On a reading of Rule 3, it is clear that the
applicability of the rule is for the purpose of carrying out
construction of public or private buildings and for other related
purposes. Therefore, the stipulation contained under Rule 3A
with regard to the supremacy of the Town Planning Scheme
can only be relating to the Rules regarding construction of the
buildings provided under Rule 3 referred supra. So also, in all
the afore cited judgments rendered by the Hon'ble Apex Court
as well as this Court, the Courts were largely considering the
question of Town Planning Schemes propounded under the
Town Planning Acts with reference to Article 300A of the
Constitution and held that without acquisition of the land, the
schemes so launched cannot be put into effect. Therefore,
the contention put forth by the Respondent that consequent to
introduction of Rule 3A, the Respondent was justified in
declining permit cannot be sustained. According to me, such a
principle was evolved by the Courts taking into account the
protection provided for enjoyment of the property conferred
under Article 300A of the Constitution.
Taking into account all these circumstances and
settled legal position in accordance with the principles so laid
down by the Courts in the judgments cited supra, I am of the
considered opinion that the stand adopted by the Respondent -
Municipality that permit cannot be granted consequent on the
pendency of D.T.P. Scheme can never be sustained under law.
Therefore, I set aside Ext.P3 order passed by the
Respondent - Municipality and direct the Municipality to take a
decision in the application submitted by the petitioners seeking
permit for construction of the building on production of
requisite order from the competent authority under the
K.L.U.O for use of the land for a different purpose in
accordance with law, taking into account the observations
made above.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 30TH DAY OF JULY,2015
W.P.(C).No. 4050 of 2014 (E)
HAVVA T.P, Vs TIRUR MUNCIPALITY,
This writ petition is filed by the petitioners seeking to
quash Ext.P3 order passed by the Respondent-Municipality
declining permit for construction of a basement plus two
storied building applied for by the petitioners.
2. Brief facts required for disposal of the writ petition are
as follows:
3. Petitioners are the owners in possession of 7.5 cents
of property comprised in Re-survey No.213/2 of Thrikkandiyur
Village, Malappuram District. Petitioners became vested with
the said property as per registered Partition Deed bearing
No.2990/1999 of the office of the Sub Registrar, Tirur. The
said property was a paddy field ('nilam') earlier and
immediately after the registration of the above partition deed,
the same was filled up and converted as a garden land. This
fact of developing the land by conversion of the same from
paddy field to garden land is proved by Ext.P2 Data Bank
prepared under the Kerala Conservation of Paddy Land and
W.P.(C) No.4050 of 2014 2
Wetland Act No.28 of 2008 (for short, Act No.28 of 2008). It
was also contended that the remaining properties abutting the
property of the petitioners are all developed into garden land
even at the time of the above mentioned partition deed.
4. It was further contended that in order to put up a
residential building in the aforesaid property, they had applied
for a building permit to the Municipality. But the Respondent
Municipality rejected the application for building permit stating
that the property is narrated as "Nanja" as per the possession
certificate issued by the Village authorities and further that the
road included in the DTP Scheme Map-I named as CC Road
with 12 meters width was proposed through the property of
the petitioners. Therefore, on both the above grounds, the
permit sought for by the petitioners for construction of the
building was declined by the Municipality as per Ext.P3 order
dated 08.11.2013. It is thus aggrieved by the said order, the
petitioners have approached this Court seeking to quash
Ext.P3 and for other related reliefs.
5. The Municipality has filed a counter affidavit
virtually supporting the stand taken in Ext.P3 order and also
contended that there was no illegal action on the part of the
W.P.(C) No.4050 of 2014 3
Municipality in order to grant permit to the petitioners to carry
out the construction of the building proposed. What I
understand from the contentions put forth by the Respondent
was that since under the possession certificate, the property is
described as 'Nanja', [according to Counsel for the petitioners,
'Nanja' means a low lying 'Nilam' (paddy field)] and further
that there is a road proposed as per the Detailed Town Plan
Scheme (D.T.P. Scheme), they are unable to grant permission
to the petitioners to put up construction of the multi-storied
building. The Respondent has also contended that as per the
permit sought for, the building has basement plus two floors,
and same is a commercial building and therefore the
contention of the writ petitioners that they have submitted the
application and plan for a residential building was not true or
correct. It was also contended that under the D.T.P Scheme,
the property of the petitioners is situated in a mixed zone and
therefore they are not entitled to carry out the construction of
a commercial building in the said zone.
