Where Doctrine of Desuetude Applies To A Statute, It Will Also Apply To Schemes Framed Under Such Statute: Kerala High Court

The Kerala High Court on Wednesday observed that where the 'Doctrine of Desuetude' could find application in the case of statutes, there was no reason for the same not to apply to a scheme that had been framed under the provisions of that Statute. 

Justice T.R. Ravi, while observing so, noted that relying upon the findings of the Apex Court in Monnet Ispat & Energy Ltd. v. Union of India, only two conditions had to be satisfied for the application of the doctrine of desuetude - whether the statute or legislation has not been in operation for a very considerable period, and whether the contrary practice has been followed over a period of time. 

"The only aspect to be looked into is whether the two conditions for the application of the doctrine are satisfied. Admittedly, even after 40 years, the road has not been widened to 18 metres width. At the same time, the reply received from the Public Works Department shows that at present the proposal that is being considered is widening the road to a width of 12 metres. It is also in evidence that the restriction for construction within 18 metres was not followed for the past 40 years and on the contrary, persons have been permitted to effect construction by applying the restriction to only 12 metres. Both the conditions for the application of the doctrine thus stand satisfied", it was observed.

As per the factual matrix, the petitioner herein is the owner of 2.63 acres of property in Sy.No.903 of Petta Village, and he had submitted an application for a building permit on August 14th, 2020, along with a plan providing for a proposed road widening of 12 metres.

It is the petitioner's contention that permissions had been granted by the authorities for construction of houses based on a proposed widening of 12 metres. On September 8th, 2020, the Secretary of Thiruvananthapuram Municipal Corporation (the 2nd respondent herein), issued a notice to the petitioner pointing out certain flaws in the plan that had been submitted by him. Subsequently, the petitioner submitted a revised plan on 15th September 2020, curing the said defects. However, there was no response from the respondents in this regard, and hence the petitioner had further submitted a representation, the receipt of which had been acknowledged. 

It was contended on behalf of the petitioners by Advocates Mini Gangadharan, N.C. Sajunam, R. Sudarsana Devi, and Aswathi S. Kumar, that a 12 metre clearance from the road and a 2 metre building line alone is required in the area where the building is proposed to be constructed as per the Kerala Municipal Building Rules, 2019. It was submitted that several other persons had been granted the building permit for construction, treating the requirement as 12 metre clearance from the road, and denying the same to him was discriminatory.

The petitioner submitted that as per the Roads Network published by the Trivandrum Development Authority, clearance from the road for works was stipulated, and the Chambakkada junction-Petta road where the proposed building was to be established, was not included in the published Master plan, nor was it included in the Detailed Town Planning scheme. When the petitioner had earlier approached the High Court of Kerala with a writ in this regard, the Court had directed the respondents to consider the revised plan and take a decision regarding the issuance of a building permit. However, even after that, the request of the petitioners was refused.

The petitioner further pointed out the inconsistency that in the case of reply received from the Public Information Officer, it had been stated that the proposed widening was to 12 metres, while clarification issued by the Town Planner states that  as per the Sanctioned Master Plan, the proposal is for an 18 metre widening.

The respondents, represented by Senior Advocate N. Nandakumara Menon, the Standing Counsel of the TVPM Corporation P.K. Manojkumar, and the Government Pleader, Rajeev Jyothish George, submitted in their counter affidavit that the Regional Town Planner had clarified that the widening was for 18 metres and hence the plan which provided only for 12 metre widening cannot be considered for grant of building permit.

The Court stated that the only question which warranted consideration was whether the respondents were justified in denying the petitioner a building permit since there was a proposal for widening of the aforementioned stretch to 18 metres width as per the sanctioned Master Plan of 1971.

The Court noted that even after the Master Plan was sanctioned in 1971, there has been no such widening undertaken for the past 41 years. The Court also found merit in the contention that while the notice issued by the Town Planner said that the proposed widening was for 18 metres, a later communication from the office of the Assistant Executive Engineer, PWD, City Roads Division revealed that the the existing proposal was for widening the road to 12 metres and that landmarking would be done on receipt of administrative sanction.

The Court added that it "has frowned upon such schemes which have become redundant and unworkable". The Court noted that similar permits had been granted to others, even in 2019 while the very same restriction stated in the case of the petitioner existed.

At this juncture, the Court relied upon precedents on the ambit of the doctrine of desuetude, such as Monnet Ispat & Energy Ltd. v. Union of India, and Cantonment Board, Mhow v. M.P. SRTC. In the latter case, the Court reiterated the Apex Court observation that in order to apply the principle of desuetude it was necessary to establish that the Statute in question had been in disuse for long and the contrary practice of some duration has evolved.

The Court clarified that in the instant case, it was not concerned with a Statute falling into disuse, but rather, whether the proposal in the sanctioned Town Planning Scheme for widening a road to 18 metres, which had not been carried out for the past more than 40 years, ought to be allowed to be used as a reason for denying permission for the construction of a building, and whether the Town Planning Scheme had become obsolete to that extent. 

It was in this context that the Court allowed the writ petition and directed the respondents to reconsider the application for building permit submitted by the petitioner along with revised plan and pass orders on the same, after hearing the petitioner. The Court categorically laid down that the permit ought not to be denied to the petitioner on the ground that the plan does not provide for 18 metres of road widening, and further directed that sufficient opportunity ought to be provided to the petitioner to cure any other defects in the application. 

Case Title: Sujith Lal v. Thiruvananthapuram Municipal Corporation & Ors. 

Citation: 2022 LiveLaw (Ker) 486

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