Joy Thomas and Others v. The Pala Municipality and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **FRIDAY, THE 25TH DAY OF JULY 2014/3RD SRAVANA, 1936** ## **WP(C).No. 2170 of 2014 (U)** ## **---------------------------** **PETITIONERS :** ## **1. JOY THOMAS** - **KIZHAKKEDATHU HOUSE, KIZHAPARAYAR POST.** ## **2. M.R.JALAJA,** - **KALLADATHU HOUSE, ALANADU POST.** ## **3. MARY LIJI,** - **VALIYAKAPPIL HOUSE, ANDEENADU POST.** **BY ADVS.SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** **RESPONDENTS :** ## **1. THE PALA MUNICIPALITY REPRESENTED BY ITS SECRETARY, PALA.** ## **2. SECRETARY,** **THE PALA MUNICIPALITY, PALA.** **3. THE DISTRICT TOWN PLANNER, KOTTAYAM.** **R1 & R2 BY ADV. SRI.V.M.KURIAN, SC, R3 BY GOVERNMENT PLEADER SRI.THOMAS JOHN AMBUKAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-07-2014 ALONG WITH WPC. 8012/2014 & CONNECTED CASES THE COURT ON 25-07-2014,THE SAME DAY DELIVERED THE FOLLOWING:** **BP** **WP(C).No. 2170 of 2014 (U)** **---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ------------------------------------P1: COPY OF THE COMMUNICATION OF THE 2ND RESPONDENT DATED 7.12.2013 TO THE DISTRICT TOWN PLANNER, KOTTAYAM. P2: COPY OF THE JUDGMENT DATED 31.7.2008 IN WPC NO.8656 OF 2008. P3: COPY OF THE JUDGMENT DATED 21.1.2013 IN WPC NO.28706 OF 2012.** **RESPONDENT(S)' EXHIBITS : NIL.** ## **//TRUE COPY//** **P.A. TO JUDGE** **BP** ## **A.V.RAMAKRISHNA PILLAI, J.** = = = = = = = = = = = = = = = = = = W.P(C) Nos.2170, 8012, 10844, 10925 & 13372 of 2014 = = = = = = = = = = = = = = = = = == Dated this the 25[th] day of July, 2014 ## **JUDGMENT** Aggrieved by the non-consideration of the applications submitted by the petitioners for building permit, by the respondent on the ground that petitioners' properties are is included in the town planning scheme, the petitioners have come up before this Court with these writ petitions. 2. The petitioners in W.P(C) No.2170/14 are the the owners in possession of an extent of 1.68 Ares of land comprised in R.S. No.14 of Arunapuram Kara, Puiliyanoor village, Meenachil taluk. The petitioner in W.P(C) No.8012/14 is the owner in possession of an extent of 3.77 Ares of land comprised in R.S No.6/36A and 6/37 of Arunapuram Kara, Puiliyanoor village, Meenachil taluk. The petitioner in W.P(C) No.10844/14 is the owner in possession of an extent of 1.27 Ares comprised in Sy. No.161/15/1 of Meenachil village. The petitioner in W.P(C) No.10925/14 is the owner in possession of an extent of 6.07 Ares of land comprised in Sy. No.407/5B/3/1 of Puliyannoor village and the petitioner in W.P(C) WP(C)s.2170,8012,10844,10925&13372/14 **-:2:-** No.13372/14 is the owner in possession of an extent of 1.66 Ares of land comprised in R.S No.37/16 of Lalam kara and village, Meenachil taluk. She is also the owner in possession of an extent of 19.42 ares of land comprised in R.S No.37/16 of the same village and taluk. 3. The petitioners submitted applications for building permit in accordance with the Kerala Municipality Building Rules, 1999 which were refused to be considered by the respondents in view of the letter dated 13.01.2014 issued by the Chief Town Planner wherein the Chief Planner has informed the Municipal Engineer that any validly published plan in respect of respondent municipality under the provisions of the Town Planning in Act would be deemed to be a town planning scheme published in terms of Section 42 of Kerala Town & Country Planning Ordinance (Ordinance No.51/2013) (hereinafter referred to as, the Ordinance). 4. The petitioners allege that a perusal of the aforesaid letter dated 13.1.2014 shows that the letter only states that a master plan validly published in respect of the respondent municipality would be deemed to be a plan published in terms of Section 42 of the Ordinance. It is with this background that the petitioners have WP(C)s.2170,8012,10844,10925&13372/14 **-:3:-** come up before this Court. 5. In the counter filed by the 1[st] respondent in W.P(C) No.8012/14, they have maintained the stand taken in the impugned orders. The first respondent contended that the Draft Development Plan for Pala was published vide G.O.(Rt) No.1502/95/LAD. dated 21.3.1995 under the Town Planning Act, 1108, and the same was pending approval of the Government. Therefore, in view of the Ordinance, it is deemed as published under the Ordinance. They also stated that the orders impugned are not rejection orders. According to the 1[st] respondent, they are clarifications issued by the Chief Town Planner on the draft development plan based on the request of the 2[nd] respondent 6. In the statements filed by the State, they supported the stand taken by the respondent municipality. 7. Arguments have been heard. 8. Admittedly, the petitioners' properties are situated within the local limits of respondent municipality and, therefore, they wanted to construct buildings therein. The respondent municipality objected the same on the ground that the properties were included in the town planning scheme. The learned counsel for the WP(C)s.2170,8012,10844,10925&13372/14 **-:4:-** petitioners invited my attention to the judgment of this Court dated 31.7.2008 in W.P(C) No.8656/2008(E) submitted that no town planning scheme is actually promulgated by the respondent municipality. 