6. Heard Sri. M.I.Johnson, learned counsel appearing
for the petitioners and Sri.P.K.Vijayamohanan, learned
Standing Counsel for the Municipality.
W.P.(C) No.4050 of 2014 4
7. On perusal of Ext.P3 impugned order passed by the
Respondent, permit was declined on two grounds:
(1) the possession certificate produced along with the
application for permit shows that the property is "Nanja"; and
(2) the property for which the petitioners sought
permission for construction of the building is included in the
Map-I of Detailed Town Planning Scheme for the purpose of
construction of a road in 12 meters width named as CC Road.
8. In order to ascertain the situation as comprehended
by the Respondent in its counter affidavit, I have gone through
the same and found that the Respondent has not disputed the
contention put forth by the petitioners that the property was
developed prior to the introduction of Act No.28 of 2008 by the
State Government, but contended that even if the land was
converted so, no permission was sought for conversion of the
same and therefore the Municipality had no obligation to grant
permit to the petitioners. On verification of Ext.P2 Draft Data
Bank prepared by the Trikkandiyur Village, which is not
disputed by the Respondent, the Survey No.213/2 that is the
property belonging to the petitioners is included in Sl.No.739
and in the column against to which the approximate date of
W.P.(C) No.4050 of 2014 5
conversion is mentioned, it is shown that "above 10-15 years".
Therefore, according to the Data Bank prepared, the
petitioners property is converted as a dry land prior to the
introduction of Act No. 28 of 2008, and the property is
incorporated in the data bank prepared under said Act knowing
fully well that the same was a converted land prior to the
introduction of the Act. But, that by itself will not enable the
petitioners to seek permit since for the purpose of use of land
for a different purpose, petitioners require appropriate sanction
from the authority under the Kerala Land Utilization Order,
1967 (for short, 'K.L.U.O').
9. Under these circumstances, the learned counsel for
the petitioners has invited my attention to the judgment of the
Hon'ble Apex Court in 'Revenue Divisional Officer v. Jalaja
Dileep' [ 2015 (1) KLT 984 (SC)], in order to canvass for the
proposition that the properties which are already developed
and converted as dry land prior to the introduction of Act
No.28 of 2008 does not suffer from any disqualification for
carrying out construction activities as prohibited under Act
No.28 of 2008. It was further contended by the learned
counsel that the Hon'ble Apex Court has not prohibited the
W.P.(C) No.4050 of 2014 6
construction of buildings in such properties but only stipulated
that consequent to conversion, such alteration of the nature of
the property shall be got approved by making appropriate
applications before the authority under the K.L.U.O, 1967. In
order to evaluate the situation properly, it is only proper that
paragraph 17 of the said judgment is extracted here:
"17. "Paddy land" and "Wetlands" are defined
under Sections 2(xii) and 2(xviii) of the Act
respectively. As per Section 5(4), the Committee shall
inter alia prepare a Data Bank with details of cultivable
paddy land within the jurisdiction of the Committee. If
the land is not included in the Data Bank or Draft Data
Bank prepared under the Kerala Cultivation of Paddy
Land and Wetland Act, 2008 and if it is not a "Paddy
land" or "Wetland" as defined under Act 28 of 2008, at
the time of commencement of the Act 12 (sic Act 28)
of 2008 and the classification of land is noted as
"Nilam" in the revenue records, the provision of Kerala
Land Utilization Order, 1967 will be applicable to such
land and the Collector as defined in Clause 2(a) of
K.L.U. Order 1967 has the power to grant permission
to utilize the land for other purposes. As stated in
Clause 2(a) of K.L.U. Order, Collectors shall examine
such request for residential purpose, on merits on a
case to case basis.
