Mary (Petitioner) v. Chalakudy Municipality represented by its Secretary, Chalakudy, State of Kerala, District Collector, Thrissur, and Town Planner, Thrissur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 3RD DAY OF FEBRUARY 2016/14TH MAGHA, 1937** **WP(C).No. 6520 of 2011 (L) ---------------------------** - **PETITIONER(S): -------------** **MARY, AGED 53 YEARS, W/O.DOMINI, 21/303, PUTHENKUDI HOUSE, CHALAKKUDY-680 307. BY ADVS.SRI.M.A.ABDUL HAKHIM SRI.M.G.ANON** **RESPONDENT(S):** - **--------------** **1. CHALAKUDY MUNICIPALITY REPRESENTED BY ITS SECRETARY, CHALAKKUDY, PIN-680 307.** **2. STATE OF KERALA, REPRESENTED BY SECRETARY, LOCAL SELF GOVERNMENT DEAPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **3. THE DISTRICT COLLECTOR, THRISSUR-680 001.** **4. THE TOWN PLANNER, THRISSUR-680 001, OFFICE OF THE DISTRICT TOWN PLANNING OFFICER, TRICHUR.** **R2-4 BY GOVERNMENT PLEADER SRI.V.K.RAFEEK R1 BY SRI.M.P.ASHOK KUMAR,SC,CHALAKUDY MUNICIPALITY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 6520 of 2011 (L)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1- TRUE COPY OF THE DOCUMENT NO.3044/2010 OF SRO, CHALAKKUDY** **EXT.P2- TRUE COPY OF THE EXEMPTION ORDER FROM DTP SCHEME ISSUED BY THE 3RD RESPONDENT** **EXT.P3- TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE 1ST RESPONDENT** **EXT.P4- TRUE COPY OF THE PROPERTY TAX RECEIPT** **EXT.P5- TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT EXT.P6- TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT EXT..P7- TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE 1ST RESPONDENT EXT.P8- TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT** ## **RESPONDENT'S EXHIBITS:** **EXT.R4(A)- TRUE COPY OF THE LETTER NO.7668/RB2/07/LSGD DTD.17.5.07** ## _**OKB**_ **TRUE COPY** **P.A. TO JUDGE** ## K.HARILAL, J. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ## W.P. (C) No.6520 of 2011 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dated this the 3[rd] day of February, 2016 ## JUDGMENT ~ ~ ~ ~ ~ The petitioner is the owner in exclusive possession and enjoyment of 4 cents of land in Survey No.206/4 of East Chalakkudy Village and a commercial building therein by virtue of Ext.P1. The said property is lying on the side of Vettukadavu Road leading to Chalakkudy River within the local limits of the 1[st] respondent Municipality. The petitioner had purchased the said land and building, by Ext.P1, from her son, by name Jose. He had constructed a single storied building in the said land after obtaining exemption from the “DTP Scheme for Market area” from the 3[rd] respondent, by Ext.P2. On the basis of Ext.P2, the 1[st] respondent issued Ext.P3 building permit and the above said Jose completed the construction of the building as per Exts.P2 and P3 and the building is duly numbered by the 1[st] respondent as Building No.XX/291A **WP(C).6520/11-L :2:** and the 1[st] respondent has been receiving tax in respect of the said building, as evidenced by Ext.P4. Thereafter, Sri.Jose applied for building permit for the construction of two floors on the above existing ground floor. But, the said application was rejected by Ext.P5 stating that the area comes within the residential zone as per the DTP Scheme for Market area. Subsequently, by Ext.P6, Sri.Jose obtained exemption from the DTP Scheme for Market area from the Government for construction of the first and second floors and the said exemption order was passed in consultation with the 4[th] respondent. Thereupon, the 1[st] respondent issued Ext.P7 building permit for the construction of the first and second floors. Subsequently, the said permit was renewed by the 1[st] respondent for a further period of three years upto 16.5.2008. Under Exts.P6 and P7, Sri.Jose completed the construction of the first and second floors and submitted application to the 1[st] respondent for getting **WP(C).6520/11-L :3:** occupancy certificate for numbering the building. The 1[st] respondent, as per Ext.P8, rejected the application on the ground that as per the decision of this Court in O.P.No.8740/97 dated 7.11.2005 the 2[nd] respondent has no power to give exemption to Town Planning Scheme under the Town Planning Act. This is the grievance projected in this writ petition and this writ petition is filed with a prayer to issue a writ of certiorari or such other order or direction calling for records leading to Ext.P8 and quash the same and also to issue a writ of mandamus or order or direction compelling and commanding the 1[st] respondent to give occupancy certificate and number the first and second floors, constructed on the basis of Exts.P6 and P7. 2. The 1[st] respondent filed a counter statement contending that with regard to the exemption, the Government have issued Order No.7668/RB2/07/LSGD dated 17.5.2007 and direction has been issued to the Municipalities not to grant exemption granting **WP(C).6520/11-L :4:** relaxation in the Town Planning Scheme. It is also contended that the rejection of the application seeking issuance of occupancy certificate is justifiable in view of the decision of this Court reported in Sayeesh Kumar v. State of Kerala [2005 (4) KLT 1027]. The 2[nd] respondent also filed a counter affidavit contending that the 2[nd] respondent has issued Ext.R4(a) notification dated 17.5.2007, directing the Municipalities not to grant exemption to the approved Town Planning Scheme and building permit cannot be issued on the basis of the layout and the approved plan on the basis of the exemption, which was granted prior to Ext.R4(a) notification. 3. Heard the learned counsel for the petitioner, the learned Standing Counsel for the 1[st] respondent Municipality and the learned Government Pleader. 4. The learned counsel for the petitioner advanced arguments assailing the reasons, whereby the application seeking occupancy certificate, and **WP(C).6520/11-L :5:** numbering of the building, was rejected by the 1[st] respondent. According to the learned counsel, the denial of occupancy certificate is not justifiable in view of the decision of this Court in Gopalakrishnan T.V. v. State of Kerala and otheres [2011 (3) KHC 162], Raju S. Jetmalani v. State of Maharashtra and Others [(2005) 11 SCC 222] and Nazar v. Malappuram Municipality [2009 (3) KLT 92]. 