George Thomas @ Jibi Thomas v. Municipal Corporation of Cochin and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY ,THE 15TH DAY OF FEBRUARY 2019 / 26TH MAGHA, 1940** # **WP(C).No. 24507 of 2018** ## **PETITIONER/S:** **GEORGE THOMAS @ JIBI THOMAS, AGED 48, S/O.LATE T.DAVID THOMAS, MANAGING DIRECTOR, ARYA BHANGY BUILDERS PVT. LTD., ARYA BHANGY PINNACLE, S.A.ROAD, ELAMKULAM, COCHIN-682020.** **BY ADVS. SRI. GEORGE THOMAS MEVADA (SR.) SRI.K.C.ELDHO SMT.K.SINDHU ELIAS SRI.ANEESH JAMES SRI.JIJO THOMAS SRI.MALLENATHAN.M.** ## **RESPONDENT/S:** **1 MUNICIPAL CORPORATION OF COCHIN, CORPORATION OFFICE, PARK AVENUE, COCHIN-682011, REPRESENTED BY ITS SECRETARY. 2 THE SECRETARY, MUNICIPAL CORPORATION OF COCHIN, CORPORATION OFFICE, PARK AVENUE, COCHIN-682011. 3 THE EXECUTIVE ENGINEER, LSGD, MUNICIPAL CORPORATION OF COCHIN, CORPORATION OFFICE, PARK AVENUE, COCHIN-682011. 4 THE ASSISTANT ENGINEER, PWD ROADS DIVISION, LAYAM ROAD, THRIPUNITHURA, COCHIN-682301. *ADDL. THE CHIEF TOWN PLANNER, R5 OFFICE OF THE CHEF TOWN PLANNER, SWARAJ BHAVAN, 2ND FLOOR, NANDANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM-695003.** W.P.(C) No.24507 of 2018 2 **(*ADDL.R5 IS IMPLEADED AS PER ORDER DATED 14/11/2018 IN IA.NO.03/2018)** **BY ADVS. R1 TO R3 - SRI.JIBU P.THOMAS,SC,COCHIN CORPORATION R4 & R5 - SRI.C.M.NAZAR, SPL. GOVERNMENT PLEADER (LSGD)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.24507 of 2018 3 ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Exts.P7 and P9 communications issued by the Executive Engineer of the Kochi Corporation and the Assistant Engineer, PWD Roads Section, Tripunithura, respectively, directing the petitioner as well as the Assistant Executive Engineer, Kochi Corporation, to modify the plan so as to suit a proposal for widening of a road, and for other consequential reliefs. Brief material facts for the disposal of the writ petition are as follows: 2. Petitioner purchased 20.025 Ares of property situate in Survey Nos.957/5-2, 957/4-6, 959/10-5 and 957/5-5 of Poonithura Village as per Exts.P1 and P2 sale deeds, having a total sale consideration of Rs.3 crores. Petitioner submitted an application for building permit before the 2[nd] respondent for construction of a multi-storied commercial-cum- residential building in the said property, evident from Ext.P6 receipt. However, petitioner was served with Ext.P7 communication by the Kochi Corporation, stating that the application submitted by the petitioner can be considered only on petitioner submitting a fresh plan after leaving 13 metres from the centre of the road, W.P.(C) No.24507 of 2018 4 and keeping the same as the boundary of petitioner's property. According to the petitioner, the said communication appears to have been issued by the Corporation on the basis of Ext.P9 communication issued by the 4[th] respondent to the 3[rd] respondent, wherein, it is intimated that, there is a road widening proposal in respect of the road passing through the front side of petitioner's property. It is the case of the petitioner that, on a perusal of Exts.P9 and P11, it is categoric and clear, it is only a proposal and no steps are taken for acquisition of the property. Furthermore, there is no approved DTP Scheme pending so as to direct the petitioner to alter the plan to suit the convenience of the proposal. It is also pointed out that, the action of the respondents is clearly in violation of the constitutional right provided under Article 300A of the Constitution of India. 3. The 4[th] respondent has filed a counter affidavit, contending that the subject property is situated by the side of Vyttila-Petta road, a part of the State Highway Ettumanoor-Ernakulam road under PWD Roads Section, Tripunithura. Considering the importance of the road, it was proposed to develop the road in 26 metres width. Budget provisions for an amount of Rs.20 W.P.(C) No.24507 of 2018 5 Crores and 5 Crores has been included in the State Budget during the years 2009-10 and 2010-11 respectively. The balance reach of ongoing Kochi Metro Rail Project has to be extended up to Petta Junction and the reach from Petta to Kunnara Park had already been handed over to the Kochi Metro Rail Limited. In addition to Vyttila stop, two more Metro Stations are proposed en-route Petta, and there is also access towards this road from the Vyttila Mobility Hub. The traffic density is increasing day-by-day, and there is heavy traffic congestion throughout the day. It was considering these aspects, the widening and development of the road was proposed, which is an inevitable consequence. With respect to the widening, a meeting was conducted in the chamber of the District Collector on 05.06.2010, and it was proposed to develop the same, evident from Ext.R4(a), and the Assistant Executive Engineer, Vyttila, Zonal Office, is informed of the proposal as per a communication dated 18.05.2018. 