M/S FORT-IN IFRA DEVELOPERS PRIVATE LIMITED v Kollam Corporation and Kollam District Town Planner

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 10TH DAY OF MARCH 2020 / 20TH PHALGUNA, 1941** ## **WP(C).No.7178 OF 2020(V)** ## **PETITIONER/S:** **M/S FORT-IN IFRA DEVELOPERS PRIVATE LIMITED A COMPANY REGISTERED UNDER THE INDIAN COMPANIES ACT 1956 HAVING REGISTERED OFFICER AT RAVI'S ARCADE, 3RD FLOOR, KOLLAM, KERALA, PIN-691 013, HAVING REGISTRATION NO.CIN U45202KL2007PTCO20967 ISSUED BY REGISTRAR OF COMPANIES, KERALA REPRESENTED BY ITS AUTHORISED SIGNATORY S.GOPAKUMAR, AGED 57 YEARS, S/O.M.R.SREEDHARAN PILLAI, ADMINISTRATIVE MANAGER.** ## **BY ADV. SRI.A.JANI(KOLLAM)** ## **RESPONDENT/S:** **1 THE KOLLAM CORPORATION REPRESENTED BY ITS SECRETARY, KOLLAM CORPORATION OFFICE, NEAR KOLLAM RAILWAY STATION, KARBALA, KOLLAM, PIN-691 001. 2 THE KOLLAM DISTRICT TOWN PLANNER, OFFICE OF THE KOLLAM DISTRICT TOWN PLANNER, NH 47, KARBALA, KOLLAM, PIN-691 001.** ## **OTHER PRESENT:** **SRI.M.K.CHANDRA MOHANDAS,SC, SRI.SAIGI JACOB PALATTY,GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.7178 OF 2020(V)** **2** ## **ALEXANDER THOMAS, J.** **----------------------------------------W.P.(C.) No. 7178 of 2020 ----------------------------------------Dated this the 10[th] day of March, 2020** ## **JUDGMENT** The case set up in the W.P.(C.) is as follows : The writ petitioner on 24.05.2018 as evident from Exhibit P 1 applied for building permit with site plan and all necessary documents and prescribed under the Kerala Municipality Building Rules 1999 in an extent of 63.97 cents comprised under old survey No:24/B in re survey No:5 in ward No:8 of Vadakkevila Village owned by the writ petitioner. The propose for construction of multi storied commercial building as per application No:PW4/BA-35/18-19. The file has been transferred to District Town Planner, the 2[nd] respondent and the 2[nd] respondent after perusing the application for building permit recommended certain modifications in site plan and sought clarifications. The writ petitioner submitted clarifications and re submitted revised plan on 07.12.2018. Time statutory time limit prescribed under Rule 11(2) and Rule 13 of the Building Rules expired and writ petitioner entitled to benefit of deemed permit. But without banking upon deemed permit, writ petitioner preferred W.P.(C) No:11422 of 2019 challenging inaction. During the pendency of proceedings, first respondent submitted that as per the obsolete and antique Town Planning Scheme there is a proposal for widening the way adjacent to property of writ **WP(C).No.7178 OF 2020(V)** **3** petitioner, which is admittedly lesser in width. As per Exhibit P 4 judgment this Honourable Court directed writ petitioner to issue notice under Section 67(1) of the Kerala Town Planning Act and accordingly Exhibit P 5 purchase notice given. In Exhibit P 4 judgment it is mandated that if no action viz resolution to acquisition by Municipal Council is taken within the statutory period of 2 months, application for building permit has to be processed _de hors_ the existence of alleged Scheme. No action under Section 67(2) i.e Resolution To Acquisition passed by Municipal Council within statutory period or till to date. The Secretary of first respondent replied that he send letter to Corporation Council which is neither due compliance nor compliance under Section 67(20 of the Town and Country Planning Act. 2. It is in the light of these averments and contentions that the petitioner has filed the instant W.P.(C.) with the following prayers : _a. An order calling for the records relating Exhibit P 1 and P6 and issue a writ of mandamus or such other writ, order or direction directing the respondents to act upon application for building permit No:PW4/BA-35/18-19 dated 24.05.2018 om accordance with Kerala Municipality Building Rules 1999 and to issue building permit to writ petitioner within a time limit to be specified by this Honourable Court._ _b. To issue such other writ, order or direction prayed for by the writ petitioner during the course of this writ petition and found to be fit and proper to grant by this Honourable Court._ 4. Heard Sri.A.Jani, learned counsel for the petitioner, Sri.M.K.Chandramohan Das, learned standing counsel for Kollam Municipal corporation appearing for R1 and Sri.Saigi Jacob Palatty,learned **WP(C).No.7178 OF 2020(V)** **4** senior Government Pleader appearing for R2-District Town Planner, Kollam. 