K.A. Mariyambi v. Kozhikode Municipal Corporation and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 13[TH] DAY OF JUNE 2022 / 23RD JYAISHTA, 1944** ## **W.P.(C) NO.16858 OF 2018** ## **PETITIONER:** **K.A. MARIYAMBI, AGED 61 YEARS W/O.LATE ALIKOYA, RESIDING AT 'ADDHAR',4/458-A, THEVARVEED LANE, NEAR 4TH RAILWAY GATE, VELLAYIL BEACH P.O., CALICUT-673 032.** **BY ADVS.SRI.K.P.VIJAYAN SRI.V.N.HARIDAS SMT.SABEENA P.ISMAIL** ## **RESPONDENTS:** - **1 KOZHIKODE MUNICIPAL CORPORATION REPRESENTED BY ITS SECRETARY, BEACH ROAD, KOZHIKODE-673 032.** **2 THE SECRETARY, KOZHIKODE MUNICIPAL CORPORATION, BEACH ROAD, KOZHIKODE-673 032. 3 REGIONAL TOWN PLANNER, REGIONAL TOWN PLANNING OFFICE, CHAKKORATHUKULAM, KOZHIKODE-673 011. ADDL. R4 STATE OF KERALA REPRESENTED BY ITS SECRETARY, KERALA PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **R1 & R2 BY ADVS.BINDUMOL JOSEPH B.S.SYAMANTHAK ANJU ANILKUMAR** ## **R3&ADDL.R4 SMT.DEEPA NARAYANAN, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- **W.P.(C) NO.16858 OF 2018** ## **P.V.KUNHIKRISHNAN, J.** **------------------------------------------W.P.(C) No.16858 of 2018 ------------------------------------------Dated this the 13[th] day of June, 2022** ## **JUDGMENT** The above writ petition is filed with the following prayers:- “(a) Call for the records leading to the passing of Ext.P3 and quash the same by the issue of a writ of certiorari or other appropriate writ, order or direction; (b) issue a writ in the nature of mandamus directing the respondent Corporation to reconsider the application for building permit submitted by the petitioner, in the light of the dictum laid down by this Hon'ble Court in **Kalpetta Municipality v. Mohandas** [2012 (1) KLT 62] and taking into consideration the present state of affairs now prevailing in the area in question; (c) issue a writ in the nature of mandamus directing the respondent Corporation to reconsider the application for building permit submitted by the petitioner, dehors the change in the master plan; and (d) issue a writ declaring that the changes made in the master plan from the draft scheme with respect to the Re.Sy No.21-8-165 of Panniyankara Village in Kozhikode Taluk is illegal, void and non-est.” -3- ## **W.P.(C) NO.16858 OF 2018** 2. The main prayer is against Ext.P3 by which a building permit application is rejected by the Kozhikode Corporation. The ground for rejecting the application is that the property is ear-marked for proposed road widening as per Urban Area Master Plan. The petitioner submitted Ext.P5 application for purchase of the property as per Section 67 of the Town and Country Planning Act, 1990. Even after six months, there is nothing transpired. Hence this writ petition. 3. Heard the counsel for the petitioner and the Standing Counsel for respondents 1 and 2 and the Government Pleader appearing for respondents 3 and 4. 4. The short point raised by the petitioner is that the reason for rejecting the building permit is unsustainable and the point is covered against the Corporation in the judgment dated 04.03.2022 in W.A. No.133 of 2022 **[2022 (2) KLT 523]** . This Court in the judgment considered this point in detail in paragraph Nos.24 to 27. It will be better to extract the above -4- ## **W.P.(C) NO.16858 OF 2018** said paragraphs:- “24. However, the proviso makes it clear 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 etc., shall initiate variation of the plan suitably in accordance with this Act under intimation to the Government. So also sub-section (7) makes it clear that 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, Panchayat concerned etc. shall, suo moto initiate variation of the plan suitably in accordance with the Act, 2016. 25. Proviso to sub-section (6) also makes it clear that where variation proceedings of the Plan are initiated under section 67, the Secretary of the Municipal Corporation, Municipal Council, etc. shall in consultation with the Chief Town Planner, take suitable decision on any application or land development permit received under section 50 of Act, 2016 contained under Chapter VIII dealing with review, revision, variation and revocation of plan prepared under the Act under various circumstances. Sub-section (2) there to obligate the Municipal Corporation, Municipal Council etc. to review, vary a Plan in part and get such varied Plan sanctioned in accordance with the provisions of the Act. The -5- ## **W.P.(C) NO.16858 OF 2018** Government is also vested with power to vary a plan. 26. Therefore, reading together the provisions of section 67 and section 50, necessary action will have to be taken, if the Government or the Municipal Corporation is not intending to acquire the property on receipt of notice under section 67 of Act, 2016. If such an interpretation is not provided to section 67, then the owner of a property, whose property is designated in any Master Plan or Town Planning Scheme, will not be in a position to develop the property to his advantage. 27. The said aspect is to be considered, taking into account Article 300A of the Constitution of India, which clearly specifies that persons not to be deprived of property save by the authority of law. Therefore, the said Constitutional provision protects an individual from interference by the State and dispossess a person from the property unless it is in accordance with the procedure established by law.” 5. Moreover, in **Raju S. Jethmalani v. State of** **Maharashtra and others [(2005) 11 SCC 222]** , it is stated that refusing to grant building permit, but placing reliance on DTP Scheme, tantamount to clear violation of the provisions of the Constitution of India. -6- ## **W.P.(C) NO.16858 OF 2018** 6. The Government Pleader and the Standing Counsel appearing for the Corporation submitted that **Raju S. Jethmalani's case** (supra) is distinguished by the Division Bench in W.A. No.133/2022 and the Government Pleader takes me through paragraph 33 of the judgment. Whatever that may be the property of the petitioner cannot be freezed like this indefinitely, especially, even after Ext.P5 application submitted under Section 67 of the Town and Country Planning Act. Moreover, the petitioner has contended that several other building are constructed in the same area that there is discrimination as far as the petitioner is concerned. Therefore, I think there is force in the argument of the writ petitioner. Hence, Condition No.1 in Ext.P3 can be set aside. The counsel for the petitioner submitted that he will cure the other defects in Ext.P3. That is recorded. Therefore, this writ petition is disposed of with the following directions: - -7- ## **W.P.(C) NO.16858 OF 2018** i) Condition No.1 in Ext.P3 is set aside. ii) The petitioner will cure the defect Nos.2 to 4 in Ext.P3. iii) If the above defects are cured, the Corporation will consider the building permit application afresh in accordance with law. Sd/- **P.V. KUNHIKRISHNAN JUDGE** bpr -8- ## **W.P.(C) NO.16858 OF 2018** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 A TRUE COPY OF THE RECEIPT DATED 09.08.16. EXHIBIT P2 A TRUE COPY OF THE PLAN AS PER THE DRAFT MASTER PLAN. EXHIBIT P3 A TRUE COPY OF THE REJECTION ORDER DATED 18.04.17 ISSUED BY THE RESPONDENT CORPORATION. EXHIBIT P4 A TRUE COPY OF THE JUDGMENT IN WP(C) 21720/2016 DATED 28.02.2017. EXHIBIT P5 PURCHASE NOTICE DATED 07.11.2019. EXHIBIT P6 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.A.NO.1143/2020 DATED 01.03.2021. EXHIBIT P7 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO.21634/2020 DATED 22.06.2021.**