Deepa K.M. v. Thalassery Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 24TH DAY OF FEBRUARY 2020 / 5TH PHALGUNA, 1941** ## **WP(C).No.4009 OF 2020(A)** ## **PETITIONER:** **DEEPA K.M AGED 47 YEARS W/O.SUGATHAN,DEEPA NIVAS, KAVUMBAGAM, THALASSERY, KANNUR DISTRICT.** **BY ADVS. SRI.M.SASINDRAN SRI.V.VENUGOPAL** ## **RESPONDENTS:** |**1**|**THALASSERY MUNICIPALITY**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**THALASSERY,**| ||**KANNUR DISTRICT-670101.**| |**2**|**THE SECRETARY,**| ||**THALASSERY MUNICIPALITY,**| ||**THALASSERY,**| ||**KANNUR DISTRICT-670101.**| |**3**|**THE ASSISTANT ENGINEER,**| ||**LOCAL SELF GOVERNMENT DEPARTMENT(KODIYERI SECTION),**| ||**THALASSERY MUNICIPALITY,**| ||**THALASSERY-670101,**| ||**KANNUR DISTRICT.**| |**4**|**THE THALASSERY MUNICIPAL COUNCIL,**| ||**THALASSERY,REPRESENTED BY ITS CHAIRMAN,**| ||**THALASSERY MUNICIPALITY,**| ||**THALASSERY-670101,**| ||**KANNUR DISTRICT.**| W.P(C). No. 4009 of 2020 2 **5 THE CHIET TOWN PLANNER, TOWN AND COUNTRY PLANNING DEPARTMENT, OFFICE OF THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM-695001. 6 THE STATE OF KERALAREPRESENTED BY SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM-695001.** **BY ADVS. SRI.K.J.MANU RAJ, GOVT.PLEADER, SRI.I.V.PRAMOD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C). No. 4009 of 2020 3 ## ALEXANDER THOMAS, J. ------------------------------------ W.P(C). No. 4009 of 2020 -----------------------------------Dated this the 24[th] day of February, 2020 ## **JUDGMENT** The case projected in this Writ Petition (Civil) is as follows: The petitioner is the owner in possession and enjoyment of 3.84 Ares of land comprising Resurvey No.70/4 in Thiruvangad Village and has been paying basic tax in respect of the property promptly and he decided to construct commercial building in the abovesaid property. However the application submitted by the petitioner was rejected by the 3[rd] respondent as per Ext.P2 communication dated 16-07-2018 stating that the proposed site for construction would fall within the development plan for Thalassery Town Part Variation 2007. It is alleged that the reasons stated in Ext.P2 communication for rejection of the application for building permit is absolutely illegal, arbitrary and unsustainable. The petitioner challenged Ext.P2 order before this Court by filing W.P(C) No.27237/2018 and this court after elaborately considering the matter disposed of the writ petition with a direction to the Municipality that if it is intending to acquire the property, the same W.P(C). No. 4009 of 2020 4 shall be done within a period of three months from the date of receipt of copy of the judgment and if no notification is issued in accordance with the provisions of the Right to fair compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act and no steps are taken to acquire the property within the said period, building permit application shall be considered in accordance with law. Challenging the judgment in W.P(C) No.27237/2018 the respondents 1 to 3 filed writ appeal as W.A No.813/2019 and the Division Bench of this Court disposed of the appeal as per Ext.P3 judgment by setting aside the judgment by reserving the right of the petitioner to serve purchase notice on Municipal authorities under Sec.67(1) of the Act and if such purchase notice is received, Municipal authorities are required to take timely decision in accordance with law either to acquire the land or initiate appropriate variation in the DTP Scheme. In Ext.P3 judgment, in respect of the purchase notice already submitted, the division bench directed the Municipality to forthwith consider the application for building permit in accordance with law. In compliance with the directions in Ext.P3 judgment dated 21-06-2019 petitioner submitted Ext.P3 purchase notice on 27-07-2019. No action has been taken by the respondents 1 to 3 to W.P(C). No. 4009 of 2020 5 acquire the land till this date. As per Ext.P5 communication has been issued by the Municipality stating that the council has decided to seek the approval of Government for appropriate variation in the zoning regulation. The petitioner states that nothing has been done after the issuance of Ext.P5 and therefore petitioner submitted Ext.P7 requesting to sanction the building permit. Even in Ext.P8 communication Municipality informed that they would complete the process of variation in master plan within six months and even after the expiry of the six months also the petitioner's application for building permit has not been considered. It is in the light of these averments and contentions, the petitioner has filed instant Writ petition with the following prayers: - _i. Issue a writ of mandamus, any other writ, order or direction commanding the respondents 1 to 4 sanction the Building permit as applied for in Ext.P1 forthwith._ - _ii. Call for the records leading to the issuance of Ext.P2 and quash the same by issuing a writ of certiorari._ - _iii. Declare that the petitioner is entitled to construct a building as per Ext.P1 plan and the 1[st] respondent Municipality is bound to sanction the same._ - _iv. Award cost to the petitioner._ - _v. Issue any other writ, order or direction as this Hon'ble Court may deem fit in the facts and circumstances of the case._ W.P(C). No. 4009 of 2020 6 2. Heard Sri.M.Sasindran, learned counsel appearing for the petitioner, Sri.I.V.Pramod, learned counsel appearing for R1 to R4 and Sri.K.J.Manu Raj, learned Government Pleader appearing for 5[th] respondent and 6[th] respondent. 