Chalakudy Municipality v. Saju S/o Kunjippalu and State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 24TH DAY OF JANUARY 2020 / 4TH MAGHA, 1941 ## WA.No.1413 OF 2016 AGAINST THE JUDGMENT IN WPC 31283/2015 DATED 11-03-2016 OF HIGH COURT OF KERALA ## APPELLANTS/2ND RESPONDENT: THE CHALAKUDY MUNICIPALITY REPRESENTED BY ITS SECRETARY, CHALAKUDY P.O., THRISSUR DISTRICT 680 001. ## BY ADV. SRI.M.P.ASHOK KUMAR ## RESPONDENTS/PETITIONER & 1ST RESPONDENT: 1 SAJU S/O.KUNJIPPALU, MELEN HOUSE, EAST CHALAKUDY VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT - 680 001. 2 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. R1 BY ADV. SRI.N.L.BITTO R2 BY ADV. SRI.K.V.SOHAN, STATE ATTORNEY THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. No. 1413/2016 -2- ## **JUDGMENT** ## **Dated this the 24[th] day of January, 2020.** ## **Shaji P. Chaly, J** The appeal is directed against the judgment of the learned single Judge in W.P.(C) No. 31283 of 2015 dated 11.03.2016, by the second respondent i.e., the Chalakkudy Municipality. As per the judgment impugned, the learned single Judge quashed Ext.P2 order passed by the Municipality declining the building permit to the writ petitioner on the ground that the property belonging to him situated in Survey No. 507/6 of Chalakkudy Village admeasuring 17.36 cents, is included in the Town Planning Scheme for residential development in the market area, that no modification can be made in the Town Planning Scheme and therefore, the permit sought for by the writ petitioner for the construction of a commercial building cannot be granted. Accordingly, the matter is remitted to the appellant Municipality for fresh consideration within one month from the date of receipt of a copy of the judgment, after providing an opportunity of hearing to the writ petitioner, notwithstanding the zonal classification in the DTP scheme on account of the W.A. No. 1413/2016 -3- findings rendered thereunder. 2. The brief material facts for the disposal of the appeal are as follows: The writ petitioner is the owner in possession of 17.36 cents of land comprised in Survey No. 507/6 of Chalakkudy Village within the limits of the appellant Municipality. According to the writ petitioner, the said property is a pacca dry land and he intends to construct a commercial building, and it was accordingly that application was submitted for building permit before the appellant Municipality. However, the same was rejected stating that the property is proposed to be acquired for residential purpose under the DTP scheme. 3. The contention advanced by the Municipality in the appeal is that the property in question is reserved for the construction of residential building under the DTP scheme framed by the Municipality for the market area development. Thus, the property in question is included in a sanctioned DTP scheme and the respondent Municipality cannot make any variation in the DTP scheme without the permission of the Government. The learned single Judge, after taking into W.A. No. 1413/2016 -4- account the proposition of law laid down by the Apex Court in **Raju S. Jetmalani v. State of Maharashtra & others [92005) 11 SCC 222]** , **Nazar v. Malappuram Municipality** [2009 (3) KLT 92], **Saidu P. v. State of Kerala & others** [2010 (3) KHC 974] and **Gopalakrishnan T.V v. State of Kerala and others** [2011 (3) KHC 162], came to the conclusion that the land belonging to private individuals cannot be included in development plans, unless the land is acquired by the State Government or the Municipal Corporation. Further, it was held that the State Government cannot deprive the land owner from beneficially using his property under the guise of Town Planning scheme, when no steps have actually taken to implement the same. It was accordingly that Ext.P2 order of the Municipality was quashed and the directions were issued to consider the application for building permit in accordance with law, notwithstanding the zonal classification in the DTP scheme. 4. We have heard the learned counsel for the appellant, Sri. M.P. Ashok Kumar, learned Senior Government Pleader, Sri. Tek Chand and the learned counsel appearing for the party W.A. No. 1413/2016 -5- respondents, Sri. G. Sreekumar Chelur and perused the pleadings and the documents on record. 5. The paramount contention advanced by the learned counsel appearing for the Municipality is that when there is a DTP scheme in force and the classification is done in accordance with the Town Planning Scheme, the Municipality cannot consider the application for building permit and plan for a commercial building as per the requirement of the writ petitioner. In that regard, the learned counsel has invited our attention to the judgment of the Division Bench of this Court in **Regional Town Planner and others v. Muhammed Rasheed and others** [2019 (3) KHC 987] and contended that the zoning done under the DTP scheme was upheld by this Court and therefore, the judgment of the learned single Judge cannot be sustained under law. It is also submitted that as per Section 113(1) of the Kerala Town and Country Planning Act, 2016, 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 W.A. No. 1413/2016 -6- Planning Scheme, as the case may be, published under the Act, 2016. In effect, as per Section 113 of the Act, all the erst while Town Planning Acts were repealed. However, as per subSection (2), the erst while plans and the schemes are protected. We are of the considered opinion that to that extent with respect to the survival of the old Town Planning Scheme as contended by the learned counsel for the appellant would be correct. But fact remains, Ext.P2 order passed by the Municipality declining the permit to the petitioner clearly shows that there is a proposal for acquisition of the property in question belonging to the writ petitioner for the purpose of construction of residential building. Therefore, in our considered opinion, the judgment rendered by the Division Bench of this Court in Muhammed Rasheed and others (supra) has no bearing at all. However, the same Division Bench has considered the question with respect to the acquisition of the property and the deprivation of the right of a property owner to enjoy in **District Town Planner, Malappuram and others v. Vinod and others** [2019 (3) KHC 673], taking into account Section 67 of the Act, 2016, whereby it was held that the W.A. No. 1413/2016 -7- procedure contemplated under Section 67 of the Act, 2016 is to be followed. Therefore, since the property of the petitioner is proposed to be acquired by the appellant Municipality, necessarily the appellant Municipality will have to consider the application submitted by the petitioner in the light of Section 67 of the Act, 2016, which read thus: “ **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 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. W.A. No. 1413/2016 -8- (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: 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.” 6. So also, it is submitted by the learned counsel for the writ petitioner that in the area where the property of the writ petitioner is situated, large number of commercial buildings are constructed after securing building permit from the appellant W.A. No. 1413/2016 -9- Municipality and he brought to our notice a judgment of a Division Bench of this Court in **Gopalakrishnan T.V. v. State** **of Kerala & others** [2011 (3) KHC 162], taking into account the Zoning Regulations vis-a vis the construction of commercial buildings. The Division Bench of this Court has categorically found that when there are commercial buildings put up already on the basis of the permit granted and the plan approved by the Municipality, then the Zoning Regulations have lost its relevance and the application for the construction of a commercial building should be considered dehors the Zoning Regulations. 7. After hearing the respective counsel across the Bar, we are of the considered opinion that the learned single Judge has taken note of the legal as well as the factual requirements when the judgment was rendered but for Sections 67 and 113 of Act, 2016 discussed above and therefore, we modify the judgment to the extent leaving open the liberty of the petitioner to take appropriate steps in accordance with Section 67 of Act, 2016. It is further made clear that depending upon the development accordingly the permit application of the writ petitioner shall be W.A. No. 1413/2016 -10- reconsidered adhering strictly to the time period provided under the said provisions. This writ appeal is disposed of as above. sd/- **S. MANIKUMAR, CHIEF JUSTICE.** sd/- **SHAJI P. CHALY, JUDGE.** Rv