High Court of KeralaDivision BenchDisposed of; impugned judgments set aside; dire...
District Town Planner, Malappuram v Vinod S/o Sreedharan Nair and Malappuram Municipality (and associated Thalassery Municipalities matters)
Case / Petition Number:WA Nos.1332/2015; 1958/2016; 1847/2018; 813/2019; 986/2019; 1073/2019; 1154/2019; 1161/2019; 1318/2019
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- Hrishikesh Roy, CJ
- A.K. Jayasankararan Nambiar, J
- Judgment Date
- 2019-06-21
- Court Decision / Holding
- Writ Appeals disposed of; impugned judgments set aside; respondents-writ petitioners empowered to serve purchase notices under Section 67(1) of the Act, 2016. If a purchase notice is served, the authorities must decide within the statutory timelines to either acquire the land or vary the DTP Scheme. In matters where purchase notices were actually served (e.g., 1958/2016 and 1161/2019), the Court directs immediate consideration of applications for building permits, in accordance with law. The decision thus preserves private property rights while enabling public development, and clarifies the operative mechanism of Section 67(1)-(7).
- Final Disposition
- Disposed of; impugned judgments set aside; directions for purchase notices and plan variation as per Act 2016; where purchase notices exist, building permits to be considered forthwith; overall balancing of private rights with public interest.
Parties to the Case
Appellants / Petitioners
- District Town Planner Malappuram
Respondents
- Vinod S/o. Sreedharan Nair
- Malappuram Municipality represented by its Secretary, Malappuram
- Secretary, Malappuram Municipality
Legal Representation & Advocates
Counsels for Petitioners
- • Sri Surin George Ipe (Senior Government Pleader)
Counsels for Respondents
- • Sri K. Abdul Jawad
- • Sri E.S.M. Kabeer
- • Sri T.M. Latheef
- • Sri I.V. Pramod
- • Sri M.B. Shyni
- • Sri C.P. Roopa
- • Sri Deepak Raj
- • Sri Shibu Thomas (Nilambur)
- • Sri V. Tek Chand
- • Sri M. Sasindran
- • Sri Rajesh V. Nair
Case Synopsis & Summary
This is a consolidated Kerala High Court judgment disposing of multiple writ appeals challenging building permit refusals within Thalassery and Malappuram municipalities on land earmarked in District Town Planning (DTP) Schemes under the Town and Country Planning Act, 2016. The petitioners, landowners, sought building permits for construction despite the land being designated for future development in the DTP Scheme. The respondents—local bodies and authorities—argued that development plans are in force and that permits could not be granted where a site is reserved for future public works; they urged that the statutory framework, including the Act’s override of Building Rules, must be followed, and where necessary, land should be acquired or the plan varied. The court scrutinized Sections 67 and 64 of the 2016 Act (along with saving provisions in Section 113) and held that the Act envisions a time-bound balance between public development and private property rights. It referred to a 2016 DTP-related judgment (The District Town Planner & Anr. v. Antony Joseph & Others) to emphasize that upon service of a purchase notice, authorities must decide to acquire within 60 days, or initiate plan variation; if acquisition cannot occur within two years, plan variation must be undertaken. The apex finding is that impugned orders directing immediate acquisition or restricting building permits were not appropriate; hence the judgments are set aside with directions to allow purchase notices to operate and for authorities to decide, within law, whether to acquire or vary the plan. The decision thereby balances Article 300A rights with public interest and preserves the statutory mechanism for DTP scheme implementation. The judgment orders that in cases where purchase notices have already been issued (e.g., 1958/2016 and 1161/2019), the authorities must promptly consider building permits. Overall, the writ appeals are disposed of accordingly.
Provisions of Law Cited
Town and Country Planning Act, 2016 (including Section 67 and its subsections 1-7)Section 64 (Building permits)Section 113 (Saving provisions)Land Acquisition Act (as applicable in the State)
Legal Doctrines & Maxims
- Constitutional right to property under Article 300A; public interest in development projects; balance between private rights and public development; overriding effect of DTP Schemes over Building Rules; time-bound obligation to acquire or dereserve land under statutory provisions.
Submissions & Arguments
Contentions of Appellants / Petitioners
The petitioner contends that while DTP Schemes designate land for future development, the statutory framework requires the local authorities to acquire the land within time or to suitably vary the plan upon inability to acquire, allowing building permits for permissible uses in the interim. They argue that the impugned directions to acquire within three months or to deny permits contravene the Act’s time-bound safeguards and the right to use land under Article 300A.
