N.P. Chacko and others v. Thodupuzha Municipality and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 4TH DAY OF AUGUST 2020 / 13TH SRAVANA, 1942** ## **WP(C).No.14941 OF 2020(P)** ## **PETITIONERS:** |**1**|**N.P.CHACKO, 24,NEDUMKALLEL, 324, KEERIKKODE,**| |---|---| ||**THODUPUZHA EAST 685 585.**| |**2**|**VALSAMMA JAMES, 24,NEDUMKALLEL, 324, KEERIKKODE,**| ||**THODUPUZHA EAST 685 585.**| |**3**|**N.P PAUL, NEDUMKALLEL, 324, KEEERIKKODE,**| ||**THODUPUZHA EAST 685 585**| |**4**|**LISSA, W/O. PAUL, NEDUMKALLEL, 324, KEERIKKODE,**| ||**THODUPUZHA EAST 685 585**| ||**BY ADVS.**| ||**SRI.MATHEW JOHN (K), SRI.ABY J AUGUSTINE**| ## **RESPONDENTS:** - **1 THODUPUZHA MUNICIPALITY,REPRESENTED BY ITS SECRETARY, MUNICPAL OFFICE, THODUPUZHA 679 335.** - **2 THE SECRETARY,THODUPUZHA MUNICIPALITY, MUNICIPAL OFFICE, THODUPUZHA 679 335.** - **3 THE ASSISTANT EXECUTIVE ENGINEER, MUNICIPAL OFFICE, THODUPUZHA 679 335.** - **4 THE REVENUE DIVISIONAL OFFICER,IDUKKI 685 603. 5 THE CONVENER,LOCAL LEVEL MONITORING COMMITTEE (LLMC) THODUPUZHA MUNICIPALITY, THODUPUZHA 679 335. SRI.K.J.MANURAJ, GOVERNMENT PLEADER SRI UNNIKRISHNAN V ALAPPATT, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. --------------------------------------- W.P. © No. 14941 of 2020 --------------------------------------Dated this the 4[th] day of August, 2020 ## J U D G M E N T The prayers in this Writ Petition (civil) are as follows: “ - _i. Call for the records leading up to Ext.P10 and issue a writ in the nature of certiorari or any other appropriate writ, direction or other quashing Ex.P2._ - _ii. Issue a writ in the nature of mandamus or any other appropriate writ, direction or order commanding the 5[th] respondent to pass final orders on Ext.P7 application without any further delay._ - _iii. Issue a writ in the nature of mandamus or any other appropriate writ, direction or order commanding the 4[th] respondent to pass final orders on Ext.P9 and P10 applications without any further delay._ - _iv. Issue such other writ, direction or order as are just and necessary in the facts and circumstances of the case to meet the ends of justice.”_ 2. Heard Sri.Mathew John, learned counsel appearing for the petitioners, Sri.Unnikrishnan Alapatt, learned Standing Counsel for Thodupuzha Municipality appearing for R-1 to R-3 and Sri.K.J.Manu Raj, learned Government Pleader appearing for R-4 & R-5. 3. The case of the petitioners is that, the subject properties though continue to be described as nilam/paddy land in the BTR had been converted to garden land/purayidam long prior to 12.8.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008). Further that, the properties of petitioners 1 & 2 have W.P. © No. 14941/2020 ..3.. not been included in the land data bank either as nilam/ paddy and or as converted land etc. Whereas the properties of petitioners 3 & 4 had been included in the land data bank as converted land as can be seen from Ext.P-6. Further that, the subject properties of the petitioners are contiguous and would form a compact plot and they have entered into an agreement, pursuant to which they have submitted Ext.P-1 application dated 8.3.2019 before the 2[nd] respondent Secretary, Thodupuzha Municipality, for securing building permit for constructing a commercial building in the abovesaid properties. The said request as per Ext.P-1 has now been rejected by the 3[rd] respondent Engineer as per Ext.P-2 order dated 7.5.2019 citing the pendency of a town planning scheme and also the petitioners will have to secure necessary orders from the competent statutory authorities for change of user of land in terms of the provisions contained in Act 28 of 2008. As regards the first ground of rejection in Ext.P-2 the petitioners would contend that the said objection of the 3[rd] respondent that the property would come under the DTP Scheme Central area West which is set apart for residential houses etc, had been considered by this Court in similar cases which has W.P. © No. 14941/2020 ..4.. resulted in Ext.P-4 judgment dated 21.2.2012 in WP(C).No.3165/2012 and Ext.P-5 judgment dated 14.6.2011 in WA.No.1731/2008. Further, the said contention is also considered in Ext.P-4 judgment that the said scheme cannot be put against the petitioners therein and consequently the municipality therein was directed to reconsider the application for building permit in that case without reference to the provisions of the abovesaid DTP Scheme. Similar view has been taken in Ext.P5 judgment also. 4. Per contra, Sri.K.J.Manu Raj, learned Government Pleader would submit that Ext.P-4 judgment of this Court places reliance mainly on the judgment of the Apex Court in the case as in _**Raju S. Jethmalani v. State of Maharasthra [(2005) 11 SCC 222].