x x x x x x x
x x x x x x x"
W.P.(C) No.4050 of 2014 7
10. Therefore, on a reading of paragraph 17 of the said
judgment, it is categoric and clear that a 'Nilam' (paddy field)
or wet land which was developed before the introduction of Act
No. 28 of 2008, the land will not be imposed with any
prohibition contemplated under Act 28 of 2008. But, such
property owners will have to make suitable applications to the
competent authority under K.L.U.O, 1967 for utilizing such
lands for other purposes. The Hon'ble Apex Court has also
directed the Collectors discharging functions under the K.L.U.O
shall examine such requests on merits and on a case to case
basis and take appropriate decision.
11. After rendering so, in paragraph 18 of the said
judgment, it was held that if a property is included in the Data
Bank or the draft Data Bank prepared under Act No.28 of 2008
as a "paddy land" or "wet land" and the classification of the
land is noted as "Nilam" in revenue records, the provisions of
Act No. 28 of 2008 would apply. Further, it was held that
there is ample provision within the Act itself to grant
permission for such land for residential purpose or public
purpose as defined in the Act and as elaborated if the property
is not included in the data bank as 'paddy land' or 'wet land' as
W.P.(C) No.4050 of 2014 8
defined under Act No. 28 of 2008, it is still governed by the
provisions of K.L.U.O, 1967. In that view of the matter, I am
of the considered opinion that admittedly the property under
which the construction is sought for is a converted land prior to
the introduction of Act No. 28 of 2008 as is evident from
Ext.P2 Data Bank prepared by the appropriate authority under
Act No.28 of 2008, which aspect is also not disputed by the
Respondent specifically in the counter affidavit.
12. In that circumstances, learned counsel for the
petitioners has also brought my attention to the judgment of a
learned Single Judge of this Court in 'Beena Johnson v.
Revenue Divisional Officer, Idukki and Another' [2015 (3)
KHC 727], wherein the very same question with regard to the
land utilization order was considered taking into account the
various judgments rendered by this Court under the subject
issue and also the judgment of the Hon'ble Apex Court cited
supra. The learned Single Judge, after appreciating the
circumstances, held in paragraph 22 as follows:
"22. x x x x x x x
However the fact remains that in the BTR, the
land is described as 'Nilam'. In such circumstance, the
petitioner would have to make an application under the
W.P.(C) No.4050 of 2014 9
KLUO before the Sub Collector and on such application
being made, the same shall be considered in accordance
with law and in accordance with the observations made
herein above."
13. Therefore, taking into account all these
circumstances, I am of the considered opinion that so far as
the first reason contained in Ext.P3 with regard to the
description of the land in the possesion certificate as "Nanja" is
concerned, the petitioners can rectify the same by filing
suitable application before the appropriate authority under the
K.L.U.O and secure such permission.
14. So far as the next question with regard to the
inclusion of the property in the Detailed Town Planning Scheme
and the mixed zone was concerned, even according to the
Municipality, the property was situated in a mixed zone.
Therefore that by itself shows that the petitioners were
entitled to put up construction of commercial building and in
that view of the matter, the contention made by the
Respondent Municipality that since the area is a mixed zone
and not a commercial zone, the petitioners are not entitled to
put up commercial structure cannot be said to be correct.
Anyhow, I am not entering into a finding on that factual
W.P.(C) No.4050 of 2014 10
aspect, which can be settled by the Municipality on verification
of the application for permit and the plan submitted by the
petitioners.
15. But, again, it was contended by the Municipality
that since under the D.T.P. Scheme, a road is proposed viz.
C.C. Road with 12 meters width as per G.O.(P) No.179/92/LAD
dated 02.07.1992, permit could not be granted and therefore
they were right in rejecting the application seeking permit.