Contentions of Respondents
The respondents submit that DTP Schemes, once in force, override Building Rules and require that development be implemented through acquisition or variation of the plan; if the authority cannot acquire within the time frame, it must vary the plan to achieve the development goals, failing which building permits cannot be granted.
Cited Precedents (4)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| District Town Planner & Anr. v. Antony Joseph & Others | W.A.No.109 of 2015 | Positive | Court relied on this decision to articulate that sufficient provisions exist to dereserve land designated for acquisition and that a purchase notice triggers a process for acquisition or plan variation within specified timeframes. |
| Padmini (supra) | unspecified | Mentioned Only | Referenced as an earlier judgment but not relied upon due to subsequent statutory provisions; the court notes it without endorsing its reasoning. |
| Kalpetta Municipality (supra) | unspecified | Mentioned Only | Mentioned in contrast to the current Act’s provisions, not relied upon in the dispositive reasoning. |
| Raju S. Jethmalani (supra) | unspecified | Positive | Cited to illustrate the remedy of dereserving land from a sanctioned scheme where appropriate. |
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Extracted Judgment Text
Exact text extracted from official judgment records.
# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT**
**THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY**
**&**
**THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR**
**FRIDAY, THE 21ST DAY OF JUNE 2019 / 31ST JYAISHTA, 1941**
**WA.No.1332 of 2015**
**AGAINST THE JUDGMENT IN WPC 21602/2014 of HIGH COURT OF KERALA DATED 11-11-2014**
## **APPELLANT/3RD RESPONDENT:**
**DISTRICT TOWN PLANNER MALAPPURAM.**
**BY SR.GOVERNMENT PLEADER SRI. SURIN GEORGE IPE**
## **RESPONDENT/PETITIONER & RESPONDENTS 1 & 2:**
**1 VINOD S/O.SREEDHARAN NAIR, MEMPADU MANNILTHODIYIL HOUSE, MUNDU PARAMBU.P.O., MALAPPURAM DISTRICT - 676 509. 2 MALAPPURAM MUNICIPALITY REP. BY ITS SECRETARY, MALAPPURAM, PIN - 676 505. 3 SECRETARY MALAPPURAM MUNICIPALITY, MALAPPURAM, PIN - 676 505. R1 BY STI. K.ABDUL JAWAD R2 &3 BY SRI. E.S.M. KABEER, SC, MALAPPURAM MUNICIPALITY**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21.06.2019, ALONG WITH W.A.Nos.1958/2016, 1847/2018 and 813, 986, 1073, 1154, 1318 & 1161/2019 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
W.A.Nos. 1332/2015, 1958/2016, 1847/2018 and 813, 986, 1073, 1154, 1161 & 1318/2019 2
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY**
## **&**
**THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR**
**FRIDAY, THE 21ST DAY OF JUNE 2019 / 31ST JYAISHTA, 1941**
**WA.No.1958 of 2016**
**AGAINST THE JUDGMENT IN WPC 32587/2015 of HIGH COURT OF KERALA DATED 16-02-2016**
## **APPELLANT/RESPONDENT NO.4 IN WPC:**
## **THE CHIEF TOWN PLANNER**
**OFFICE OF THE CHIEF TOWN PLANNER, DEPARTMENT OF TOWN AND COUNTRY PLANNING KOTTARATHIL BUILDINGS, PALAYAM, THIRUVANANTHAPURAM- 695 033.**
**BY SR. GOVERNMENT PLEADER SRI. SURIN GEORGE IPE**
## **- RESPONDENTS/PETITIONER & RESPONDENTS 1 3 IN WPC:**
- **1 PUTHAN PURAYIL SHYLAJA D/O. KAUSALLYA, PUTHAN PURAYIL HOUSE, KAVUMBHAGAM P.O., THALASSERY, KANNUR DISTRICT.**
- **2 THALASSERY MUNICIPALITY REPRESENTED BY ITS SECRETARY, PIN- 670 101.**
- **3 THE SECRETARY THALASSERY MUNCIPALITY, PIN- 670 101.**
- **4 THE ASSISTANT ENGINEER**
- **LOCAL SELF GOVERNMENT, THALASSERY, MUNICIPALITY (NORTH SECTION), THALASSERY-670 101.**
