Law Web: Kerala HC: Interim Development Order Prevails Over Old Master Plan If New Plan Hasn't Been Sanctioned Yet

The respondents contend that in the light of

amendment, Section 63 has to be read along with Section 36 of

the 2016 Act, which clearly says that where a sanctioned Master

Plan already exists, its provisions shall apply until the published

Master Plan is sanctioned in accordance with the provisions of the Act. The 2016 Act has been made applicable with effect from

23.9.2013. Admittedly, no sanctioned Master Plan, prepared as per the 2016 Act has been brought into force. MP 2013 was preparedand published in April, 2013, prior to the date of coming into force of the 2016 Act, but the same was frozen in 2014. The only published Master Plan that existed at the time of coming into force of the 2016 Act was hence MP 1971. Section 61 of the 2016 Act requires that all use and development of land after the coming into force of a Master Plan, shall be in conformity with the Master

Plan. Under Section 62, the date of coming into force of the plan

has been defined to mean the date of publication of notice in the

Official Gazette inviting objections and suggestions, under the

provisions of the Act. Even after the amendment, Section 63 of the

2016 Act provides for issuance of an IDO which is to apply during

the period specified therein. The omission of the words

“Notwithstanding anything contained in the Act” cannot be

understood to mean that in cases where a Master Plan had been

published under the repealed enactments, that have been saved

under the savings clause of the 2016 Act, it will continue to apply

as long as a sanctioned Master Plan is not published under the

2016 Act. Reading Section 36 and 63 of the 2016 harmoniously, I

am of the opinion that Section 36(12) cannot apply in cases where

an IDO has been published in accordance with Section 63.

{Para 12}

13. In the decision in S.Subbalekshmy v. Corporation of

Thiruvananthapuram (W.A.No.1776 of 2019), which was

rendered on 26.11.2019, when the pre-amended Section 63 was in

force, this Court had categorically held that once the IDO has been

prepared and approved, it shall remain in operation until the

coming into operation of the Master Plan. The Division Bench held

that MP 1971 will not apply. The Division Bench negatived the

contention based on Section 36(12) on the reason that Section 63

begins with a non obstante clause. The conclusion of the Division

Bench still holds good despite the amendment brought to Section

63 by omission of the non obstante clause. Any other conclusion

will render the very provision for preparation of IDO otiose. Section

36 has to be understood as a provision which prescribes the

procedure for preparation, publication and sanctioning of Master

Plan. Section 63 on the other hand, has a different field of

operation, i.e., preparation of an IDO to take care of interim

developments. It is also relevant to note that the IDO was

prepared in 2016 and the amendment of Section 63 was five years later in 2021. The amendment as made, does not have the effect of cancelling or nullifying the IDO issued in 2016.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) NO. 28821 OF 2020

SUSEELA Vs THIRUVANANTHAPURAM CORPORATION,

Coram: MR. JUSTICE T.R.RAVI

Dated: 23RD DAY OF FEBRUARY 2022

The case of the petitioner is as follows;

2. The petitioner owns 10.25 Ares of land in re-survey

No.BL.4416 corresponding to old survey No.258/3 of

Sasthamangalam Village. He submitted Ext.P2 application on

20.11.2018 before the 1st respondent for issuance of a building

permit. The application was for construction of a 14 storeyed

building of a total area of 6037.38M2. When no decision was taken

by the 1st respondent on the application, the petitioner enquired

about the cause for the delay and was informed that the area was

earmarked as a commercial zone in the Master Plan of 1971 of the

Thiruvananthapuram Corporation (hereinafter referred to as MP

1971). The petitioner filed W.P.(C)No.31626/2019, which was

disposed of by this Court by judgment dated 05.12.2019 directing

the Corporation to pass orders on the application for building

permit in the light of the Interim Development Order (hereinafter

referred to as IDO) which had been issued under Section 63 of the

Kerala Town and Country Planning Act, 2016 (hereinafter referred

to as the 2016 Act), as per GO(MS)No.180/2017/LSGD dated

11.9.2017. The Government Order has been produced as Ext.P4.

Pursuant to the directions issued by this Court, the 1st respondent

issued Ext.P6 order rejecting the application stating that even as

per the new Master Plan, the area is included in the commercial

zone and that the Master Plan does not permit construction of a

residential building in a commercial zone. According to the

petitioner, the law permits the construction of a residential

apartment building with commercial space in the ground floors, in

areas coming under the commercial zone. The petitioner hence

submitted a revised plan and a request as per Ext.P9. Ext.P10 is

the receipt issued by the 1st respondent acknowledging the receipt

of the revised plan. The petitioner hence seeks to quash Ext.P6

and prays for a direction to consider Ext.P9 request.