5. Per contra, the learned Standing Counsel advanced arguments to justify the reasons whereby the application of the petitioner stands rejected. According to the learned Standing Counsel, since the 1[st] respondent Municipality has no power to grant exemption, after the issuance of Ext.R4(a) Circular by the Government, even if the building was constructed and completed under the exemption granted earlier, the same cannot be numbered. It is also contended that if the area in a town planning scheme is earmarked for a specific purpose, that area cannot be **WP(C).6520/11-L :6:** changed for another purpose of the scheme. 6. In view of the rival submissions at the Bar, the point that arises for consideration is, whether there is any illegality or arbitrariness in denying the occupancy certificate and number to the building constructed by the petitioner under Exts.P6 and P7. 7. Going by Ext.P8 order passed by the 1[st] respondent, the 1[st] respondent has no case that the petitioner has constructed the building in violation of the Municipality Building Rules. The sole reason stated in Ext.P8 is that the 2[nd] respondent has issued a circular, directing the 1[st] respondent not to issue occupancy certificate and number to those buildings which were constructed under the exemption granted by the Government. The said circular was issued on the basis of the decision of this Court in O.P.No.8740/1997 dated 7.11.2005, wherein it was held that the Government have no power to grant individual exemption from Approved Town Planning Scheme. **WP(C).6520/11-L :7:** 8. In other words, the 1[st] respondent has relied on the circular issued by the 2[nd] respondent and the 2[nd] respondent, in turn, relied on the decision of this Court in O.P.No.8740/1997. But, after the aforesaid decision, the Supreme Court considered the question whether the private individuals can be included in the development plans unless the land is acquired by the State Government or Municipality and answered negatively. 9. In Raju S. Jethmalani v. State of Maharashtra and Others [2005 (11) SCC 222], the Apex Court held that the land belonging to private individuals cannot be included in development plans, unless the land is acquired by the State Government or the Municipal Corporation. The State Government cannot deprive the land owner of beneficially using his property, under the guise of DTP scheme, when no steps have been taken to actually implement the Scheme. Further, in Nazar v. Malappuram Municipality [2009 (3) KLT 92], this Court **WP(C).6520/11-L :8:** held as follows: “If any demand to create a rider over the title of the owner of the property under the pretext of a Town Planning Scheme which has not become operational by acquisition would essentially be oppressive and would not be countenanced on the face of Article 14 of the Constitution of India”. 10. In Saidu P. v. State of Kerala and others [2010 (3) KHC 974) this Court held that mere proposal under a Town Planning Scheme, without implementation of the same cannot be a ground for rejection of an application for building permit. 11. In Muhammed Subair v. Corporation of Kozhikode [2015 (3) KHC 307], the learned Single Judge of this Court following the ratio of Padmini v. State of Kerala [1999 KHC 619], has observed that in so far as the owner of the land is concerned, the acquisition affects his interest only from the issuance of notifications and declarations under the Land Acquisition Act. Therefore, any attempt to curb the rights of the owners of lands, until the publication of those statutory notifications and declarations, would **WP(C).6520/11-L :9:** result in infraction of the right to property under Art.300A of the Constitution. It is further opined that any infraction of that nature would also result in the violation of the equality principle in the matter of enforcement of laws as is enshrined in Art.14 of the Constitution. It is, in the end, emphatically held that any demand to create a rider over the title of the owner of the property under the pretext of a Town Planning Scheme which has not become operational by acquisition would, essentially, be oppressive and would not be countenanced in the face of Art.14 of the Constitution. It is also observed that in terms of the ratio laid down in the decisions referred to above, no property right can be interdicted and ipso facto no building permit can be refused on a mere proposal to have certain lands acquired. In other words, contemplation on the part of the officials cannot be a substantive ground to defeat the constitutional right of a person who wants to enjoy his property in the **WP(C).6520/11-L :10:** manner he desired fit, albeit, subject to legal limitations. 12. The proposition that can be culled out from the decisions held by the Supreme Court and the latest decisions of this Court is that the building owners cannot be deprived of their right to construct the building in accordance with their plans and their mode of usage, under the guise of DTP scheme, which is not implemented effectively. Thus, the restriction imposed under the Town Planning Scheme has lost its rigour and thereby the legal position held earlier is seen changed considerably, as referred above. It follows that the person who constructed a building under the exemption from Town Planning Scheme granted earlier by the Government in exercise of the power held earlier cannot be deprived of its usage by denying the occupancy certificate and number, on the ground that such power of the Government was taken away subsequently. After granting exemption in **WP(C).6520/11-L :11:** accordance with the Rules prevailed and power held at that time, the building owner cannot be put in peril, by denying the right of enjoyment of the building, which he had constructed with a legitimate expectation to use the same, under the guise of subsequent changes in law. This view is supported by the principles of estoppel and legitimate expectation also. In the above view, the circular issued by the 2[nd] respondent has no binding force at all, in the light of the latest decisions referred above. 13. Consequently, Ext.P8 will stand set aside and the 1[st] respondent is directed to issue occupancy certificate to the petitioner and number the building forthwith. This writ petition will stand allowed. Sd/- K. HARILAL, JUDGE okb.