Kerala Town & Country Planning Act| High Court Stresses Adherence To District Town Planning Schemes, Master Plans For Future Development

The Kerala High Court recently upheld orders issued by the Kozhikode Municipal Corporation rejecting commercial building permits for areas earmarked as residential zones as per the Detailed Town Planning (DTP) Scheme, 1987.Justice Bechu Kurian Thomas observed that rampant constructions without heeding to zoning regulations will affect the planned development of a town. The Court stated that the planned development of a town based on the DTP Scheme and Master Plans was essential for the future development and growth of an area.“The micro-level plans for development are made in the DTP Schemes, while the Master Plans provide for schemes to a larger extent. If the private interest of an individual is given predominance over the public interest, the same would cause prejudice to the development of the State itself. It is taking into reckoning these aspects that the detailed town planning schemes and the Master Plans are prepared”, the Court stated. Justice Thomas held that Courts have to be cautious while permitting constructions contrary to the DTP Scheme or Master Plans as it would affect the development of an area in the future. It added that it was necessary to update the DTP Scheme with the changing nature of the use of land, but Courts cannot ignore or discard framed DTS or Master Plans."However, a direction by a court to grant permission for construction, contrary to the zoning regulations or the DTP Scheme in force, can affect the development of the area in the future. Therefore, while issuing directions permitting constructions contrary to the detailed town planning schemes or the Master Plans, the courts must always be cautious.", the Court further stated. The petitioners have approached the Court as their building permits were rejected based on the DTP Scheme. As per the DTP Scheme, the property of petitioners falls under residential zones whereas they applied for construction permits for commercial buildings.The Counsel for the petitioners submitted that the DTP Scheme cannot be relied upon as it was created in 1987 and has become redundant. It was also argued that the existing properties are shown as commercial or mixed zones as per the Master Plan 2035 for Kozhikode City. It was argued that in other cases, the Court has granted permission for building permits on finding that buildings have come up in the locality. The Counsel for the respondents submitted that the petitioner's applications could not be allowed as per the Kerala Town and Country Planning Act, 2016 read with Kerala Municipality Building Rules, 2019. It was contended that regulatory restrictions for construction activities based on the DTP Scheme were necessary for town planning and controlled development. It was submitted that the issuance of building permits in violation of the DTP Scheme was unlawful.Further, they submitted that DTP schemes were micro-level plans created after a detailed study. Relying upon the State of Kerala v. Shareef (2021) and Regional Town Planner v. Muhammed Rasheed (2019), it was argued that the DTP scheme was given dominance over Master Plan and they were created in public interest. The Court found that significant changes have taken place after the enactment of the Kerala Town and Country Planning Act, 2016. Section 113 of the Act pertains to the repeal and saving clause. “By virtue of the provisions of section 113 of the Act, even in cases where a new Master Plan has come into force, the earlier DTP Scheme has been protected, and the same will remain in existence. , the Court stated. Highlighting the importance of zoning regulations, the Court observed thus: “If the comfort of living in residential areas and the construction of commercial buildings in tune with the development schemes of the town needs to be protected, zoning regulations have to be given due importance.The Court also observed that areas were marked as residential, industrial, commercial, and agricultural, areas set apart for making parks, and roads were done in the furtherance of public interest as per the DTP scheme. The Court held that judgments mentioning the redundancy of the DTP scheme cannot be relied upon after the 2016 Act has come into effect. It held that when a scheme was in existence, the Court could not issue permits contrary to the scheme defeating its purpose and objective. It held that earlier orders permitting constructions contrary to the DTP scheme cannot be used an as excuse to seek construction permits after the 2016 Act has come into effect. Accordingly, the writ petition was dismissed. Counsel for the petitioners: Advocates Deepu Lal Mohan, AiswaryaCounsel for the respondents: Senior Government Pleader K Amminikutty, Standing Counsel G Santhosh Kumar, Advocates Pushkarakshan V P, Bindumol JosephCitation: 2023 LiveLaw (Ker) 751Case title: V.Unnikrishnan v Kozhikode Municipal Corporation & Connected CaseCase number: WP(C) NO. 38879 OF 2022, WP(C) NO. 36044 OF 2022Click Here To Read/Download The Judgment

Kerala Town & Country Planning Act| High Court Stresses Adherence To District Town Planning Schemes, Master Plans For Future Development

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