3. Ext.P4 was issued prior to Ext.P2 application for permit.

Ext.P4 shows that a draft Master Plan had been prepared and

brought into force on 23.4.2013, but the same was frozen as per

GO(MS)No.53/14/LSGD dated 26.2.2014. It would appear that the

order by which the Master Plan of 2013(hereinafter referred to as

MP 2013) was frozen was later modified to the effect that

residential, commercial, industrial uses and other permissible

projects shall be permitted as per the provisions of the published

Master Plan for Thiruvananthapuram. On 26.11.2016, a meeting

under the Chairmanship of the Hon'ble Minister for Local Self

Government Department was held, wherein it was decided that a

new Master Plan for Thiruvananthapuram shall be prepared and

published and an IDO shall be prepared considering the objections

and suggestions received on MP2013, for the purpose of controlling

the developments during the period upto the time when the new

Master Plan is sanctioned. The order further says that the IDO was

prepared and forwarded to the Government for sanction and the

Government has sanctioned the same. Ext.P4 shows that the IDO

has been issued under Section 63(4) of the 2016 Act and that the

report and maps of MP2013 published vide Gazette notification

No.17 Vol.II dated 23.4.2013, will come into operation forthwith

with certain modifications. The Proposed Land Use – 2031 map

and Chapter 29 of the IDO were to replace the map and Chapter

29 of MP 2013.

4. Chapter 29 referred above deals with Zoning

Regulations. A copy of the same has been produced as Ext.P7.

Clause 3.16.1.2 of Ext.P7 shows that residential apartments with

commercial space in the lower floors is a permitted activity in the

existing/proposed commercial zones. It also shows that as

restricted activity, there can be construction of residential buildings

having more than 300M2 area.

5. On 20.11.2019, the Government vide Ext.P8 circular

issued directions for the purpose of bringing into force the Kerala

Municipality Building Rules, 2019. As per the circular, applications

submitted upto 7.11.2019 and applications which had been

returned before 7.11.2019 for the purpose of re-submission after

making corrections, would be covered by the Kerala Municipality

Building Rules, 1999 and the Kerala Panchayat Building Rules,

2011 as the case may be. It further says that where plans

submitted prior to 7.11.2019 had been returned for submission of

revised plan and the revised plan does not provide for increase of

the total area of construction, the old rules will prevail. According

to the petitioner, since 1st respondent's stand is that the property is

a commercial property, the 1st respondent should have considered

the application submitted by the petitioner as per Ext.P9, in the

light of Ext.P4, Ext.P7 and Ext.P8 circular.

6. The 1st respondent has filed a statement. According to

the 1st respondent, the area where the construction is proposed is

a commercial zone under MP 1971 and since the petitioner

proposed to construct a residential apartment, the application

could not be considered favourably. It is further submitted that

even as per the IDO, major portion of the area is included as a

commercial zone and only a small portion will come within the

residential zone. Regarding the application Ext.P9 and revised

plan referred to in Ext.P10, it is submitted that as per the

Government Order GO(MS)No.144/2007 only a residential building

upto 300M2 can be constructed in the property coming under the

commercial zone. The statement does not answer the question

whether a residential building with commercial space can be

constructed in the property.

7. The 3rd respondent District Town Planner has also filed a

counter affidavit wherein it is stated that as per the Zoning

Regulations, apartments are not permissible in the commercial

zone. Regarding the IDO, it is stated that it is only an interim

measure to govern development during the period between the

date of notification of the intention in the Gazette to prepare a plan

and the date of publication of the draft plan in the official Gazette

under the Act in the case of Master Plan. It is further submitted

that the date of coming into operation of the plan for the purpose

of the Section is defined as the date of publication of the notice in

the Official Gazette inviting objections and suggestions under the

provisions of the Act. It is further submitted that as per Section

36(12) proviso (1), in cases where sanctioned Master Plan already

exists its provisions shall apply until the published Master Plan is

sanctioned in accordance with the provisions of the Act.

8. The petitioner has filed a reply affidavit pointing out that

as per the IDO Ext.P4, Sy.No.258 comes under both commercial

and residential zones and hence, there should be no reason why

the 1st respondent should deny the grant of a building permit. It is

further submitted that even if the property is in a commercial

zone, as per clause 3.16.1.2 in Ext.P7, residential apartment

buildings with commercial space in the ground floor is a permitted

activity. It is further pointed out that as per Ext.P8 Circular,

Government has clarified that building permit applications which

had been filed prior to 7.11.2019 and were defective can be resubmitted

and the old rule will apply.

9. Heard Sri V.G.Arun on behalf of the petitioner,

Sri N. Nandakumara Menon, Senior Advocate, instructed by

Sri P.K.Manoj Kumar on behalf of the 1st and 2nd respondents and

Sri B.S.Syamanthak, Government Pleader, on behalf of the

respondents 3 and 4.

10. Section 63 of the 2016 Act as originally enacted reads

as follows:

"63. Interim Development Orders and the restrictions

after notifying the intention to prepare Plans. - (1)

Notwithstanding anything contained in this Act, 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 this

Act, the Municipal Corporation, Municipal Council, Town

Panchayat, Village Panchayat or Joint Planning Committee,

as the case may be, may prepare Interim Development

Orders and forward the same to the Government for sanction.

