Basheer P., Sainaba A., Faizal P., Nazer P., Shafeeq P., Sareena P. and Rafeek P. v Kozhikode Corporation and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 06TH DAY OF AUGUST 2019 / 15TH SRAVANA, 1941** **WP(C).No.35579 OF 2017(V)** ## **PETITIONERS:** - **1 BASHEER P., S/O.MAMMED KOYA, AGED 53 YEARS, 17/959, PATTALATH, PUTHIYARA P.O., KOZHIKODE-673004.** - **2 SAINABA A., W/O.MAMMED KOYA, 17/959, PATTALATH,PUTHIYARA P.O., KOZHIKODE-673004.** - **3 FAIZAL P., S/O.MAMMED KOYA, 17/959, PATTALATH,PUTHIYARA P.O., KOZHIKODE-673004.** - **4 NAZER P., S/O.MAMMED KOYA, 17/959, PATTALATH,PUTHIYARA P.O., KOZHIKODE-673004.** - **5 SHAFEEQ P., S/O.MAMMED KOYA, 17/959, PATTALATH,PUTHIYARA P.O., KOZHIKODE-673004.** - **6 SAREENA P., S/O.MAMMED KOYA, 17/959, PATTALATH,PUTHIYARA P.O., KOZHIKODE-673004.** - **7 RAFEEK P., S/O.MAMMED KOYA, 17/959, PATTALATH,PUTHIYARA P.O., KOZHIKODE-673004.** **BY ADV. SRI.K.PRAVEEN KUMAR** W.P.(C)No.35579 of 2017 :-2-: ## **RESPONDENTS:** - **1 KOZHIKODE CORPORATION REPRESENTED BY ITS SECRETARY, KOZHIKODE-673032.** - **2 THE SECRETARY, KOZHIKODE CORPORATION, KOZHIKODE-673032.** - **3 THE EXECUTIVE ENGINEER ENGINEERING & BUILDING, KOZHIKODE CORPORATION, KOZHIKODE-673032.** - **ADDL.R4 THE REGIONAL TOWN PLANNER REGIONAL TOWN PLANNING OFFICE, 4TH FLOOR, KUDFC BUILDING, KANNUR ROAD, WEST HILL, KOZHIKODE-673005.** - **ADDL.R5 STATE OF KERALA REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **(ADDL.R4 AND R5 ARE IMPLEADED AS PER ORDER DATED 12/04/2019 IN IA.NO.2/2019)** - **R1-R3 SRI.K.D.BABU,SC,KOZHIKODE CORPORATION** - **ADDL. R4&R5 SRI.MANU RAJ K.J., GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.35579 of 2017 :-3-: ## **JUDGMENT** The petitioners, who are stated to be the joint owners of a property having an extent of 1.67 cents situated in T.S. No.10-2-8/3 of Nagaram Village of Kozhikode Taluk, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 order dated 04.10.2017 of the 2[nd] respondent Corporation. The petitioner has also sought for a writ of mandamus commanding the respondents to issue building permit to them as requested in their application dated 23.08.2016, referred to in Ext.P1 order, as expeditiously as possible; and a declaration that building permit cannot be denied to the petitioners as they are proposing to construct a commercial building in commercial zone and the adjacent plot owner had already been issued permit for construction of a commercial building. 2. A counter affidavit has been filed by respondents 1 to 3. Paragraphs 3 and 4 of the counter affidavit read thus; “3. It is submitted that the petitioners had preferred an application on 23.08.2016 seeking building permit for constructing a commercial building at ward number 10 in Re.Sy.No.8/3 at Nagaram Village in 1.58 cents of property in the ground floor. Upon verifying the said W.P.(C)No.35579 of 2017 :-4-: application, it was revealed that the proposed construction site is an area reserved as “area to be acquired for commercial zone” as per the DTP Scheme. As per Rule 3A of K.M.B.R., the terms and conditions stipulated in the Town Planning Act is applicable to the scheme covered area. In addition to that as per the judgment of the Hon'ble Supreme Court in Civil Appeal No.13995/15 dated 02.02.2015, it has been stipulated that the terms and conditions specified in the D.T.P.Scheme and Master Plan has to be strictly complied with. 4. It is submitted that in view of the above stated violations this respondents are fully justified in rejecting the application submitted by the petitioners as per Ext.P1. Moreover the Regional Town Planner, Kozhikode is a necessary party to this writ petition as the issue involved is regarding Detailed Town Planning Scheme. Therefore for non-joinder of necessary party itself, this writ petition deserves to be dismissed.” 3. By the order dated 12.04.2019 in I.A.No.2 of 2019, the Regional Town Planner, Kozhikode and also the State of Kerala represented by the Secretary to Government, Local Self Government Department were impleaded as additional respondents 4 and 5. 4. The petitioners have filed a reply affidavit. Paragraphs 2 and 3 of the reply affidavit read thus; W.P.