Kerala High Court
Aniyamma Varghese vs The Palakkad Municipality on 26 February, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020 / 7TH PHALGUNA, 1941
WP(C).No.4109 OF 2020(K)
PETITIONER/S:
ANIYAMMA VARGHESE
AGED 50 YEARS
W/O.JOJU.P.D,ABI VILLA,SHASTHAPURI,
KALPATHY.P.O, PALAKKAD DISTRICT.
BY ADVS.
SRI.JACOB SEBASTIAN
SRI.K.V.WINSTON
SMT.ANU JACOB
RESPONDENT/S:
1 THE PALAKKAD MUNICIPALITY
REPRESENTED BY ITS SECRETARY,
MUNICIPAL OFFICE,PALAKKAD,PIN-678001.
2 THE DISTRICT TOWN PLANNING OFFICER,
PALAKKAD,CIVIL STATION,PALAKKAD,PIN-678001.
3 THE REVENUE DIVISIONAL OFFICER,
OFFICE OF THE REVENUE DIVISIONAL OFFICER,
COLLEGE ROAD,PALAKKAD DISTRICT,PIN-678001.
4 THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,DEPARTMENT OF LOCAL SELF
GOVERNMENT,THIRUVANANTHAPURAM,
PIN-695001.
R1 BY ADV. SHRI.BINOY VASUDEVAN, SC, PALAKKAD
MUNICIPALITY
OTHER PRESENT:
SRI.JESTIN MATHEW, GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.4109 OF 2020(K) 2
ALEXANDER THOMAS, J.
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W.P.(C.) No. 4109 of 2020
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Dated this the 26th day of February, 2020
JUDGMENT
The prayers in the above W.P.(C.) are as follows :
"(i) Issue a writ in the nature of mandamus directing the 1 st respondent to issue a building permit to the petitioner as applied for;
(ii) call for the detailed Town Planning Scheme and approved Master plan of the first respondent and quash it in so far as it relates to the property of the petitioner by the issue of a writ of certiorari.
(iii) Call for the records leading to issue of Ext.P3 by the first respondent and quash it of a writ of certiorari or other appropriate writ or order; and
(iv) issue such other writ, order or direction as this Hon'ble Court deems fit and proper in the circumstances of the case."
2. Heard Sri. Jacob Sebastian, learned counsel appearing for the petitioner, Sri Binoy Vasudevan, learned Advocate appearing for R1- Palakkad Municipality and Sri.Jestin Mathew, learned Government Pleader appearing for R2 to R4.
3. After hearing both sides and after careful evaluation of the facts and circumstances of this case, this Court is of the considered view that the matter in issue is covered by the judgments of this Court as in Thalassery Municipality v. Puthalath Balakrishnan [2019 (3) KLT 154 (DB)], District Town Planner, Malappuram v.Vinod and others [2019 (3) KHC 673], Surat Maja v.Thiruvananthapuram Municipal Corporation [2020 (1) KHC 304] and Ext.P6 judgment dated 22.11.2019 rendered by this Court in W.P.(C.) No.30841/2017. WP(C).No.4109 OF 2020(K) 3
4. It has been held by this Court in those judgments that in cases like this, the owners of the property have a right of offer to be purchased by the local authority or Municipality under Sec.67 of the Kerala Town and Country Planning Act and if the Municipality is refused to do so, then the property holders are entitled to seek grant of building permit in terms of law. Ext.P6 judgment dated 22.11.2020 rendered by this Court in W.P.(C.) No.30841/2017 reads as follows :
"The petitioners claim to be the owners of a property having an extent of 2.75 cents, comprised of in Survey No.2/31 in Palakkad Village and they impugn Ext.P5 proceedings of Palakkad Municipality, as per which, their application for Building Permit has been rejected on the ground that the area in question has been earmarked as an "Agricultural Zone" under the Master Plan and that for the further reason, as per the Detailed Town Planning Scheme (DTP Scheme), the road running in front of his property has been proposed to be widened.
