Corporation of Thiruvananthapuram v. Ajayachandran Nair Meena T.C. and The Town Planning Officer, Corporation of Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 28[TH] DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944** **WP(C) NO. 15874 OF 2013** ## **PETITIONER:** **CORPORATION OF THIRUVANANTHAPURAM RREPRESENTED BY ITS SECRETARY,** **CORPORATION BUILDINGS,** ## **VIKHAS BHAVAN,** ## **THIRUVANANTHAPRUAM 695033** **BY ADVS.SRI.N.NANDAKUMARA MENON (SR.) SRI.P.K.MANOJKUMAR SUMAN CHAKRAVARTHY** ## **RESPONDENTS:** - **1 AJAYACHANDRAN NAIR MEENA T.C 36/1690(1), SUBHASH NAGAR, VALLAKADAVU P.O,** **THIRUVANANTHAPURAM** **2 THE TOWN PLANNING OFFICER CORPORATION OF THIRUVANANTHAPURAM, CORPORATION BUILDINGS, VIKHAS BHAVAN, THIRUVANANTHAPURAM 695033** **R1 BY SRI.VINAY JOHN** **BY ADVS.SMT.S.REKHA KUMARI SRI.SHAIJAN C.GEORGE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY** **HEARD ON 28.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C.) No. 15874/2013 2 ## **JUDGMENT** This writ petition is filed by the Thirvuananthapuram Corporation represented by its Secretary challenging Ext.P6 order passed by the Tribunal for Local Self Government Institutions in Appeal No. 493/2012 dated 27.08.2012. The operative portion of the order of the Tribunal reads thus:- _“9. I may say that the construction of a road through the site is only at the stage of proposal. A mere proposal without an actual step for acquisition of land for the purpose of forming such a road cannot be a ground for rejection of an application for building permit. If that be so such a reason cannot at all be a ground for revoking the building permit._ _10. In Raju S. Jethmalani and others V. State of Maharashtra and others (2005 (11) SCC 222) it is held as below:-_ _"Therefore, the question is whether the Government can prepare a development plan and deprive the owner of the land from using that land. There is no prohibition of including private land in a development plan but no development can be made on that land unless that private land is acquired for development. The Government cannot deprive the persons from using their private property."_ _11. In Padmini Vs. State of Kerala (1999 (3) KLT 465) it is held as below:-_ _8. It is thus clear that the object of S. 4(1) of the Land Acquisition Act is to give public notice of the proposal to the acquire the land in a particular locality and that_ W.P.(C.) No. 15874/2013 3 _the ultimate subjective satisfaction regarding the public purpose and the suitability of the land for the public purpose, etc, is with the Government. In the instant case, it is not in dispute that there was no proposal to acquire the land in question on the date of the appellants submitting the application for permission to construct a residential building on 16.1.1996 or when he again applied for permission to construct the building on 23.12.1997 which was rejected by the Municipality by the endorsement as contained in Ext. P3 and no notification under S. 4 (1) of the Act was issued. Therefore, the Municipality had no authority to reject the application on the ground that the land is proposed to be acquired. Such rejection, in our opinion, does not in any way come within the ambit of S. 393 of the Kerala Municipality Act, since, under the said provision, the application can be rejected only if the land is under acquisition proceedings._ _12. ln Nazar Va. Malappuram Municipality 2009 (3) KLT 92 it is held as below:-_ _8. As the law now stands, as laid down in Padmini (supra), the acquisition of land for the purpose of a Town Planning Scheme has to be done under the L.A. Act. The cardinal date for various matters in relation to that legislation, including the fixation of compensation, is the notification of S.4 (1) of the L.A. Act, which is the date that is relevant even for determination of the compensation. This remains so in spite of the fact that in terms of the Municipality Act, the Government could be obliged to act on the request of the Municipality for the acquisition. Therefore, while the Government would not have any choice in the matter of acquisition. For a Municipality and while any proposal of the Municipality to acquire would not depend upon any sanctions of the_ W.P.