(C)No.35579 of 2017 :-5-: “2. Regarding averments in paragraphs 4 and 5 of the counter affidavit it is submitted that there is no mention about the detailed scheme and when the property would be acquired. It is laid down principle that the property of the citizen cannot be frozen indefinitely on the ground of proposed acquisition. We have already taken steps to implead the Regional Town Planner, Kozhikode as additional respondent. Moreover we applied for permission for constructing a commercial building in proposed commercial zone. 3. It is submitted that there is no averment in the counter affidavit regarding the permit granted to the owner of the adjacent plot, where he constructed a building in the name and style of “T.P. Building”. This was one of the grounds in the writ petition. So it is clear that the respondents have discriminated the petitioner with ulterior motives which cannot be permitted and the action is hit by Article 14 of the Constitution of India. The respondents being statutory authorities cannot discriminate the petitioners.” 5. The additional 4[th] respondent has filed a counter affidavit. Paragraphs 2 to 4 of the said counter affidavit read thus; “2. It is submitted that T.S.No.10-2-8/3 of Nagaram Village of Kozhikode Corporation falls under the detailed Town Planning Scheme for Ward 7(P), 10 & 13(P) of Kozhikode Corporation sanctioned vide G.O.(P) 104/99/LAD dated 31.05.1999. The T.S.No.10-2-8 is W.P.(C)No.35579 of 2017 :-6-: earmarked as 'area to be acquired for commercial uses' and the petitioner's plot is part of that. The adjacent town survey on south is commercial zone and that on north west is Public & Semi Public Zone. The Town Survey on North-East is Road. 3. The scheme rule 21(1) lays down provisions for modifications of the scheme with the concurrence of the Chief Town Planner. 4. The Master Plan for Kozhikode Urban Area was sanctioned as per G.O.(Ms) No.131/2017/LSGD dated 07.07.2017. However, when both sanctioned Master Plan and sanctioned Detailed Town Planning Scheme exists for an area, the provisions of the detailed Town Planning Scheme prevails, as per Section 61 of the Kerala Town and Country Planning Act, 2016.” 6. The petitioners have filed a reply affidavit. Paragraphs 3 and 4 of the said reply affidavit read thus; “3. The Master Plan for the Kozhikode Urban Area was sanctioned as per Government order dated 07.07.2017 and even after two years of the same, no steps have been taken to acquire the subject land. 4. The Kerala Town and Country Planning Act, 2016 (for short the Act) was brought in to force with effect from 23.09.2013. Assuming that the DTP Scheme is still alive by virtue of Sec.113 of the Act, if no acquisition proceedings are initiated within two years from 23.09.2013, the DTP Scheme is unworkable, by virtue of Section 67 of the Act. Admittedly, as on today, no acquisition proceedings are initiated in W.P.(C)No.35579 of 2017 :-7-: respect of our property. So the denial of building permit as sought for by us on the ground of DTP Scheme is perse illegal, and violative of Articles14, 19 (1)(g), 21 and 300A of the Constitution of India. The position is covered in our favour as per the decisions of this Hon'ble Court in District Town Planner, Malappuram and others v. Vinod and others [2019 (3) KHC 673 (DB) and Abdul Hakeem N.T. v. Manjeri Municipality and another [2018 (2) KHC 67].” 7. Heard the learned counsel for the petitioners, the learned Standing Counsel for Corporation, representing respondents 1 to 3 and also the learned Government Pleader appearing for additional respondents 4 and 5. 8. Going by the averments in the writ petition, for the purpose of constructing a commercial building having a plinth area of 26.11M[2] , the petitioners submitted an application for building permit before the 2[nd] respondent Corporation. By Ext.P1 order dated 04.10.2017, the 2[nd] respondent rejected that application on the ground that the property is included in the area to be acquired for commercial zone and as such, there is violation of the provisions under Rule 3A of the Kerala Municipality Building Rules, 1999. The document marked as Ext.P2 is the specification and report of the proposed W.P.(C)No.35579 of 2017 :-8-: commercial building, issued by a Supervisor-A Licensee. The petitioner would contend that the adjacent property owner has already been granted permit to construct a commercial building and in such circumstances, the rejection of the petitioner's application for building permit for constructing a commercial building, by Ext.P1 order of the 2[nd] respondent, is _per se_ arbitrary and illegal. 