**BY ADVS. SRI.R.SURENDRAN SRI.I.V.PRAMOD**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21.06.2019, ALONG WITH W.A.Nos.1332/2015,1847/2018 and 813, 986, 1073, 1154, 1161 & 1318/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
W.A.Nos. 1332/2015, 1958/2016, 1847/2018 and 813, 986, 1073, 1154, 1161 & 1318/2019 3
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY**
## **&**
**THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR**
**FRIDAY, THE 21ST DAY OF JUNE 2019 / 31ST JYAISHTA, 1941**
**WA.No.1847 of 2018**
**AGAINST THE JUDGMENT IN WP(C) 19970/2016 OF HIGH COURT OF KERALA DATED 21.6.2017**
## **APPELLANTS/RESPONDENTS 4 & 5 IN WPC:**
- **1 THE DISTRICT TOWN PLANNING OFFICER, KANNUR**
- **2 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF ADMINISTRATION, THIRUVANANTHAPURAM.**
**BY SR. GOVERNMENT PLEADER SRI. SURIN GEORGE IPE**
## **- RESPONDENTS/PETITIONER & RESPONDENTRS 1 3 IN WPC:**
- **1 VADAVIL NABEESU,VADAVIL HOUSE,THALASSERY-670101**
- **2 THALASSERY MUNCIPALITY REPRESENTED BY ITS SECRETARY, THALASSERY, KANNUR DISTRICT-670101**
- **3 THE SECRETARY,THALASSERY MUNICIPALITY, THALASSERY, KANNUR DISTRICT-670101**
- **4 ASSISTANT ENGINEER, LOCAL SELF GOVERNMENT DEPARTMENT, THALASSERY MUNICIPALITY (NORTH SECTION), THALASSERY, KANNUR-670101**
- **R1 BY ADV. SRI. T.M. LATHEEF**
- **R2-4 BY ADV. SRI. I.V. PRAMOD**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21.06.2019, ALONG WITH W.A.Nos.1332/2015, 1958/2016, and 813, 986, 1073, 1154 1318 & 1161/2019 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
W.A.Nos. 1332/2015, 1958/2016, 1847/2018 and 813, 986, 1073, 1154, 1161 & 1318/2019
4
**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT**
**THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY**
**&**
**THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR**
**FRIDAY, THE 21ST DAY OF JUNE 2019 / 31ST JYAISHTA, 1941**
**WA.No.813 of 2019**
**AGAINST THE JUDGMENT IN WP(C) 27237/2018 of HIGH COURT OF KERALA DATED 4.10.2018**
**APPELLANTS/RESPONDENTS 1 TO 3 IN WPC:**
- **1 THALASSERY MUNICIPALITY REPRESENTED BY ITS SECRETARY, THALASSERY MUNICIPALITY, THALASSERY P.O-670 101, KANNUR DISTRICT.**
- **2 THE SECRETARY THALASSERY MUNICIPALITY, THALASSERY P.O-670 101, KANNUR DISTRICT.**
- **3 THE ASSISTANT ENGINEER LOCAL SELF GOVERNMENT DEPARTMENT (KODIYERI SECTION), THALASSERY MUNICIPALITY, THALASSERY-670 101**
**BY ADV. SRI.I.V.PRAMOD**
## **RESPONDENTS/PETITIONER & RESPONDENTS 4 & 5 IN WPC:**
- **1 DEEPA.K.M W/O. SUGATHAN, DEEPA NIVAS, KAVUMBAGAM, THALASSERY, KANNUR DISTRICT.**
W.A.Nos. 1332/2015, 1958/2016, 1847/2018 and 813, 986, 1073, 1154, 1161 & 1318/2019 5
|**2**|**THE CHIEF TOWN PLANNER**|
|---|---|
||**TOWN AND COUNTRY PLANNING DEPARTMENT,**|
||**OFFICE OF THE CHIEF TOWN PLANNER,**|
||**THIRUVANANTHAPURAM-695 001**|
|**3**|**THE STATE OF KERALA**|
||**REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL**|
||**SELF GOVERNMENT DEPARTMENT, SECRETARIAT,**|
||**THIRUVANANTHAPURAM-695 001**|
**BY ADV. SRI.M.SASINDRAN R2 & 3 BY SR. GOVERNMENT PLEADER SRI. SURIN GEORGE IPE**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21.06.2019, ALONG WITH W.A.Nos.1332/2015, 1958/2016, 1847/2018 AND 986, 1073, 1318, 1154 & 1161/2019 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
W.A.Nos. 1332/2015, 1958/2016, 1847/2018 and 813, 986, 1073, 1154, 1161 & 1318/2019
6
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY**
**&**
**THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR**
**FRIDAY, THE 21ST DAY OF JUNE 2019 / 31ST JYAISHTA, 1941**
## **WA.No.986 of 2019**
**AGAINST THE JUDGMENT IN WP(C) 10527/2018 of HIGH COURT OF KERALA DATED 29.11.2018**
## **APPELLANTS/RESPONDENTS 3 TO 5:**
- **1 THALASSERY MUNICIPALITY REPRESENTED BY ITS SECRETARY, THALASSERY MUNICIPALITY, THALASSERY P.O., 670101**
