Kerala High Court
Kandyan Aneesh vs The Secretary, Thalassery ... on 3 November, 2022
Author: Shaji P.Chaly
Bench: S.Manikumar, Shaji P.Chaly
W.A Nos.1357, 1358 & 1359 of 2022 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944
WA NO. 1357 OF 2022
AGAINST THE JUDGMENT IN WP(C) 16100/2022 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
CHIRAMMAL KARINTHANKANDY SUJAYA
AGED 60 YEARS
W/O. SURESH BABU, AGED 60 YEARS, RETIRED TEACHER, RESIDING
AT SARAYU HOUSE, NHALIKARAMMAL ROAD, THIRUVANGADU, KANNUR
DISTRICT, PIN - 670103
BY ADV R.SURENDRAN
RESPONDENTS/RESPONDENTS:
1 THE SECRETARY, THALASSERY MUNICIPALITY
THALASSERY, KANNUR DISTRICT , PIN - 670101
2 THE THALASSERY MUNICIPALITY
REPRESENTED BY THE SECRETARY, THALASSERY MUNICIPALITY,
THALASSERY, KANNUR DISTRICT, PIN - 670101
3 THE ASSISTANT ENGINEER
LOCAL SELF GOVERNMENT DEPARTMENT, KODIYERI SECTION,
THALASSERY MUNICIPALITY, THALASSERY, KANNUR DISTRICT, PIN -
670101
4 THE CHIEF TOWN PLANNER,
OFFICE OF THE CHIEF TOWN PLANNER, NANTHANCODU SWARAJ BHAVAN,
NANTHANCODU, THIRUVANANTHAPURAM, PIN - 695003
5 THE DISTRICT TOWN PLANNER
DISTRICT TOWN PLANNING OFFICE, THANA.P.O. KANNUR-,
PIN - 670012
6 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, LOCAL SELF
GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695001
BY ADVS.
SHRI.I.V.PRAMOD, SC, THALASSERY MUNICIPALITY
SRI.K.P.HARISH, SENIOR GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.11.2022, ALONG
WITH WA.1359/2022, 1358/2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A Nos.1357, 1358 & 1359 of 2022 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944
WA NO. 1358 OF 2022
AGAINST THE JUDGMENT IN WP(C) 16107/2022 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER::
CHALIL KOLLANKANDY SHAJITH,
AGED 49 YEARS
S/O. KRISHNAN, AGED 49 YEARS, CARPENTER, RESIDING AT ANUAY
NIVAS, KAVUMBHAGAM.P.O, THALASSERY, KANNUR DISTRICT,
PIN - 670649
BY ADV R.SURENDRAN
RESPONDENTS/RESPONDENTS::
1 THE SECRETARY, THALASSERY MUNICIPALITY,
THALASSERY, KANNUR DISTRICT , PIN - 670101
2 THE THALASSERY MUNICIPALITY,
REPRESENTED BY THE SECRETARY, THALASSERY MUNICIPALITY,
THALASSERY, KANNUR DISTRICT-, PIN - 670101
3 THE ASSISTANT ENGINEER
LOCAL SELF GOVERNMENT DEPARTMENT, THALASSERY MUNICIPALITY,
THALASSERY, KANNUR DISTRICT-, PIN - 670101
4 THE CHIEF TOWN PLANNER,
OFFICE OF THE CHIEF TOWN PLANNER, NANTHANCODU SWARAJ BHAVAN,
NANTHANCODU, THIRUVANANTHAPURAM - , PIN - 695003
5 THE DISTRICT TOWN PLANNER,
DISTRICT TOWN PLANNING OFFICE, THANA.P.O. KANNUR-, PIN -
670012
6 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, LOCAL SELF
GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-, PIN
- 695001
BY ADVS.
SHRI.I.V.PRAMOD, SC, THALASSERY MUNICIPALITY
SRI.K.P.HARISH, SENIOR GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.11.2022, ALONG
WITH WA.1357/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.A Nos.1357, 1358 & 1359 of 2022 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944
WA NO. 1359 OF 2022
AGAINST THE JUDGMENT IN WP(C) 16116/2022 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
KANDYAN ANEESH,
AGED 47 YEARS
S/O. KANDYAN DAMODARAN, AGED 47, YEARS, BUSINESSMAN,
RESIDING AT 'SREESHYLAM', PONNIAM WEST, KANNUR DISTRICT, PIN
- 670641
BY ADV R.SURENDRAN
RESPONDENTS/RESPONDENTS:
1 THE SECRETARY, THALASSERY MUNICIPALITY
THALASSERY, KANNUR DISTRICT
PIN - 670101
2 THE THALASSERY MUNICIPALITY
REPRESENTED BY THE SECRETARY, THALASSERY MUNICIPALITY,
THALASSERY, KANNUR DISTRICT-
PIN - 670101
3 THE EXECUTIVE ENGINEER,
LOCAL SELF GOVERNMENT DEPARTMENT,
THALASSERY MUNICIPALITY,
THALASSERY, KANNUR DISTRICT-
PIN - 670101
4 THE CHIEF TOWN PLANNER,
OFFICE OF THE CHIEF TOWN PLANNER,
NANTHANCODU SWARAJ BHAVAN, NANTHANCODU, THIRUVANANTHAPURAM-
PIN - 695003
5 THE DISTRICT TOWN PLANNER,
DISTRICT TOWN PLANNING OFFICE, THANA.P.O.
