Bobby Joseph v. The Thrissur Corporation and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 29[TH] DAY OF FEBRUARY 2024/10TH PHALGUNA, 1945 ``` ## **`WP(C) NO. 33929 OF 2022`** ## **`PETITIONER:`** ``` BOBBY JOSEPH AGED 51 YEARS S/O. LATE KURIAN, KATTOOKKARAN HOUSE, KINGSHIP VIEW, HOLY ANGEIS ROAD, OLLUR (P.O), TRIKKUR, KONIKARA, THRISSUR, PIN-680 306. ``` ## **`BY ADV BINOY VASUDEVAN`** ## **`RESPONDENTS:`** - **`1 THE THRISSUR CORPORATION REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, THRISSUR, PIN – 680 001.`** - **`2 THE SECRETARY, THRISSUR CORPORATION, CORPORATION OFFICE, THRISSUR, PIN – 680 001.`** - **`3 THE DISTRICT TOWN PLANNING OFFICER, THRISSUR, DISTRICT TOWN PLANNING OFFICE, CIVIL STATION, AYYANTHOLE, THRISSUR, PIN – 680 003.`** - **`4 STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001.`** ``` SRI. SANTHOSH P.PODUVAL - SC SRI. E.G.GORDEN - SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.33929 OF 2022 ``` ``` 2 ``` ## **`JUDGMENT`** The petitioner has filed this writ petition for the ## following reliefs:- “i) Issue a Writ of Certiorari or other appropriate writs, orders or directions to call for the records leading up to Exhibit P6 and to quash the same. ii) Issue a Writ of Mandamus or other appropriate Writs, Orders or Directions commanding the 1[st] respondent to grant building permit to the petitioner as applied for as expeditiously as possible at any rate within a time frame to be fixed by this Hon’ble Court, in the interest of justice.” 2. The petitioner is the absolute owner in possession of an extent of 11.22 Ares (27.75 cents) of land comprised in Re.Sy. No.145/55 of Ollur Village, Thrissur Taluk, Thrissur District as per Ext.P1 settlement deed. 3. The petitioner's father submitted an application for building permit for construction of a residential house in the said property before the 2[nd] respondent, the Secretary of the 1[st] respondent ``` WP(C).No.33929 OF 2022 ``` ``` 3 ``` Corporation. Thereupon, the 2[nd] respondent issued Ext.P3 communication stating that as per Government Order bearing No.59/2021 dated 20.02.2021, approving the master plan for Thrissur Corporation, there is a proposal for establishing a road through the petitioner's property having a width of 12 meters and the petitioner was directed to resubmit the plan excluding the area earmarked for road. 4. The petitioner submits that the master plan referred to in Ext.P3 is issued on the basis of the Kerala Town and Country Planning Act, 2016 (for short, 'the Act') and the petitioner has therefore, submitted Ext.P4 application under Section 67 (1) of the Act. The Municipality has received Ext.P4 purchase notice on 16.08.2022 as per Ext.P5 receipt. The Assistant Engineer of the Corporation issued Ext.P6 communication dated 22.09.2022 to the petitioner stating that since there is no order ``` WP(C).No.33929 OF 2022 ``` ``` 4 ``` cancelling the master plan it is not possible to grant permit. The petitioner contends that Ext.P6 communication has been issued without comprehending the scope of Section 67 of the Act. The petitioner states that though he has submitted Ext.P7, a further notice dated 14.06.2023 under Section 67(1) of the Act which was received by the Corporation on the same day itself, no reply is received within the stipulated time. The petitioner submits that the statutory period of sixty days as mandated under Section 67(2) of the Act is over and the Corporation has not taken any decision to acquire the land within the said period. Accordingly, the petitioner contends that he is entitled to be issued with building permit. 5. A statement has been filed on behalf of respondents 1 and 2 wherein it is stated that since the master plan for Thrissur Corporation was sanctioned by the Government on 20.02.2021 and ``` WP(C).No.33929 OF 2022 ``` ``` 5 ``` the period of two years is not over, the application of the petitioner under Section 67(1) is premature and the application can be considered only on the basis of the existing master plan. 6. The District Town Planner, the 3[rd] respondent, has also filed a statement wherein it is stated that permitting any construction against the provisions of the master plan will violate Rule 3(3) of the Kerala Municipality Building Rules, 2019. 