(C.) No. 15874/2013 4 _Government in so far as the owner of the land is concerned, acquisition affects his interest only from the issuance of notifications and declarations under the L.A. Act and therefore, any attempt to curb the rights of the owners of lands, until the publication of those statutory notifications and declarations, would result in infraction of the right to property under Art. 300 of the Constitution. On the face of the law settled by this Court in Padmini (supra), any infraction of the principle stated therein would also result in the violation of the equality principle in the matter of enforcement of laws as contained in Art. 4 of the Constitution. Any demand to create a rider over the title of the owner of the property under the pretext of a Town Planning Scheme which has not become operational by acquisition would, essentially, be oppressive and would not be countenanced on the face of Art. 14 of the Constitution._ _13. Thus the settled law is that any application for permit_ _for construction cannot be rejected if the land whereupon the construction is to be effected is to be acquired and if the acquisition has not become operational yet._ _14. Moreover in Shivaprasad V. State of Kerala (2011 (1)_ _KLT 690) it has been held as below:-_ - _(a) It is declared that the provisions of Town Planning Act, 1939 and Madras Town Planning Act, 1920 cannot survive in the light of Part IX-A of the Constitution and the Municipality Act, 1994._ - _(b) Ext P2 orders produced in the two Writ Petitions are quashed._ - _(c) There will be a direction to the government to address all aspects with regard to spatial planning as envisaged under S. 51 (3) of the Municipality Act, 1994 and other provisions of the Act and to bring in the new legislation proposed as per the_ W.P.(C.) No. 15874/2013 5 _Kerala Town and Country Planning Act within a reasonable time. The Government can also, in the meanwhile, take steps to bring the integrated development plans and local development plans like the one in Kollam District, in the other parts of the State also, if the process of bringing the new legislation will get delayed for any reason whatsoever._ _(d) The applications submitted by the petitioners will be considered afresh, in the light of the findings rendered above, by the respective Corporations._ _15. Since the position of law is settled as above it is not at all permissible for the 1 respondent now to rely on any DTP Scheme which has become ultra vires to the Municipality Act and Rules to contend that the construction of the appellant is illegal._ _16. Section 394 of the Kerala Municipality Act reads as below:-_ _394. Lapse of permission,--Where the construction or reconstruction of a building is not completed within the period specified in the permission, such permission shall lapse unless an application for extension of time is made before the expiry of the period specified._ _17. From the above provision it is clear that if an application for extension of time is made before the period specified the permission will not lapse. In this case it is admitted by the 1[st] respondent about the giving of an application for renewal before the expiry of the period of the permit. If so the permit will not lapse._ _18. Rule 15 A (2) of Kerala Municipality Building Rules reads as below:_ _**15 A (2)** - The Secretary shall, on application submitted within the valid period of the permit, grant extension twice, for further periods of three years each._ W.P.(C.) No. 15874/2013 6 _19. A reading of Section 394 with Rule 15 A (2) would make it clear that even though the permit may not lapse it is the duty of the Secretary to pass a proper order granting extension of the permit. If so the Secretary has no option but to grant extension of permit on the basis of the legal provisions given in Section 394 of the Kerala Municipality Act._ _20. I find the impugned order suffers from yet another illegality. An order to stop construction can be passed only by the Secretary. If any subordinate officer has to pass any such order there should be a proper delegation upon that officer as contemplated under Section 50 (2) of the Kerala Municipality Act. In this case the impugned order is passed by the Town Planning Officer. The file does not disclose the delegation of the authority of the Secretary to such an officer. If so the impugned order is passed by an officer who is not competent and who is not authorized to do so. In that view alone the impugned order is to be treated as illegal. 21. In view of the above discussion the impugned order is only to be set aside. The points are found so. In the result, the impugned order is set aside and the appeal allowed. The Secretary in directed to pass orders granting extension of permit in conformity to Rule 15 A (2) of the Kerala Municipality Rules in the name of the appellant and his wife within a period of one month from today. No further interference or hindrance shall be made by the Secretary or his officers to the constructing of the building by the appellant in accordance with the approved plan and permit, if there are no violations of any other statutory provisions.”