KANNUR-PIN - 670012
6 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, LOCAL SELF
GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM
PIN - 695001
W.A Nos.1357, 1358 & 1359 of 2022 4
BY ADVS.
SHRI.I.V.PRAMOD, SC, THALASSERY MUNICIPALITY
SRI.K.P.HARISH, SENIOR GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.11.2022, ALONG
WITH WA.1357/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.A Nos.1357, 1358 & 1359 of 2022 5
JUDGMENT
Dated this the 3rd day of November, 2022 SHAJI P.CHALY,J Captioned writ appeals are filed by the writ petitioners, challenging the common judgment of a learned Single Judge of this Court in W.P.© Nos.16100 of 2022, 16107 of 2022 and 16116 of 2022 dated 27.7.2022, whereby the following observations and directions are made:
"9. The petitioners have submitted applications for Building Permit for construction of residential/commercial buildings. The applications stand rejected on the ground that under the Development Plan for Tellicherry Town Part Variation, 2007, there is a proposal for road widening and hence the given applications cannot be considered. Ext.P2 in W.P.(C) Nos.16100 of 2022 and 16116 of 2022, and Ext.P3 in W.P.(C) No.16107 of 2022 are the orders of rejection.
10. The petitioners have served Purchase Notices on the Municipality invoking Section 67 of the Act, 2016 which were not responded to by the Municipality. The petitioners urge that in view of the omission of the Municipality to take decision on the Purchase Notices, it should be deemed that the Municipality has passed a resolution not to purchase the land and all consequences should follow.
11. This Court finds that the lands of the petitioners are not designated for compulsory acquisition by the Municipality. Even the W.A Nos.1357, 1358 & 1359 of 2022 6 petitioners have no case that their land is marked for acquisition. Section 67 provides for serving of Purchase Notice, but only where the land in question is designated for compulsory acquisition. When the land is not earmarked for acquisition, the question of Section 67 Purchase Notice does not arise.
12. Reservation of land for any specified use in a Master Plan or Detailed Town Planning Scheme, does not prevent land owners from using the land. In the case of the petitioners, the only restriction is that they can make constructions only beyond a building line as per the proposed widening of the road. The Municipal authorities have stated that due to non-availability of funds, the Municipality has addressed the Government for variation of plan/proposal.
In the facts and circumstances of the case, the writ petition is disposed of directing the 6th respondent-State of Kerala to finalise the revision of Development Plan for Thalassery Town Variation 2007 mooted by the Municipal Council as per Resolution No.41 dated 28.06.2016, as expeditiously as possible and at any rate, within a period of six months."
2. It is thus challenging the legality and correctness of the said judgment, the appeals are preferred.
3. The appellants are owners in possession of landed properties within the limits of the Thalassery Municipality - the 2 nd respondent. When applications were submitted for building permit before the Secretary of the Thalassery Municipality, they were rejected assigning the reason that there is a proposal for a new road at a width of 16 metres through the appellants' property as per the Development W.A Nos.1357, 1358 & 1359 of 2022 7 Plan for Thalassery Town Variation 2007. Consequently, by virtue of section 67 of the Kerala Town and Country Planning Act, 2016, hereinafter called, "Act, 2016", dealing with obligation of a local body to acquire land in certain cases, the appellants have issued notices requiring the Municipality to purchase the interest in the land in accordance with the provisions of the Act, 2016. However, the Municipality did not take a decision within a period of 60 days as provided under sub-section (2) of section 67. It was accordingly that the appellants have approached this Court by filing the instant writ petitions, seeking direction for consideration of their applications for building permit, irrespective of the town variation plan.
4. Taking into account the provisions of Act, 2016, the learned Single Judge held that the properties of the appellants are not designated for compulsory acquisition by the Municipality and further, held that the appellants have no case that their land is marked for acquisition. It was also held by the learned Single Judge that section 67 of the Act, 2016 only provides for serving of purchase notice when the properties in question are designated for compulsory acquisition, and since the properties are not earmarked for acquisition, Section 67 of the Act, 2016 would not come into play.