9. In **District Town Planner, Malappuram and others v. Vinod and others [2019 (3) KHC 673]** a Division Bench of this Court held that a reading of the provisions of the Kerala Town and Country Planning Act, 2016 and the Kerala Municipality Building Rules, 1999 / the Kerala Panchayat Building Rules, 1999 indicate that the DTP Schemes prepared under the Act, 2016 are to have overriding effect over the provisions of the Building Rules. Accordingly, the procedure under Section 67 has to be followed in case the project envisaged under the DTP Scheme involves acquisition of land by the Local Authorities as a pre-requisite for implementing the proposal. The provisions of Section 67 of the Act, 2016 are intended to balance the conflicting rights of the State and the private individual. While the State has the right to reserve W.P.(C)No.35579 of 2017 :-9-: lands for development proposals in public interest, the said right cannot be exercised in a manner designed to frustrate the Constitutional rights of the private individual under Article 300A of the Constitution of India, to deal with his property in the manner he chooses. A balance is therefore struck by directing the State to take affirmative action for implementing the proposal within a specified time-frame, failing which, the private individual is to be given the unfettered freedom to use his land for other permissible purposes. 10. In **Vinod's case (supra)** the Division Bench held further that, the provisions in Section 67 of the Kerala Town and Country Planning Act, 2016 would imply that where any land is 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 or the affected person 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 W.P.(C)No.35579 of 2017 :-10-: other authorities, the information on the receipt of purchase notice is to be forwarded to the said authority. In case decision is taken by the concerned authority not to acquire the land, variation of 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, 2016 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. 11. In **Vinod's case (supra)** the Division Bench referred to the law laid down by another Division Bench in **District Town Planner and another v. Antony Joseph and others** (judgment dated 24.02.2016 in W.A.No.109 of 2015), wherein it was held that, in cases where acquisition of land is required for the purpose of utilising the said land for a public purpose in terms with a Master Plan or DTP Scheme, which W.P.(C)No.35579 of 2017 :-11-: apparently restricts the right of the owners, steps in that regard has to be taken within a time limit. A bare reading of Section 67 of the Kerala Town and Country Planning Ordinance, 2013 (Ordinance 51/2013) indicates that the owner of the property which is designated for compulsory acquisition is entitled to issue a notice referred as 'purchase notice' requiring the Municipality to purchase the interest in the land in accordance with the provisions of the Ordinance. Thereafter, in terms of sub-section (2), the Municipality will have to take a decision to acquire the land. If the decision is not to acquire the land, the Municipality can initiate steps to vary the plan suitably in accordance with the Ordinance. If the land acquisition could not be effected within a period of two years from the date of resolution to acquire the land, then also the Municipality has to initiate variation of the plan in accordance with the Ordinance. Therefore, sufficient provisions have been made under the Ordinance for de-reserving the property and excluding the same from acquisition if the acquisition is not made within a specified time. Therefore, when a DTP Scheme is in force, and certain land is designated for acquisition for common purposes, the remedy available to the land owner is W.P.(C)No.35579 of 2017 :-12-: to approach the Municipality or the Government, as the case may be, for de-reserving the land in accordance with the statutory provisions. Unless there is compliance with the statutory provisions by which the Municipality may either take a decision to exclude the land from acquisition or to acquire the land within a specified time limit as provided under the statute, it may not be possible for the land owner to seek a building permit ignoring the sanctioned scheme nor will it be possible for the Municipality to grant the permit. 