, if any, providing long-term policies, programmes and detailed proposals for spatial development of such area indicating the manner in which the use of land and development therein shall be carried out.
Therefore, on an analysis of the definition of the Detailed Town Planning Scheme, it is clear that it is specifically confined to a particular area within the local planning area that is conceived within the framework of the Master Plan; whereas, the Master Plan is a comprehensive plan for a local planning area covering the whole area or a joint planning area, as the case may be, conceived within the framework of the Perspective Plan, if any, providing long-term policies, programmes etc.
The term 'plan' is defined under Section 2(z) of the Act, 2016 to mean a comprehensive document providing long-term policies, programmes or detailed proposals for spatial development of a particular area, indicating the manner in which the use of the land and development therein shall be carried out, which shall also contain maps and reports to support, as may be prescribed and includes a perspective plan for the State, a perspective plan for a District, a perspective plan for a Metropolitan Area, a Master Plan for a local planning area or part thereof, a Master Plan for a joint planning area and a Detailed Town Planning Scheme for any particular area within the local planning area, prepared under the Act unless otherwise specified in the Act.
The term 'spatial planning' is defined under Section 2(ac) of Act, 2016 to mean a scientific discipline adopted for town and country planning, with a comprehensive approach, for the physical organization of space according to an overall strategy, directed towards promoting sustainable and inclusive development of urban and rural areas providing geographical expression to developmental, economic, social, cultural, environmental and ecological policies of society.
Therefore, the concept of different plans and the scheme envisioned by the framers of law is very clear and specific under the Act, 2016. That apart, a Perspective Plan for the State is prescribed, apart from the manner in which a Perspective Plan is to be made for the development of the State as such. Then it takes care of the Perspective Plan for the district and the matters that may be dealt with within the Perspective Plan. Spatial planning is also taken care of under the provisions of the Act, 2016. Whatever that be, Master Plan is dealt with under Section 34 of the Act, 2016 and sub-Section (1) thereto clearly specifies that the Master Plan shall be prepared through a participatory process and shall generally indicate the manner in which development of the Local Planning Area or part thereof shall be carried out and also the manner in which the use of land shall be regulated. The Master Plan includes various aspects in order to ensure that the development takes place in a disciplined, coordinated and in a strategic manner.
The procedure for adoption of Master Plan is dealt with under Section 36 of the Act, 2016 and sub-Section (1) clearly specifies that a Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat may, at any time, by resolution, decide to prepare or adopt a Master Plan for the Local Planning Area or part thereof. The manner in which a draft Master Plan submitted by the Local Self Government Institutions to be considered by the Government is specified in detail in the said provision.
Chapter VII of Act, 2016 deals with the detailed Town Planning Schemes. Section 44 specifies that subject to the provisions of Act, 2016 and the Rules made thereunder, a Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat may undertake development of an area, including regulation of activities in that area, under its jurisdiction, by framing and implementing Detailed Town Planning Schemes, within the framework of Master Plan, if any, under the Act.
Section 45 of Act, 2016 deals with the procedure for preparation, publication and sanctioning of Detailed Town Planning Scheme, and it reads thus:
Procedure for preparation, publication and sanctioning of Detailed Town Planning Scheme. - (1) A Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat may, at any time, by resolution, decide to prepare or adopt a Detailed Town Planning Scheme and shall notify the intention of the same, in the Official Gazette and in at least one newspaper having wide circulation in the prescribed manner and such notification shall state the boundaries of the planning area and the purpose for which such Plan is intended to be prepared.
(2) Every Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat shall, in consultation with the Department of Town and Country Planning of the Government having jurisdiction over the area and other Government Departments and agencies, prepare or get prepared a draft Detailed Town Planning Scheme for the planning area within two years from the date of notification in the Official Gazette of the intention to prepare the Plan under sub-section (1), after reviewing Plans, if any, prepared earlier, duly approve such plan through resolution of the Council, and publish the draft Detailed Town Planning Scheme in the website and the notice of publication in the Official Gazette and in at least two newspapers having wide circulation in the local planning area, of which one must be in the regional language, specifying the place or places where a copy of the same is available for inspection and also inviting objections and suggestions to be submitted within sixty days from the date of publication of the notice in the Official Gazette.
(3) Immediately after a Detailed Town Planning Scheme is published under this Act, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall forward a copy of the published Detailed Town Planning Scheme to the District Planning Committee and Metropolitan Planning Committee, if any. and the District Planning Committee or the Metropolitan Planning Committee may, as far as possible, within sixty days from the date of the receipt of such Detailed Town Planning Scheme furnish their remarks, if any, on such Detailed Town Planning Scheme to Government.
