Kerala High Court
P.B.Pradeep Kumar vs Maradu Municipality on 7 January, 2022
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 7TH DAY OF JANUARY 2022 / 17TH POUSHA, 1943
WP(C) NO. 17262 OF 2020
PETITIONERS:
1 P.B.PRADEEP KUMAR
AGED 67 YEARS
FLAT NO 15C, WHITE WATERS 11,
PANDIT KARUPPAN ROAD, THEVARA, KOCHI-682 013.
2 RAJANI PRADEEP KUMAR,
FLAT NO 15C, WHITE WATERS 11, PANDIT KARUPPAN
ROAD, THEVARA, KOCHI-682 013. REPRESENTED BY
POWER OF ATTORNEY HOLDER-P.B.PRADEEP KUMAR.
3 SHEREEN,
FLAT NO 15C, WHITE WATERS 11, PANDIT KARUPPAN
ROAD, THEVARA, KOCHI-682 013. REPRESENTED BY
POWER OF ATTORNEY HOLDER-P.B.PRADEEP KUMAR.
4 SHERMEEN,
FLAT NO 15C, WHITE WATERS 11, PANDIT KARUPPAN
ROAD, THEVARA, KOCHI-682 013. REPRESENTED BY
POWER OF ATTORNEY HOLDER-P.B.PRADEEP KUMAR.
5 ABAD BUILDERS PVT LTD,
5TH FLOOR, NUCLEUS MALL, MARADU P.O.KOCHI-682
304, REPRESENTED BY ITS MANAGING DIRECTOR DR.
NAJEEB ZAKARIA.
BY ADVS.
K.I.MAYANKUTTY MATHER
SRI.R.JAIKRISHNA
KUM.NARAYANI HARIKRISHNAN
RESPONDENTS:
1 MARADU MUNICIPALITY
REPRESENTED BY ITS SECRETARY,
MARADU P.O., MARADU-682 304.
W.P.(C) No.17262/2020
:2:
2 SECRETARY,
MARADU MUNICIPALITY, MARADU P.O.
ERNAKULAM-682 304.
3 MUNICIPAL ENGINEER (EXECUTIVE ENGINEER),
MARADU MUNICIPALITY, MARADU P.O.
ERNAKULAM-682 304.
4 STATE OF KERALA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
LOCAL SELF GOVERNMENT DEPARTMENT (URBAN),
SOUTH BLOCK, SECRETARIAT, GENERAL POST OFFICE,
THIRUVANANTHAPURAM-695 001.
5 CHIEF TOWN PLANNER,
OFFICE OF THE CHIEF TOWN PLANNER, DEPARTMENT OF
TOWN AND COUNTRY PLANNING, SWARAJ BHAVAN
2ND FLOOR, NANTHANKODE, KOWDIAR P.O.
THIRUVANANTHAPURAM -695 003.
BY ADVS.
SRI.T.R.RAJAN, SC,MARADU MUNICIPALITY
SR. GOVERNMENT PLEADER SRI.VIPIN NARAYANAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 07.01.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.17262/2020
:3:
[CR]
N. NAGARESH, J.
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W.P.(C) No.17262 of 2020
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Dated this the 7th day of January, 2022
JUDGMENT
~~~~~~~~~ The question arising in this writ petition is whether the Government is legally bound to compulsorily acquire the 24.73 Ares of land of petitioners 1 to 4 situated in Maradu Village in view of issuance of purchase notice by them under Section 67 of the Kerala Town and Country Planning Act, 2016 since there is a proposal for construction of Kochi- Muvattupuzha Road which is to pass through the petitioners' land. The further question is that in view of the refusal of the Government to acquire the land in spite of service of purchase notice, whether the Maradu Municipality is bound W.P.(C) No.17262/2020 :4: to review the Town Planning Scheme/Master Plan and consider the application submitted by the petitioners for issuance of Building Permit.
