K.K. Yousuf and Beevi Yousuf v. State of Kerala and Kalamassery Municipality and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 27TH DAY OF AUGUST 2019 / 5TH BHADRA, 1941** ## **WP(C).No.8447 OF 2019(E)** ## **PETITIONERS:** - **1 K.K.YOUSUF,AGED 57 YEARS,ASIF MANZIL, KIZHAKKEKARA, MASJID ROAD, KOONAMTHAI, EDAPPALLY, ERNAKULAM.** **2 BEEVI YOUSUF, ASIF MANZIL, KIZHAKKEKARA, MASJID ROAD, KOONAMTHAI, EDAPPALLY, ERNAKULAM.** **BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.P.MOHANDAS (ERNAKULAM) SRI.S.VIBHEESHANAN SRI.K.SUDHINKUMAR SRI.S.K.ADHITHYAN SRI.MUHAMMED IBRAHIM ABDUL SAMAD SRI.SABU PULLAN** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM 695 001.** - **2 KALAMASSERY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, KALAMASSERY P.O., ERNAKULAM 683 104.** - **3 THE SECRETARY,KALAMASSERY MUNICIPALITY, KALAMASSERY P.O., ERNAKULAM 683 104.** - **4 ADDL.R4.THE SENIOR TOWN PLANNER REGIONAL TOWN PLANNING OFFICE, CIVIL STATION, KAKKANAD - 682 030 IS SUO MOTU IMPLEADED AS ADDITIONAL R4 AS PER ORDER DATED 23/05/2019 IN WPC 8447/2019.** **R1 BY GOVERNMENT PLEADER SRI PAUL ABRAHAM VAKKANAL R2-3 BY SRI.M.K.ABOOBACKER,SC KALAMASSERY MUNCI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.8447 of 2019(E) 2 ## **JUDGMENT** The petitioners, who are stated to be the owners of property having an extent of 5.79 Ares in Re-survey No.62/2 of Thrikkakara North Village, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 communication No.BA-115/16 dated 07.03.2019 issued by the 3[rd] respondent, who is the Secretary of the 2[nd] respondent Municipality, as it is arbitrary, illegal and void. The petitioners have also sought for a writ of mandamus commanding the 3[rd] respondent to issue them building permit based on application dated 12.04.2016. The further relief sought for is a writ of mandamus commanding the 3[rd] respondent to accept an affidavit from the petitioners agreeing to demolish the construction, without claiming any compensation, as and when Ext.P3 scheme is implemented. 2. On 27.03.2019, when this writ petition came up for admission, the 3[rd] respondent Secretary of the Municipality was directed to file an affidavit explaining the facts and circumstances in issuing Ext.P4 order in the light of the W.P.(C)No.8447 of 2019(E) 3 observations contained in Ext.P2 order of the Tribunal for Local Self Government Institutions in Appeal No.71 of 2017. 3. On 23.05.2019, when this writ petition came up for consideration, this Court admitted the matter on file. The learned Government Pleader took notice for the 1[st] respondent and also for the Senior Town Planner, Kakkanad, who was _suo motu_ impleaded as the additional 4[th] respondent. The learned Standing Counsel for Kalamassery Municipality took notice for respondents 2 and 3. The learned Government Pleader was directed to file statement/counter affidavit of the additional 4[th] respondent. 4. A counter affidavit has been filed by the 3[rd] respondent, wherein it is stated that, as per G.O. (Ms)No.103/91/LAD dated 23.03.1991 (Ext.P3) issued under Section 12 of the Town Planning Act, 1108 and Section 14 of the Madras Town Planning Act, 1920, the Government sanctioned the Structure Plan (General Town Planning Scheme) for the Central City of Cochin-Ernakulam District. The said Government Order contains a detailed list of major road proposals for Central City. Serial No.III (e) in that list is a road from the Corporation boundary at W.P.(C)No.8447 of 2019(E) 4 Edappally to Central City boundary (NH-47) with a width of 45 meters with a building line of 6 meters. Therefore, from the center line of the road, 28.5 meters (22.5+6) clearance is required for every building. Ext.P3 order is still in force and applicable to the Central City of Cochin. As per the plan submitted by the petitioners, the building clearance is only 22.60 meters, which is short by 4.90 meters. In the counter affidavit it has also been stated that the petitioners' property is very close to Koonamthai Junction abutting NH47. The Secretary-in-charge called for a report from the Engineering Department and based on that report the petitioners' application dated 12.04.2016 for building permit was rejected by Ext.P4 communication dated 07.03.2019. 5. A statement has also been filed on behalf of the additional 4[th] respondent, contending that, for constructing any building in the petitioners' property, a minimum distance of 28.50 meters should be maintained from the center line of NH-47. The said respondent would also point out that, in view of the provisions under Section 113(2) of the Kerala Town and Country Planning Act, 2016, which came into force on 17.03.2016, Ext.P3 General Town W.P.