- **2 THE SECRETARY, THALASSERY MUNICIPALITY, THALASSERY P.O., 670 101.**
- **3 THE ASSITANT ENGINEER, LOCAL SELF GOVERNMENT , SECRETARIAT, THALASSERY MUNICIPALITY, NORTH SECTION, THALASSERY 670 101. BY ADV. SRI.I.V.PRAMOD**
## **RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2:**
- **1 PRASANTH K.C. S/O. PRABHAKARAN, KIZHAKECHOOLA MANIKOTH, KANDIROOR P.O. THALASSERY THALUK, KANNUR DISTRICT 670 642.**
W.A.Nos. 1332/2015, 1958/2016, 1847/2018 and 813, 986, 1073, 1154, 1161 & 1318/2019 7
**2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, LOCAL SELF ADMINISTRATION, THIRUVANANTHAPURAM 695 001.**
**3 DISTRICT TOWN PLANNING OFFICER, DISTRICT PLANNING OFFICE, KANNUR COLLECT ORATE CIVIL STATION, KANNUR DISTRICT 670 002.**
**BY ADVS. R1 BY SMT.M.B.SHYNI SMT.C.P.ROOPA SRI.DEEPAK RAJ SRI.SHIBU THOMAS (NILAMBUR) R2 & 3 BY SR. GOVERNMENT PLEADER SRI. V . TEKCHAND**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21.06.2019, ALONG WITH W.A.Nos.1332/2015, 1958/2016, 1847/2018 AND 813, 1073, 1154, 1318 & 1161/2019 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
W.A.Nos. 1332/2015, 1958/2016, 1847/2018 and 813, 986, 1073, 1154, 1161 & 1318/2019 8
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY**
## **&**
**THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR**
**FRIDAY, THE 21ST DAY OF JUNE 2019 / 31ST JYAISHTA, 1941**
**WA.No.1073 of 2019**
**AGAINST THE JUDGMENT IN WP(C) 38855/2018 of HIGH COURT OF KERALA DATED 12.12.2018**
## **APPELLANTS/RESPONDENTS:**
**1 SECRETARY, THALASSERY MUNICIPALITY THALASSERY P. O., 670101**
- **2 THE SECRETARY THALASSERY MUNICIPALITY, THALASSERY P. O. - 670101**
- **3 ASSISTANT ENGINEER LOCAL SELF GOVERNMENT DEPARTMENT, THALASSERY MUNICIPALITY, THALASSERY P. O. - 670101**
**BY ADV. SRI.I.V.PRAMOD**
## **RESPONDENT/PETITIONER:**
**PARAKKANDY MUHAMMADALI S/O. HAMZA, THAMANNA HOUSE, VADAKKUMBAD, THALASSERY-670101**
**BY ADV. SRI. T.M. ABDUL LATHEEF**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21.06.2019, ALONG WITH W.A.Nos.1332/2015, 1958/2016, 1847/2018 AND 813, 986, 1318, 1154 & 1161/2019 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
W.A.Nos. 1332/2015, 1958/2016, 1847/2018 and 813, 986, 1073, 1154, 1161 & 1318/2019 9
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY**
## **&**
**THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR**
**FRIDAY, THE 21ST DAY OF JUNE 2019 / 31ST JYAISHTA, 1941**
**WA.No.1154 of 2019**
**AGAINST THE JUDGMENT IN WP(C) 1918/2018 OF HIGH COURT OF KERALA DATED 8.10.2018**
## **- APPELLANTS/RESPONDENTS 1 3 IN WPC:**
- **1 THALASSERY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, THALASSERY MUNICIPALITY,THALASSERY P.O- 670 101.**
- **2 THE SECRETARY,THALASSERY MUNICIPALITY, THALASSERY P.O., 670 101.**
- **3 ASSISTANT ENGINEER,LOCAL SELF GOVERNMENT DEPARTMENT, THALASSERY MUNICIPALITY, THALASSERY**
**BY ADV. SRI.I.V.PRAMOD**
## **RESPONDENT/PETITIONER & RESPONDENTS 4 & 5 IN WPC:**
- **1 PUTHALATH BALAKRISHNAN, JITHEJ ILLATH THAZHE, TEMPLE GATE P.O., THALASSERY, KANNUR DISTRICT**
- **2 THE CHIEF TOWN PLANNER,TOWN AND COUNTRY PLANNING DEPARTMENT, OFFICE OF THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM 695 003.**
- **3 THE STATE OF KERALA, REPRESENTED BY THESECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT,SECRETARIAT THIRUVANANTHAPURAM-695 001**