2. Petitioners 1 to 4 own 24.73 Ares of land in Re-Surey Nos.221/4-2, 221/4-2-2, 221/4-2-2-2, 221/5-2-2, 221/5-3, 221/9, 221/10 and 221/12 of Maradu Village. Petitioners 1 to 4 made a Joint Venture with the 5 th petitioner- Company with an intention to develop the land and construct an Apartment Complex. Application for Building Permit was submitted in June, 2018. The original building plan had to be changed and a fresh application was submitted in February, 2019. The Municipal Authorities refused to entertain the Building Permit applications for the reason that there is a proposal for a 27 metre wide road from Willingdon Island to Muvattupuzha through this area, in the Structural Plan for Kochi 1991.
3. The said plan exists for more than 30 years and the authorities are not genuinely interested in implementing the same. The petitioners therefore submitted Exts.P5 and W.P.(C) No.17262/2020 :5: P5(a) purchase notices to the Municipality invoking Section 67 of the Kerala Town and Country Planning Act, 2016 in July, 2019. As the Municipal authorities declined to act, the petitioner filed W.P.(C) No.26821/2019. This Court finding that it is the Government who is to construct the road, disposed of the writ petition as per Ext.P7 judgment dated 08.01.2020 directing the Government to take a decision on Section 67 purchase notice.
4. The petitioners state that since the Government has not acted on Section 67 purchase notice within the stipulated time, the Municipality is bound to suo motu initiate variation of the Plan and should process the petitioners' application for Development Permit.
5. The 5th respondent-Chief Town Planner filed counter affidavit and resisted the writ petition. The 5 th respondent submitted that as per the Structure Plan (Master Plan) for Central City of Kochi, there is a proposal for a new Kochi-Muvattupuzha Road starting from Beach Road (Fort Kochi) to Central City boundary at eastern end in W.P.(C) No.17262/2020 :6: Tripunithura Municipality. The stretch of the land identified for Kochi-Muvattupuzha road is passing through Survey No.221 of Maradu Village and is having a proposed width of 27 metres with 3 metre building line. Hence, no new constructions shall be permitted through the alignment of this road. Since no application for layout approval pertaining to the said construction is received in the office of the Chief Town Planner or Senior Town Planner, Ernakulam, the 5 th respondent is not in a position to check or verify on site whether the alignment of the road affects the petitioners' property.
6. The 5th respondent submitted that Section 67 of the Act, 2016 applies only in respect of lands which are designated for compulsory acquisition in a Master Plan or Detailed Town Planning Scheme. In this case, the land in question and other pieces of land at the stretch have been reserved and categorised for road construction. Therefore, Section 67 will not apply and the petitioners cannot have any right based on Section 67, contended the 5 th respondent. W.P.(C) No.17262/2020 :7:
7. The 3rd respondent-Secretary to Municipality also filed counter affidavit. The 3rd respondent stated that the application for building permit was processed. As per the structural plan proposed, Willingdon Island-Muvattupuzha Road passes through the properties wherein construction is sought to be effected by the petitioners. Building permits cannot be granted contrary to the DTP Scheme. Applicants were orally informed of the same. As such, whether there are any other violations have not been examined. The proposed Willingdon Island-Muvattupuzha Road passes through the territorial limits of many local bodies. It is a Government project. Decision as regards acquisition is to be taken by the State Government. The proposed Willingdon Island-Muvattupuzha Road is not a project of the Maradu Municipality and the Maradu Municipality cannot acquire the said property. Since decision at the governmental level is necessary, communication dated 21.11.2019 has been sent to the 4th respondent for further action in the matter. W.P.(C) No.17262/2020 :8:
8. The learned counsel for the petitioner argued that the vital contention of the Government Pleader is to the effect that even though the petitioners' property is included in the Master Plan earmarked for Wellingdon Island-Muvattupuzha Road, the same is 'not designated for compulsory acquisition'. This being the case, Section 67 cannot be attracted. Once the Government takes a decision to compulsorily acquire the petitioners' property, only then the 2 year period as contemplated in Section 67(1) starts to run and only after the expiry of the said two years, the petitioners get right to issue purchase notice. Even though the Master Plan came into effect in 1991, in the said Master Plan, the property is not designated for compulsory acquisition. This contention is absolutely wrong and it is a misinterpretation of the terminology "designated for compulsory acquisition". Further, if this contention is accepted, Section 67 will become otiose.