7. Heard the learned counsel for the petitioner, the learned Standing Counsel for the Municipality and the learned Government Pleader. 8. Though the petitioner has submitted Exts.P4 and P7 purchase notices, admittedly, no orders have been passed thereon and the property has not been decided to be acquired. Ext.P7 purchase notice was submitted by the petitioner after the expiry of two years from the date of coming into force of the master plan. The same was received by the ``` WP(C).No.33929 OF 2022 ``` ``` 6 ``` Corporation on 14.06.2023. Therefore, the legal consequences contemplated under Section 67(2) of the Act have to follow. A Division Bench of this Court in **District Town Planner, Malappuram and Others v. Vinod and Others** [2019 (3) KHC 673], considering the scope of Section 67 of the Act, has held as follows:- “10. 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 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, 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.” 9. Another Division Bench of this Court, in **Town Planner, District Town Planning Officer v. Joseph Jacob** [2023 KHC 145 : 2023 (2) KLT 35], has held that once a purchase notice is issued and the ``` WP(C).No.33929 OF 2022 ``` ``` 7 ``` authority failed to act within the time as stipulated under the statute, the right is crystallised on the land owner to use the land for any purpose in accordance with law and he is not bound by the approved master plan or the DTP Scheme. The Court observed as ## follows:- “10. The proviso to Section 67 of the Act stipulates the local authority to act upon the applications for building permits etc. in consultation with the Chief Town Planner. This is only to ensure that Chief Town Planner is put on notice in regard, not acquiring the land which was proposed to be acquired in the Master Plan or DTP Scheme. That itself is not an embargo for the local authority in acting upon the building permit application in accordance with law. 11. It is also to be noted that the consultation referred to in proviso to Section 67 of the Act cannot be treated as concurrence of Chief Town Planner for granting development permit. The embargo on the land would stand automatically released from the approved Master Plan or the DTP Scheme after the lapse of period mentioned in the purchase notice. 12. In such circumstances, we are of the view that the rest of the matters are only a formality to be completed for the purpose of the record of the administration of the public authorities.” ## 10. In the light of the said binding precedents, ``` WP(C).No.33929 OF 2022 ``` ``` 8 ``` the application of the petitioner for building permit has to be considered in accordance with law as the respondents 1 and 2 have failed to act upon Ext.P7 purchase notice sent by the petitioner within the stipulated period. Accordingly, Ext.P6 is set aside and there will be a direction to the 2[nd] respondent to process the application submitted by the petitioner for building permit and pass orders in accordance with law, within a period of one month from the date of receipt of a copy of this judgment, disregarding the proposal for establishment of road through the petitioner's property as per the master plan referred to in Ext.P6. The writ petition is disposed of with the above direction. Sd/- ## **`MURALI PURUSHOTHAMAN`** ## **`JUDGE`** SPR ``` WP(C).No.33929 OF 2022 ``` ``` 9 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1TRUE COPY OF DOCUMENT NO.2007/2022 DATED 02.09.2022. EXHIBIT P2TRUE COPY OF THE LAND TAX RECEIPT DATED 03.08.2022 ISSUED BY THE VILLAGE OFFICER, OLLUR VILLAGE. EXHIBIT P3TRUECOPYOFCOMMUNICATION NO.OLR/BA/282/21-22DATED02.04.2022 ISSUED ON BEHALF OF THE FIRST RESPONDENT. EXHIBIT P4TRUE COPY OF THE PURCHASE NOTICE DATED 12.08.2022 SUBMITTED BY THE PREDECESSOR IN INTEREST OF THE PETITIONER. EXHIBIT P5TRUE COPY OF THE RECEIPT DATED 16.08.2022 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P6TRUE COPY OF THE NOTICE NO.OLR/BA/282/21- 22 DATED 22.09.2022 ISSUED BY THE ASSISTANT ENGINEER, OLLUR ZONING OFFICE OF THE 1ST RESPONDENT. EXHIBIT P7TRUE COPY OF THE NOTICE SUBMITTED BY THE PETITIONER TO 2ND RESPONDENT DATED 14.06.2023 EXHIBIT P8TRUE COPY OF THE RECEIPT 14.06.2023 ISSUED BY THE OFFICE OF THE 1ST RESPONDENT ACCEPTING EXHIBIT P7. ``` ``` RESPONDENTS EXHIBITS: NIL. ```