Prolonged non-enforcement of zoning regulations can void municipal decisions, protecting landowners’ rights under Article 300A.

JUDGMENT

The petitioners are seeking for a direction to the Municipality to issue a building permit, after quashing Ext.P2.

2. The petitioners own 10 cents of land each in R.S. No.627/8A of Panakkadu Village in Eranadu Taluk in Malappuram District. As co- owners, they decided to construct a commercial building and accordingly submitted an application for getting permission for construction. Ext.P2 the reason shown is that the area is a residential zone as per Kunnummal Scheme.

3. The petitioners have contended that the area is not a residential zone. The plot is lying on the side of Tirur - Manjeri State Highway and is a commercially important place. Ext.P3 photographs are also produced to show the same. It is further contended that so many commercial buildings are situated in and nearby the locality and the D.T.P. Scheme was never implemented and in such cases the petitioners' rights are protected under Article 300A of the Constitution of India .

4. In the counter affidavit filed by the Municipality what is wpc 18852/2010 2 mentioned is that as per G.O.(MS) No.74/90/LAD dated 24.5.1990 the Town Planning Scheme sanctioned, had come into force. Under the approved master plan the zoning regulations are liable to be fully complied with. It is also mentioned that as per G.O.(MS) No.7/2010/LSGD TVPM dated 12.1.2010 the Government has made modifications in Town Planning Scheme for zoning regulations. The allegations made in the writ petition are that the area is a commercial area and so many buildings have been constructed in the said area which is not denied in the counter affidavit. The fact that the Municipality has permitted so many other buildings in and around the locality, is also not denied.

5. Evidently, the Scheme as such was never properly implemented which resulted in so many buildings coming up, in spite of the scheme. Twenty years have elapsed after the Scheme was brought into force. Even now it has not resulted in a proper development of the area as a residential zone.

6. Therefore, the question is whether the Scheme can be enforced against the petitioner. The Apex Court inState of Kerala v. T.M. Peter ( 1980 KLT 402 ) considered the plight of owners whose lands are affected by the non implementation of the Town Planning Scheme for a pretty long time. It was held at page 405 that the Court is not powerless to quash and wpc 18852/2010 3 grant relief where arbitrary protraction or malafide inaction of authorities injures an owner.

7. Therefore, the aspect highlighted by the petitioners requires proper consideration. In that view of the matter, Ext.P2 is quashed. The application for building permit will be considered on its merits without referring to the zoning regulations and in accordance with the Kerala Municipality Building Rules , and an appropriate decision will be taken and communicated to the petitioners within a period of six weeks from the date of receipt of a copy of this judgment.

The writ petition is allowed as above. No costs.

(T.R. Ramachandran Nair, Judge.)

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