16. Learned counsel for the petitioners, to meet the said
contention put forth by the Municipality, has invited my
attention to the judgment of the Hon'ble Apex Court in 'Raju
S. Jethmalani and Others v. State of Maharashtra and
Others' [(2005) 11 SCC 222] = [2005 KHC 1983] and
contended that merely because a Town Planning Scheme was
launched by the State Government on the basis of old Town
Planning Act the Scheme cannot be pressed into service for the
purpose of declining permit to the petitioners. In the said
case, Hon'ble Apex Court was considering the question of the
inclusion of the land in development Plans and the parameters
required for sustaining such Schemes and I think it is only
appropriate that the relevant portion of paragraph 3 of the said
W.P.(C) No.4050 of 2014 11
judgment is extracted for a proper evaluation of the findings.
"3. x x x x x x
x x x x x x
The question is whether without acquiring the
land the Government can deprive a person of his use of
the land. This in our opinion, cannot be done. It would
have been possible for the Municipal Corporation and
the Government of Maharashtra to acquire the land in
order to provide civic amenities. But the land in
question has not been acquired. We are quite conscious
of the fact that the open park and garden are necessary
for the residents of the area. But at the same time we
cannot lose sight of the fact that a citizen is deprived of
his rights without following proper procedure of law.
x x x x x x
x x x x x x"
17. The principle that was evolved by the Hon'ble Apex
Court in the said judgment was that in order to implement the
development plan, the land should be acquired by the State
Government or Municipal Corporation to effectuate the public
purpose and the land owner cannot be deprived from using the
property for any other purpose under the guise of the Town
Planning Scheme. So also, learned counsel invited my
attention to the judgments of this Court in 'Abdul Kabeer v.
Malappuram Municipality' [2012 (3) KLT 106],
'Muhammed Subair v. Corporation of Kozhikode' [2015
W.P.(C) No.4050 of 2014 12
(2) KLT 757] and 'Muthoot Finance Ltd. (M/s.), Kochi v.
Corporation of Cochin and Others' [2015 (2) KHC 491] and
contended that in all the judgments cited supra, this Court
considered the question of development plans vis-a-vis the
right of the Municipality to deprive the properties from being
developed in the guise of D.T.P Scheme. In those judgments,
this Court has categorically held that no property right can be
interdicted and ipso facto no building permit can be refused on
the basis of D.T.P. Scheme or on a mere proposal for
acquisition of land. So also, the aspect of construction being
carried out in a mixed zone was also considered in 'Muthoot
Finance Ltd. case' (supra) and held in paragraph 18 as
follows:
"18. Indeed, it is not disputed that the area is
densely constructed, albeit, after due sanction from the
respondent Corporation; nor is it disputed that the area
comes under mixed use. But the fact remains that the
survey numbers in which the petitioner's property is
situated lie in 'Ground and Public Open Space Zone'.
The property in question is shown in Kochi City Structure
Plan as a place earmarked for public utility. It is
axiomatic that in any master plan, various areas may be
marked as public utility places or as lung spaces or
recreational open spaces. The places thus shown may
belong to the Corporation or to any individuals. To sub-
W.P.(C) No.4050 of 2014 13
serve the public purpose, the properties owned by
individuals, having been earmarked for public use, are,
in fact, required to be acquired before they could be
dedicated for the declared purpose. In the present
instance, no acquisition proceedings have been
initiated."
18. So also, in the decision reported in 'Padmini v.
State of Kerala' [1999 (3) KLT 465], it was held in paragraph
8 that in the instant case it is not in dispute that there was no
proposal to acquire the land in question on the date of the
appellant's submitting the application for permission to
construct a residential building on 16.01.1996 or when he
again applied for permission to construct the building on
23.12.1997 which was rejected by the Municipality by the
endorsement as contained in Ext.P3 and no notification under
Sec.4(1) of the Act was issued. Therefore, the Municipality
had no authority to reject the application on the ground that
the land is proposed to be acquired. Therefore, on an
appreciation of the factual situation contained in this case, it is
therefore clear that as on the date of submitting the
application seeking permission to construct building in the case
on hand, there was no proposal for acquisition as
contemplated under law.
