Joseph Isaac and Thankamma Isaac v. Cherthala Municipality and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 8TH JULY 2010 / 17TH ASHADHA 1932 WP(C).No. 28938 of 2009(J) -------------------------- PETITIONER: - --------------- 1. JOSEPH ISAAC,NEYYARAPALLIL,CMC 23, CHERTHALA. 2. THANKAMMA ISAAC,NEYYARAPPALLIL, CMC 23, CHERTHALA. BY ADV. SRI.JOBY CYRIAC RESPONDENT(S): - --------------- 1. CHERTHALA MUNICIPALITY,CHERTHALA, ALAPPUZHA DIST REP.BY ITS SECRETARY. 2. THE SECRETARY,CHERTHALA MUNICIPALITY, CHERTHALA,ALAPPUZHA DIST. 3. MUNICIPAL COUNCIL,CHERTHALA REPRESENTED BY ITS CHAIRMAN. 4. THE DISTRICT TOWN PLANNER, DISTRICTURBAN AND RURAL DEVELOPMENT OFFICE, DISTRICT PLANNING UNIT,ALAPPUZHA. 5. THE GOVERNMENT OF KERALA REPRESENTED BY ITS CHIEF SECRETARY. ADV. SRI.J.OM PRAKASH FOR R1,R2 & R3 GOVERNMENT PLEADER SHRI C.M.SURESH BABU FOR R4 & R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX IN W.P.(C)No.28938/09** ## **PETITIONER'S EXTS:** - EXT.P1: TRUE COPY OF APPLICATION DATED 11.3.2008 SUBMITTED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT. - EXT.P2: TRUE COPY OF THE JUDGMENT DATED 14.8.08 IN W.P.(C) No.22676/08. - EXT.P3: TRUE COPY OF THE COMMUNICATION OF THE 2ND RESPONDENT DATED 6.3.2009. - EXT.P4: TRUE COPY OF THE JUDGMENT DATED 2.6.09 IN W.P.(C)No.15092/09. - EXT.P5: TRUE COPY OF ORDER DATED 27.8.09 ISSUED BY THE 2ND RESPONDENT. - EXT.P6: TRUE COPY OF JUDGMENT DATED 28.8.09 IN THE CONTEMPT CASE NO.991/09. **==> picture [58 x 9] intentionally omitted <==** **----- Start of picture text -----**<br> TRUE COPY<br>**----- End of picture text -----**<br> **T.R.RAMACHANDRAN NAIR,J. ------------------------------------W.P.(C)No.28938 of 2009 --------------------------------DATED THIS THE 8[th] DAY OF JULY, 2010** ## **JUDGMENT** The rejection of an application for building permit has led to the petitioners filing this Writ Petition. The petitioners are absolute owners of two items of landed properties measuring 648 Sq.metres in Survey Nos.235/21 and 235/28B-2 & 7 situated in the Cherthala Municipal area. They purchased the said lands as per sale deeds dated 12.5.1997 and 17.1.2008 respectively. 2. The proposed construction is of a two storeyed shopping complex and Exhibit P1 is the copy of the application. The order passed by the Municipality has been produced as Exhibit P5 which was pursuant to the direction issued by this Court earlier in W.P.(C)No.15092/2009. In Exhibit P5 it is mainly pointed out that there is a DTP Scheme, viz; Muttam Bazar Town Planning Scheme, which was notified under Section 8 of the Town Planning Act on 8.7.1993 and the draft was published under Section 9 on 6.7.1994 and in the light of Section 15(1), all concerned are bound to comply with the Scheme. W.P.(C)No.28938/09 -2- 3. It is further mentioned that as per the notified Scheme with regard to the petitioners' properties, the portion lying on the western side near the road having a width of 4.8 metres is required for the purpose of transport, eastern portion having an extent of 32 metres is earmarked for residential purposes and commercial purposes alone and the remaining portion can be utilised only for residential purposes. Mainly it is contended by the learned counsel for the petitioners that the scheme has not become operational due to the long lapse of time and in the light of the decisions of this Court in _**Padmini** vs._ _**State of Kerala**_ **(1999 (3) KLT 465)** and **Nasar v. Malappuram Municipality (2009 (3)KHC 35)** , rights of the property owner cannot be affected, that too without any initiation of proceedings under the Land Acquisition Act. Reliance is placed on the decision of the Apex Court in _**Raju S.Jethmalani and others** vs._ _**State of Maharashtra and others**_ **((2005) 11 SCC 222).** 4. The 2[nd] respondent has filed a counter affidavit in support of the order passed and taking the objection that the land in question is covered by the DTP Scheme. W.P.(C)No.28938/09 -3- 5. Respondents 4 and 5 have also filed a counter affidavit. It is pointed out that a detailed Town Planning Scheme for Muttom Bazar Area is in force at the time of application for building permit and by Section 15, the Municipality may either grant or refuse permit on applications for construction in the scheme area subject to such conditions as may be consistent with the scheme. 6. The learned counsel for the petitioners submitted that under Section 12(5) of the Town Planning Act, sanction of the scheme by the Government has to be published in the Gazette and under Section 12(6) a notification published under subsection (5) alone shall be conclusive evidence. It is pointed out that the scheme has not been finally notified under Section 12 and the Government has not granted sanction for the same. My attention is invited to the decision of the Full Bench of this Court in **Francis v. Chalakudy Municipality (1999 (3) KLT 560)** wherein this Court felt the necessity to fix a time limit for a final notification under Section 12 of the Act and the requirement of amendment of the Act itself. W.P.