9. The learned standing counsel for the respondent municipality invited my attention to Section 42 of the Ordinance and argued that any plan submitted after the date of promulgation of the aforesaid Ordinance has to comply with the provisions of draft master plan already published which shall be deemed to be the notification under Section 38(1) of the said Ordinance for the town. Section 42 reads as under: _“Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat to necessarily make Detailed Town Planning Scheme in certain cases - Notwithstanding anything contained in this Ordinance, in respect of any area for which planned development is necessary but not initiated by the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned, the District Planning Committee or the Metropolitan Planning Committee, as the case may be, or the_ WP(C)s.2170,8012,10844,10925&13372/14 **-:5:-** _Government, may, after making such enquiry as may be deemed necessary, by a notification in the Official Gazette require the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat to prepare, publish and submit for sanction a detailed Town Planning Scheme as provided under this Ordinance and the notification so issued shall be deemed to be the notification of the intention to prepare the plan under sub-section (1) of Section 38.”_ 10. The learned counsel for the petitioners inviting my attention to the decision of a Full Bench in **Francis** v. **Chalakudy Municipality** [1999 (3) KLT 560 (F.B)] argued that though the scheme notified under Section 12 of the Town Planning Act, 1108 will not lapse on the steps for acquisition not being taken within three years of the notification, the Full Bench while considering the issue in the aforesaid case referred to the decision of the Calcutta High Court in **Ratan Chand Burman** v. **Calcutta Improvement Trust** [AIR 1991 Cal.282] which struck down the proceedings for acquisition under a Town Planning Scheme which was not executed even after lapse of 26 years of the scheme. There the Calcutta High Court held that unexplained and inordinate delay is relevant, if WP(C)s.2170,8012,10844,10925&13372/14 **-:6:-** not a conclusive factor in determining the colourable exercise of power in the context of land acquisition proceedings. 11. It is true that the proceedings for acquisition was not struck down in _**Ratan Chand Burman's** case_ (cited supra) on the ground that the scheme had lapsed in view of the fact that the land had not been acquired within the period prescribed under the Town Planning Act. This Court in _**Francis's** case_ (supra) observed that the respondent municipality in that case was not in a position to submit that the scheme would be implemented immediately so that the land concerned would be acquired for the purpose envisaged by the scheme within a specified time limit, though it was submitted that steps were being taken to implement the scheme. In the cases on hand also, the respondent municipality is not sure as to when the aforesaid scheme would be implemented. They have no case that any step has been initiated in that direction. 12. In _**Francis's** case_ (cited supra) the Full Bench further observed that the scheme in that case was notified on 6.3.1984 and the original petition was filed after the lapse of 11 years from the date of that notification. Therefore, it was observed that in the context of indefiniteness in the implementation of the scheme and WP(C)s.2170,8012,10844,10925&13372/14 **-:7:-** the stand adopted by the respondent municipality, it may be open to the petitioners to challenge the scheme itself as having become arbitrary and unconstitutional since the restrictions imposed by the scheme have become oppressive and unreasonable. In this context, the learned counsel for the respondent municipality has pointed out that the petitioners have not so far challenged the scheme. 13. However, such an opportunity will be available to the petitioner only when the proceedings for acquisition are initiated. The question whether the proceedings for acquisition, if any, initiated would be constitutionally valid would arise only when the land in possession of the petitioner is sought to be acquired invoking the provisions of Land Acquisition Act. It is also crucial to note that what was published by the respondent was only a draft scheme. 14. A Division Bench of this Court in **Kalpetta Municipality** v. **M. Mohandas and Others** [2011 (4) KHC 844] held that merely because of a land is proposed to be acquired under the town planning scheme the building permit cannot be rejected. 15. The learned counsel for the petitioners invited my attention also to a Division Bench decision of this Court in **Padmini** WP(C)s.2170,8012,10844,10925&13372/14 **-:8:-** v. **State of Kerala** [1999 (3) KLT 465] wherein it was held that no building permit can be refused to any person because there is a proposal to acquire the land in future. Reliance was also placed on the decision of the Apex court in **Raju S. Jethmalani** v. **State of Maharastra** [(2005) 11 SCC 222] wherein it was held that refusing to grant permits relying on obsolete DTP schemes is a clear violation of the provisions of the Constitution. On a consideration of the entire materials now placed on record, this Court is of the definite view that the petitioners are entitled to get the reliefs prayed for. Therefore, the writ petitions are allowed. The respondent municipality is directed to reconsider the applications of the petitioners in the light of what has been stated above and to pass orders on the same, after affording the petitioners an opportunity of being heard, within a period of one month from the date of receipt of a copy of this judgment. ## Sd/- ## **A.V.RAMAKRISHNA PILLAI JUDGE** **krj** /True Copy/ **P.A to Judge**