Applying The Doctrine Of Desuetude, Kerala HC Observed The Right To Make Use Of The Land Beneficially

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 cured to be eligible for a building permit.
• The petition argued that these defects were unsustainable in law. The two defects noted were:

1. Detailed Town Planning Scheme, commercial buildings exceeding 150 sqm, and Floor Space Index exceeding 1.5 are not permissible.
2. The petitioner failed to show the proposed new road to be built as per the Scheme in the plan submitted.

• The petitioner had produced evidence to prove that several commercial buildings were permitted in the said area after the scheme was sanctioned.

The doctrine of desuetude

• There are two types of statutes namely temporary statute and the permanent statute.
• There are certain acts which possess the nature of permanent statute but remains inoperative or ineffective for a long period.
• They are not applied or taken into consideration by the court for a long period of time.
• Because of which, the statute loses its recognition and applicability. Such disobedience of act is known as Repeal by Desuetude.
• Applying the doctrine of desuetude, the court observed

1. The right to make use of the land beneficially, should not be questioned.
2. To apply the doctrine of desuetude, the law must have not to be enforced for a reasonable period and practice contrary to such law has been followed. Both the conditions apply in the case.

Guidelines

• The writ petition was disposed of 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 for 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.

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