2. The petitioners say that initially their property was included in the Data Bank prepared by the Local Level Monitoring Committee (LLMC) under the provisions of the Kerala Conservation of Paddy Land and Wetland Act (Paddy Land Act for short) erroneously and that therefore, they preferred an application before the said Committee, as per the interim directions of this Court dated 19.03.2018; and that Ext.P8 order has now issued by the said Committee excluding it from the Data Bank. They say that, therefore, it is now clear that their property cannot be construed to be a "Paddy Land"; and consequently, that the zonal requirements as per the Master Plan becomes irrelevant. They further say that, even though the DTP Scheme provides for widening of the road in front of their property, no action has been taken by the Municipality to do so until now and therefore, that said scheme must be deemed to be obsolescent and incapable of further operation. The petitioners, therefore, pray that Ext.P5 be set aside and the Municipality be directed to reconsider the application for Building Permit in terms of law.
3. The learned Standing Counsel for Palakkad Municipality-Sri.Santhosh Poduval submits that as long as the Master Plan and the DTP Scheme are not varied, the petitioners will have to comply with the same; and therefore, that the Municipality was without error in having issued Ext.P5. He, therefore, prays that Ext.P5 be allowed to be implemented and that this writ petition be dismissed.
4. Even when I hear the learned Standing Counsel for the Municipality on the afore lines, it is beyond doubt that this Court has already settled the law in District Town Planner,Malappuram and others v. Vinod and Others [2019 (3) KHC 673] and Thalassery Municipality v. Puthalath Balakrishnan [2019 (3) KLT 154] that in cases like this, the owners of the properties have a right to offer it to be purchased by the Municipality under Section 67 of the Kerala Town and Country Planning Act and that if the Municipality refuses to do so, then they are WP(C).No.4109 OF 2020(K) 4 entitled to seek the Building Permit in terms of law.
5. I am certain that the afore directions in these judgments are applicable to the facts of this case also, particularly because, even though the area, where the petitioners' property is situated, is included in the "Agricultural Zone" as per the Master Plan, it is now clear from Ext.P8 that same is not a "paddy land"
even under the Paddy Land Act and hence being incapable of being put to such use in future.
Resultantly, I order this writ petition and grant liberty to the petitioners to move a purchase proposal, under Section 67 of the Kerala Town and Country Planning Act, before the respondent Municipality; and if this is done within a period of fifteen days from the date of a receipt of a copy of this judgment, same shall be considered by the competent Authority of the Municipality within the statutory period. If, for any reason, the proposal is rejected or is not answered within the time granted by the said Act, then the Secretary of the Municipality will be obligated to consider the petitioners' application for Building Permit de hors the Master Plan and the DTP Scheme within a period of one month from the date on which the statutory period for consideration of the application, to be made by the petitioners under Section 67 of the Kerala Town and Country Planning Act, expires."
5. Accordingly, it is seen that the petitioner has now moved purchase proposal under Sec.67 of the Kerala Town and Country Planning Act as per Ext.P5 application dated 1.2.2020. It has been filed before the 1 st respondent - Palakkad Municipality. Accordingly, it is made clear that notwithstanding the rejection order as per Ext.P3, the 1 st respondent Municipality shall consider Ext.P5 proposal/application within the statutory period of 60 days and for any reason, if the proposal is rejected or is not answered within the time granted by the abovesaid Act, then the competent authority of the 1st respondent Palakkad Municipality will be obliged to consider the petitioner's application for grant of building permit, de hors the master plan and that it is to be done within a period of one month from the date on which the statutory period for consideration of the application under Sec.67 of the Kerala Town and Country Planning Act WP(C).No.4109 OF 2020(K) 5 expires.
With these observations and directions, the above W.P.(C.) will stand disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE SKS WP(C).No.4109 OF 2020(K) 6 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE POSSESSION CERTIFICATE DATED DECEMBER 10,2019 ISSUED BY THE VILLAGE OFFICER,PALAKKAD-II,VILLAGE.
EXHIBIT P2 A TRUE COPY OF THE ORDER DATED AUGUST
31,2019 ISSUED BY THE THIRD RESPONDENT
EXHIBIT P3 A TRUE COPY OF THE ORDER DATED JANUARY 3,
2020 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P4 A TRUE COPY OF THE JUDGMENT REPORTED IN
2011(3)KHC 162(DB).
EXHIBIT P5 A TRUE COPY OF THE PURCHASE NOTICE ISSUED
BY THE PETITIONER ALONGWITH ACKNOWLEDGEMENT
DATED FEBRUARY,1,2020.
EXHIBIT P6 A TRUE COPY OF THE JUDGEMENT DATED
22.11.2019 IN WP(C)NO.30841 OF 2017 OF THIS
HONOURABLE COURT.