Chavakkad Firka Co-op. Rural Bank Ltd v Guruvayoor Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **FRIDAY, THE 28TH DAY OF NOVEMBER 2014/7TH AGRAHAYANA, 1936** ## **WP(C).No.28454 of 2014 (F)** **-------------------------------------** **PETITIONER:** - **-------------------** **THE CHAVAKKAD FIRKA CO-OP. RURAL BANK LTD NO.F.1250,MUTHUVATTOOR,GURUVAYOOR, REPRESENTED BY THE SECRETARY.** **BY ADVS.SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** **RESPONDENTS:** **-----------------------** **1. THE GURUVAYOOR MUNICIPALITY, MUNICIPAL OFFICE,GURUVAYOOR-680 101, REPRESENTED BY ITS SECRETARY.** **2. THE SECRETARY,THE GURUVAYOOR MUNICIPALITY, MUNICIPAL OFFICE,GURUVAYOOR-680 101.** **R1,R2 BY ADVS.SRI.P.A.AHAMMED SRI.M.SREEKUMAR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **pk** ## **WP(C).No.28454 of 2014 (F)** ## **--------------------------------------** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **-----------------------------------** **EXHIBIT P1:A TRUE COPY OF THE INTIMATION BY THE SECRETARY OF THE GURUVAYOOR MUNICIPITY DATED 1-10-2014 TO THE PETITIONER.** **EXHIBIT P2:A TRUE COPY OF THE BUILDING PERMIT ISUED TO BINDU MADHUSOODANA MENON.** **EXHIBIT P3:A TRUE COPY OF THE BUILDING PERMIT ISSUED TO SURENDRANATH.** **EXHIBIT P4:A TRUE COPY OF THE JUDGMENT IN W.A NO 53 OF 2011 DATED 17-10-2011.** **EXHIBIT P5:A TRUE COPY OF THE JUDGMENT IN WPC NO.33323 OF 2011 DATED 21-12-2011** **RESPONDENTS EXHIBITS: NIL** **--------------------------------------** ## **//TRUE COPY//** **P.S. TO JUDGE** **pk** A.M. Shaffique, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-= W.P(C) No. 28454 of 2014 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= Dated this, the 28[th] day of November, 2014. ## J U D G M E N T Petitioner challenges Ext. P1 order issued by the Secretary of Guruvayoor Municipality, rejecting petitioner's application for building permit on the ground that the land in question where the petitioner intends to make construction is set apart as a public and semi-public zone as per the master plan prepared in the matter. According to the petitioner, unless the property involved is acquired in accordance with law, merely for the reason that it is included in the master plan, by itself will not enable the Municipality to reject an application for building permit. 2. Counter affidavit has been filed by the respondent Municipality _inter alia_ stating that master plan prepared in 1976 had been varied in 2010, in which the area involved is shown as public and semi-public zone. 3. This Court had considered this issue in several judgments. In a Full Bench judgment in **Francis v. Chalakudy Municipality** , 1999 (3) KLT 560 (F.B), this Court, after referring to the Town Planning Act held at paragraph 18 as under: “18. We have already referred to the relevant provisions of the Act. We do not find any provision W.P(C) No. 28454 of 2014 -: 2 :- in the Act to the effect that the scheme would lapse on the non-implementation of the scheme within a prescribed period. S. 33 of the Town Planning Act only states that the Notification under S. 12 of the Act which would also operate as a declaration under the Land Acquisition’ Act, 1089, would cease to be effective as a declaration under the Land Acquisition Act on the expiry of three years from the date of the Notification under S. 12 of the Act. The Section also says that even though the notification under S. 12 of the Town Planning Act would cease to operate as a declaration under S. 6 of the Land Acquisition Act on the expiry of three years from the date of notification, it shall not be incumbent on the Government or on the authority concerned to take immediate steps for acquisition of lands included in the notified scheme. This in our view clearly indicates that the scheme does not by itself lapse on the expiry of three years from the date of notification under S. 12 of the Town Planning Act. xxxxxxxxxxxxxxxxxxxxxxx We hold that on the scheme of the Town Planning Act, the scheme itself would not lapse or would not cease to be in force merely on the ground that W.P(C) No. 28454 of 2014 -: 3 :- the notification under S. 12 of the Act cease to have operation as a declaration under S. 6 of the Land Acquisition Act in terms of S. 33 of the Town Planning Act.” A Division Bench in **Kalpetta Municipality v. Mohandas** (2012 (1) KLT 62), held that application for building permit cannot be refused on the ground that the property in which the building is proposed to be constructed falls in the draft scheme prepared under Town Planning Act. Paragraph 10 of the judgment reads as under: “10. Section 33 only declares that if immovable property is required for the purpose of a Town Planning Scheme, it is deemed to be land needed for a public purpose. It may be mentioned here that S.4(d) of the Madras Town Planning Act stipulates that the Town Planning Scheme may provide for acquisition either by purchase, exchange or otherwise of any land included in the Scheme. All that S.33 provides for is a legal fiction that a piece of land as required under a Scheme prepared under the Madras Town Planning Act is required for a public purpose as the existence of a public purpose is a constitutionally mandated requirement for the W.P(C) No. 28454 of 2014 -: 4 :- State to exercise a right to compulsorily acquire the property. S.34 of the Madras Town Planning Act, on the other hand, declares that if a particular piece of land falls within the ambit of Section 33 described above, then on the publication of a notification contemplated under Section 14 of the Madras Town Planning Act, the said notification shall be treated as a notification contemplated under Section 6 of the Land Acquisition Act, 1894. In other words, the need for once again going through the procedure of requirements of Ss.4(2) and 6 of the Land Acquisition Act, 1894 is dispensed with. But it must be remembered that such a fiction comes into operation only on the publication of the notification under S.10 of the Madras Town Planning Act. There is no further fiction created under the Town Planning Act that on the publication of such a notification under S.11, the acquisition proceedings contemplated under Ss.33 and 34 of the Act date back to the draft notification under S.10 of the said Act. Assuming for the sake of argument that the publication of draft notification under S.11 of the Madras Town Planning Act is something akin to a notification under S.4(1) of the Land W.P(C) No. 28454 of 2014 -: 5 :- Acquisition Act, 1894 and therefore, the legal implications of such notification under Section 10 should also be the same as S.4(1) of the Land Acquisition Act, we are of the opinion that there is nothing in the Land Acquisition Act or any other law which prohibits the owner of a piece of land which is the subject matter of S.4 of the Land Acquisition Act from enjoying the property in any manner not prohibited by law including construction of a building thereupon if it is otherwise permitted under law. Therefore, the rejection of the permission claimed by the 1st respondent, in our opinion, is untenable.” 4. It is not in dispute that even if it is conceded as held by the Full Bench in **Francis's case** (supra), the notification does not lapse as such, still the question is whether the local authority can deny building permit on the ground of existence of the town planning scheme without acquiring land as provided under the Land Acquisition Act. As held by the Division Bench, it is not possible for the Municipality to refuse a building permit, when there is no such prohibition under section 4 of the Land Acquisition Act. Probably, it is possible for them to acquire land at any time so long as the scheme is in force. But, that does not enable them to refuse W.P(C) No. 28454 of 2014 -: 6 :- building permit applied for, after the period prescribed under the Land Acquisition Act. 5. In the result, the writ petition is allowed. Ext. P1 is quashed and there will be a direction to the respondent Municipality to consider the application of the petitioner without reference to the master plan and pass appropriate orders within one month from the date of receipt of a copy of this judgment. Sd/- A.M. Shaffique, Judge. Tds/ W.P(C) No. 28454 of 2014 -: 7 :-