5. The main matter in issue raised in this case is covered by the judgments of this court including the one rendered by the Division Bench of this court in the case in _**Thalassery Municipality v.Puthalath**_ _**Balakrishnan**_ [2019 (3) KLT 154], _**Surathmaja v. Thiruvananthapuram corporation**_ [2020 (1) KHC 304] etc. It will be profitable to refer para Nos. 14 and 15 of the judgments of this Court in _**Surathmaja’s**_ case (supra) [2020 (1) KHC 304] which reads as follows : _14. “I am afraid that I cannot accede to this contention because, when an area has been reserved as a “Green Strip” area, it really means that the owner of the property is divested of any entitlement to make any construction thereon or to deal with in any manner. This is in contra-distinction to zoning requirements which stipulate the development of an area in a particular manner, namely, “residential”, “commercial”, “mixed-use” etc., whereby the right of an owner to deal with his/her property is not taken away but only prescribes certain restrictions for it in larger public interest. The requirement in the Master Plan to preserve an area or property as a “Green Strip” for all times is a permanent inhibition on an owner's right to use the said property and it thus falls foul of the provisions of Article 300A of the Constitution of India. Any permanent prohibition or inhibition against the right of an owner with respect to a property owned by him/her cannot obtain the imprimatur of this Court, being guided by the constitutional imperatives; and I am certainly of the view that when such an inhibition is brought in, either through the Master Plan or through a Detailed Town Planning Scheme, it operates perpetually; and therefore that the land becomes compulsorily acquirable, if the zonal requirements in such manner has to be maintained._ _15. Therefore, when an area thus becomes compulsorily acquirable under the Master Plan, the owner of the property obviously gets a concomitant right to issue a purchase notice under Section 67 of the Kerala Town and Country Planning Act and if the same is rejected or not considered by the Corporation within the statutory period stipulated, then he/she gets entitled to have his/her application for building permit considered de hors the stipulations in the Master Plan. This position of law has been ineluctably declared by this Court in_ _**Regional Town Planner and Another v. Muhammed Rasheed and Others** [2019 (3) KHC 987 ] and_ _**District Town Planner, Malappuram and Others v. Vinod and Others** [2019 (3) KHC 673]”._ 6. Thus it is now well settled that when an area becomes compulsorily acquirable under the master plan, the property owner **WP(C).No.7178 OF 2020(V)** **5** obviously gets the concomitant statutory right to issue a purchase notice under Sec.67(1) of the Kerala Town and Country Planning Act and if the same is rejected or not considered by the Municipal authorities concerned within the statutory period of 60 days from the date of submission of such purchase notice, then the property owner gets the concomitant legal right to have his or her application of building permit considered _dehors_ the stipulations in the master plan. 7. In the instant case, in compliance with the directions issued by this court in Ext.P3 judgment dated 28.10.2019 in W.P.(C.) No.11422/2019 filed by the petitioner herein, the petitioner has submitted Ext.P4 purchase notice dated 7.11.2019 under Se. 67(1) of the Kerala Town and country Planning Act, 2016 before the respondent, Kollam Municipal corporation. In this case, the petitioner has already secured Ext.P3 judgment dated 28.10.2019 in W.P.