**R1 BY ADV. SRI.M.SASINDRAN**
**R2 & 3 BY SR.GOVERNMENT PLEADER SRI. V.TEKCHAND**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21.06.2019, ALONG WITH W.A.Nos.1332/2015,1958/2016, 1847/2018 and 813, 986, 1073, 1318 & 1161/2019 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
W.A.Nos. 1332/2015, 1958/2016, 1847/2018 and 813, 986, 1073, 1154, 1161 & 1318/2019
10
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY**
**&**
**THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR**
**FRIDAY, THE 21ST DAY OF JUNE 2019 / 31ST JYAISHTA, 1941**
## **WA.No.1161 of 2019**
**AGAINST THE JUDGMENT IN WP(C) 29602/2018 of HIGH COURT OF KERALA DATED 5.10.2018**
## **- APPELLANTS/RESPONDENTS 1 3 IN WPC:**
- **1 THE SECRETARY, THALASSERY MUNICIPALITY, THALASSERY P.O- 670 101.**
- **2 THALASSERY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, THALASSERY MUNICIPALITY, THALASSERY P.O., 670 101.**
- **3 ASSISTANT ENGINEER, LOCAL SELF GOVERNMENT DEPARTMENT, THALASSERY MUNICIPALITY, THALASSERY 670 101.**
**BY ADV. SRI.I.V.PRAMOD**
## **- RESPONDENTS/PETITIONER & RESPONDENTS 4 6 IN WPC:**
- **1 MUHAMED AMEER.P.P S/O. IBRAHIM, PARAMBATH PUTHIYAPURAYIL, MANJAKKAL P.O., MARE, PUDUCHERRY, PIN-670 310, REPRESENTED BY POA HOLDER THALISH AHAMED, S/O. C.K.KUNHAHAMED, RESIDING AT AYSHAS, BOULWARD ROAD, MANJAKKAL P.O., MARE, PUDUCHERRY 670 310.**
W.A.Nos. 1332/2015, 1958/2016, 1847/2018 and 813, 986, 1073, 1154, 1161 & 1318/2019 11
- **2 THE CHIEF TOWN PLANNER, OFFICE OF THE CHIEF TOWERS PLANNER, NANTHANCODU SWARAJ BHAVAN, NANTHANCODU, THIRUVANANTHAPURAM 695 003.**
- **3 THE DISTRICT TOWN PLANNER, DISTRICT TOWN PLANNING OFFICE, THANA P.O., KANNUR 670 012.**
- **4 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695001.**
**R1 BY ADV. SRI. R. SURENDRAN**
- **R2-4 BY SR.GOVERNMENT PLEADER SRI. V.TEKCHAND**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21.06.2019, ALONG WITH W.A.Nos.1332/2015,1958/2016, 1847/2018 and 813, 986, 1073, 1154 & 1318/2019 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
W.A.Nos. 1332/2015, 1958/2016, 1847/2018 and 813, 986, 1073, 1154, 1161 & 1318/2019 12
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY**
## **&**
**THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR**
**FRIDAY, THE 21ST DAY OF JUNE 2019 / 31ST JYAISHTA, 1941**
## **WA.No.1318 of 2019**
**AGAINST THE JUDGMENT IN WP(C) 35882/2018 of HIGH COURT OF KERALA DATED 4.12.2018**
## **APPELLANTS/PETITIONERS:**
**1 THALASSERY MUNICIPALITY REPRESENTED BY ITS SECRETARY, THALASSERY MUNICIPALITY, THALASSERY P.O.-670101**
- **2 THE SECRETARY, THALASSERY MUNICIPALITY,THALASSERY P.O.-670 101**
- **3 THE ASSISTANT ENGINEER, NORTH DIVISION, THALASSERY MUNICIPALITY, THALASSERY-670 101**
**BY ADV. SRI.I.V.PRAMOD**
## **RESPONDENTS/RESPONDENTS:**
- **1 P.RAMESH S/O KESHAVAN, KANIYERIPOYYIL, THIRUVANGAD AMSOM, THALASSERY TALUK, KANNUR DISTRICT,PIN- 670 103.**
- **2 ASHA P.K, W/O PAVITHRAN, KRISHNA, THIRUVANGAD, THALASSERY-670 101**
**BY ADV. RAJESH V. NAIR**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21.06.2019, ALONG WITH W.A.Nos.1332/2015,1958/2016, 1847/2018 and 813, 986, 1073, 1154 &1161/2019 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
W.A.Nos. 1332/2015, 1958/2016, 1847/2018 and 813, 986, 1073, 1154, 1161 & 1318/2019
13
## **"CR"**
## **JUDGMENT**
## **Hrishikesh Roy, CJ**
The Thalassery Municipality and their functionaries have preferred these Writ Appeals. They are represented by their learned Standing Counsel, Sri.I.V.Pramod. The respondents-writ petitioners are represented respectively by S/Sri.K. Abdul Jawad, R.Surendran, T.M.Abdul Latheef, M.Sasindran, Deepak Raj, and Rajesh V. Nair, the learned counsel. The learned Senior Government Pleaders S/Sri.Tek Chand and Surin George Ipe represent the State authorities.