3. The matter in issue has already been concluded as per Ext.P3 judgment of the Division Bench rendered on 21-06-2019 in W.A No.813/2019 filed by the respondent Thalassery Municipality herein, in which the petitioner herein has been arrayed as 1[st] respondent therein (writ petitioner therein). It is brought to the notice of this Court that Ext.P3 judgment of the Division Bench has already been reported as a case between _**Thalassery Municipality v. Puthalath Balakrishnan [2019 (3) KLT 154].**_ Para No.15 of Ext.P3 judgment of the Division Bench reads as follows. “ _15. In the judgment impugned, the learned Judge has directed the Municipality to acquire the land for the development Scheme and if for any reason they are unable to do so within three months, the application for building permit rejected earlier, was directed to be reconsidered In the scheme of the Act, 2016, such direction, in our view, could not have been issued, in the absence of any purchase notice by the aggrieved property owners in the W.A.Nos.813/2019 [W.P.(C) No.27237/2018], 986/2019 [W.P.(C) No.10527/2018], 1073/2019 [W.P.(C) No.38855/2018], 1154/2019 [W.P.(C) No.1918/2018], 1318/2019 [W.P.(C) No.35882/2018], 1847/2018 [W.P.(C) No.19970/2016] and 1332/2015 [W.P.(C) No.21602/2014], requiring the authorities to purchase the interest in the land._ W.P(C). No. 4009 of 2020 7 _Therefore, the impugned judgments are set aside, reserving the right of the respondents-writ petitioners to serve purchase notice on the Municipal authorities under sub-section (1) of S.67 of the Act, 2016. If such purchase notice is received, the appellant authorities are required to take timely decision in accordance with law, to either acquire the land or initiate appropriate variation in the DTP Scheme. In the W.A.Nos.1958/2016 (W.P. (C) No.32587/2015) and 1161/2019 (W.P.(C) No.29602/2018) where purchase notices were actually sent to the Municipality, direction is issued to the Municipality to forthwith consider the applications for building permit, in accordance with law. It is ordered accordingly.”_ 4. It is also not beyond any dispute that the writ petitioner herein, in compliance with Ext.P3 judgment, has submitted Ext.P4 purchase notice dated 27-07-2019 before respondent Nos. 1 and 2 and the Municipal Council, giving notice that the respondent Municipal authority may either acquire the land of the petitioner or to issue building permit to the petitioner. The statutory period of 60 days mandated in Sec.67(2) of the Kerala Town and Country Planning Act, 2016, has expired in this case on 26-08-2019. The plea now taken up by the respondent Thalassery Municipality is that, they have sought for permission from the competent authority of the 6[th] respondent State Government as per Ext.P6 for revision of the DTP scheme and orders have not so far been issued by the said authority. 5. Merely because Ext.P6 request made by the respondent Thalassery Municipality is now pending before the 6[th] respondent 8 W.P(C). No. 4009 of 2020 State Government is no ground to excuse the respondent Municipality from indefinitely prolonging the consideration of the grant of building permit to the petitioner. Now with the issuance of Ext.P6 request, the respondent Thalassery Municipality is made it clear that it has no intention whatsoever to acquire the subject property and it has thus sought for revision of the DTP scheme. Since the respondent Thalassery Municipality has unequivocally and unambiguously decided not to acquire the subject property of the petitioner, it is only to be held that, in view of the concluded and categoric decisions already issued by this Court in Ext.P3 judgment rendered by the Division Bench that the respondent Municipality is now forthwith under the obligation to consider the application of the petitioner for a building permit in accordance with law, after the expiry of the said 60 days' time limit pursuant to Ext.P4 purchase notice or at least immediately after Ext.P6 request has been made by the respondent Thalassery Municipality on 16-09-2019. 6. It is accordingly ordered and declared so. Consequently, it is ordered that the competent authority among the respondent Thalassery Municipality will immediately take up the application made by the petitioner for grant of building permit of the said W.P(C). No. 4009 of 2020 9 property and after conducting appropriate enquiry and after affording reasonable opportunity of being heard to the petitioner, will render a considered decision thereon in accordance with law and will grant the same, if it is otherwise in order, within one month from the date of production of a certified copy of the judgment. Further it is made clear that the request of the petitioner for grant of building permit cannot any longer be rejected by the respondent Thalassery Municipality on the ground that it is awaiting for orders from the respondent State Government for revision of the DTP scheme. With these observations and directions, the above Writ Petition (Civil) will stand disposed of as above. Sd/- **ALEXANDER THOMAS, JUDGE** KAS W.P(C). No. 4009 of 2020 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** - **TRUE COPY OF THE PLAN SUBMITTED BY THE PETITIONER** **EXHIBIT P2 TRUE COPY OF THE COMMUNICATION DATED 16.7.2018** **EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 21.06.2019 IN W.A.NO.813/2019** **EXHIBIT P4 TRUE COPY OF THE PURCHASE NOTICE ISSUED BY THE PETITIONER DATED 27/07/2019 BEFORE THE RESPONDENTS 1 AND 2 AND THE MUNICIPAL COUNCIL.** **EXHIBIT P4(A) TRUE COPY OF THE RECEIPT DATED 30.07.2019 SHOWING THE SENDING OF EXT.P4.** **EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 23.09.2019 ISSUED BY THE 2ND RESPONDENT EXHIBIT P6 TRUE COPY OF THE REQUEST MAKE BY THE MUNICIPALITY TO THE 6TH RESPONDENT DATED 16.09.2019. EXHIBIT P7 TRUE COPY OF THE REQUEST MADE BY THE PETITIONER BEFORE THE 1ST,2ND AND 4TH RESPONDENTS. EXHIBIT TRUE COPY OF THE COMMUNICATION DATED 22.08.2019 ISSUED BY THE 2ND RESPONDENT.** **RESPONDENT'S/S EXHIBITS: NIL**