(C)No.8447 of 2019(E) 5 Planning Scheme sanctioned under the repealed Acts shall deemed to be a Master Plan sanctioned as per the Kerala Town and Country Planning Act, 2016 and hence, the provisions under Ext.P3 General Town Planning Scheme are operational. Moreover, as per Section 61 of the Kerala Town and Country Planning Act, 2016, after the coming into the operation of the Master Plan or DTP Scheme under the said 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 Master Plans and DTP Schemes under the Act. 6. Heard the learned counsel for the petitioners, the learned Government Pleader appearing for the 1[st] respondent and the additional 4[th] respondent and also the learned Standing Counsel for the Municipality representing respondents 2 and 3. 7. In **District Town Planner, Malappuram and others v. Vinod and others [2019 (3) KHC 673]** a Division Bench of this Court held that a reading of the provisions of the Kerala Town and Country Planning Act, 2016 and the Kerala Municipality Building Rules, 1999 / the W.P.(C)No.8447 of 2019(E) 6 Kerala Panchayat Building Rules, 1999 indicate that the DTP Schemes prepared under the Act, 2016 are to have overriding effect over the provisions of the Building Rules. Accordingly, the procedure under Section 67 has to be followed in case the project envisaged under the DTP Scheme involves acquisition of land by the Local Authorities as a pre-requisite for implementing the proposal. The provisions of Section 67 of the Act, 2016 are intended to balance the conflicting rights of the State and the private individual. While the State has the right to reserve lands for development proposals in public interest, the said right cannot be exercised in a manner designed to frustrate the Constitutional rights of the private individual under Article 300A of the Constitution of India, to deal with his property in the manner he chooses. A balance is therefore struck by directing the State to take affirmative action for implementing the proposal within a specified time-frame, failing which, the private individual is to be given the unfettered freedom to use his land for other permissible purposes. 8. In **Vinod's case (supra)** the Division Bench held W.P.(C)No.8447 of 2019(E) 7 further that, the provisions in Section 67 of the Kerala Town and Country Planning Act, 2016 would imply that where any land is designated for compulsory acquisition in the Town Planning Scheme but no acquisition proceedings are initiated within a period of two years from the date of coming into operation of the Plan, the owner or the affected person may serve a purchase notice, requiring the authority to purchase the interest in the land. If any such purchase notice is served, within 60 days from the date of receipt, the authority is statutorily required to decide on acquisition of the property. If the land is designated for any Government Department or other authorities, the information on the receipt of purchase notice is to be forwarded to the said authority. In case decision is taken by the concerned authority not to acquire the land, variation of the development plan should be made. Even otherwise, when the land acquisition could not be effected within two years from the date of resolution to acquire the land, the authorities are required under sub-section (5) of Section 67 of the Act, 2016 to initiate suitable variation of the Plan. As can be seen, the statutory consequences for failure of the W.P.(C)No.8447 of 2019(E) 8 authority to acquire the land notified under the Town Planning Scheme is clearly delineated. Thus the Act, 2016 itself suggests that the property owner cannot be indefinitely deprived of his right to enjoy the property, without finality on the acquisition of the land, earmarked under the DTP Scheme. 9. In **Vinod's case (supra)** the Division Bench referred to the law laid down by another Division Bench in **District Town Planner and another v. Antony Joseph and others** (judgment dated 24.02.2016 in W.A.No.109 of 2015), wherein it was held that, in cases where acquisition of land is required for the purpose of utilising the said land for a public purpose in terms with a Master Plan or DTP Scheme, which apparently restricts the right of the owners, steps in that regard has to be taken within a time limit. A bare reading of Section 67 of the Kerala Town and Country Planning Ordinance, 2013 (Ordinance 51/2013) indicates that the owner of the property which is designated for compulsory acquisition is entitled to issue a notice referred as 'purchase notice' requiring the Municipality to purchase W.P.