**_ Further that, the Division Bench of this Court in the judgment in W.A. No.109/2015 has considered the applicability of the dictum laid down by the Apex Court in _**Raju S. Jethmalani's**_ case supra and has held that the party will have to invoke the procedure under Section 67 of the Kerala Town and Country Planning Act, 2016, and it is for the party concerned to call upon the local body concerned to purchase the subject W.P. © No. 14941/2020 ..5.. property by issuing purchase notice under that provision, and if the decision to acquire the property is not communicated to the party within an outer time limit of 90 days mentioned therein, then the party will have the right to get the application for building permit to be considered as per the applicable building rules, etc. 5. To this, Sri.Mathew John, learned counsel for the petitioner would point out that those procedures relating to the invocation of the procedure under Section 67 of the Kerala Town and Country Planning Act, 2016, would have been in cases where atleast draft notification/draft scheme have been promulgated in terms of the Kerala Town and Country Planning Act, 2016, whereas in the instant case the cited DTP Scheme in the impugned Ext.P-6 order is the one issued under the earlier enactment viz, the Travancore Town Planning Act 1108 M.E., etc. Further as regards the second ground of rejection, the counsel for the petitioner would point out that petitioners 1 & 2 have already submitted Ext.P-9 application dated 28.5.2020 before the 4[th] respondent RDO seeking for statutory permission for change of user of land as per Section 27A(1) of the 2008 Act and the Rules W.P. © No. 14941/2020 ..6.. framed there under. Further that, as the subject properties of 1[st] & 2[nd] petitioners have not included in the land data bank, there is no necessity for them to file any separate application for getting the property excluded from the land data bank. Further that, petitioners 3 & 4 have filed Ext.P-7 application dated 17.7.2020 before the 5[th] respondent LLMC seeking for orders for excluding the subject property from the land data bank. Further that petitioners 3 & 4 have filed Ext.P-10 application dated 28.5.2020 in form No. 6 before the 4[th] respondent RDO seeking for statutory permission for change of user of land in accordance with the provisions contained in Section 27A(1) and the Rules framed thereunder. Accordingly it is pointed out that, as regards the 2[nd] ground of rejection the matter is liable for reconsideration as and when orders are obtained in favour of the petitioners. It is also pointed out by the counsel for the petitioners that, the impugned rejection order as per Ext.P-2 has been rendered by the 3[rd] respondent without prior notice and without prior opportunity of being heard to the petitioners. 6. After hearing all the parties concerned, it is only to be held by this Court that since Ext.P-2 rejection order has been W.P. © No. 14941/2020 ..7.. rendered without affording reasonable opportunity of being heard to the petitioners, the same is liable for interdiction solely on the ground of blatant violation of elementary principles of natural justice and fairness. An adverse order in the nature of Ext.P-2 could have been passed by the decision maker, only after the affected parties were heard. In the nature of the abovesaid contentions raised by the petitioners based on Exts.P-4 & P-5, and also in view of the pendency of applications as per Exts.P-7, P-9 & P-10, the matter would require serious reconsideration at the hands of the 2[nd] respondent Secretary of the Municipality. Accordingly the following directions and orders are passed: 1. The impugned Ext.P-2 rejection order will stand set aside and quashed. Consequently the application of the petitioners for grant of building permit as per Ext.P-1 will stand remitted to the 2[nd] respondent Secretary of Municipality for consideration and decision afresh. 