_ 2. The subject issue relates to Ext.P1 permit issued by the Secretary of the Thiruvananthapuram Corporation to the first respondent for construction of a multi-storied residential building. Later, the permit was extended twice. W.P.(C.) No. 15874/2013 7 However, when an application was submitted for extension of the permit further, it was not extended. It seems, petitioner proceeded with the construction and a stop memo was issued by the Secretary. Later, a notice was issued under Rule 16(1) of the Kerala Municipality Building Rules, 1999 directing the first respondent to show cause as to why the building permit issued to the first respondent shall not be revoked. Challenging the stop memo alone, the first respondent has approached the Tribunal. The Tribunal has allowed the appeal taking into account the decisions of the Apex Court and this court referred to above; and held that relying upon an obsolete scheme the owner of the property shall not be detained from enjoying the property; and has issued the directions to the Secretary of the Municipality to renew the building permit. It was also found that the notice was issued by an unauthorised person and there is no delegation of power given to the said person to issue a notice. 3. I have heard the learned counsel for the petitioner, Sri. Suman Chakravarthy and the learned ## W.P.(C.) No. 15874/2013 8 counsel for the first respondent, Sri. Vinay John and perused the pleadings and material on record. 4. The sole question to be considered is whether any interference is required to the order of the Tribunal for Local Self Government Institutions. In my considered opinion, the permit was granted by the Secretary of the Corporation, later it was extended twice. When the first respondent approached the Secretary for extension of the permit for the third time alone, the Secretary has found that the property for which the permit was given would come under the Town Planning Scheme and the property is required for widening of the road. It was taking note of the entire facts and circumstances and the law laid down by the Apex Court in **Raju S. Jethmalani and others v. State of Maharashtra and others [2005 (11) SCC 222]** and **Padmini v. State of Kerala [1999(3) KLT 465]** and other judgments rendered by this Court, the Tribunal has passed the order basically holding that the scheme at that point of time has virtually become obsolete. It was accordingly that the directions were issued. The petitioner W.P.(C.) No. 15874/2013 9 Corporation has also failed to establish before this court the authority of the officer to issue the stop memo, as found out by the Tribunal. 5. Having assimilated the factual and legal situations, I am of the considered opinion that no interference is required to the order of the Tribunal as there are no illegalities, arbitrariness or other legal infirmities justifying interference in the said order exercising the power of judicial review conferred under Article 226 of the Constitution of India. Needless to say, the writ petition will stand dismissed. The Secretary of the Municipality is directed to comply with the directions issued by the Tribunal, if not already done, at the earliest and within a period of one month from the date of receipt of a copy of this judgment. I also place on record the submission made by the learned counsel for the first respondent that the construction of the building is almost complete. Sd/- **SHAJI P. CHALY** **JUDGE** DCS/28.10.2022 W.P.(C.) No. 15874/2013 10 ## **APPENDIX** ## **PETITIONER EXHIBITS** **EXHIBIT P1 THE PHOTOSTAT COPY OF THE PERMIT NO.BA/1473/06 DATED 23.5.2008 ISSUED BY THE SECRETARY, CORPORATION OF THIRUVANANTHAPURAM. EXHIBIT P2 THE PHOTOSTAT COPY OF THE NOTICE NO.TP1/B.A/1473/06 DATED 17.7.2008 ISSUED BY THE SECRETARY, CORPORATION OF THIRUVANANTHAPURAM, TO THE 1ST RESPONDENT. EXHIBIT P3 THE PHOTOSTAT COPY OF THE REPLY DATED 23.7.2008 SUBMITTED BY THE SHRI.MURALEEDHARAN B., ARCHITECT, TO THE SECRETARY, CORPORATION OF THIRUVANANTHAPURAM. EXHIBIT P4 THE PHOTOSTAT COPY OF THE MEMORANDUM OF APPEAL NO.493 OF 2012 SUBMITTED BY THE 1ST RESPONDENT DATED 29.6.2012 BEFORE THE HON'BLE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTION, THIRUVANANTHAPURAM. EXHIBIT P5 THE PHOTOSTAT COPY OF THE STATEMENT FILED BY THE PETITIONER TRIVANDRUM CORPORATION IN APPEAL NO.493/2012 BEFORE THE HON'BLE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, TRIVANDRUM. EXHIBIT P6 THE PHOTOSTAT COPY OF THE ORDER DATED 27.8.2012 PASSED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, TRIVANDRUM TO THE 1ST RESPONDENT. RESPONDENT EXHIBITS EXHIBIT R1(a) REPLY TO EXT. P2 SHOW CAUSE NOTICE FROM THE 1ST RESPONDENT EXHIBIT R1(b) CERTIFICATE DATED 4-7-2013 FROM TOWN PLANNING OFFICER**