4. A statement is filed for and on behalf of the 2[nd] respondent Kochi Corporation, almost on similar lines the counter affidavit filed by the 4[th] respondent. Additional 5[th] respondent has also filed a counter affidavit, virtually conforming to the stand W.P.(C) No.24507 of 2018 6 adopted by the 4[th] respondent. 5. Reply affidavits are filed by the petitioner to the respective counter affidavits. 6. I have heard Sri. George Thomas Mevada, learned Senior Counsel for the petitioner, assisted by Advocate K.C.Eldho, Sri. C.M. Nazar, learned Special Government Pleader appearing for respondents 3 to 5, and Sri. Jibu P.Thomas, learned Standing Counsel appearing for the Kochi Corporation. Perused the pleadings and the documents on record. 7. Learned Senior Counsel appearing for the petitioner submitted that, going by the pleadings put forth by 4[th] and 5[th] respondents, it is clear that, there is not even an existing DTP Scheme or Plan for the area and no steps are also taken for acquisition of the property of the petitioner for widening the road. Therefore, the respondents are not at liberty to direct the petitioner to modify the plan to suit the road widening proposal. Further, it is submitted that, petitioner is put to serious prejudices, since petitioner has purchased the property by making a huge investment of Rs.3 Crores, with the intention of developing the property profitably. Since there is no Town Planning Scheme and there is no acquisition W.P.(C) No.24507 of 2018 7 proceedings initiated by respondents, the respondents are not at liberty to direct the petitioner to modify the plan. 8. On the other hand, learned Special Government Pleader submitted that, the road from Vyttila Junction to Petta is a part of the Ettumanoor State Highway, which is one of the important roads whereby traffic is to be regulated by widening the road, and unless and until the road is widened, the traffic congestion cannot be curbed. It is also pointed out that, since the acquisition proceedings will take some time, the Corporation as well as the PWD authorities are helpless in this situation, other than directing the petitioner to modify the plan. So much so, since there is a proposal for widening, they have got the power to direct the petitioner to re-submit the plan taking into account the widening proposal also. Learned Standing Counsel for the Kochi Corporation submitted that, since there was a direction by the PWD to secure a plan from the petitioner in accordance with the proposal made, Ext.P7 was issued by the Corporation. 9. I have considered the rival submissions and evaluated the _pros and cons_ involved in the subject matter. On a consideration of the facts, what I could W.P.(C) No.24507 of 2018 8 gather is that, there is no Town Planning Scheme existing for the purpose of widening of the road. Even according to the 4[th] respondent, there was only a proposal made in a meeting convened at the office of the District Collector, and that too in the year 2010. It is also clear from the submissions made in the counter affidavit of the 4[th] respondent that, the Budget proposals were made during 2010. More than eight years have elapsed, and therefore, in that view of the matter, I am of the considered opinion that, a mere proposal on a paper will not turn out to be an impediment standing in the way of the Kochi Corporation to consider the plan submitted by the petitioner for construction of a multi-storied residential-cumcommercial complex. 10. I find force in the contention advanced by learned Senior Counsel for the petitioner that there is a clear constitutional right available for the petitioner under Article 300A of the Constitution of India, to utilize the property in accordance with law. Since there are no Schemes or acquisition proceedings pending against the property, any prohibition created by the respondents will be violative of the right guaranteed under Article 300A of the Constitution. So W.P.(C) No.24507 of 2018 9 also, learned Senior Counsel has invited my attention to various provisions of the Kerala Town and Country Planning Act, 2016 (for short, 'the Act, 2016'). Consequent to the introduction of Act, 2016, all the erstwhile Town Planning Acts are repealed as per Sec.113(1) of the Act. However, any Scheme pending is protected under Sec.113(2) of Act, 2016. Whenever there is a Scheme, there is a prohibition created as per Sec.61 of Act, 2016, which stipulates that, use and development of land to be in conformity with Master Plans and Detailed Town Planning Schemes under the Act, which read thus: _“After the coming into operation of a Master Plan or Detailed Town Planning Scheme under this Act, no person shall use or cause to use any land or carry out development in any land, or change the use of land otherwise than in conformity with or with prejudicial to the Master Plans and Detailed Town Planning Schemes under this Act._ _**Note** :--Provisions of Detailed Town Planning Schemes shall prevail over the provisions of the Master Plans where both Plans are in force in an area”._ 11. Therefore, in my considered view, unless and until a clear Town Planning Scheme is existing or an approved Master Plan is in force, respondents cannot insist the petitioner to re-submit the plan in order to suit a road widening proposal. Since there are no legal inhibitions created, petitioner is entitled as of W.P.