12. In **Vinod's case (supra)** the Division Bench observed that the implication of the Act, 2016 as explained above in **Antony Joseph's case (supra)** appears to be sound. The Division Bench concluded that the respondents / writ petitioners cannot be prevented from lawful enjoyment of their property, merely because, such property is included in the DTP Scheme of the Thalassery Municipality. It does not however mean that the authorities are deprived of their right to acquire the land at a future date, if the same would be needed for the development Scheme of the Town. The only burden in that future event would be, the need to compensate the owner to the extent of development or the construction, W.P.(C)No.35579 of 2017 :-13-: made over the property. In the judgment impugned, the learned Single Judge has directed the Municipality to acquire the land for the development Scheme and if for any reason they are unable to do so within three months, the application for building permit rejected earlier, was directed to be reconsidered. The Division Bench held that, in the scheme of the Act, 2016, such a direction could not have been issued, in the absence of any purchase notice by the aggrieved property owners requiring the authorities to purchase the interest in the land. Therefore, the Division Bench set aside the impugned judgments, reserving the right of the respondents / writ petitioners to serve purchase notice on the Municipal authorities under sub-section (1) of Section 67 of the Act, 2016. If such purchase notice is received, the Municipal authorities are directed to take timely decision in accordance with law, to either acquire the land or initiate appropriate variation in the DTP Scheme. In cases where purchase notices were actually sent to the Municipal authorities, the Division Bench directed the Municipal authorities to forthwith consider the applications for building permit, in accordance with law. 13. In **Regional Town Planner and another v.** W.P.(C)No.35579 of 2017 :-14-: **Muhammed Rasheed and others [2019 (3) KHC 987]** a Division Bench of this Court held that the local authorities concerned issue building permits in terms of the provisions of the Kerala Municipality Building Rules, 1999 or the Kerala Panchayat Building Rules, 2011 as the case may be. The said Rules are framed by the State Government in exercise of the rule making power under the respective enactments, namely Kerala Municipality Act, 1994 or the Kerala Panchayat Raj Act, 1994. A Reference to Rule 11 of the Kerala Municipality Building Rules (or the corresponding provisions of the Kerala Panchayat Building Rules) would indicate that the Secretary of the local authorities, while approving the plan and issuing any permit, has to verify whether the plan and the work pursuant thereto conforms to the Rules and Bye-laws made under the Act or any other law. Rule 3A of the Kerala Municipality Building Rules clarifies that wherever a Town Planning Scheme under the Town Planning Act is in force, the provisions or regulations thereunder shall prevail over the respective provisions of the Kerala Municipality Building Rules. The position is similar under the Kerala Panchayat Building Rules also. Thus, the Secretary of a local authority, while issuing W.P.(C)No.35579 of 2017 :-15-: building permits in terms of the respective rules, is statutorily obliged to ensure that the construction in respect of which the permit is issued does not breach the provisions of any law. 14. In **Muhammed Rasheed's case (supra)** the Division Bench held further that, a validly framed and duly notified scheme under a Town Planning Act would come within the ambit of the term 'other law' for the purposes of the Kerala Municipality Building Rules or the Kerala Panchayat Building Rules, and it was to clarify this aspect that Rule 3A was inserted in the Kerala Municipality Building Rules and a similar provision inserted in the Kerala Panchayat Building Rules. It would also follow that, in an area that has been developed in accordance with the Scheme that was validly prepared and duly notified in accordance with the provisions of the Town Planning Act, future constructions would have to adhere to the terms of the Scheme and the plans approved thereunder. This must be so unless and until the Scheme itself is altered or varied by the State Government in accordance with the provisions of the Town and Country Planning Act. The mandate and purport of the Scheme so framed assumes the nature of a law that regulates future construction in the area and would W.P.