(4) After the expiry of the period allowed under sub-section (2) for filing objections and suggestions, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall consider all the objections and suggestions received and shall after allowing a reasonable opportunity of being heard, to any person who has made a request for being so heard, make such modifications in the Detailed Town Planning Scheme as it considers proper, as far as possible, within a period of sixty days from the time limit prescribed for receiving objections and suggestions under sub-section (2) and shall submit the Detailed Town Planning Scheme with or without modifications, together with all objections and suggestions in original, for sanction of the Government.
(5) The Government may, as far as possible, within sixty days from the date of the receipt of such Detailed Town Planning Scheme after considering remarks, if any, received from the District Planning Committee and the Metropolitan Planning Committee and in consultation with the Chief Town Planner, either accord sanction with or without modifications or refuse such sanction specifying reasons thereof:
Provided that if the Detailed Town Planning Scheme is returned for incorporating modifications, if any, suggested by the Government, the modified Detailed Town Planning Scheme shall be resubmitted within ninety days for sanction as if the same is submitted afresh under this Act.
(6) Immediately after a Detailed Town Planning Scheme is sanctioned by the Government under this Act the Municipal Corporation, Municipal Council. Town Panchayat or Village Panchayat concerned shall notify the fact of sanctioning of the Detailed Town Planning Scheme in the Gazette and publish a notice in at least one local newspaper having wide circulation mentioning the place or places where a copy of the same shall be available to the public for reference or for sale. The sanctioned Detailed Town Planning Scheme shall also be published in the website of the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned. The Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall also forward a copy of the sanctioned Detailed Town Planning Scheme to the District Planning Committee and Metropolitan Planning Committee.
(7) The provisions specified under section 63 shall continue to be in operation until sanction has been accorded for the Detailed Town Planning Scheme, even if the time limit specified under sub-sections (2) to (5) are not complied with:
Provided that in cases where a sanctioned Master Plan or Detailed Town Planning Scheme already exists in the area, its provisions shall only apply until the published Detailed Town Planning Scheme is sanctioned in accordance with this Act.
Section 50 deals with review revision, variation and revocation of Plans prepared under the Act, 2016 and it reads thus:
"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:
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;
(2) The authority concerned may, after such review, vary a Plan in part and get such a varied Plan sanctioned in accordance with the provisions of this Act.
(3) Notwithstanding anything contained in this Act, Government may, if it deems necessary, at any time, by notification in the Gazette, vary a Plan sanctioned under this Act:
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 draft from such authority or any person interested in the Plan and may make such modification as the Government consider proper.
Therefore, on an analysis of the aforesaid provisions, it is categoric and clear that if and when a draft Master Plan submitted by the Local Self Government Institution before the Government is approved, the Local Self Government Institution is vested with ample powers to prepare a scheme within the framework of the Master Plan and get it sanctioned in accordance with the procedure prescribed as per the provisions extracted above. Admittedly, the Master Plan, in the instant case, is a subsequent one to the scheme prepared for the area in question. It is also evident from the provisions of the Act that prior to the introduction of the Act, 2016, various other Town Planning Acts were prevailing in the State of Kerala. But, when the Act, 2016 was introduced on and with effect from 17.03.2016, all other erstwhile Town Planning Acts prevailing in the State of Kerala were repealed as per Section 113 of the Act, 2016.
The case projected by the writ petitioner was that the Master Plan that was prevailing was prepared on the basis of the Travancore Town and Country Planning Act, 1120. Anyhow, the said Act was repealed as per Section 113 of Act, 2016. Whatever that be, sub-Section (2) of Section 113 makes it clear that notwithstanding such repeal, any draft General Town Planning Scheme for an area, including Master Plan or Development Plan or a draft Detailed Town Planning Scheme published under the repealed Acts, shall be deemed to be a draft Master Plan or a draft Detailed Town Planning Scheme, as the case may be, published under the Act, 2016.