(C) No.24507 of 2018 10 right to develop the property in accordance with the provisions of the Kerala Municipality Act, 1994 and the Kerala Municipality Building Rules, 1999. 12. The issue with respect to 'proposal' was considered by this Court in ' _**Padmini v. State**_ ' [1999 (3) KLT 465], and held that, 'proposal for acquisition' cannot be deemed, which thus means, if there are no concrete steps on the basis of action initiated for acquisition of land, an application submitted by a person for development of the property cannot be rejected or such persons cannot be deprived of securing a permit. So also, the issue with respect to 'obsolete schemes' were considered by the apex court in ' _**Raju S. Jethmalani v. State of Maharashtra**_ ' [(2005) 11 SCC 222] and held that, the owners of property have got constitutional right to develop the same in accordance with law. The said judgments are guiding principles to arrive at a safe conclusion that the action of the respondents cannot be sustained under law. 13. Moreover, in the case on hand, there are no legal inhibitions standing in the way at all to secure a permit in accordance with law. True, a Division Bench of this Court had occasion to consider the issue in respect of pending Town Planning Scheme _vis-a-vis_ the W.P.(C) No.24507 of 2018 11 provisions of Act, 2016, in ' _**District Town Planner, Kottayam & Another v. Antony Joseph and Others**_ ' [MANU/KE/0115/2016] and held that, sufficient provisions have been made under Act, 2016, for dereserving the property and excluding the same from acquisition, if the acquisition is not made within a specified time, and such statutory provisions were not under consideration, in ' _**Padmini**_ ' and ' _**Raju S. Jethmalani'**_ ( _supra_ ). But, here is a case where, not even a Scheme existing to deprive the petitioner from utilising his property in accordance with law, and to have the application of the provisions of Act, 2016. Therefore, in all respects, benefit of the proposition of law laid down in the afore-quoted judgments will accrue to the petitioner. 14. Therefore, petitioner is entitled to succeed in the writ petition. Accordingly, I quash Exts.P7 and P9, being arbitrary and illegal, liable to be interfered with under Article 226 of the Constitution of India, and there will be a direction to re-consider the application in accordance with law, taking into account the findings and observations contained above, at the earliest, and at any rate, within a month from the date of receipt of a copy of this judgment. W.P.(C) No.24507 of 2018 12 The writ petition is allowed accordingly. **Sd/SHAJI P.CHALY JUDGE** St/16.02.2019 W.P.(C) No.24507 of 2018 13 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 : A TRUE COPY OF THE SALE DEED NO.1587/2017 OF MARADU SRO.** **EXHIBIT P2 : A TRUE COPY OF THE SALE DEED NO.369/2018 OF MARADU SRO.** **EXHIBIT P3 : A TRUE COPY OF THE TAX PAID RECEIPT DATED 16-4-2018.** **EXHIBIT P4 : A TRUE COPY OF THE POSSESSION CERTIFICATE DATED 17-4-2018 ISSUED TO THE PETITIONER BY THE POONITHURA VILLAGE OFFICE** - **EXHIBIT P5 : A TRUE COPY OF THE LAND OWNERSHIP CERTIFICATE DATED 11-4-2018 ISSUED BY THE VILLAGE OFFICER, POONITHURA.** - **EXHIBIT P6 : A TRUE COPY OF THE RECEIPT DATED 17-4-2018 ISSUED BY THE 1ST RESPONDENT ON RECEIPT OF THE APPLICATION FOR BUILDING PERMIT.** - **EXHIBIT P7 : A TRUE COPY OF THE COMMUNICATION DATED 8-6-2018 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P8 : A TRUE COPY OF THE COMMUNICATION BY THE 3RD RESPONDENT TO THE 4THE RESPONDENT DATED 11-5-2018.** - **EXHIBIT P9 : A TRUE COPY OF THE REPORT OF THE 4TH RESPONDENT ISSUED IN FAVOUR OF THE 3RD RESPONDENT.** - **EXHIBIT P10 : A TRUE COPY OF THE APPLICATION DATED 19-5-2018 SUBMITTED BY THE PETITIONER** - **EXHIBIT P11 : A TRUE COPY OF THE REPLY DATED 26-6-2018 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P12 : A TRUE COPY OF THE COMMUNICATION DATED 10.07.2017 FROM THE OFFICE OF THE SPECIAL TAHASILDAR (L.A.), NH NO.3, VYTILLA.** **RESPONDENTS EXHIBITS:** W.P.(C) No.24507 of 2018 14 **EXHIBIT R4(A) A TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 05.06.2010 IN THE CHAMBER OF THE DISTRICT COLLECTOR.** //TRUE COPY// P.S. TO JUDGE St/-