2. The issues are common in these Appeals and the matters are heard analogously. Therefore the following judgment will dispose of all the Appeals. For the sake of convenience, the primary facts are extracted from the W.A.No.1154/2019.
3. The writ petitioner, as the owner of land within the limits of Thalassery Municipality, applied for building permit to construct shops and office building. The authority in the Local Self Government Department of the Thalassery Municipality, rejected the application, on the ground that the building site is proposed for construction of a road in the Town Development Plan for the Thalassery Town. Aggrieved by the said decision, the land owner approached this Court. Similar decision(s) were taken to reject the other applications for building permit on the ground that the building site was in an area that is earmarked in the District Town Planning (DTP) for specific projects like Road
W.A.Nos. 1332/2015, 1958/2016, 1847/2018 and 813, 986, 1073, 1154, 1161 & 1318/2019 14
widening, to be undertaken at a future date. The aggrieved land owners then filed individual Writ Petitions.
4. The contention of the writ petitioners was essentially that, although the proposals for future development were contained in the DTP Scheme prepared under the erstwhile Town and Country Planning Acts, and the said schemes continued to be in force by virtue of the saving provision in Section 113 of the Town and Country Planning Act, 2016, for short the Act, 2016, the Local Authorities were obliged to acquire the lands in question within the period envisaged in Section 67. If they did not, they would be obliged to seek a variation of the DTP Scheme so as to exclude the proposal for future develoment and consider the applications for building permit, without taking note of the development proposal.
5. On the other hand, the stand of the Municipal authorities was that when the property of the writ petitioner is proposed in the development plan for the Thalassery Town, the development and construction on those lands would directly impact the future development plan for the Town. The Municipality pleaded that the development plan was prepared through due process and there is no challenge to the prepared plan for the Thalassery Township and therefore, intervention with the plan to be executed in future, at the instance of an individual property owner would not be justified in public interest.
6. The impugned judgments indicate that the learned Judge had adverted to the rival contentions and also examined the relevant provisions of the Act, 2016. The Court next found that the Municipality is yet to launch any scheme,
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notwithstanding the fact that by virtue of sub-section (2) of Section 113 of the Act, 2016, the existing draft Plan or Town Planning Schemes are to be treated as a Scheme or Plan, under the Act, 2016. It was then held that the Scheme of 1983 is deemed to be existing, but the Municipality has failed to take any action to acquire the land as mandated by the Act, 2016. On this finding, the Writ Petitions were decided in favour of the building permit applicants. However, balancing the interest of the individual and the Municipality, the Court under the impugned judgments directed the Municipality to, either acquire the land within three months or consider the building permit applications, dehors the findings recorded in the rejection decision.
