Date of Judgment:
22 June 2021
Judge:
Justice P.B Suresh Kumar
Parties:
Basheer C.K (petitioner)
Kozhikode Corporation &Ors (respondent)
Subject
Basheer C.K., the petitioner, was aggrieved by a notification issued by the Kozhikode Corporation, which demanded that certain deficiencies to be rectified before issuing a building permit. The petition, on the other hand, stated that these defects were unsustainable.
Overview
- The petitioner Basheer C.K owns land situated in a commercially important area within the limits of the Kozhikode Corporation.
- The petitioner wanted to put up a commercial building so, he applied for a building permit from the Corporation.
- However, the Corporation issued a communication pointing out certain defects to be eligible for a building permit.
- The petition argued that these defects were unsustainable in law.
- The two defects noted were
- Detailed Town Planning Scheme, commercial buildings exceeding 150 sqm, and Floor Space Index exceeding 1.5 are not permissible.
- The petitioner failed to show the proposed new road to be built, as per the scheme in the plan submitted.
- The petitioner submitted that the first defect was unsustainable because the scheme, was sanctioned in 1998.
- Regarding the second defect, no decision was taken by the Corporation to purchase his land despite service of notice u/s 67 of Kerala Town and Country Planning Act.
- Therefore, the petitioner stated that these defects could be a ground to decline the building permit.
- The petitioner had produced evidence to prove that several commercial buildings were permitted in the said area after the scheme was sanctioned.
Legal Provision
- Section 67 of the Kerala Town and Country Planning Act- Obligation to acquire land in certain cases.
Analysis of Judgment
- Applying the doctrine of desuetude, the court observed
- The right to make use of the land beneficially, should not be questioned.
- To apply the doctrine of desuetude, the law must not be enforced for a reasonable period and practice contrary to such law has been followed. Both the conditions apply in the case.
- The Court held the second defect unsustainable in law as u/s 67 the Corporation has not decided to acquire the land within the stipulated time
- The writ petition was disposed and, the court issued the following guidelines:
- The state government is ordered to revise the existing master plans and detailed town planning schemes as provided for under sub-section (3) of Section 50 of the Town Planning Act, within 18 months of receipt of a copy of the judgment.
- Respondents must ensure that Interim Development Orders are prepared and sanctioned by the authorities concerned, as provided under Section 63 of the Town Planning Act.
- Respondents must provide the authorities with the required additional funds and human resources to ensure that directives (i) and (ii) are followed.
- It shall be the responsibility of respondents to ensure that Interim Development Orders are permitted in the respective areas under their jurisdiction.
- The Registry shall communicate this judgment to respondents for information and compliance with the general directions.
- The chief town planner shall file a statement once in three months indicating the progress of the compliance with the directions.
Conclusion
There are two types of statutes namely temporary statute and the permanent statute. A temporary statute is passed for a specified purpose and for a specific time period. It is repealed once that time period or purpose has expired. A permanent statute, also known as a perpetual statute, is one which is created with a long-term aim in mind and is repealed by a subsequent statute.Certain acts have the nature of perpetual statutes, yet they remain inactive or ineffectual for an extended period of time because they are not applied or examined by the court for a long period of time. As a result, the statute loses its legitimacy and applicability. Repeal by Desuetude is the term for such acts of disobedience.
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