(C)No.8447 of 2019(E) 9 the interest in the land in accordance with the provisions of the Ordinance. Thereafter, in terms of sub-section (2), the Municipality will have to take a decision to acquire the land. If the decision is not to acquire the land, the Municipality can initiate steps to vary the plan suitably in accordance with the Ordinance. If the land acquisition could not be effected within a period of two years from the date of resolution to acquire the land, then also the Municipality has to initiate variation of the plan in accordance with the Ordinance. Therefore, sufficient provisions have been made under the Ordinance for de-reserving the property and excluding the same from acquisition if the acquisition is not made within a specified time. Therefore, when a DTP Scheme is in force, and certain land is designated for acquisition for common purposes, the remedy available to the land owner is to approach the Municipality or the Government, as the case may be, for de-reserving the land in accordance with the statutory provisions. Unless there is compliance with the statutory provisions by which the Municipality may either take a decision to exclude the land from acquisition or to acquire the land within a specified W.P.(C)No.8447 of 2019(E) 10 time limit as provided under the statute, it may not be possible for the land owner to seek a building permit ignoring the sanctioned scheme nor will it be possible for the Municipality to grant the permit. 10. In **Vinod's case (supra)** the Division Bench observed that the implication of the Act, 2016 as explained above in **Antony Joseph's case (supra)** appears to be sound. The Division Bench concluded that the respondents / writ petitioners cannot be prevented from lawful enjoyment of their property, merely because, such property is included in the DTP Scheme of the Thalassery Municipality. It does not however mean that the authorities are deprived of their right to acquire the land at a future date, if the same would be needed for the development Scheme of the Town. The only burden in that future event would be, the need to compensate the owner to the extent of development or the construction, made over the property. In the judgment impugned, the learned Single Judge has directed the Municipality to acquire the land for the development Scheme and if for any reason they are W.P.(C)No.8447 of 2019(E) 11 unable to do so within three months, the application for building permit rejected earlier, was directed to be reconsidered. The Division Bench held that, in the scheme of the Act, 2016, such a direction could not have been issued, in the absence of any purchase notice by the aggrieved property owners requiring the authorities to purchase the interest in the land. Therefore, the Division Bench set aside the impugned judgments, reserving the right of the respondents / writ petitioners to serve purchase notice on the Municipal authorities under sub-section (1) of Section 67 of the Act, 2016. If such purchase notice is received, the Municipal authorities are directed to take timely decision in accordance with law, to either acquire the land or initiate appropriate variation in the DTP Scheme. In cases where purchase notices were actually sent to the Municipal authorities, the Division Bench directed the Municipal authorities to forthwith consider the applications for building permit, in accordance with law. 11. In **Regional Town Planner and another v. Muhammed Rasheed and others [2019 (3) KHC 987]** a W.P.(C)No.8447 of 2019(E) 12 Division Bench of this Court held that the local authorities concerned issue building permits in terms of the provisions of the Kerala Municipality Building Rules, 1999 or the Kerala Panchayat Building Rules, 2011 as the case may be. The said Rules are framed by the State Government in exercise of the rule making power under the respective enactments, namely Kerala Municipality Act, 1994 or the Kerala Panchayat Raj Act, 1994. A Reference to Rule 11 of the Kerala Municipality Building Rules (or the corresponding provisions of the Kerala Panchayat Building Rules) would indicate that the Secretary of the local authorities, while approving the plan and issuing any permit, has to verify whether the plan and the work pursuant thereto conforms to the Rules and Bye-laws made under the Act or any other law. Rule 3A of the Kerala Municipality Building Rules clarifies that wherever a Town Planning Scheme under the Town Planning Act is in force, the provisions or regulations thereunder shall prevail over the respective provisions of the Kerala Municipality Building Rules. The position is similar under the Kerala Panchayat Building Rules also. Thus, the Secretary of a local authority, while issuing building permits W.P.