7. Such judgments in the Writ Petitions are challenged in these Appeals. The learned counsel, Sri.I.V.Pramod for the Thalassery Municipality, refers to Section 67 of the Act, 2016, to point out that the property owners in the W.A.Nos.813/2019 [WP(C) No.27237/2018], 986/2019 [WP(C) No.10527/2018], 1073/2019 [WP(C) No.38855/2018], 1154/2019 [WP(C) No.1918/2018], 1318/2019 [WP(C) No.35882/2018], 1847/2018 [WP(C) No.19970/2016] and 1332/2015 [WP(C) No.21602/2014], who claim to be affected by the Town Planning Scheme, are yet to serve any purchase notice, under Section 67(1) of the Act, 2016, requiring the Municipal authorities to purchase the interest in their land. The counsel argues that only when such demand is made by the affected property owner, the Municipality is required to decide to either acquire the land within 60 days of receipt of the purchase notice or initiate suitable variation of the Town Planning Scheme. Since few land owners have not issued any
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purchase notice, the appellants would argue that the direction given by the
learned Judge to either acquire the property within three months or grant the building permit, was not merited in the facts.
8. In their turn, the learned counsel for the respondents-writ petitioners would argue that since the Municipal authorities have failed to launch any Scheme under the Act, 2016 and do not have the fund to carry out any town development activities in the Thalassery Municipality, the property owners cannot be compelled to keep their land undeveloped and thereby restrict their right to utilise their prime assets, for permitted usage.
9. A reading of the provisions of the Act, 2016 and the Municipality/Panchayat Building Rules indicates that the DTP Schemes prepared under the Act, 2016 are to have overriding effect over the provisions of the Building Rules. Accordingly, the procedure under Section 67 has to be followed in case the project envisaged under the DTP Scheme involves acquisition of land by the Local Authorities as a pre-requisite for implementing the proposal.
10. The provisions of Section 67 of the Act, 2016 are intended to balance the conflicting rights of the State and the private individual. While the State has the right to reserve lands for development proposals in public interest, the said right cannot be exercised in a manner designed to frustrate the Constitutional rights of the private individual under Article 300A, to deal with his property in the manner he chooses. A balance is therefore struck by directing the State to take affirmative action for implementing the proposal within a specified timeframe, failing which, the private individual is to be given the unfettered freedom
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to use his land for other permissible purposes.
## 11.For a fruitful discussion, Section 67 of the Act, 2016 is extracted:-
“67. Obligation to acquire land in certain cases - (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 subsection (1), as soon as possible, but not later than sixty days from the date of receipt of the purchase notice, the Municipal Corporation, 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.
(3) Where the land is designated for compulsory acquisition for the purpose of any Government Department or Quasi-government Agency the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat shall forward such notice to the Government.
(4) In case the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned decides not to acquire the land, it shall initiate variation of the plan suitably in accordance with this Act.
(5) In case the land acquisition could not be effected within a period of two years from the date of resolution to acquire the land, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall initiate variation of the plan suitably in accordance with this Act.
(6) On receipt of a purchase notice under sub-section (3), the Government shall in consultation with the Government Department or Quasi-government Agency concerned, not later than six months from the date of receipt of the purchase notice, confirm the purchase notice. In any other case, Government may require the Municipal Corporation, Municipal
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Council, Town Panchayat or Village Panchayat concerned to vary the plan suitably in accordance with this Act:
Provided that in case the land acquisition could not be effected within a period of two years from the date of confirmation of the purchase notice, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall initiate variation of the plan suitably in accordance with this Act under intimation to the Government.
(7) If no order has been passed by the Government within a period of six months from the date of receipt of the purchase notice, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall, suo motu initiate variation of the plan suitably in accordance with this Act:
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 and development permit received under section 64.”
12. The above provision in the Act, 2016 would imply that where any land is designated for compulsory acquisition in the Town Planning Scheme but no acquisition proceedings are initiated within a period of two years from the date of coming into operation of the Plan, the owner or the affected person may serve a purchase notice, requiring the authority to purchase the interest in the land. If any such purchase notice is served, within 60 days from the date of receipt, the authority is statutorily required to decide on acquisition of the property. If the land is designated for any Government Department or other authorities, the informaton on the receipt of purchase notice is to be forwarded to the said authority. In case decision is taken by the concerned authority not to acquire the land, variation of the development plan should be made. Even otherwise, when the land acquisition could not be effected within two years from
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the date of resolution to acquire the land, the authorities are required under sub-section (5) of Section 67 of the Act, to initiate suitable variation of the Plan. As can be seen, the statutory consequences for failure of the authority to acquire the land notified under the Town Planning Scheme is clearly delineated. Thus the Act, 2016 itself suggests that the property owner cannot be indefinitely deprived of his right to enjoy the property, without finality on the acquisition of the land, earmarked under the DTP Scheme.