(C)No.28938/09 -4- 7. The learned counsel for the petitioner relies upon the decision of the Apex Court in **State of Kerala v. T.M.Peter (1980 KLT 402 (SC))** wherein the Apex Court considered the same question wherein the publication of the final notification under Section 12 was delayed for a considerable length of time. The Apex Court after considering the same held in paragraph 6 thus: “6. We regard this grievances as mythical, not real, for more than one reason. The scheme is for improvement of a town and, therefore, has a quality or urgency implicit in it. Government is aware of this import and it is fanciful apprehension to imagine that lazy insouciance will make government slumber over the draft scheme for long years. Expeditious despatch is writ large on the process and that is an in-built guideline in the statute. At the same time taking a pragmatic view, no precise time scale can be fixed in the Act because of the myriad factors which are to be considered by Government before granting sanction to a scheme in its original for or after modification. S.12 and the other provisions give us some idea of the difficulty W.P.(C)No.28938/09 -5- of a rigid timeframe being written into the statute especially when schemes may be small or big, simple or complex, demanding enquiries or provoking discontent. The many excises, the difference of scale, the diverse consequences, the overall implications of developmental schemes and projects and the plurality of considerations, expert techniques and frequent consultations, hearings and other factors precedent to according sanction are such that the many-sides dimension of the sanctioning process makes fixation of right time limits by the statute an impractical prescription. As pointed out earlier, city improvement schemes have facets which mark them out from other land acquisition proposals. To miss the massive import and specialised nature of improvement schemes is to expose one's innocence of the dynamics of urban development. Shri Raghavan fairly pointed out that, in other stages, the Act provides for limitation in time(for example, S.33 which fixes a period of three years between the date of notification and the actual acquisition). Only in one minimal area where time-limit may not be workable, it has W.P.(C)No.28938/09 -6- not been specified. The statute has left it to Government to deal expeditiously with the scheme and we see sufficient guideline in the Act not to make the gap between the draft scheme and governmental sanction too procrastinatory to be arbitrary. We need hardly say that the court is not powerless to quash and grant relief where, arbitrary protraction or malafide inaction of authorities injures an owner.” 8. Therefore, it is clear that the Apex Court was of the view that the Court is not powerless to quash and grant relief where, arbitrary protraction or malafide inaction of authorities injures an owner . 9. Here, going by the facts of the case, a notification under Section 8 was issued way back in 1993, viz, 8.7.1993 and the draft was published under Section 9 on 6.7.1994. The order Exhibit P5 is passed on 27.8.2009 and so far sanction under Section 12(3) has not been granted by the Government. 10. The question is whether the restrictions could therefore deprive the claim of persons like the petitioners. It is clear that the scheme as such has not been implemented by the W.P.(C)No.28938/09 -7- Municipality and going by Section 12, the scheme shall have effect from the date of publication of the notification and execution of the scheme shall be commenced forthwith. Therefore, the notification under Section 12 is a material thing to show that the scheme has been duly made and sanctioned. 11. Why for 17 years nothing has happened and the citizens are put to difficulty in the matter? The same has not been answered at all. Herein one more aspect is important to be noticed. Even going by the scheme, the western portion is to be developed as a road. As far as the construction of a road is concerned, it requires acquisition of properties from various persons. A Division Bench of this Court in **Padmini's** case (supra) held that mere contemplation of a proposal for acquisition cannot deprive the land owners of their right to enjoy the property. Therefore, so far as the widening of the road is concerned, it is clear that acquisition proceedings have to be initiated at the instance of the Municipality. That also is absent here. 12. The state of affairs as described above shows that the scheme itself has not been implemented in terms of Section 12 W.P.(C)No.28938/09 -8- (6) of the Act. In such circumstances, the rejection of the application for building permit as per Exhibit P5 can only be taken as arbitrary. In such cases going by the dictum laid down in **T.M.Peter** 's case(supra) where the gap between the draft scheme and governmental sanction is too procrastinatory, this Court is entitled to grant relief to the parties. Therefore, the Writ Petition is allowed. Exhibit P5 is quashed. There will be a direction to the respondents to consider the application for building permit in accordance with the Rules without referring to the Town Planning Scheme and appropriate decision will be communicated to the petitioner within a period of one month from the date of receipt of a copy of this judgment. No costs. ## Sd/- (T.R.RAMACHANDRAN NAIR, JUDGE.) dsn **True copy P.A.to Judge**