Joseph Jacob et al. v. Kottayam Municipality & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY, THE 1[ST] DAY OF AUGUST 2022 / 10TH SRAVANA, 1944 WP(C) NO. 9667 OF 2022** ## **PETITIONERS** - **1 JOSEPH JACOB AGED 75 YEARS S/O. JACOB ITTIYAVIRA, PULICKAL HOUSE, MUTTAMBALAM P.O., KOTTAYAM, PIN-686 004** - **2 DEEPAK JACOB JOSEPH, AGED 46 YEARS S/O. JOSEPH JACOB, PULICKAL HOUSE, MUTTAMBALAM P.O., KOTTAYAM, PIN-686 004** - **3 PRADEEP JAMES JOSEPH, AGED 41 YEARS S/O. JOSEPH JACOB, PULICKAL HOUSE, MUTTAMBALAM P.O., KOTTAYAM, PIN-686 004 BY ADVS. V.M.KRISHNAKUMAR P.R.REENA** ## **RESPONDENTS** - **1 KOTTAYAM MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, YMCA ROAD, KOTTAYAM,PIN-686 001** - **2 SECRETARY, KOTTAYAM MUNICIPALITY, MUNICIPAL OFFICE, YMCA ROAD, KOTTAYAM,PIN-686 001** - **3 THE TOWN PLANNER, DISTRICT TOWN PLANNING OFFICER, NAGAMPADAM, KOTTAYAM DISTRICT,PIN-686 002 BY ADVS.SHRI.SIBY CHENAPPADY, SC, KOTTAYAM MUNICIPALITY ADVOCATE GENERAL OFFICE KERALA SRI.SYAMANTHAK B S, GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR** **ADMISSION ON 01.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.9667 of 2022 2 ] ## **J U D G M E N T** **Dated this the 1[st] day of August, 2022** The 1[st] petitioner, who is owner in possession of 5777 square metres of land in Muttambalam Village of Kottayam Taluk, and petitioners 2 and 3, who are his sons, have approached this Court seeking to quash Ext.P7 and to direct the respondents to reconsider Ext.P6 application, in accordance with law, dehors the DTP Scheme in view of Ext.P5 Purchase Notice, Exts.P2 to P4 judgments of this Court and the provisions contained in the new Master Plan, 2020 for Kottayam. 2. The petitioners wanted to construct a building in their land. In the DTP Scheme 1971 framed under the Travancore Cochin Town Planning Act, the property of the petitioners was earmarked as proposed land to be acquired for parks and open space. The petitioners W.P(C) No.9667 of 2022 3 ] wanted to construct a building in the property. The petitioners therefore submitted Ext.P5 Purchase Notice to the Municipal Authorities on 05.10.2021 invoking Section 67 of the Kerala Town and Country Planning Act, 2016. The Municipal Authorities did not take any decision on Ext.P5 within the stipulated 60 days. Since no resolution was taken by the 1[st] respondent for acquiring the property within the statutory period, the petitioners are entitled to get the Building Permit, dehors the DTP Scheme, contend the petitioners. 3. The petitioners would submit that the 3[rd] respondent has taken a stand that the land is included in the DTP Scheme of 1971 and it was proposed to acquire for park and open space. The DTP Scheme of 1971 is intended to operate only for 20 years and therefore ceased to exist by 1991. The respondents have not taken any steps to implement the provisions in the DTP Scheme. In the circumstances, the W.P(C) No.9667 of 2022 4 ] petitioners cannot be permanently debarred from making constructions in the land, contended the petitioners. 4. The 3[rd] respondent-Town Planner entered appearance and resisted the writ petition. It was submitted on behalf of the 3[rd] respondent that a Detailed Town Planning Scheme for the area has been sanctioned by the Government on 26.07.1993. The Detailed Town Planning Scheme sanctioned under the repealed Act is to be deemed as a Detailed Town Planning Scheme sanctioned under the Kerala Town and Country Planning Act, 2016. In the DTP Scheme, the area covering the petitioners' land was to be acquired for park and open space. 