Point of Law: Municipality - Building Permission - Applicability of Town planning Scheme - When there is a scheme in force, scheme will have predominance over other statutory provisions and rules thereto, which thus means Kerala Municipality Building Rules referred to above is subject to any existing Scheme applicable and consequently a building permit application can be considered only taking into account Scheme.

JUDGMENT :

SHAJI P.CHALY, J.

This appeal is preferred by the 1st and 2nd respondents in the writ petition viz., Palakkad Municipality and its Secretary, challenging the judgment of the learned Single Judge in W.P.(C) No.133 of 2021 dated 18.1.2021, whereby the learned Single Judge partly allowed the writ petition, quashed Exhibit P2 order passed by the Secretary of Palakkad Municipality - 2nd appellant, declining building permit sought for by the writ petitioner on the ground that the property offered for construction is situated within the Ayyapuram – Ramanathapuram Approved DTP Scheme; the property is seen included in the data bank as a paddy field; and there is proposal for widening the road in front of the property to 30 mtrs. Therefore the writ petitioner was directed to resubmit the plan leaving 5 meters for widening, 4.5 meters. building line, and with a setback of 9.5 mtrs.

2. Writ petitioner was further cautioned that he shall not make any construction in the property without obtaining a valid permission and the same will result in demolition of the building as well as initiation of proceedings. The learned Single Judge has further directed the Municipality to consider the permit application, untrammelled by the stipulations in the DTP Scheme pertaining to the land in question and pass orders on the application within three weeks from the date of receipt of a copy of the judgment, if need be after hearing the writ petitioner. It is thus challenging the legality and correctness of the said judgment, the appeal is preferred.

3. At the outset, learned counsel for the appellants submitted that the Scheme viz; Ayyapuram – Ramanathapuram Approved DTP Scheme shown in Exhibit P2 impugned order was a mistake, and the property is actually situated in the Scheme for Kalvakulam Area Palghat. It was further submitted that, from Exhibit P4 proceedings of the Revenue Divisional Officer, Palakkad dated 20.10.2020 bearing No.RDO PKD/168/2020-J1, it is evident that the property having an extent of 0.0789 hectares situated in re-survey No.3215/1, Block No.2/75 of Palakkad - III Village belonging to the writ petitioner was removed from the data bank prepared as per the provisions of the Kerala Conservation of Paddy land and Wetland Act, 2008 (hereinafter called Act 2008) on imposing certain conditions. Therefore it is clear that the deficiency pointed out in Exhibit P2 impugned, rejection order by the Secretary of the Municipality in regard to the property being a paddy field in the data bank as per the provision of the Act 2008, stands removed. In that view of the matter the sole question, even according to the learned counsel for the Municipality, remains for consideration is whether the learned Single Judge was right in directing the Municipality to consider the application untrammelled by the stipulations in the DTP scheme pertaining to the land in question.

4. The paramount contention advanced by the appellant Municipality in the appeal is that the learned Single Judge had interfered with the statutory functions and duties of the local authority regulated as per the provisions of the Kerala Municipality Act, 1994 and the Rules framed thereunder including Kerala Municipality Building Rules. It was also submitted that the property of the writ petitioner is situated in an important link road connecting two National Highways within the jurisdiction of the Municipality and therefore, the Municipality is contemplating to widen the said road to 30 mtrs., which is highly necessary for the development of the Palakkad town. It was further contended that the learned Single Judge ought to have granted liberty to the Municipality to peruse the application submitted by the writ petitioner in order to identify the situations available for consideration in regard to the statutory requirements. That apart it was also submitted that the learned Single Judge was not right in directing the Municipality to ignore the existing DTP Scheme applicable to the are