Abdul Salim v. Thalassery Municipality & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 21ST DAY OF NOVEMBER 2019 / 30TH KARTHIKA, 1941** ## **WP(C).No.28736 OF 2019(N)** ## **PETITIONER:** **ABDUL SALIM, AGED 48 YEARS S/O.MUHAMMED IBRAHIM, SALMA MANZIL, PANNIYANNUR AMSOM, CHEMBAD P.O., THALASSERY TALUK, KANNUR,** **REPRESENTED BY POWER OF ATTORNEY HOLDER SALMA ASEES, W/O.ABDUL ASEES, BAITHUL NOOR, THALASSERY - 670 103.** **BY ADVS. SRI.C.KHALID SRI.T.P.SAJID** ## **RESPONDENTS:** - **1 THE THALASSERY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, THALASSERY MUNICIPALITY., THALASSERY - 670 101.** - **2 THE SECRETARY, THALASSERY MUNICIPALITY, THALASSERY - 670 101.** - **3 THE ASSISTANT ENGINEER, LOCAL SELF GOVERNMENT DEPARTMENT, THALASSRY MUNICIPALITY (SOUTH SECTION), THALASSERY - 670 101.** - **4 THE VILLAGE OFFICER, THIRUVANGAD VILLAGE, THIRUVANGAD, THALASSERY - 670 101.** - **5 THE CHIEF TOWN PLANNER, OFFICE OF THE CHIEF TOWN PLANNER, DEPARTMENT OF TOWN AND COUNTRY PLANNING, KOTTARATHIL BUILDINGS, PALAYAM, THIRUVANANTHAPURAM - 33.** - **6 THE DISTRICT PLANNING OFFICER, KANNUR COLLECTORATE, CIVIL STATION (P.O.), KANNUR -670 002.** **WP(C).No.28736 OF 2019(N)** **2** - **7 K.P.AJAYAKUMAR, KATTILPARAMBATH, MOOZHIKARA P.O., KANNUR DISTRICT - 670 103.** - **8 MARKANDIYIL ANIL SHANKAR, SREE KARTHIKA,KUTTIMAKKOOL, THIRUVANGAD, THALASSERY -620 103.** **R1-2 BY ADV. SRI.I.V.PRAMOD** ## **SR.GP. RAJASEKHARAN NAIR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.28736 OF 2019(N)** **3** ## **JUDGMENT** The petitioner says that he had made an application for construction of a Residential Building in the property having an extent of 2.02 Ares comprised of in Survey No.15/1 of Thiruvangad Village, within the confines of Thalassery Municipality, but that the same was rejected through Ext.P11, merely saying that the area in question has been reserved as "Ecologically Sensitive Area", under the Detailed Town Planning Scheme applicable to Thalassery Town. The petitioner says that Ext.P11 is solely untenable, since two other persons have been granted Building Permits as is evident from Exts.P12 and P13, to construct buildings on the properties which are immediately adjacent to his, and therefore, that he preferred Exts.P14 and P15 representations before the District Town Planner as also to the Secretary of the Municipality seeking that Ext.P11 be reconsidered and that Building Permit be issued to him. 2. When I heard the learned counsel for the petitioner on the afore lines on 14.11.2019 when this matter was listed, I asked him to obtain specific instructions as to whether **WP(C).No.28736 OF 2019(N)** **4** Exts.P12 and P13 permits relate to the properties which are adjacent to the petitioner’s house. 3. Today, the learned Standing Counsel for the Municipality concedes that Exts.P12 and P13 had been issued with respect to the properties adjacent to that of the petitioner, but asserts that they were done on the basis of the judgments of this Court and he refers to the judgment W.P. (C).No.30030/2011 with respect to Ext.P13 Building Permit. 4. I, therefore, examined the judgment in W.P. (C).No.30030/2011, wherein a learned Judge of this Court had relied upon _**Raju s. Jethmalani and others v. State of Maharashtra and others**_ [2005(11) SCC 222], to hold that when the land belonging to private persons are included in the Master Plan or DTP Scheme, unless the same is promptly acquired by the State Government or the Municipal Corporation for the said purpose, the land owner cannot be denied the use of property indefinitely. The learned Judge also appears to have relied upon the judgment in _**Nasar V. Malappuram Municipality**_ [2009 (3) KLT 92] and set aside the rejection order in the said case. **WP(C).No.28736 OF 2019(N)** **5** 5. I am certain that, since this Court has already found in favour of a person whose property is situated in the very same zone, the petitioner must also obtain the same benefit, particularly because it is uncontroverted that there are several buildings permits have been already issued and continuing constructions in the area in question. 