5. We have heard learned counsel for appellants Sri.R.Surendran, learned Standing Counsel for the Municipality Sri.I.V.Pramod, learned Senior Government W.A Nos.1357, 1358 & 1359 of 2022 8 Pleader Sri.Tek Chand and perused the pleadings and material on record.
6. The paramount contention advanced by the appellants is that the judgment rendered by the learned Single Judge is incorrect, improper and without considering the facts and circumstances of the case and also the provisions of law contained under the Act, 2016. It is also submitted that the judgment rendered by the learned Single Judge is against the dictum laid down by a Division Bench of this Court (our Division Bench) in Pradeep Kumar v. Maradu Municipality [2022(2)KLT 523], wherein it was held that whenever a property is designated in a Master Plan for compulsory acquisition and no acquisition proceedings are initiated, the owners of the properties are entitled to issue a notice under section 67 of the Act, 2016 and if a decision is not taken by the local body within 60 days, the proceedings in terms of the provisions of section 67 of Act, 2016 to be adhered to and the application for building permit shall be considered in accordance with law.
7. It is further submitted that the Municipality has declined the building permits to appellants assigning the reason that there is a proposal for a new road at a width of 16 metres through the appellants' land as per the Development Plan for Thalassery Town Variation 2007. It is also the contention of the appellants that in Exhibit P5 judgement of the learned Single Judge dated 5th July, 2017 in W.P.© No.18553/2016, it was held that the Development Plan for Thalassery W.A Nos.1357, 1358 & 1359 of 2022 9 Town Variation 2007, is obsolete. Therefore, it is submitted that the dismissal of the building permit application by the Secretary of the Thalassery Municipality is illegal and arbitrary.
8. Further it is submitted that this Court in the judgment in Hassan v. Corporation of Calicut [ 1996(2) KLT 839] held that only for the reasons enumerated in section 393 of the Kerala Municipality Act, 1994, an application for grant of building permit could be rejected. Learned counsel for appellants has also relied upon the judgment of the Apex Court in Raju S. Jethmalani v. State of Maharashtra and Others [ (2005)11 SCC 222] wherein it was held that if the Scheme/Plan has become obsolete, the Secretary of the Municipality would have to consider the building permit application de- hors the DTP Scheme.
9. On the other hand, learned Standing Counsel for the Municipality submitted that the Municipality has not taken a decision within 60 days from the date of receipt of the notices sent by the appellants as is contemplated in section 67(2) of the Act, 2016. Learned Senior Government Pleader also advanced arguments supporting the judgement of the learned Single Judge.
10. We have considered the rival submissions made across the Bar. The issue revolves around section 67 of Act, 2016, which reads thus:
"67. Obligation to acquire land in certain cases.--(1) Where any land is designated for compulsory acquisition in a Master Plan or W.A Nos.1357, 1358 & 1359 of 2022 10 Detailed Town Planning Scheme sanctioned under this Act and no acquisition proceedings are initiated for such land under the Land Acquisition Act in force in the State within a period of two years from the date of coming into operation of the Plan, the owner or person affected may serve on the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned, within such time and in such manner, as may be prescribed, a notice (hereinafter referred to as "the purchase notice") requiring the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned to purchase the interest in the land in accordance with the provisions of this Act;
(2) On receipt of any purchase notice under sub-section (1), as soon as possible, but not later than sixty days from the date of receipt of the purchase notice, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat, as the case may be, through a resolution decide to acquire the land, where the land is designated for compulsory acquisition for the purpose of the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat.
(3) Where the land is designated for compulsory acquisition for the purpose of any Government Department or Quasi-government Agency, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat shall forward such notice to the Government.
(4) In case the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned decides not to acquire the land, it shall initiate variation of the plan suitably in accordance with this Act.
(5) In case the land acquisition could not be effected within a period of two years from the date of resolution to acquire the land, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall initiate variation of the plan suitably in W.A Nos.1357, 1358 & 1359 of 2022 11 accordance with this Act.
(6) On receipt of a purchase notice under sub-section (3), the Government shall in consultation with the Government Department or Quasi-government Agency concerned, not later than six months from the date of receipt of the purchase notice, confirm the purchase notice.
In any other case, Government may require the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned to vary the plan suitably in accordance with this Act:
Provided that in case the land acquisition could not be effected within a period of two years from the date of confirmation of the purchase notice, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall initiate variation of the plan suitably in accordance with this Act under intimation to the Government.