(C)No.35579 of 2017 :-16-: also bind subsequent purchasers of land and users thereof. 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 the above settled position, the Division Bench allowed the writ appeals by setting aside the impugned judgments of the learned Single Judge, to the extent they direct the local authority concerned to consider the application for building permit submitted by the writ petitioners without reference to the Zoning provisions under the DTP Schemes in force. 15. As per Section 61 of the Kerala Town and Country Planning Act, 2016, after the coming into operation of a Master Plan or Detailed Town Planning Scheme under the said Act, no person shall use or cause to use any land or carry out development in any land, or change the use of land otherwise than in conformity with or with prejudicial to the Master Plans and Detailed Town Planning Schemes under this Act. As per W.P.(C)No.35579 of 2017 :-17-: Note to Section 61, the provisions of Detailed Town Planning Schemes shall prevail over the provisions of the Master Plans where both Plans are in force in an area. 16. Section 113 of the Kerala Town and Country Planning Act, 2016 deals with repeal and saving. As per subsection (1) of Section 113, with effect on and from the commencement of this Act, the Town Planning Act, 1108 ME (Act IV of 1108 ME), the Travancore Town and Country Planning Act, 1120 (Act XXI of 1120 ME), the Madras Town Planning Act, 1920 (Madras Act VII of 1920) and the Kerala Town and Country Planning Ordinance, 2016 (4 of 2016) shall stand repealed. As per clause (i) of sub-section (2) of Section 113, notwithstanding such repeal, any draft General Town Planning Scheme for an area including Master Plan or Development Plan or a draft Detailed Town Planning Scheme published under the repealed Acts shall be deemed to be a draft Master Plan or a draft Detailed Town Planning Scheme, as the case may be, published under this Act. As per clause (ii) of sub-section (2) of Section 113, notwithstanding such repeal, any General Town Planning Scheme for an area including Master Plan or Development Plan or a Detailed Town Planning W.P.(C)No.35579 of 2017 :-18-: Scheme sanctioned under the repealed Acts shall be deemed to be a Master Plan or a Detailed Town Planning Scheme, as the case may be, sanctioned under this Act. 17. In view of the law laid down by the Division Bench in **Vinod's case (supra)** , it is for the petitioner to serve a purchase notice on the 1st respondent Municipality requiring the Municipality to purchase the interest in the land in terms of the provisions under Section 67 of the Kerala Town and Country Planning Act, 2016. 18. As per sub-section (1) of Section 67 of the Kerala Town and Country Planning Act, 2016, 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 ('the purchase notice') requiring W.P.(C)No.35579 of 2017 :-19-: 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. As per subsection (2) of Section 67, 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. 19. If the petitioners serve a purchase notice to the the 1st respondent Municipality to purchase the interest in the land in terms of the provisions under Section 67 of the Kerala Town and Country Planning Act, 2016, within three weeks from the date of receipt of a certified copy of this judgment, the 1st respondent shall consider the same under sub-section (2) of Section 67, within the time limit specified thereunder, with notice to the petitioners and after affording them an opportunity of being heard. In the event of a favourable W.P.(C)No.35579 of 2017 :-20-: decision by the 1st respondent Municipality, it is for the petitioners to make a request before the 2nd respondent to reconsider the application for building permit submitted before the 1st respondent Municipality, which is referred to in Ext.P1 order dated 04.10.2017, in which event the 2nd respondent shall reconsider that application, untrammeled by Ext.P1, taking note of the law laid down by the Division Bench of this Court in the decisions referred to supra. The writ petition is disposed as above. Sd/- **ANIL K. NARENDRAN JUDGE** bpr W.P.(C)No.35579 of 2017 :-21-: ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS DATED 4- 10-17 OF THE 2ND RESPONDENT. EXHIBIT P2 TRUE COPY OF THE SPECIFICATION AND REPORT OF THE PROPOSED CONSTRUCTION.** **RESPONDENTS' EXHIBITS: NIL**