(C)No.8447 of 2019(E) 13 in terms of the respective rules, is statutorily obliged to ensure that the construction in respect of which the permit is issued does not breach the provisions of any law. 12. In **Muhammed Rasheed's case (supra)** the Division Bench held further that, a validly framed and duly notified scheme under a Town Planning Act would come within the ambit of the term 'other law' for the purposes of the Kerala Municipality Building Rules or the Kerala Panchayat Building Rules, and it was to clarify this aspect that Rule 3A was inserted in the Kerala Municipality Building Rules and a similar provision inserted in the Kerala Panchayat Building Rules. It would also follow that, in an area that has been developed in accordance with the Scheme that was validly prepared and duly notified in accordance with the provisions of the Town Planning Act, future constructions would have to adhere to the terms of the Scheme and the plans approved thereunder. This must be so unless and until the Scheme itself is altered or varied by the State Government in accordance with the provisions of the Town and Country Planning Act. The mandate and purport of the Scheme so framed assumes the nature of a W.P.(C)No.8447 of 2019(E) 14 law that regulates future construction in the area and would also bind subsequent purchasers of land and users thereof. The earmarking of the areas into residential / industrial / commercial / agricultural or keeping apart areas for parks, roads, etc. is an exercise that is done in public interest and hence, the private interest of the land owners who seek to put up particular construction would have to necessarily yield to the overriding public interest that informs the provisions of the DTP Scheme. In view of the above settled position, the Division Bench allowed the writ appeals by setting aside the impugned judgments of the learned Single Judge, to the extent they direct the local authority concerned to consider the application for building permit submitted by the writ petitioners without reference to the Zoning provisions under the DTP Schemes in force. 13. As per Section 61 of the Kerala Town and Country Planning Act, 2016, after the coming into operation of a Master Plan or Detailed Town Planning Scheme under the said Act, no person shall use or cause to use any land or carry out development in any land, or change the use of W.P.(C)No.8447 of 2019(E) 15 land otherwise than in conformity with or with prejudicial to the Master Plans and Detailed Town Planning Schemes under this Act. As per Note to Section 61, the provisions of Detailed Town Planning Schemes shall prevail over the provisions of the Master Plans where both Plans are in force in an area. 14. Section 113 of the Kerala Town and Country Planning Act, 2016 deals with repeal and saving. As per sub-section (1) of Section 113, with effect on and from the commencement of this Act, the Town Planning Act, 1108 ME (Act IV of 1108 ME), the Travancore Town and Country Planning Act, 1120 (Act XXI of 1120 ME), the Madras Town Planning Act, 1920 (Madras Act VII of 1920) and the Kerala Town and Country Planning Ordinance, 2016 (4 of 2016) shall stand repealed. As per clause (i) of sub-section (2) of Section 113, notwithstanding such repeal, any draft General Town Planning Scheme for an area including Master Plan or Development Plan or a draft Detailed Town Planning Scheme published under the repealed Acts shall be deemed to be a draft Master Plan or a draft Detailed Town Planning Scheme, as the case may be, published under this Act. As per clause W.P.(C)No.8447 of 2019(E) 16 (ii) of sub-section (2) of Section 113, notwithstanding such repeal, any General Town Planning Scheme for an area including Master Plan or Development Plan or a Detailed Town Planning Scheme sanctioned under the repealed Acts shall be deemed to be a Master Plan or a Detailed Town Planning Scheme, as the case may be, sanctioned under this Act. 15. In the instant case, as per Ext.P3 Government Order dated 23.03.1991 the Government sanctioned the Structure Plan (General Town Planning Scheme) for the Central City of Cochin-Ernakulam District under Section 12 of the Town Planning Act, 1108 and Section 14 of the Madras Town Planning Act, 1920. Serial No.III (e) in the detailed list of major road proposals for Central City is a road from the Corporation boundary at Edappally to Central City boundary (NH-47) with a width of 45 meters with a building line of 6 meters. Therefore, from the center line of the road, 28.5 meters (22.5+6) clearance is required for every building. Ext.P3 order is still in force and applicable to the Central City of Cochin. 