W.P.(C) No.4050 of 2014 14
19. After appreciating the entire facts and
circumstances and the principles laid down in the aforesaid
judgments, I am of the considered opinion that the
Respondent Municipality is not at liberty to saddle the
petitioners by the proposed public purpose provided under a
D.T.P. Scheme, without the land being acquired by the State
Government or the Municipality for the purpose notified under
the Scheme.
20. So also, by virtue of Article 300A of the
Constitution, a civil right is conferred on every property owner
to possess the property and the same cannot be deprived
without authority of law. The Hon'ble Apex Court had occasion
to consider the said question in 'Bishamber v. State of Uttar
Pradesh' [AIR 1982 SC 33] and it was held in paragraph 41
thus:
"41. There still remains the question whether the
seizure of wheat amounts to deprivation of property
without the authority of law. Art. 300A provides that no
person shall be deprived of his property save by
authority of law. The State Government cannot while
taking recourse to the executive power of the State
under Art. 162, deprive a person of his property. Such
power can be exercised only by authority of law and not
by a mere executive fiat or order. Article 162, as is
W.P.(C) No.4050 of 2014 15
clear from the opening words, is subject to other
provisions of the Constitution. It is , therefore,
necessarily subject to Art. 300A. The word 'law' in the
context of Art. 300A must mean an Act of Parliament or
of a State Legislature, a rule, or a statutory order,
having the force of law, that is positive or State-made
law.
x x x x x x x
x x x x x x x".
21. In yet another decision in 'Jilubhai Nanbhai
Khachar & Others v. State of Gujarat & Others' [AIR 1995
SC 142], the Hon'ble Apex Court had occasion to consider the
extent of right conferred on a citizen under Article 300A of the
Constitution and held in paragraphs 32 and 48 as follows:
"32. In Subodh Gopal's case [AIR 1954 SC 92]
Patanjali Sastri, C.J., held that the word 'deprived' in Cl.
(1) of Art. 31 cannot be narrowly construed. No cut and
dry test can be formulated as to whether in a given case
the owner is deprived of his property within the meaning
of Art.31; each case must be decided as it arises on its
own facts. Broadly speaking it may be said that an
abridgment would be so substantial as to amount to a
deprivation within the meaning of Art. 31, if, in effect, it
withheld the property from the possession and
enjoyment by him or materially reduced its value. S.R.
Das, J. as he then was, held that Cls. (1) and (2) of Art.
31 dealt with the topic of 'eminent domain', the
expressions 'taken possession of' or 'acquired' according
W.P.(C) No.4050 of 2014 16
to Cl. (2) have the same meaning which the word
'deprived' used in Cl. (1). In other words, both the
clauses are concerned with the deprivation of the
property; taking possession of or acquired used in Cl.(2)
is referable to deprivation of the property in Cl.(1).
Taking possession or acquisition should be in the
connotation of the acquisition or requisition of the
property for public purpose. Deprivation specifically
referable to acquisition or requisition and not for any
and every kind of deprivation. In Dwarka Das Srinivas
of Bombay v. Solapur Spinning and Weaving Co. Ltd.,
1954 SCR 674: (AIR 1954 SC 119), Mahajan, J., as he
then was, similarly held that the word 'deprived' in Cl.
(1) of Art. 31 and acquisition and taking possession in
Cl.(2) have the same meaning delimiting the field of
eminent domain, namely, compulsory acquisition of the
property and given protection to private owners against
the State action. S.R. Das, J. reiterated his view held in
Subodh Gopal's case (AIR 1954 SC 92), Vivian Bose, J.
held that the word 'taken possession of' or 'acquired' in
Art. 31(2) have to be read along with the word
'deprived' in Cl.(1). Taking possession or acquisition
amounts to deprivation within the meaning of Cl.(1).
No hard and fast rule can be laid down. Each must
depend on its own facts. The word "law" used in Art.
300A must be an Act of Parliament or of State
Legislature, a rule or statutory order having force of
law. The deprivation of the property shall be only by
authority of law, be it an Act of Parliament or State
Legislature, but not by executive fiat or an order.
