Chandrika Amma v. State of Kerala and Guruvayur Municipality and its Secretary

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY,THE 10TH DAY OF OCTOBER 2018 / 18TH ASWINA, 1940 WP(C).No. 15342 of 2014** ## **PETITIONER/S:** **CHANDRIKA AMMA, AGED 66 YEARS, W/O.ARAVINDAKSHAN NAIR, RESIDING AT FLAT NO.7, 2ND FLOOR, "NANDANAM ARCADE", HOUSING BOARD ROAD, GURUVAYOOR P.O., THRISSUR-680 101.** **BY ADV. SRI.SANTHEEP ANKARATH** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY,**| ||**LOCAL SELF GOVERNMENT DEPARTMENT,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695001.**| |**2**|**THE CHAIRMAN,**| ||**GURUVAYUR MUNICIPALITY,**| ||**GURUVAYUR-680101.**| |**3**|**THE SECRETARY,**| ||**GURUVAYUR MUNICIPALITY,**| ||**GURUVAYUR-680101.**| ||**BY ADVS.**| ||**R1 BY SMT. RAJI T.BHASKER, GOVERNMENT PLEADER**| ||**R2 & R3 BY SRI.P.A.AHAMMED**| ||**SRI.M.SREEKUMAR**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.15342 of 2014 2 ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P3 order passed by the State Government, declining to grant building permit to the petitioner. Brief material facts for the disposal of the writ petition are as follows: 2. Petitioner is the owner in possession and enjoyment of 16.5 cents of property comprised in Survey No.4/4A in Thaikkadu Village, Chavakkad Taluk, Thrissur District, who submitted an application for building permit for the construction of a residential building, before the 3[rd] respondent, Secretary of the Guruvayur Municipality. The 3[rd] respondent thereupon, has issued Ext.P1 communication rejecting the said application for the reason that, the property in which the building permit has been applied is covered in the area set apart for park and open space in accordance with the Master Plan. Case of the petitioner is that, the Master Plan is of the year 1976, and till date, no steps have been taken to acquire the land or to implement the above said Master Plan. It is also pointed out that, the very same Municipality has issued building permits to the owners of adjacent plots and many others whose lands also would W.P.(C) No.15342 of 2014 3 come well within the area earmarked for the above said Master Plan. That apart, it is submitted that, rejection of the petitioner's application on the basis of an antiquated scheme or Master Plan is arbitrary and illegal. It was being confronted with such a situation, petitioner has earlier approached this Court by filing W.P.(C) No.15032 of 2013, which was disposed of as per Ext.P2 judgment dated 26.07.2013, directing the State Government to consider the application submitted by the petitioner afresh, after conducting an inspection of the petitioner's property to verify the present condition and to pass orders in accordance with law. 3. The case projected by the petitioner is that, the State Government, without taking into account the ground realities, have passed Ext.P3 order, stating that the DTP Scheme for Guruvayur Municipality is in force and the property is required for park and open space. The State Government apparently relied upon the report of the Chief Town Planner, who submitted that in view of the direction of this Court in the judgment in O.P.No.8740/1997 dated 07.11.2005, the construction sought for by the petitioner is not permissible. W.P.(C) No.15342 of 2014 4 4. A detailed counter affidavit is filed by respondents 2 and 3, refuting the allegations and claims and demands raised in the writ petition. Among other contentions, it is pointed out that, the application for building permit was rejected, since the property is included in the Park and Open Space Zone in the Master Plan. Therefore, no acquisition proceedings are necessary pursuant to the publication of the Master Plan for implementation of the same, and the property owners can use the property only in accordance with the Zoning Regulation contained in the Master Plan, once it is notified. 5. Earlier, the Municipality used to issue building permit on the basis of the exemption obtained by respective property owners from the Government. However, this Court in ' _**Sayeesh Kumar & Others v. State of Kerala**_ _**& Others**_ ' [2005 (4) KLT 1027], held that, Government has no power to grant individual exemption from the application of Town Planning Scheme and Master Plan and thereafter, no building permit has been issued except as directed by this Court in various judgments. During the course of arguments, learned counsel appearing for the Municipality also submitted that, in 2010 a draft Master Plan is prepared by the Municipality. W.P.(C) No.15342 of 2014 5 6. I have heard learned counsel for the petitioner, learned Government Pleader and the learned Standing Counsel for the Municipality and perused the pleadings and the documents on record. 7. Learned counsel for the petitioner reiterated the contentions raised in the writ petition and also submitted that, petitioner, being the owner of the property, is entitled as of right to utilise the same in accordance with law. It is also submitted that, by virtue of the right conferred under Article 300A of the Constitution of India, petitioner has a constitutional right to enjoy the property without unnecessary interference of any statutory authorities and in accordance with law. On the other hand, learned Standing Counsel for the Municipality as well as the learned Government Pleader submitted that, since a Scheme is launched and is in force, petitioner is not entitled to get the application considered, and the same is protected in accordance with the provisions of the Kerala Town and Country Planning Act, 2016 [for brevity, 'the Act, 2016']. By virtue of Sec.113 of Act, 2016, with effect on and from the commencement of the said Act, the Town Planning Act, 1108 ME, the Travancore Town and Country Planning Act, 1120, the Madras Town Planning Act, 1920 W.P.(C) No.15342 of 2014 6 and the Kerala Town and Country Planning Ordinance, 2016 shall stand repealed. However, by virtue of sub-section (2) therein, notwithstanding such repeal, (i) 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 Act, 2016. Other provisions are also provided thereunder protecting the Schemes launched under various Town Planning Acts. 8. Section 67 deals with obligation to acquire land in certain cases. Sub-sections (1) and (2) are relevant to the context, which read thus: _“(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,_ W.P.(C) No.15342 of 2014 7 _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.”_ There are other provisions also under Sec.67 to deal and tackle with the applications received for building permits. The proviso to sub-section (7) thereunder is relevant to the context, which read thus: _“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.”_ 9. The Kerala Town and Country Planning Act, 2016 came into force on and with effect from 23.09.2013. It is evident that, no action is initiated to acquire the land or implement the Scheme which is said to be in force, and therefore, in my considered view, petitioner, who is the owner of the property, entitled to enjoy the same in accordance with law, cannot be curbed from using the said property. 10. Taking into account all these aspects, and in order to provide further opportunity to the Municipality, I am of the considered opinion that, a reasonable time can be provided to the Municipality in order to ascertain W.P.(C) No.15342 of 2014 8 whether it is going for acquisition of the property in accordance with the provisions of Act, 2016. Therefore, three months time from the date of receipt of a copy of this judgment is granted to the Municipality to identify whether it is interested in the acquisition of the property as per the Scheme in force, if not, the building permit application submitted by the petitioner shall be considered in accordance with law _de hors_ the findings rendered in Ext.P1 order passed by the Municipality and Ext.P3 order passed by the State Government, at the earliest, and at any rate, within a month thereafter. The writ petition is disposed of accordingly. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** St/11.10.2018 W.P.(C) No.15342 of 2014 9 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 COPY OF THE COMMUNICATION NO.206/12-13 DATED 12.02.2013 BY THE 3RD RESPONDENT REJECTING THE APPLICATION FOR CONSTRUCTION. EXHIBIT P2 COPY OF THE JUDGMENT DATED 26.07.2013 IN WPC.NO.15032 OF 2013. EXHIBIT P3 COPY OF ORDER NO.GO(RT)NO.2798/LSGD DT.15.11.2013 ISSUED BY R1.** RESPONDENTS' EXHIBITS : NIL //TRUE COPY// P.S. TO JUDGE St/-