IMPORTANT POINT
The writ petitioner is at liberty to seek review, revision, variation and revocation of master plan and the detailed town planning scheme, by virtue of the provisions of Section 50 of Act 2016, and also seek interim development orders governed by Section 63 of Act 2016 and take up all the other grounds as is ordered by the learned Single Judge.

JUDGMENT :

SHAJI P. CHALY, J.

1. State of Kerala and one of its officials have preferred this appeal challenging the judgment of the learned Single Judge in W.P. (C) No. 17072 of 2019 dated 29.10.2019, whereby the learned Single Judge disposed of the writ petition, directing the Secretary of the Kozhikode Corporation, to reconsider the building permit application submitted by the writ petitioner, dehors the first condition contained therein in respect of zoning as residential area, and to pass an appropriate order, after complying with all necessary and imperative requirements under the applicable building rules and other statutes, rules and regulations, as are relevant.

2. It is made clear in the judgment that what was considered was only the validity of Ext.P2 order passed by the Secretary of the Corporation dated 09.05.2019, declining building permit to the writ petitioner, basically for the reason that the property in question owned by the writ petitioner and for which the building permit was sought, is included in the DTP scheme as a residential area, whereas the application was seeking permit for construction of a commercial building. The said findings were rendered by the learned Single Judge after finding that a new master plan has come into force, and therefore, any development of Kozhikode city in conflict with the said plan is impermissible, and further held that merely because there is an old DTP scheme, it is clearly in conflict with the new master plan, and therefore, the petitioner's application cannot be rejected or kept pending ad infinitum. It is thus challenging the legality and correctness of the said judgment, the appeal is preferred.

3. The thrust of the contention advanced in the appeal is that the imperative provisions contained under Section 61 of the Kerala Town and Country Planning Act, 2016 (hereinafter called ‘Act 2016’) would show that the use and development of the land should be in conformity with the master plan and detailed town planning schemes, and further that note appended to the said Section would unequivocally show that when a detailed town planning scheme and master plan operates in an area, the provisions of the detailed town planning scheme shall prevail over the master plan. Therefore it is contended that in the case at hand, the area in question is categorized as a residential zone, as per the detailed town planning scheme. That apart, as per the varied scheme promulgated in accordance with G.O. (Ms.) No. 306/50/LSGD dated 29.09.2015, commercial buildings upto 150 sq. m. alone are permissible in the residential zone. However, the application submitted by the writ petitioner is for construction of a commercial building having an area of 3301.01 m2, which is not permissible, and therefore, the learned Single Judge has egregiously erred in issuing directions in violation of Section 61 of the Act 2016.

4. Learned Government Pleader has also relied upon the judgments rendered by this Court, as well as the Hon'ble Apex Court, in regard to the manner in which the regulations contained under the town planning schemes are to be taken into account, while considering an application for building permit.

5. Therefore it was contended that even though a new master plan is brought into force, consequential DTP scheme is not introduced, and therefore, Section 113 of Act 2016 would come into play, whereby, even though the erstwhile town planning acts, namely Town Planning Act 1108 ME, the Travancore Town and Country Planning Act 1120 ME, the Madras Town Planning Act, 1920 and the Kerala Town and Country Planning Ordinance, 2016, were repealed by virtue of sub-section (2) 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. Further, any general town planning