9. In a Master Plan, the lands will be earmarked as various zones such as "residential", "commercial", industrial", W.P.(C) No.17262/2020 :9: "public offices", "agriculture", "green", "parks", "roads", etc. In the case of "residential', "commercial", "industrial" and similar types of categorisation, the land owners of properties cannot insist that such properties should be compulsorily acquired by the Government because by such categorisation, the right of an owner to deal with his property is not taken away but only prescribes certain restrictions and owners can utilise their properties in such manner. However, earmarking of properties as "green", "parks", "roads", etc. imposes total restrictions for owners to utilise their properties and such properties would fall under the definition of "designated for compulsory acquisition". It is only in this context that the terminology "designated for compulsory acquisition" is intended by the legislature and should be interpreted by this Court.
10. I have heard the learned counsel for the petitioners, the learned Standing Counsel for respondents 1 to 3 and the learned Government Pleader representing respondents 4 and 5.
W.P.(C) No.17262/2020: 10 :
11. The property of the petitioners come within the Structural Plan for Central City of Kochi and the said Plan is the Master Plan now applicable. In the Structural Plan, the stretch on which the petitioners' property situates is designated as area reserved for Roads. In respect of land earmarked for Residential/Industrial/Commercial/Agricultural or keeping areas for Parks, Roads etc., whether the owners of the land can invoke Section 67 and require the authorities to compulsorily acquire their land ?
12. Section 67 of the Kerala Town and Country Planning Act, 2016 reads as follows:-
67. Obligation to acquire land in certain cases.-
(1) Where any land is designated for compulsory acquisition in a Master Plan or 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 W.P.(C) No.17262/2020 : 11 : 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 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:
W.P.(C) No.17262/2020: 12 :
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.
From the opening words of the Section itself, it is clear that it would apply only in cases where land is designated for compulsory acquisition in a sanctioned Master Plan or Detailed Town Planning Scheme. Serving of Purchase Notice is contemplated only in respect of such land designated for compulsory acquisition.
13. The learned counsel for the petitioners argued that a distinction should be drawn between areas earmarked for W.P.(C) No.17262/2020 : 13 : Residential, Industrial, Commercial and Agriculture on the one hand and Parks and Roads on the other hand. In the case of the land earmarked for Residential, Industrial, Commercial and Agriculture purposes, a land owner can still utilise the land himself for the said purposes, whereas a land owner is not expected to use his land for maintaining Parks and Roads. Therefore, such land should be treated as land designated for compulsory acquisition.
14. The learned counsel for the petitioners argued that since Section 67(6) contemplates confirmation of purchase notice by the Government, it would mean that in respect of land of the petitioners, there should be a decision by the Government on acquisition of land. The provision that "in any other case, Government may require the Municipal Corporation, Municipal Council, Town Panchayat to Village Panchayat concerned to vary the plan suitably in accordance with this Act" would indicate that a decision of the Government is required even where the land in question is not designated for compulsory acquisition. W.P.(C) No.17262/2020 : 14 :
15. A plain reading of Section 67 of the Kerala Town and Country Planning Act, 2016 does not give any scope for such an interpretation. A Division Bench of this Court in the judgment in District Town Planner, Malappuram and others v. And others [2019 (3) KHC 673 (DB)] has held that:
"12. The above provision in the Act, 2016 would imply that where any land designated for compulsory acquisition in the Town Planning Scheme but no acquisition proceedings are initiated within a period of two years from the date of coming into operation of the Plan, the owner of the affected persons may serve a purchase notice, requiring the authority to purchase the interest in the land. If any such purchase notice is served, within 60 days from the date of receipt, the authority is statutorily required to decide on acquisition of the property. If the land is designated for any Government Department or other authorities, the information on the receipt of purchase notice is to be forwarded to the said authority. In case the development plan should be made. Even otherwise, when the land acquisition could not be effected within two years from the date of resolution to acquire the land, the authorities are required under sub-section (5) of Section 67 of the Act, to initiate suitable variation of the Plan. As can be seen, the statutory consequences for failure of the authority to acquire the land notified under the Town Planning Scheme is clearly delineated. Thus the Act, 2016 itself suggests that the property owner cannot be indefinitely deprived of his right to enjoy the property, without finality on the acquisition of the land, earmarked under the DTP Scheme."W.P.(C) No.17262/2020 : 15 :
16. In Regional Town Planner and another v. Muhammed Rasheed and others [2019 (3) KHC 987 (DB)], this Court held that:
"The earmarking of the areas into residential /industrial/commercial/agricultural or keeping apart areas for parks, roads, etc. is an exercise that is done in public interest and hence, the private interest of the land owners who seek to put up particular construction would have to necessarily yield to the overriding public interest that informs the provisions of the DTP Scheme."