Note. - For the purpose of this section, the expression 'interim

development' means development during the period between the

date of decision taken to prepare a Plan under this Act and the

date of coming into operation of the Plan in the case of Master

Plan and in the case of Detailed Town Planning Scheme the

period between the date of notification of intention to prepare

the Plan under this Act and the date of coming into operation of

the Plan.

(2) Government may, in consultation with the Chief Town

Planner, approve the Interim Development Orders forwarded to it

under sub-section (1) with or without modifications.

(3) The main intention of the Plan shall be stated clearly in the

Interim Development Orders and it may also provide for all or

any of the following, namely:-

(a) circulation network and building lines;

(b) space standards;

building or construction of any road or making of

any excavation or permitting development of land

either unconditionally or subject to any condition

specified in the order;

(d) limiting the number of buildings, regulating the

size, height, design and external appearance of

buildings;

(e) restricting the manner in which buildings may

be used; and

(f) prohibiting building operations or regulating

such operations in respect of such matters as may

be prescribed.

(4) The restrictions imposed by the Interim Development Orders

shall cease to operate with the coming into operation of the Plan:

Provided that the Interim Development Orders shall cease to

operate in the event of failure to publish the Plan within the time

limit prescribed for publication of the Plan under this Act:

Provided further that the Interim Development Orders shall cease

to operate in the event of failure to sanction the published Plan

within the time limit prescribed for the purpose under this Act

and thereafter the use and development of land in the area shall

be governed by the provisions of the published draft Plan:

Provided also that where no such interim development orders are

issued, use and development of land in the area shall be

governed by the provisions of the published draft Plan from the

date of publication of the notice in the Official Gazette inviting

objections and suggestions, if any, thereon under the provisions

of this Act:

Provided also that in the case of a Master Plan or a Detailed Town

Planning Scheme deemed to have been published under this Act

provided in Section 113, Government may, in consultation with

the Chief Town Planner and the Local Self Government Institution

concerned, by order, issue Interim Development Orders for the

purpose of controlling use and development of land in the area. “

11. The Government subsequently amended the provisions

of the 2016 Act, by means of the Kerala Town and Country

Planning (Amendment) Act, 2021, which is deemed to have come

into force on 25.2.2021. The non obstante clause in Section 63

was omitted and changes were made regarding the period of

operation of the IDO. After the amendment, Section 63 reads as

follows:

"63. Interim Development Orders and the restrictions after

notifying the intention to prepare Plans.- (1) With the

general object of controlling interim development of land

included in any planning area in respect of which intention to

prepare a Master Plan or a Detailed Town Planning Scheme has

been notified under this Act, the Municipal Corporation, Municipal

Council, Town Panchayat, Village Panchayat or Joint Planning

Committee, as the case may be, may prepare Interim

Development Orders and forward the same to the Government

for sanction.

Note:-The expression 'interim development' means development

during the period between the date of notification of intention in

the Gazette to prepare a Plan and the date of publication of the

draft plan in the Official Gazette under this Act.

(2) Government may, in consultation with the Chief Town

Planner, approve the Interim Development Orders forwarded to it

under sub-section (1) with or without modifications. The fact of

approval of the Interim Development Order shall be notified in

the Gazette.

(3) The main intention of the Plan shall be stated clearly in the

Interim Development Orders and it may also provide for all or

any of the following, namely:-

(a) circulation network and building lines;

(b) space standards;

building or construction of any road or making of

any excavation or permitting development of land

either unconditionally or subject to any condition

specified in the order;

(d) limiting the number of buildings, regulating the

size, height, design and external appearance of

buildings;

(e) restricting the manner in which buildings may

be used; and

(f) prohibiting building operations or regulating such

operations in respect of such matters as may be

prescribed.

(4) The restrictions imposed by the Interim Development Orders

shall cease to operate with the publication of notice of the Plan in

the Official Gazette inviting objections and suggestions thereon

under the provisions of the Act.”

12. The respondents contend that in the light of

amendment, Section 63 has to be read along with Section 36 of

the 2016 Act, which clearly says that where a sanctioned Master

Plan already exists, its provisions shall apply until the published

Master Plan is sanctioned in accordance with the provisions of the

Act. The 2016 Act has been made applicable with effect from

23.9.2013. Admittedly, no sanctioned Master Plan, prepared as per

the 2016 Act has been brought into force. MP 2013 was prepared

and published in April, 2013, prior to the date of coming into force

of the 2016 Act, but the same was frozen in 2014. The only

published Master Plan that existed at the time of coming into force

of the 2016 Act was hence MP 1971. Section 61 of the 2016 Act

requires that all use and development of land after the coming

into force of a Master Plan, shall be in conformity with the Master