Therefore, even though the erstwhile Acts were repealed, the draft Town Planning scheme and the Master Plan or the Development Plan or Draft Detailed Town Planning Scheme published under the repealed Acts would be in operation till a new Master Plan is approved by the State Government and the scheme is prepared by the Local Self Government Institutions within the framework of the Master Plan. It is also clear from the proviso to Section 46(7) of Act 2016 that a detailed town planning scheme existing can only be replaced by a new scheme made as per the provisions of Act 2016. Similarly as per the proviso to Section 50(1) of Act 2016, a Master Plan, Town Planning Scheme or a Detailed Town Planning can only be replaced by new ones in accordance with the provisions of Act, 2016.
Now, coming to Section 61 of the Act, 2016, it deals with the use and development of land to be in conformity with Master Plans and Detailed Town Planning Schemes under the Act and it reads thus:
"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."
Therefore, it is clear that the provisions of a Detailed Town Planning Scheme shall prevail over the provisions of the Master Plan, where both plans are in force in an area.
On an analysis of the said provision, it is clear that the issue in question was taken care of under the provisions of the Act, 2016. But, the learned single Judge was of the opinion that when in a subsequent Master Plan, a larger area is covered, in regard to the development that has to take place within the framework of the Master Plan, then the Master Plan would prevail over the scheme and Note to Section 61 is interpreted to mean so.
In our considered opinion, the finding rendered by the learned single Judge may not be correct because a Master Plan, as we have pointed out above, takes care of the development of a larger area, but insofar as the scheme is concerned, it is prepared by the Local Self Government Institutions with the intention of developing different areas within its jurisdiction, bearing in mind the framework of the Master Plan. Which thus means, the Master Plan only takes care of the manner in which the larger area is to be developed, which may have various implications and is done by taking into account not only a particular Local Self Government Institutions, but the other Local Self Government Institution within the District also. That is why the Perspective Plan is always prepared for the State as such and the District in specific.
The power enjoyed by the Local Self Government Institutions to prepare a Detailed Town Planning Scheme for the development of an area of a Local Self Government Institution would assume more importance, since it is for the Local Self Government Institutions to decide the manner in which the development has to take place considering the intrinsic aspects involved in particular areas by following the intentions of the Master Plan, prescribed for the Local Self Government Institutions specific, and the Perspective Plan prepared for the District.
Taking into account the above aspects, we are of the considered opinion that going by the provisions of the Act, 2016, the Town Planning Scheme which is prepared for the area would have predominance over the Master Plan prepared for the entire area of the Local Self Government Institution, till a new scheme is prepared.
Now, a reference to Rule 3 of the Kerala Panchayat Building Rules, 2019 ('Rules, 2019' for short), dealing with the applicability of the Rules would be relevant. Sub-Rule (3) thereto deals with the provisions in the Master Plan, Detailed Town Planning Scheme etc. and it clearly specifies that notwithstanding anything contained in the Rules, 2019, provisions or regulations in any Master Plan/Detailed Town Planning Scheme/ Interim Development Order in force under the Act, 2016 shall prevail over the respective provisions of the Rules, wherever such Plan/ Scheme/Order exist.
Therefore, the Secretary, while considering an application seeking building permit, has to take into account the aforesaid rule position contained under the Act, 2016 and Rules, 2019 and it is for the Secretary to find out whether the application for permit can be allowed or not, in view of the scheme existing for the area. Whatever that be, the writ petitioner was/is left with a remedy under Section 50 of the Act, 2016 to seek review, revision or variation.
It is also clear from Section 63 of the Act, 2016 that notwithstanding anything contained in the Act, 2016, with the general object of controlling interim development of land included in any planning area in respect of which a decision has been taken by a resolution to prepare a plan or notified for preparing Detailed Town Planning Scheme under the Act, the Local Self Government Institutions may prepare Interim Development Orders and forward the same to the Government for sanction.
No doubt, the first respondent/writ petitioner was entitled either to seek review as provided under Section 50 or to seek necessary orders, if any interim development orders are prepared by the Grama Panchayat in question. Therefore, understanding the position of law in the manner discussed above, we are of the opinion that interference is required to the judgment of the learned Single Judge.
Moreover, we are informed that Act, 2016 is amended by the State Government as per notification No. 16509/Leg.C1/2020/Law dated 24th February, 2021. Taking into account all the above aspects, the judgment of the learned single Judge is set aside and we hold that the Secretary of the Grama Panchayat was right in dismissing the application for building permit submitted by the writ petitioner. However, we make it clear that the Judgment would not stand in the way of the writ petitioner filing a suitable application in terms of the scheme existing, or seeking variation as per Act 2016, or taking advantage of the amendment of the Act, 2016 as per the notification referred to above.
This writ appeal is allowed as above.