5. It was pointed out that the petitioners have submitted Ext.P5 Purchase Notice. The Authorities have taken action for making necessary changes in the sanctioned DTP Scheme. The Kottayam Municipal W.P(C) No.9667 of 2022 5 ] Council on 24.10.2019 and 14.05.2020 has resolved to vary the sanctioned DTP scheme. The Chief Town Planner (Planning) has given directions for variation based on the judgment of this Court in W.P(C) No.21634 of 2020. The work in this regard is progressing. Till the Scheme is varied, the petitioners cannot insist that they should be given a Building Permit. 6. I have heard the learned counsel for the petitioner, the learned Standing Counsel for respondents 1 and 2 and the learned Government Pleader representing the 3[rd] respondent. 7. This Court considered the issue of rejection of Building Permit on the basis of existing Town Planning Scheme and the consequence of sending Purchase Notice under Section 67 of the Kerala Town and Country Planning Act, 2016. A Division Bench of this Court in _**District Town Planner, Thrissur v. Joby M.C**_ W.P(C) No.9667 of 2022 6 ] _**and others**_ [2020 (6) KLT 600] held that if any purchase notice is received by the Municipal Corporation, adequate steps shall be taken in the time fixed under Section 67 and act accordingly. If no steps are taken as contemplated under Section 67(2) of the Act, 2016, the application submitted shall be reconsidered in accordance with law at the earliest. 8. This Court again considered a similar issue in W.P(C) No.31426 of 2019. The learned Single Bench of this Court as per Ext.P3 judgment in similar circumstances held that if the Corporation refuses the application or does not issue orders within the statutory period, then the Secretary will be obligated to reconsider the petitioner's application for Building Permit, dehors the stipulations in the Master Plan. 9. The last proviso to Section 67 which makes it obligatory to acquire land in certain cases, provides that where variation proceedings of Plan are initiated W.P(C) No.9667 of 2022 7 ] 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 a suitable decision on any application for land development permit received under Section 64. 10. The counter affidavit filed by the 3[rd] respondent has stated that the Kottayam Municipal Council had already resolved for variation of the sanctioned DTP Scheme for the area. Exts.P8 and P9 copies of the Minutes of the Municipal Council would also indicate the Council has already initiated for variation of Plan by passing resolutions. In view of afore facts and taking into consideration the judgments of this Court in Exts.P2 and P3, the writ petition is disposed of directing the 2[nd] respondent to reconsider Ext.P6 application submitted by the petitioners in accordance with law, dehors the W.P(C) No.9667 of 2022 8 ] DTP Scheme. Orders in this regard shall be passed within a period of two months. ## Sd **/-** ## **N. NAGARESH, JUDGE** smm The word '2[nd] respondent' occurring in the operative portion under paragraph 10 of the judgment dated 01.08.2022 stands corrected as '3[rd] respondent' as per order dated 06.10.2022 in I.A.No.2/2022 in W.P(C) No.9667/2022. Sd/- Joint Registrar W.P(C) No.9667 of 2022 9 ] ## **APPENDIX OF WP(C) 9667/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF PART MAP OF THE DTP SCHEME 1971 SHOWING PROPERTY OF THE PETITIONERS INCLUDED AS LAND PROPOSED TO BE ACQUIRED FOR PARK AND OPEN SPACE Exhibit P2 TRUE COPY OF THE JUDGMENT REPORTED IN 2020(6) KHC 455 Exhibit P3 TRUE COPY OF THE JUDGMENT IN WPC NO.31426/2019 DATED 09.12.2019 Exhibit P4 TRUE COPY OF THE JUDGMENT IN WPC NO.35515/2018 DATED 17.12.2019 Exhibit P5 TRUE COPY OF PURCHASE NOTICE DATED 05.10.2021 SUBMITTED BEFORE THE MUNICIPALITY Exhibit P6 TRUE COPY OF THE APPLICATION DATED 12.01.2022 FILED BY THE PETITIONERS Exhibit P7 TRUE COPY OF THE LETTER DATED 27.01.2022 ISSUED BY THE 3RD RESPONDENT Exhibit P8 TRUE COPY OF THE RESOLUTION NO. 86 DATED 24.10.2019 OF KOTTAYAM MUNICIPALTY. Exhibit P9 TRUE COPY OF THE RESOLUTION NO. 15 DATED 14.05.2020 IS OF KOTTAYAM MUNICIPALITY.