## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE N.NAGARESH**
**WEDNESDAY, THE 1[ST] DAY OF SEPTEMBER 2021/10TH BHADRA, 1943**
**WP(C) NO. 16591 OF 2021**
## **PETITIONER:**
**DANIEL N.J., AGED 34 YEARS, S/O. N.D JACOB, NADUVILA VEETTIL, ELOOR NORTH, UDYOGAMANDAL, ERNAKULAM DISTRICT-683501.**
**BY ADVS. SANTHOSH MATHEW ARUN THOMAS JENNIS STEPHEN VIJAY V.PAUL KARTHIKA MARIA ANIL SEBASTIAN PULICKEL**
## **RESPONDENTS:**
**1 ELOOR MUNICIPALITY, ELOOR MUNICIPAL OFFICE, ELOOR FERRY ROAD, UDYOGAMANDAL P.O., ELOOR, ERNAKULAM DISTRICT, KERALA-683501, REPRESENTED BY ITS SECRETARY. 2 THE SECRETARY, ELOOR MUNICIPALITY, ELOOR FERRY ROAD, UDYOGAMANDAL P.O., ELOOR, ERNAKULAM DISTRICT, KERALA-683501. 3 THE MUNICIPAL COUNCIL, ELOOR MUNICIPALITY, ELOOR MUNICIPAL OFFICE, ELOOR FERRY ROAD, UDYOGAMANDAL P.O., ELOOR, ERNAKULAM DISTRICT,KERALA-683501, REPRESENTED BY ITS SECRETARY.**
## **SRI.K.S.ARUNKUMAR**
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
Dated this the 01[st] day of September, 2021
The petitioner, who is a resident of Eloor Village has approached this Court seeking to set aside Ext.P7 to the extent of Objection No.7 and 8, in the light of Ext.P3 Order of the LSGI Tribunal. The petitioner further seeks to direct the 2[nd] respondent to pass orders on Ext.P6 Building Permit application submitted by the petitioner.
2. The petitioner would submit that he owns 2.17 Ares of property in Re. Survey No.51 of Eloor Village in Ernakulam District. The land was purchased on 13.01.2021 from one Smt.Krishnadhar. The petitioner would submit that the said Krishnadhar had applied for Building Permit for making construction in the said land, which was rejected by the Municipality. The said previous owner of the land
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approached the Tribunal for Local Self Government Institutions aggrieved by the rejection of application of the Building Permit. The Local Self Government Tribunal as per Ext.P3 order allowed the appeal setting aside the impunged notice and directed the Municipality to reconsider the application for Building Permit. It is the case of the petitioner that pursuant to the Ext.P3 order of the Tribunal, the Municipality granted Building Permit to the previous owner as evidenced by Ext.P4.
3. After purchasing the property from the said previous owner, the petitioner submitted Ext.P6 application for Building Permit. In response to the said Ext.P6 application, the petitioner was issued with Ext.P7 communication pointing out certain defects.
4. The petitioner would submit that there are as many as 8 defects pointing out in Ext.P7 notice. The petitioner is aggrieved only by the defects noted at serial Nos.7 and 8. The learned counsel for the petitioner would
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submit that the defects at serial Nos.1 to 6 have been cured as evidenced by Ext.P8. The defect Nos.7 and 8 are that there is a Glass Factory road passing through in front of the property and the said road is included in the structural plan for widening. Therefore no construction can be permitted in a place within a distance of 16.50 metres from the middle line of the road.
5. The learned counsel for the petitioner argued that the alleged proposal for widening of the road is pending consideration for decades and the respondents have not taken any steps for acquisition of the property for widening the road. The petitioner therefore served Exts.P9 and P10 purchase notices on the respondents invoking Section 67(1) of the Kerala Town and Country Planning Act, 2016. Though, the statutory period of 60 days have expired, the Municipality has not taken any action on the purchase notice. The learned counsel for the petitioner submitted that following the judgment of a Division Bench of this Court in
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## _**District Town Planner, Thrissur v. Joby M.C. and Others**_
_[2020 (6) KLT 600]_ , his writ petition is to be allowed.
6. The learned Standing Counsel appeared for the respondents and contested the writ petition. The learned Standing Counsel submitted that the road in question is a narrow road and there is demand from the public for widening the road. The Municipality has demanded the concerned authorities including the Town Planning Officers and Government, to take necessary steps to widen the road. The proposal is falling within the structural plan.
7. Though a purchase notice is served on the Municipality, the acquisition is to be done collectively by the Government, Town Planning Authorities and the Municipality and therefore Municipality alone cannot take any decision. The Municipal authorities have to get necessary instructions from the Town Planning Officers as well as the Government. In such circumstances, the learned Standing Counsel prayed that sufficient time may be granted to the Municipal
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Authorities to pursue the matter in consultation with the Town Planning Authorities and the Government of Kerala.
8. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents.