(C.) No.11422/2019 wherein it has been ordered in last paragraph thereof as follows : _Resultantly, I order this writ petition, granting liberty to the petitioner to make an application under Section 67(1) of the Kerala Town and Country Planning Act; and if this is done within a period of two weeks from the date of receipt of a copy of this judgment, the Corporation will consider the same in terms of law within the statutory period; and if, for any reason, the said application is rejected or not acted upon within the statutory period, then the Secretary of the Corporation will be obligated to consider the petitioner's application for building permit de hors the DTP Scheme and to then issue appropriate order thereon, as expeditiously as is possible, but not later than two months after the statutory period for consideration of the application under Section 67 of the afore mentioned Act, expires._ 8. Now, the respondent-Kollam Municipal corporation has issued Ext.P6 letter dated 21.1.2020 in response to Ext.P4 purchase notice dated **WP(C).No.7178 OF 2020(V)** **6** 7.11.2019 whereby the respondent Municipal authorities have totally diverted from the main issue as to whether they could acquire the subject property or not and has stated that further steps to commence the acquisition of the subject property is to be taken up by the Municipal council of the respondent Municipal corporation and the 2[nd] respondentDistrict Town Planner, Kollam etc. and decision in that regard will be intimated to the petitioner in the course of time. 9. The said decision in Ext.P6 will not amount to any positive decision taken by the respondent Municipal corporation that they would certainly acquire the subject property and since no effective decision has been taken on the said crucial issue in response to Ext.P4 statutory purchase notice dated 7.11.2019 issued under Sec.67(1) of the Kerala Town and country Planning Act, 2016 and since the outer statutory time dead line of 60 days has already expired on 6.1.2020, which is even before the issuance of Ext.P6 dated 21.01.2020. It is only to be held that the petitioner has now secured the **indisputable** legal right to get his application for building permit referred to in Ext.P1 considered by the respondent – Kollam Municipal Corporation without any further delay. 10. Accordingly, it is ordered that the competent official of the 1[st] respondent - Kollam Municipal corporation will take up for consideration the application for building permit submitted by the petitioner as referred to in Ext.P1 receipt and after affording reasonable opportunity of being **WP(C).No.7178 OF 2020(V)** **7** heard to the petitioner, will take a considered decision thereon, in accordance with law, without much delay, preferably within a period of one month from the date of production of a certified copy of this judgment. 11. It is made clear that the application of the petitioner for the building permit has to be considered strictly in terms of the Rules regulating the grant of such building permit and shall not be rejected on the grounds stated in Ext.P6. With these observations and directions, the above W.P.(c.) will stand disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** ## **SKS** **WP(C).No.7178 OF 2020(V)** **8** ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**EXHIBIT P1**|**TRUE COPY OF RECEIPT ISSUED BY FIRST**| ||**RESPONDENT DATED 24.05.2018.**| |**EXHIBIT P2**|**TRUE COPY OF LETTER ISSUED BY FIRST**| ||**RESPONDENT DATED 11.06.2019.**| |**EXHIBIT P3**|**TRUE COPY OF JUDGMENT IN WPC NO.11422 OF**| ||**2019 OF THIS HONOURABLE COURT DATED**| ||**28.10.2019.**| |**EXHIBIT P4**|**TRUE COPY OF PURCHASE NOTICE ISSUED UNDER**| ||**SECTION 67(1) OF THE TOWN AND COUNTRY**| ||**PLANNING ACT BY WRIT PETITIONER TO FIRST**| ||**RESPONDENT DATED 07.11.2019.**| |**EXHIBIT P5**|**TRUE COPY OF LETTER ISSUED BY WRIT**| ||**PETITIONER TO FIRST RESPONDENT DATED**| ||**22.01.2020.**| |**EXHIBIT P6**|**TRUE COPY OF LETTER ISSUED BY FIRST**| ||**RESPONDENT TO WRIT PETITIONER DATED**| ||**22.01.2020.**|