6. At this time, the learned Standing Counsel for Thalassery Municipality interjected to say that, in fact, subsequent to the afore mentioned judgment, a Division Bench of this Court has, in _**District Town Planner v. Antony Joseph**_ (Writ Appeal No.1009/2015) declared that merely because DTP Scheme or Master Plan has not been operated for a long time, it does not become obsolescent and incapable of further operation. 7. Even when I hear the learned Standing Counsel as above, in the case at hand, the fact remains that the area in question has been shown as an "agricultural zone", which postulates that only such activities can be carried on, but the uncontroverted fact also remains that, except the petitioner’s property, in most of the other properties, buildings have been **WP(C).No.28736 OF 2019(N)** **6** already permitted to be constructed. I am, therefore, of the view that this Court will be justifying in following the above cited judgments of this Court in _**District Town Planner, Malappuram and Others v. Vinod and Others**_ [2019(3)KHC 673] _and_ _**Regional Town Planner and Another v. Muhammed Rasheed and Others**_ [2019(3)KHC 987], wherein the owners of such property have been given the right to invoke provisions of Section 67 of the Kerala Town and Country Planning Act and to make purchase notices to the Municipality. In the afore circumstances, I order this writ petition, granting liberty to the petitioner to move a purchase notice under Section 67 of the Kerala Town and Country Planning Act, before Tahlassery Municipality; and if this is done within a period of two weeks from the date of receipt of a copy of this judgment, same shall be considered by the competent Authority of the Municipality within the statutory period and an appropriate order shall be issued to the petitioner. I make it clear that, if, for any reason, the purchase notice is rejected or if orders thereon are not issued within the **WP(C).No.28736 OF 2019(N)** **7** statutory period, then the Secretary of the Municipality will be obligated to reconsider the petitioner’s application for building permit _de hors_ the DTP Scheme/Master Plan without any delay thereafter but not later than one month from the date on which the statutory period for consideration of the notice under Section 67 of the said Act expires. **Sd/-** nak **DEVAN RAMACHANDRAN JUDGE** **WP(C).No.28736 OF 2019(N)** **8** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE TITLE DEED OF THE PETITIONER DATED 22/11/2012. EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 15/2/2016 PASSED BY THIS HON'BLE COURT IN W.P.(C) NO.37632/2015. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 31/10/2015. EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 9/7/2014 PASSED BY THIS HON'BLE COURT IN W.P.(C) NO.21974/2013. EXHIBIT P5 TRUE COPY OF THE CERTIFICATE DATED 24/7/2015 OF THE 4TH RESPONDENT. EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 15/1/2019 PASSED BY THIS HON'BLE COURT IN W.P.(C) NO.8366/2017. EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 23/2/2019 OF THE RESPONDENT MUNICIPALITY. EXHIBIT P8 TRUE COPY OF THE ORDER DATED 23/5/2019. EXHIBIT P9 TRUE COPY OF THE ORDER DATED 24/12/2018. EXHIBIT P10 TRUE COPY OF THE PETITION DATED 15/7/2019. EXHIBIT P11 TRUE COPY OF THE REJECTION ORDER DATED 20/8/2019 ISSUED BY RESPONDENT NO.1. EXHIBIT P12 TRUE COPY OF THE TAX ASSESSMENT SLIP OF THE BUILDING OF RESPONDENT NO.7. EXHIBIT P13 TRUE COPY OF THE TAX ASSESSMENT SLIP OF THE BUILDING OF RESPONDENT NO.8. EXHIBIT P14 TRUE COPY OF THE REPRESENTATION DATED 1/10/2019 SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.6. EXHIBIT P15 TRUE COPY OF THE REPRESENTATION DATED 2/10/2019 SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.1.** //TRUE COPY// P.A TO JUDGE