Point of law: Rule which has to be applied is the one which is in force at the time of issuance of the permit and not the rule that was in force at the time of submission of the application.

JUDGMENT :

T.R. RAVI, J.

1. The case of the petitioner is as follows:

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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 MP 2013, 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 MP 2013 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 th