Deprivation of property is by acquisition or requisition or
W.P.(C) No.4050 of 2014 17
taken possession of for a public purpose."
"48. The word "property" used in Article 300A
must be understood in the context in which the
sovereign power of eminent domain is exercised by the
State and expropriated the property. No abstract
principles could be laid. Each case must be considered
in the light of its own facts and setting. The phrase
'deprivation of the property of a person' must equally be
considered in the fact situation of a case. Deprivation
connotes different concepts. Art. 300A gets attracted to
an acquisition or taking possession of private property,
by necessary implication for public purpose, in
accordance with the law made by the Parliament or of a
State Legislature, a rule of a statutory order having
force of law. It is inherent in every sovereign State by
exercising its power of eminent domain to expropriate
private property without owner's consent. Prima facie,
State would be the Judge to decide whether a purpose is
a public purpose. But it is not the sole Judge. This will
be subject to judicial review and it is the duty of the
Court to determine whether a particular purpose is a
public purpose or not. Public interest has always been
considered to be an essential ingredient of public
purpose. But every public purpose does not fall under
Art. 300A nor exercise of eminent domain and
acquisition or taking possession under Art. 300A.
Generally speaking preservation of public health or
prevention of damage to life and property are
considered to be public purposes. Yet deprivation of
property for any such purpose would not amount to
acquisition or possession taken under Art. 300A. It
W.P.(C) No.4050 of 2014 18
would be by exercise of the Police power of the State.
In other words, Art. 300A only limits the power of the
State that no person shall be deprived of his property
save by authority of law. There is no deprivation
without any sanction of law. Deprivation by any other
mode is not acquisition or taking possession under Art.
300A. In other words, if there is no law, there is no
deprivation. Acquisition of mines, minerals and quarries
is deprivation under Article 300A."
22. Therefore, going by the law laid down by the
Hon'ble Apex Court, it is categoric and clear that either without
acquisition or requisition or taken possession of for a public
purpose, no citizen can be deprived of his property.
23. So far as a property whether immovable or movable
is concerned, it is a precious and proud possession of a citizen
and he is entitled to enjoy the same by utilising it in a manner
suitable to him by respecting the authority propounded under
law. According to me, such a right was conferred under the
Constitution with the avowed object to deprecate inhuman
attitude of the State or other authorities against interfering in
the right of a citizen over his property without authority of law.
Therefore such civil right of the property owners cannot be
deprived by asserting futuristic public purpose, without the
same being acquired either by the State Government or the
W.P.(C) No.4050 of 2014 19
Municipality. Moreover, the owner of the property is entitled to
enjoy the same during his life time and if the development of
the property is deprived on the basis of alleged D.T.P. Scheme
proposed either by the Government or by the Municipality and
continuance of the same indefinitely, no person may be
entitled to enjoy the property putting it to profitable use during
his life time. Therefore, according to me, the Respondent
Municipality cannot be allowed to take such a stringent stand
so as to fetter the right of the petitioners from developing their
property in accordance with the Municipal Building Rules.
24. Moreover, the State and other authorities are duty
bound to act fairly to the citizens as envisioned under Article
14 of the Constitution. The State or any of the authorities are
not at liberty to prohibit an owner of a property from using or
utilising the same without resorting to acquisition of the
property in a manner known to law, without which, such
actions become arbitrary and therefore interferes with the
fundamental right conferred to a citizen under Article 14 of the
Constitution. In fact, Article 300A of the Constitution provides
protection to a citizen from being deprived of the property
otherwise than the authority of law. Bearing in mind the legal
W.P.(C) No.4050 of 2014 20
principles evolved by the Courts supra and tested the same
against the facts of this case, it is clear that the Respondent
Municipality went wrong in rejecting the application of the
petitioners seeking permission to construct a building in the
property owned by the petitioners under the pretext of D.T.P.
Scheme.
