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IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.B.Suresh Kumar, J.
Jayasree Jayaprakash And Ors. – Petitioners
Versus
State Of Kerala, Represented By The Secretary To Government, Local Self Government Department And Ors. – Respondents
WP(C).No.6666 OF 2017(G)
Decided On : 25-03-2021
Town Planning Act - Land Use Restrictions - [GCDA, Town Planning Scheme, Building Rules] - The court discussed the provisions of the Town Planning Act, the Scheme drawn up under the Act, and the Kerala Municipality Building Rules. It highlighted the restrictions on land use, the authority of the State Government to vary town planning schemes, and the obligations of the authorities to ensure compliance with the Scheme. The court emphasized that the provisions of the Act and the Scheme govern the use of land in the area covered by the Scheme and bind all those who acquire rights over such lands. It also noted that the Building Rules provide that town planning schemes prevail over the rules and regulations, and building permits must conform to the provisions of the Scheme.
Fact of the Case:
The petitioners, allottees of residential plots in a town planning scheme area, challenged the construction of a multi-storied building in a plot earmarked for public purposes. The court restrained further construction and directed the valuation of the plot purchased by the respondent, with the amount to be held in trust for the allottees.
Finding of the Court:
The court found that the plot could not be used for residential or commercial construction, and the building permit issued was unsustainable. It held that the construction was unauthorized and directed the valuation of the plot, with the amount to be deposited in trust for the allottees. The court also allowed the respondent to apply for regularization of the construction, subject to compliance with Building Rules.
Issues: The issues included the unauthorized construction in a plot earmarked for public purposes, the validity of the building permit, and the appropriate remedy for the unauthorized construction.
Ratio Decidendi: The court emphasized the binding nature of the provisions of the Town Planning Act and the Scheme, the authority of the State Government to vary town planning schemes, and the obligation of the authorities to ensure compliance with the Scheme. It also highlighted the supremacy of town planning schemes over building rules and the need for constructions to conform to the provisions of the Scheme.
Final Decision: The court directed the valuation of the plot purchased by the respondent and the deposit of the assessed amount in trust for the allottees. It allowed the respondent to apply for regularization of the construction, subject to compliance with Building Rules.
JUDGMENT :
Petitioners 1 to 5 are allottees of residential plots in the area developed by the Greater Cochin Development Authority (GCDA) in terms of Elamkulam West Town Planning Scheme (the Scheme) sanctioned by the State Government under the Town Planning Act, 1108 ME (the Act). They have constructed residential buildings in the plots allotted to them and are residing in their respective plots. The sixth petitioner is the tenant of an allottee of residential plot and she is residing in the building constructed in the said plot. Ext.P7 is the map of the area covered by the Scheme. In Ext.P7, a plot measuring 21.308 cents is earmarked for public purposes like neighborhood centres, schools etc. The said plot is located on the eastern side of the plot owned by the fourth petitioner. On 24.07.1993, GCDA sold the said plot to the third respondent for Rs.1,03,572.22/-in terms of Ext.P1 assignment deed. It is stated, among others, in Ext.P1 assignment deed that the assignment is for running a nursery school in the plot; that the third respondent shall establish the nursery school in the plot within one year as per the plan and design approved by the GCDA and shall maintain the same; that they shall not make any addition or alteration in the school building without obtaining previous written approval of the GCDA; that they shall not put the said plot to any use except for running the nursery school and that they shall not be entitled to transfer the plot for any purpose other than running nursery school. The third respondent has not established the nursery school in the plot as provided for in Ext.P1 assignment deed. Instead, on 19.06.2010, they sold the plot to the fourth respondent, and the fourth respondent has, in turn, sold the plot on 28.09.2011, to the fifth respondent. The writ petition was filed on 27.2.2017 alleging that the fifth respondent is proposing to put up a multi storied building in the plot and that the fifth respondent cannot make use of the plot for any purpose other than the purpose for which the same was assigned to the third respondent. The relief sought in the writ petition was for a direction to the GCDA to take appropriate steps to stop the construction proposed by the fifth respondent in the plot.
2. On 09.03.2017, the fifth respondent has filed a counter affidavit in the matter stating, among others, that on 16.01.2006, the Chairman of the GCDA has permitted the third respondent to make use of the land for commercial/residential purpose in terms of Ext.R5(i) communication; that she has been issued Ext.R5(k) building permit by the Corporation of Kochi (the Corporation) on 6.2.2017 to put up a residential building in the plot measuring 3502.61 square meters on the basis of the permission granted by the Chairman of the GCDA; that she is undertaking only the construction permitted in terms of Ext.R5(k) building permit in the plot and that the construction undertaken by her is therefore, in order.
3. On 16.07.2017, GCDA has filed a counter affidavit in the matter stating, among others, that the Scheme has so far not been varied and the area covered under the Scheme can be used therefore, only in the manner indicated in the Scheme.
4. On 11.08.2017, this Court ordered that the construction in the plot will be subject to the result of the writ petition.
5. In the meanwhile, in the light of the counter affidavit of the fifth respondent, the petitioners amended the writ petition and incorporated a challenge against Ext.R5(i) permission granted by the Chairman of the GCDA and Ext.R5(k) building permit.
6. Thereafter, on 25.07.2019, after hearing both sides, this Court restrained the fifth respondent from proceeding further with the construction and directed the GCDA to file an additional counter affidavit explaining the circumstances under which Ext.R5(i) permission has been granted to the third respondent.
7. On 30.08.2019, an additional counter affidavit has been filed by the fifth respondent stating, among others, tha
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