16. The reason stated in Ext.P4 communication dated W.P.(C)No.8447 of 2019(E) 17 07.03.2019 issued by the 3rd respondent to reject the application for building permit made by the petitioners is that, there is a proposal to widen NH-47 to 45 meters and in such circumstances, a clearance of 28.5 meters from the center line of NH-47 is required for constructing any building. As per the plan submitted by the petitioners, the building clearance is only 22.60 meters, which is short by 4.90 meters, and in such circumstances, the petitioners cannot be permitted to construct the building, as applied for in that application. 17. In view of the law laid down by the Division Bench in **Vinod's case (supra)** , it is for the petitioners to serve a purchase notice on the 2nd respondent Municipality to purchase the interest in the land in terms of the provisions under Section 67 of the Kerala Town and Country Planning Act, 2016. 18. As per sub-section (3) of Section 67 of the Kerala Town and Country Planning Act, 2016 where the land is designated for compulsory acquisition for the purpose of any Government Department or Quasi-Government Agency, the Municipal Corporation, Municipal Council, Town W.P.(C)No.8447 of 2019(E) 18 Panchayat or Village Panchayat shall forward such notice to the Government. As per sub-section (6) of Section 67, on receipt of a purchase notice under sub-section (3), the Government shall in consultation with the Government Department or Quasi-Government Agency concerned, not later than six months from the date of receipt of the purchase notice, confirm the purchase notice. In any other case, Government may require the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned to vary the plan suitably in accordance with this Act. As per the proviso to sub-section (6), 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, Town Panchayat or Village Panchayat concerned shall initiate variation of the plan suitably in accordance with this Act under intimation to the Government. As per sub-section (7) of Section 67, 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, Town Panchayat or Village Panchayat W.P.(C)No.8447 of 2019(E) 19 concerned shall, suo moto initiate variation of the plan suitably in accordance with this Act. As per the proviso to sub-section (7), where variation proceedings of the Plan are initiated 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 suitable decision on any application for land development permit received under Section 64. 19. If the petitioners serve a purchase notice to the the 2nd respondent Municipality to purchase the interest in the land in terms of the provisions under Section 67 of the Kerala Town and Country Planning Act, 2016, within three weeks from the date of receipt of a certified copy of this judgment, the 2nd respondent shall forward the same to the 1st respondent State, within a period of two weeks from the date of receipt of that notice. The 1st respondent State, on receipt of that purchase notice, shall consider the same under sub-section (6) of Section 67, within the time limit specified thereunder, with notice to the petitioners and after affording them an opportunity of being heard. In the event of a favourable decision by the 1st respondent State, it is for W.P.(C)No.8447 of 2019(E) 20 the petitioners to make a request before the 3rd respondent to reconsider the application for building permit dated 12.04.2016 (referred to in Ext.P1 notice), in which event the 3rd respondent shall reconsider that application, untrammeled by Ext.P4, taking note of the law laid down by the Division Bench of this Court in the decisions referred to supra. The writ petition is disposed as above. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV W.P.(C)No.8447 of 2019(E) 21 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE NOTICE NO. BA115/16 DATED 2.5.2016 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P2 TRUE COPY OF ORDER DATED 5.9.2018 IN APPEAL NO. 71/2017 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.** **EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGES OF THE SCHEME PUBLISHED BY THE GOVERNMENT G.O. MS NO. 103/91/LAD DATED 20.3.1991.** **EXHIBIT P4 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 3RD RESPONDENT AS NO. BA-115/16 DATED 7.3.2019. EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 6.7.2015 IN WPC NO. 18223/2015.**