Kerala High Court Invokes Doctrine Of Desuetude To Permit Construction Of Commercial Building Contrary To Town Planning Scheme

The Kerala High Court on Tuesday approved the construction of a commercial building on a site reserved for residential buildings as per the Town Planning Scheme invoking the doctrine of desuetude. The Court also issued guidelines to the State Government and its authorities to revise the master plans and schemes in line with the current developmental trends in the locality.

The petitioner Basheer C.K approached the Court aggrieved by the communication issued by the Kozhikode Corporation which directed that certain defects to be cured in order to be eligible for a building permit. However, the petition contented that these defects were unsustainable in law.

Advocate Abdul Jawad K argued on behalf of the petitioner that he owns a land situated in a commercially important area within the limits of the said Corporation. To use the land beneficially, the petitioner decided to put up a commercial building, and thereby applied for a building permit from the Corporation. However, the Corporation issued a communication pointing out ceratin defects.

The first two defects noted were that since the said area was covered by Detailed Town Planning Scheme, commercial buildings exceeding 150 sqm and Floor Space Index exceeding 1.5 are not permissible. The third defect noted that the petitioner failed to show the proposed new road to be built across the said land as per the Scheme in the plan submitted with the application.

The petitioner submitted that the first two defects were untenable since the Scheme which was sanctioned in 1998 had become obsolete due to its non implementation. Regarding the third defect, it was argued that despite service of notice u/s 67 of Kerala Town and Country Planning Act, no decision was taken by the Corporation to purchase his land within the stipulated time. Therefore, the petitioner asserted that these defects cannot be a ground to decline the building permit.

The petitioner had also produced evidence to prove that even after the Scheme was sanctioned, several commercial buildings were permitted in the said area, contrary to the terms of the Scheme by the Corporation. These were not disputed by the respondents either.

Advocate Santhosh Mathew was the Amicus Curiae in the Case.

From the material on record, Justice P.B. Suresh Kumar concluded that the proposal in the Scheme to promote the area as a residential one had not been implemented by the authorities. On the other hand, they had permitted activities which are inconsistent with the said proposal in the Scheme, by permitting large numbers of commercial buildings in the area.

Applying the doctrine of desuetude, the Single Judge Bench observed thus:

"The right of the petitioner to make use of their land beneficially cannot be questioned. As noted, the area is no longer a residential area and therefore, the land can be put to beneficial use only by constructing a commercial building therein. In a case of this nature, according to me, the doctrine of desuetude that long and continued non use of law renders it invalid, at least, in the sense that the courts will no longer enforce the same shall be applied, or otherwise, the petitioner and other owners of the land will not be able to make use of their land beneficially."

To apply the doctrine, it should be proved that the law has not been enforced for a considerable period of time and that a practice contrary to such law has been followed for a long period. The Court noted that the present case satisfied both the aforesaid limbs of the doctrine.

Although the doctrine is not invoked earnestly in India, there cannot be any impediment to apply the doctrine in cases where the act complained of is unjust, and justice cannot be delivered otherwise. Accordingly, the defects mentioned in communication were held to be unsustainable in law.

Moreover, since the Corporation has not decided to acquire the land of the petitioner within the stipulated time u/s 67, the Court held that the third defect was also unsustainable in law.

As such, the writ petition was disposed of directing the respondents to consider the application of the petitioner in accordance with law, without insisting on compliance of the aforementioned defects, within 30 days from the date of receipt of a copy of the judgment.

Guidelines Issued:

While delivering the judgment, the Single Judge also observed that large number of cases were filed before the Court alleging that similar schemes sanctioned under the Town Planning Act have become obsolete due to authorities permitting activities contrary to the proposal in the area for a considerably long period of time.

Similarly, it was observed that a large number of cases were filed alleging that these schemes are not being revised to accommodate the present developments in the areas. In most of such cases, the court permitted activities contrary to the proposals, accepting the case put forward by the petitioners.

It was noted that the lapses by the authorities in permitting activities contrary to the proposals massively drained the financial resources of the State, and failure to revise the proposals caused irreparable hardship to people, which resulted in numerous avoidable litigations.

Therefore, to ensure compliance of these proposals, the Court had suo motu impleaded Secretary to the Government in the Local Self Government Department, the Director of Municipalities, the Director of Panchayats, the Chief Town Planner and the District Town Planners in the proceedings and sought their views in the matter.

Consequently, the Chief Town Planner filed a statement indicating the reasons for the enormous delay in preparing and finalising master plans and schemes, and proposed suggestions for alleviating the grievances.

The Bench agreed that it takes years for preparation and finalisation of these schemes owing to administrative technicalities, cumbersome procedure, and the inaction from local bodies. This delay causes the schemes to deviate from the development trends in the area.

The Additional Advocate General Sri.Ranjith Thampan and Adv.Santhosh Mathew the Amicus Curiae submitted that the suggestions put forth by the Chief Town Planner can be accepted and appropriate directions can be issued to the authorities concerned for revising the existing master plans and detailed town planning schemes within the time limits to be prescribed by this court.

The court observed thus:

"If the concerned authorities prepare Interim Development Orders having regard to the developments and development trends in the areas concerned, wherever master plans and town planning schemes have been published but not sanctioned, the same would redress the grievance of the people on account of the obsolete and redundant proposals contained in the published master plans and detailed town planning schemes as well."

In light of the aforementioned discussion, the following general directions were issued :

(I)State government was directed to revise the existing master plans and detailed town planning schemes as provided u/s 50(3) of the Town Planning Act, having regard to the developments and the development trends in the areas concerned, within 18 months from the date of receipt of a copy of the judgment.

(ii ) Respondents were directed to ensure that Interim Development Orders are prepared and sanctioned by the authorities concerned, as provided for under Section 63, having regard to the developments and development trends in the areas concerned in a phased manner, within 18 months from the date of receipt of a copy of the judgment, wherever master plans and town planning schemes have been published, but not sanctioned.

State Government and Secretary have been directed to provide necessary additional funds and human resources to the authorities concerned for compliance of directions (i) and (ii) above.

Once the master plans and detailed town planning schemes are revised in compliance with direction (i) and once Interim Development Orders are issued in compliance with direction (ii), it shall be the responsibility of the Director of Municipalities and Director of Panchayats to ensure that only activities conforming to the revised master plans as also Interim Development Orders are permitted in the respective areas under their jurisdiction.

The Chief Town Planner has been directed to file a statement in this matter once in three months indicating the progress of the compliance of the directions aforesaid, and the writ petition shall be deemed to be pending and shall be listed once in three months for the limited purpose of ensuring compliance of the directions.

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