9. It is an admitted position that the road widening proposal is pending consideration for long. The petitioner's predecessor applied for Building Permit, which was denied by the Municipal Authorities. When the said predecessor approached the Tribunal for Local Self Government Institutions, the Tribunal set aside the orders of the Municipality and directed the Municipality to reconsider the application. Considering the said application, the Municipality has granted Building Permit to the predecessor in interest of the property of the petitioner. This fact is not disputed. After purchasing the said property from the previous owner, when the petitioner applied for Building Permit, the very same defence is put forth by the Municipality.
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10. The petitioner in this case stands on a more advantageous position than the predecessor because the petitioner has served Section 67 notice under the Kerala Town and Country Planning Act, 2016 on the Municipality. Inspite of the expiry of a period of 60 days, the Municipal Authorities have not passed any resolution nor have taken any steps for acquisition.
11. A similar issue came up for consideration before a Division Bench of this Court in the judgment in _**District Town Planner, Thrissur v. Joby M.C. and Others** [2020 (6) KLT 600]_ . This Court in paragraph 9 of the said judgment held as follows:
“The issue in question is actually guided by S.67 of Act 2016 as extracted above, which provision takes care of the Master Plan or a detailed Town Planning Scheme sanctioned under Act, 2016, and whereby liberty is granted to the Municipal Corporation to acquire the properties in terms of the Master Plan or detailed Town Planning Scheme within two years from the date of coming into operation of the plan. It is an admitted fact that no steps were taken by the Municipal Corporation or the State Government to acquire the property within the period prescribed under S.67 of Act, 2016. Therefore, the writ petitioners are entitled, as of right, to issue a
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purchase notice to the Municipal Corporation requiring the Municipal Corporation to purchase the property. Sub-section (2) of S.67 of Act, 2016 makes it clear that the Municipal Corporation will have to take a decision not later than sixty days from the date of receipt of the purchase notice, through a resolution to acquire the land, where the land is designated for compulsory acquisition for the purpose of the Municipal Corporation. Which thus means, if the Municipal Corporation is not taking a decision as is mandatorily insisted upon as per S.67(2) of Act, 2016 necessarily, the other provisions of S.67 of Act, 2016 will come into operation and eventually, the writ petitioners are entitled to get their permit applications considered in accordance with law.”
The facts of the case in the said judgment and the facts in this present case are more or less similar.
12. The petitioner has been striving to make a building construction. The respondent has declined to issue a Building Permit. The petitioner thereupon served a statutory notice of purchase under Section 67 of the Kerala Town and Country Planning Act, 2016. Since the Municipality has not acted on the said purchase notice within the statutory period of 60 days, the application submitted by the petitioner for Building Permit is liable to be considered in accordance with
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law.
In the circumstances, the writ petition is disposed of setting aside objection Nos.7 and 8 in Ext.P7 and directing the 2[nd] respondent to pass orders on Ext.P6 application for Building Permit submitted by the petitioner in accordance with law and grant the petitioner the Building Permit, if he is otherwise eligible, within a period of six weeks.
Sd/-
**N. NAGARESH JUDGE**
SR
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## **APPENDIX OF WP(C) 16591/2021**
## **PETITIONER'S EXHIBITS:**
**Exhibit P1 TRUE COPY OF THE SALE DEED NO. 107/2021 DATED 13/01/2021. Exhibit P2 TRUE COPY OF THE REJECTION ORDER ISSUED BY THE RESPONDENT MUNICIPALITY BY LETTER NO. PW1-8466/13 DATED 12/11/2013. Exhibit P3 TRUE COPY OF THE ORDER DATED 30/04/2015 IN APPEAL NO. 1142/2013 PASSED BY THE HON'BLE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS. Exhibit P4 TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE RESPONDENT MUNICIPALITY NO. PW1-8466/13 DATED 20/06/2015. Exhibit P5 TRUE COPY OF THE PROCEEDINGS OF THE RESPONDENT MUNICIPALITY DATED 22/01/2019. Exhibit P6 TRUE COPY OF THE BUILDING PERMIT APPLICATION DATED 13/04/2021 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT MUNICIPALITY. Exhibit P7 TRUE COPY OF THE NOTICE DATED 11/05/2021 ISSUED BY THE RESPONDENT MUNICIPALITY. Exhibit P8 TRUE COPY OF THE COVERING LETTER DATED 11/06/2021 ALONG WITH REVISED PLAN, CERTIFICATE OF THE ENGINEER/ARCHITECT AND DECLARATION OF THE PETITIONER. Exhibit P9 TRUE COPY OF THE PURCHASE NOTICE DATED 02/06/2021 ISSUED BY THE PETITIONER TO THE RESPONDENT MUNICIPALITY. Exhibit P10 TRUE COPY OF THE PURCHASE NOTICE DATED 02/06/2021 ISSUED BY THE PETITIONER TO THE RESPONDENT MUNICIPAL COUNCIL.**
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**Exhibit P11 TRUE COPY OF THE RECEIPT DATED 04/06/2021 ISSUED BY THE 2ND RESPONDENT.**