(7) If no order has been passed by the Government within a period of six months from the date of receipt of the purchase notice, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall, suo moto initiate variation of the plan suitably in accordance with this Act:
Provided that where variation proceedings of the Plan are initiated under this section, the Secretary of the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall, in consultation with the Chief Town Planner, take suitable decision on any application for land development permit received under section
64."
11. On an analysis of the above provisions, it can be seen that if the Municipality is not interested in acquiring the land, it ought to have initiated W.A Nos.1357, 1358 & 1359 of 2022 12 variation of the plan suitably in accordance with the Act. It is an admitted fact that the Municipality has not responded to the notices issued by the appellants in terms of section 67 of the Act, 2016 within the period prescribed thereunder. The learned Single Judge while disposing the writ petitions was of the opinion that there is no designation of land for compulsory acquisition in the Scheme and therefore, the provisions of section 67 of Act, 2016 would not come into play. It is clear from section 113 of the Act, 2016 that all the erstwhile town planning acts were repealed, however, by virtue of sub-section (2) thereto, certain of the town planning schemes are protected.
12. Whatever that be, when there is earmarking of the properties for formation of a road in the Thalassery Town Variation Plan 2007, in our view, it amounts to designation of properties for acquisition. It is the definite case of the Municipality that the land belonging to the appellants are required for formation of the road, and it was assigning the said reason that the building permit applications were dismissed. Section 77 of Act 2016 dealing with power to acquire land under the Land Acquisition Act, in force makes it clear that any land required, reserved or designated in a Plan under the Act, shall be deemed to be a land needed for a public purpose within the meaning of the Land Acquisition Act in force, and may be acquired by the Government on request by the District Planning Committee, etc. So also section 78 of Act, 2016 dealing with acquisition W.A Nos.1357, 1358 & 1359 of 2022 13 of property for implementation of Plans makes it clear that a Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat or Development Authority may acquire any movable or immovable property by purchase, exchange, gift, lease, mortgage, negotiated purchase or by any other method permissible under any law, for the purpose of the implementation of a Plan under the Act.
13. A conjoint reading of Sections 67, 77 and 78 of Act, 2016 would make it explicit and clear that whenever a property is highlighted in a Plan or Scheme, or said to be required for the Scheme, it amounts to a designation of the land for the Scheme/Plan. It is also clear and evident from the provisions of the Act, 2016 that it is with the object of protecting the interest of the land owners for the usage of the property, commercially and viably, for various purposes; the enabling provisions are incorporated in the Act, 2016. Moreover, this specific question was considered by this Court in Pradeep Kumar's case supra, taking into account an earlier Division Bench judgement of this Court, the judgement of the Apex Court in Raju S. Jethmalani (supra), a Division Bench of this Court in Padmini v.State of Kerala [1993(3)KLT 465], the provisions of Act 2016 and also taking note of Article 300A, and held that when the Municipality had declined to take a decision in the notice issued by the property owners in terms of Section 67 of Act 2016, the Secretary of the Municipality is liable to consider the building W.A Nos.1357, 1358 & 1359 of 2022 14 permit applications in accordance with the provisions of the Kerala Municipality Act, 1994 and the Kerala Municipality Building Rules, 2019.
14. Considering the aforesaid legal and factual aspects, we are of the considered opinion that interference is required to the judgement of the learned Single Judge. Accordingly, we allow the appeals and direct the Secretary of the Thalassery Municipality to consider the applications submitted by the appellants, in accordance with the provisions of the Act, 1994 and the Rules, 2019, at the earliest, and at any rate, within a month from the date of receipt of a copy of this judgement irrespective of the Thalassery Town Variation Plan 2007.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY
smv JUDGE
W.A Nos.1357, 1358 & 1359 of 2022 15
APPENDIX OF WA 1357/2022
APPELLANT'S EXHIBITS
Annexure R1(A)
ENGLISH TRANSLATION OF ANNEXURE R1(A)
Translation
Annexure R1(B)
ENGLISH TRANSLATION OF ANNEXURE R1(B)
Translation
Exhibit P2 Translation ENGLISH TRANSLATION OF EXHIBIT P2
Exhibit P4 Translation ENGLISH TRANSLATION OF EXHIBIT P4
W.A Nos.1357, 1358 & 1359 of 2022 16
APPENDIX OF WA 1358/2022
PETITIONER EXHIBITS
Translation Exhibit P2 ENGLISH TRANSLATION OF EXT. P2
Translation Exhibit P3 ENGLISH TRANSLATION OF EXT. P3
W.A Nos.1357, 1358 & 1359 of 2022 17
APPENDIX OF WA 1359/2022
APPELLANT'S EXHIBITS
Exhibit P2 Translation ENGLISH TRANSLATION OF EXT. P2
Exhibit P5 Translation ENGLISH TRANSLATION OF EXT. P5