25. The learned Standing Counsel for the Respondent-
Municipality has also brought my attention to Rule 3A of the
Kerala Municipality Building Rules and contended that
consequent to the introduction of Rule 3A with effect from
16.12.2009, the D.T.P. Scheme launched by the State
Government is protected, since as per the said rule, the
provisions or regulations in any Town Planning Scheme (in
force) under the Town Planning Acts shall prevail over the
respective provisions of the K.M.B.R.
26. In order to understand the real purport of Rule 3A
of the Kerala Municipality Building Rules, 1999, Rule 3 and 3A
is extracted hereunder:
"3. Applicability.-- These rules shall apply to,--
(i) any public or private building described
below, namely;-
W.P.(C) No.4050 of 2014 21
(a) where a building is newly erected,
these rules shall apply to the designs and
construction of the building;
(b) where the building is altered, these
rules shall apply to the altered portion of the
building;
(c) where the occupancy or use of a
building is changed, these rules shall apply to all
parts of the building affected by the change;
(d) where addition or extension is made
to a building, the rules shall apply to the addition or
extension only, but for calculation of floor area ratio
and coverage permissible and for calculation of
required off street parking area to be provided, the
whole building (existing and the proposed) shall be
taken into account;
(x x x)
(ii) all lands which is proposed to be developed
or redeveloped for construction of building;
x x x x
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 Acts (xx) shall prevail over the respective
provisions of these rules wherever such schemes
exist."
27. On a reading of Rule 3, it is clear that the
applicability of the rule is for the purpose of carrying out
construction of public or private buildings and for other related
purposes. Therefore, the stipulation contained under Rule 3A
with regard to the supremacy of the Town Planning Scheme
can only be relating to the Rules regarding construction of the
buildings provided under Rule 3 referred supra. So also, in all
the afore cited judgments rendered by the Hon'ble Apex Court
as well as this Court, the Courts were largely considering the
question of Town Planning Schemes propounded under the
Town Planning Acts with reference to Article 300A of the
Constitution and held that without acquisition of the land, the
schemes so launched cannot be put into effect. Therefore,
the contention put forth by the Respondent that consequent to
introduction of Rule 3A, the Respondent was justified in
declining permit cannot be sustained. According to me, such a
principle was evolved by the Courts taking into account the
protection provided for enjoyment of the property conferred
under Article 300A of the Constitution.
28. Taking into account all these circumstances and
settled legal position in accordance with the principles so laid
down by the Courts in the judgments cited supra, I am of the
considered opinion that the stand adopted by the Respondent -
Municipality that permit cannot be granted consequent on the
pendency of D.T.P. Scheme can never be sustained under law.
I also bear in mind that the judgment in 'Abdul Kabeer's
case' referred supra was also a case concerned with
Malappuram Municipality.
29. Therefore, I set aside Ext.P3 order passed by the
Respondent - Municipality and direct the Municipality to take a
decision in the application submitted by the petitioners seeking
permit for construction of the building on production of
requisite order from the competent authority under the
K.L.U.O for use of the land for a different purpose in
accordance with law, taking into account the observations
made above. This shall be done within a period of thirty days
from the date of production of K.L.U. order.
30. The learned counsel for the petitioners has also
requested that even though the State or the competent
authority under the K.L.U.O are not parties in this writ petition,
there may be a direction to the said authority to consider the
application of the petitioners if and when they file the same. I
think such a prayer made by the counsel for the petitioners is
only just and legal and in order to avoid multiplicity of
proceedings, it is only proper that a direction can be issued to
the District Collector, Malappuram either to consider the
application by himself or the authority competent for that
purpose.
31. The District Collector, Malappuram is suo motu
impleaded as additional 2nd Respondent and directed that if
and when an application is filed by the petitioners seeking
change of nature of land as provided under K.L.U.O, the same
shall be considered within a period of thirty days from the date
of receipt of such an application. I make it clear that I have
not made any observation on merits and the Additional 2nd
Respondent is free to take a decision after due verification of
the property and in accordance with law.
The writ petition is disposed of as above.
Sd/-
SHAJI P. CHALY
JUDGE
//true copy//
P.S. to Judge
St/-
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