2. The 5[th] respondent LLMC will take up the applications of petitioners 3 & 4 in Ext.P-7 dated 17.7.2020 and after conduct of inspection with prior notice to ascertain about the ground realities of the subject properties as on 12.8.2008 and after ensuring that copy of inspection report is given to the petitioners in advance, W.P. © No. 14941/2020 ..8.. and after affording reasonable opportunity of being heard to petitioners 3 & 4 their authorized representative/counsel if any, will take a considered decision on Ext.P-7 application for exclusion of subject property from the land data bank, without much delay preferably within a period of 3 months from the date of production of a certified copy of this judgment. The copy of proceedings so issued by the 5[th] respondent LLMC shall be duly communicated to petitioners 3 & 4 and as well as to the 4[th] respondent RDO. 3. In case petitioners 3 & 4 secures favourable orders on Ext.P7 application, then thereafter the 4[th] respondent RDO will take up the matters in Ext.P-10 application filed in form No.6, and after following the requisite procedure and after affording reasonable opportunity of being heard to the petitioners 3 & 4 through their authorized representative/counsel if any, and after due regard to the decision of LLMC on Ext.P-7 application, and will take a considered decision on Ext.P10 application without much delay preferably within a period of 6 weeks from the date of receipt of proceedings of the 5[th] respondent LLMC as afore directed. 4. Then the 4[th] respondent RDO will take up the matters in Ext.P-9 application dated 28.5.2020 filed by petitioners 1 & 2 in form No. 6 and after conduct of inspection with prior notice to the petitioners and after ensuring that copy of inspection report is given to the petitioners in advance, and thereafter should afford W.P. © No. 14941/2020 ..9.. reasonable opportunity of being heard to the petitioners through their authorized representative/counsel if any, then the 4[th] respondent RDO will take up Ext.P-9 application for grant of permission for change of user of land without much delay preferably within a period of 3 months from the date of production of a certified copy of this judgment. 5. After orders are issued on Exts.P-7, P-9 & P-10 applications, the petitioners should produce orders so passed by the respondent authorities concerned on those applications before the 2[nd] respondent Secretary of Thodupuzha Municipality, for consideration and decision afresh on Ext.P-1 application. Having regard to the nature of the issues raised in this case, the decision on Ext.P-1 application shall be rendered by the 2[nd] respondent Municipal Secretary and not by any official like the 3[rd] respondent even if they are delegated with the powers of the 2[nd] respondent. 6. Thereafter, the 2[nd] respondent will take up the matters in Ext.P-1 application and should pass orders on the specific contentions of the petitioners regarding the applicability of the dictum laid down by this Court in Exts.P-4 & P-5 etc and also should take into account the orders passed by R-5 LLMC and R-4 RDO on the applications of the petitioners as per Exts.P-7, P-9 & P-10 and then should take a considered decision on the request in Ext.P-1 without much delay preferably within a period of one month from the date of production of copy of orders passed W.P. © No. 14941/2020 ..10.. on Exts.P-7, P-9 & P-10 applications. 7. The petitioners will produce certified copy of this judgment along with copy of memorandum of this WP(C) before respondents 2, 4, & 5 for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P. © No. 14941/2020 ..11.. ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT SUBMITTED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT ON 28-03-2019** - **EXHIBIT P2 TRUE COPY OF THE INTIMATION VIDE NO. BA1143/18-19 DATED 07-05-2019 ISSUED BY THE 3RD RESPONDENT TO PETITIONERS** - **EXHIBIT P3 TRUE COPY OF THE REPLY DATED 09-10-2019 OBTAINED BY THE 3RD PETITIONER UNDER RIGHT TO INFORMATION ACT.** - **EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 21-02-2012 IN W.P(C) NO. 3165/2012 PASSED BY THIS HON'BLE COURT** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 14.06.2011 IN WA.NO.1731/2008 PASSED BY THIS HON'BLE COURT.** - **EXHIBIT P6 TRUE COPY OF THE LAND DATA BANK PREPARED BY THE 1ST RESPONDENT MUNICIPALITY** - **EXHIBIT P7 TRUE COPY OF THE PETITION DATED 17-07-2020 SUBMITTED BY THE PETITIONERS 3 AND 4 BEFORE THE 5TH RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE RECEIPT SHOWING THE ACCEPTANCE OF EXT. P7 PETITION BY THE 5THR ESPONDENT** - **EXHIBIT P9 TRUE COPY OF THE APPLICATION DATED 28-052020 TOGETHER WITH THE ACCOMPANIMENTS SUBMITTED BY THE PETITIONERS 1 AND 2 BEFORE THE 4TH RESPONDENT** - **EXHIBIT P10 TRUE COPY OF THE APPLICATION DATED 28-052020 SUBMITTED BY PETITIONERS 3 AND 4 AND THE ACCOMPANYING DOCUMENTS.**