Kerala Town & Country Planning Act | Interim Development Order Prevails Over Old Master Plan If New Plan Hasn't Been Sanctioned Yet: Kerala High Court

The Kerala High Court has ruled that an Interim Development Order (IDO) issued under Section 63 of the Kerala Town and Country Planning Act, 2016 will prevail over the previous Master Plan of a city even if a new Master Plan has not been sanctioned yet. 

Justice T.R. Ravi ruled that although Section 36 says that the older Master Plan shall continue to be in operation until the new one is sanctioned, when an IDO has been issued, that shall take over the old Master Plan. 

"Reading Section 36 and 63 of the 2016 Act harmoniously, I am of the opinion that Section 36(12) cannot apply in cases where an IDO has been published in accordance with Section 63."

Section 63 deals with Interim Developments Orders and the restrictions after notifying the intention to prepare Plans. In 2021, the Act was amended and the non-obstante clause in this Section regarding the period of operation of IDO was omitted. 

The Government had prepared a draft Master Plan for Thiruvananthapuram in 2013, which was thereafter frozen in 2014. However, the stay was later modified and residential, commercial, industrial and other permissible projects were permitted as per the Master Plan. Later in 2016, it was decided to prepare a new Master Plan and an IDO considering the objections and suggestions received on the 2013 Plan. This IDO was subsequently published under Section 63(4) of the Act and sanctioned by the State.

Meanwhile, the petitioner submitted an application before the Thiruvananthapuram Corporation for a building permit for the construction of a 14 storeyed building on his land in 2018. When he inquired about the delay in deciding the application, he was informed that the said area was earmarked as a commercial zone in the Master Plan of 1971. 

Aggrieved by this, he moved the Court and obtained a judgment in his favour. The Corporation was accordingly directed to pass orders on the application in the light of the IDO. Thereafter, the Corporation rejected 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. 

However, the petitioner stood his ground that the law permits the construction of a residential apartment building with commercial space on the ground floor in the commercial zone. So he submitted a revised plan and a request to the Corporation. 

The petitioner then moved the Court through Advocates V.G. Arun, Neeraj Narayan, V Jaya Ragi and R. Harikrishnan seeking to quash the Corporation's order rejecting his application. 

His main contention was that when the State introduced Kerala Municipality Building Rules, 2019 it was declared that applications submitted or returned for resubmission with corrections before 2019 would be covered by the old Rules and not the 2019 Rules. Therefore, it was argued that the Corporation should have considered his application accordingly.

Senior Advocate N. Nandakumara Menon, Standing Counsel P.K. Manojkumar for the Corporation and Government Pleader B.S. Syamanthak appeared for the respondents and resisted the petition. They argued that as per the amended Section 63, where a sanctioned Master Plan already exists, its provisions shall apply until the proposed Master Plan is sanctioned.

The Court noted that in the impugned IDO, residential apartments with commercial space on the lower floors was a permitted activity in commercial zones. 

Further, it was found that the Act has been made applicable with effect from 23.9.2013. Although the 2013 Plan was published prior to Act coming into force, it was frozen in 2014. So the only published Master Plan that existed after the Act came into force was the Master Plan of 1971. 

The Court, therefore, concluded that the amendment could not be interpreted to mean that the 1971 Plan will prevail till a new Master Plan is published and sanctioned.

"The omission of the words "Notwithstanding anything contained in the Act" cannot be understood to mean that in cases where a Master Plan had been published under the repealed enactments, that have been saved under the savings clause of the 2016 Act, it will continue to apply as long as a sanctioned Master Plan is not published under the 2016 Act."

Further, in S.Subbalekshmy v. Corporation of Thiruvananthapuram [W.A.No.1776 of 2019], the Division Bench held that the 1971 Plan will not apply since Section 63 begins with a non-obstante clause. The Court noted that this decision still holds good despite the omission of the non-obstante clause since any other conclusion will render the very provision for preparation of IDO otiose. 

"Section 36 has to be understood as a provision which prescribes the procedure for preparation, publication and sanctioning of Master Plan. Section 63 on the other hand, has a different field of operation, i.e., preparation of an IDO to take care of interim developments."

The Judge further noted that the IDO was prepared in 2016 and the amendment of Section 63 was in 2021, so the amendment does not have the effect of cancelling or nullifying the IDO issued. 

Applying these principles to the facts in hand, the Court noted that the petitioner's application was submitted in 2018 when the IDO was in force. It was rejected on the ground that the area is a commercial zone. However, a small extent of the petitioner's property is a residential zone.

Therefore, the Court quashed the order of the Corporation while clarifying that this does not imply that his application is liable to be granted since the said application is only for a residential apartment without commercial space.

The petitioner was allowed to produce a revised plan suiting the requirements of the IDO for fresh consideration. The petition was thereby allowed and the Corporation was to decide on the application within 2 months.

Case Title: Suseela v. Thiruvanathapuram Corporation & Ors.

Citation: 2022 LiveLaw (Ker) 100

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