In view of all the above, this Court finds no merit in the claims of the petitioners. The writ petition is therefore dismissed.
Sd/-
N. NAGARESH, JUDGE aks/06.01.2022 W.P.(C) No.17262/2020 : 16 : APPENDIX OF WP(C) 17262/2020 PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT PUT IN THE PETITIONERS BEFORE THE 1ST RESPONDENT DATED 18.6.2018 EXHIBIT P1 (A) TRUE COPY OF THE ACKNOWLEDGEMENT GIVEN BY THE 1ST RESPONDENT DATED 30.6.2018 EXHIBIT P2 TRUE COPY OF THE COVERING LETTER DATED 26.7.2018 EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED TO THE 2ND RESPONDENT DATED 19.2.2019 EXHIBIT P4 TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT DATED 22.2.2019 EXHIBIT P4 (A) TRUE COPY OF THE ACKNOWLEDGEMENT GIVEN BY THE 1ST RESPONDENT DATED 26.2.2019 EXHIBIT P5 TRUE COPY OF THE PURCHASE NOTICE GIVEN UNDER SECTION 67 OF THE KERALA TOWN AND COUNTRY PLANNING ACT, 2016 DATED
19..7.2019 EXHIBIT P5 (A) TRUE COPY OF THE ACKNOWLEDGEMENT GIVEN BY THE 1ST RESPONDENT TO EXT P5DATED 27.7.2019 EXHIBIT P6 TRUE COPY OF THE COUNTER AFFIDAVIT IN WPC 26821/2019 DATED 22.11.2019 EXHIBIT P6 (A) TRUE COPY OF THE LETTER FORWARDED BY 2ND RESPONDENT DATED 21.11.2019 EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN WPC NO 26821/2019 OF THIS HONBLE COURT DATED 8.1.2020 EXHIBIT P8 TRUE COPY OF THE REPRESENTATION GIVEN BY THE PETITIONERS DATED 2.6.2020 EXHIBIT P8 (A) TRUE COPY OF THE POSTAL RECEIPTS DATED 6.6.2020 EXHIBIT P9 TRUE COPY OF THE ACKNOWLEDGEMENT CARD SIGNED BY THE 2ND RESPONDENT EXHIBIT P9 (A) TRUE COPY OF THE ACKNOWLEDGEMENT CARD SIGNED BY THE 3RD RESPONDENT W.P.(C) No.17262/2020 : 17 : EXHIBIT P9 (B) TRUE COPY OF THE ACKNOWLEDGEMENT CARD SIGNED BY THE 5TH RESPONDENT DATED 9.6.2020 EXHIBIT P10 TRUE COPY OF THE REPRESENTATION (REMINDER) GIVEN BY THE PETITIONERS TO THE RESPONDENTS DATED 20.7.2020 EXHIBIT P10 (A) TRUE COPY OF THE POSTAL RECEIPTS DATED 24.7.2020 EXHIBIT P10 (B) TRUE COPY OF THE POSTAL ACKNOWLEDGMENT CARD SIGNED BY 2ND RESPONDENT DATED 29.7.2020 EXHIBIT P10 (C) TRUE COPY OF THE POSTAL ACKNOWLEDGEMENT CARD SIGNED BY 3RD RESPONDENT DATED 27.7.2020 EXHIBIT P11 COPY OF THE COMMUNICATION SENT BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT.
RESPONDENTS' EXTS R2(a) COPY OF COMMUNICATION DT 21.11.2019 OF 2ND RESPONDENT TO 4TH RESPONDENT.
R2(b) COPY OF COMMUNICATION DT 20.3.2020 OF 4TH RESPONDENT TO 2ND RESPONDENT.
R2(c) COPY OF COMMUNICATION DT 18.1.2021 OF 2ND RESPONDENT TO 4TH RESPONDENT.