13. On the above enactment and its application, we may benefit by referring to the 24.02.2016 judgment in the W.A.No.109 of 2015 (The District Town Planner & anr. v. Antony Joseph & others) where, the Court pronounced as under:-
"31. In cases where acquisition of land is required for the purpose of utilizing the said land for a public purpose in terms with a Master Plan or DTP Scheme, which apparently restricts the right of the owners, steps in that regard has to be taken within a time limit.
32. .................................................... A bare reading of Section 67 indicates that the owner of the property which is designated for compulsory acquisition is entitled to issue a notice referred as 'purchase notice' requiring the Municipality to purchase the interest in the land in accordance with the provisions of the Ordinance. Thereafter, in terms of sub section (2), the Municipality will have to take a decision to acquire the land. If the decision is not to acquire the land, the Municipality can initiate steps to vary the plan suitably in accordance with the Ordinance. If the land acquisition could not be effected within a period of two years from the date of resolution to acquire the land, then also the Municipality has to initiate variation of the plan in accordance with the Ordinance.
33. Therefore, it is clear that sufficient provisions have been made under the present enactment for dereserving the property and excluding the same from acquisition if the acquisition is not made within a specified time. Apparently, such issues had not been considered by the learned Single Judge in the impugned judgment. It is needless to state that the provisions of the Kerala Town and Country Planning Ordinance which was applicable during the relevant time clearly apply to the facts in issue. Such statutory provisions were not considered in the earlier judgments in **Padmini** (supra) as well as **Kalpetta Municipality** (supra) nor did this Court consider the scope and effect of Rule 3A of
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the KMBR. It is also relevant to note that in **Raju S.Jethmalani** (supra), the owner of the land had sought for dereserving the land from the sanctioned scheme. Therefore, when a DTP Scheme is in force, and certain land is designated for acquisition for common purposes, the remedy available to the land owner is to approach the Municipality or the Government, as the case may be, for dereserving the land in accordance with the statutory provisions. Unless there is compliance with the statutory provisions by which the Municipality may either take a decision to exclude the land from acquisition or to acquire the land within a specified time limit as provided under the statute, it may not be possible for the land owner to seek a building permit ignoring the sanctioned scheme nor will it be possible for the Municipality to grant the permit. ......................................................... ."
14. The implication of the Act, 2016 as explained above appears to be sound and we are in agreement. It would therefore be logical for us to conclude that the respondents-writ petitioners cannot be prevented from lawful enjoyment of their property, merely because, such property is included in the DTP Scheme of the Thalassery Municipality. It does not however mean that the authorities are deprived of their right to acquire the land at a future date, if the same would be needed for the development Scheme of the Town. The only burden in that future event would be, the need to compensate the owner to the extent of development or the construction, made over the property.
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
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W.A.Nos.813/2019 [WP(C) No.27237/2018], 986/2019 [WP(C) No.10527/2018], 1073/2019 [WP(C) No.38855/2018], 1154/2019 [WP(C) No.1918/2018], 1318/2019 [WP(C) No.35882/2018], 1847/2018 [WP(C) No.19970/2016] and 1332/2015 [WP(C) No.21602/2014], requiring the authorities to purchase the interest in the land. 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 Section 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 [WP(C) No.32587/2015] and 1161/2019 [WP(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.
16. With the above, the Writ Appeals stand disposed of in the manner indicated.
Sd/( **HRISHIKESH ROY** ) Chief Justice
Sd/-
( **A.K.JAYASANKARAN NAMBIAR** ) Judge
sou.
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## **APPENDIX**
## **PETITIONER'S EXHIBITS :**
## **NIL**
**RESPONDENT'S EXHIBITS:**
**ANNEXURE R1(A) : TRUE COPY OF THE PURCHASE NOTICE DATED 16.7.2018 ISSUED TO THE THALASSERY**
**ANNEXURE R1(B) : TRUE COPY OF THE RECEIPT DATED 16.7.2018 ISSUED BY THE THALASSERY MUNICIPALITY**
## **// TRUE COPY //**
**P.A. TO JUDGE**