Payinkara Jayapalan v. State of Kerala and Kozhikode Municipal Corporation Calicut Beach and Secretary, Kozhikode Municipal Corporation Calicut Beach

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023 / 12TH KARTHIKA, ``` ## **`1945`** ## **`WP(C) NO. 20495 OF 2022`** ## **`PETITIONER:`** ``` PAYINKARA JAYAPALAN AGED 71 YEARS S/O.AYYAPAN, PAYINKARA HOUSE, NEAR RAM MOHAN ROAD, CHINTHAVALAPPU, PUTHIYARA P.O, KOZHIKODE, PIN – 673 004. BY ADVS. P.JERIL BABU SRINATH GIRISH V.NAMITHA ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – 695 001.`** - **`2 KOZHIKODE MUNICIPAL CORPORATION CALICUT BEACH, NEAR AKASHA VANI, KOZHIKODE, REP. BY ITS SECRETARY, PIN - 673032`** - **`3 SECRETARY, KOZHIKODE MUNICIPAL CORPORATION CALICUT BEACH, NEAR AKASHA VANI, KOZHIKODE, PIN – 673 032. BY ADVS. GOVERNMENT PLEADER SR.K.AMMINIKUTTY KRISHNA MENON V., SC`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) 20495/2022 ``` ``` 2 ``` ## BECHU KURIAN THOMAS, J ......…............................................. ## W.P.(C).No.20495 of 2022 …................................................ Dated this the 3[rd] day of November, 2023 ## JUDGMENT Petitioner challenges Ext.P2 order issued on behalf of the 2[nd] respondent rejecting his application for building permit. Petitioner’s application has been rejected for two reasons :- - (i) that as per the DTP Scheme for the area, there is a proposal for a road widening, and (ii)) as per Rule 48 of the Kerala Municipality Building Rules, 2019, a star width of 1.20 mtr. should be provided along with a toilet for disabled persons. 2. Petitioner is the owner of 2.03 Ares of land in ward No.17 of Kasaba Village, Kozhikode Taluk. He had applied for construction of a residential building with a built-up area of 201.96 m2 by his application dated 16.05.2022. However, by the order dated 01.06.2022, ``` WP(C) 20495/2022 ``` ``` 3 ``` Corporation rejected the application, pointing out that, two defects mentioned earlier. 3. According to the petitioner, he had issued a purchase notice as contemplated under Section 67(1) of the Kerala Town and Country Planning Act, 2016 [for short, the Act]; requesting the Corporation to purchase petitioner’s property in view of their refusal to permit construction of the building based upon the proposal in the sanctioned master plan. Petitioner contends that even after the lapse of 60 days from the date of receipt of the purchase notice, the Corporation has not come forward to purchase the property, and therefore, the consequences contemplated under Section 67 of the Act must follow, and hence, petitioner’s application for building permit cannot be refused based on the proposal for road widening. 4. The Corporation, has filed a statement pointing out that though the residential building proposed by the petitioner is situated in a residential zone under the Master plan ``` WP(C) 20495/2022 ``` ``` 4 ``` and the DTP Scheme a 7 mtrs.-wide-road is proposed, and therefore, if the building is constructed, it would affect the proposed road widening, and hence the application cannot be allowed. The learned Standing Counsel Sri.V.Krishna Menon submitted that on 02.11.2023, the Corporation considered Ext.P3 purchase notice issued by the petitioner, and decided to acquire the land for road widening however the acquisition will be resorted to only after the procedure for acquisition is started. 5. I have considered the rival contentions. 6. Petitioner’s application for the construction of a building has been rejected on the ground that there is a proposal for road widening. Concededly, the area of the petitioner’s property is situated in a residential zone under the Master Plan. On learning about the proposal for road widening, as provided in the Master Plan, petitioner issued a notice under Section 67(1) of the Kerala Town and Country Planning Act, 2016; demanding ``` WP(C) 20495/2022 ``` ``` 5 ``` the Corporation to purchase his property. The said notice has not been positively responded. 7. Section 67 of the Act requires the local authority to either purchase the property on receipt of the purchase notice issued under the Act, 2016 and if there is a failure to accept the offer of purchase, necessarily variation in the Master Plan has to be carried out. The said provision is to balance the interest of an owner as well as the Scheme under the Master Plan prepared for each town. 8. When the local authority refuses to purchase the property within the time stipulated under the Statute, necessarily the owner of the property cannot be bound by the restrictive covenants under the Master Plan. 9. In the decision in Town Planner v. Joseph Jacob & Others. 2023 (2) KLT 35, this Court had observed that once a purchase notice is issued and the authority has failed to act within the time stipulated under the Statute, a right is crystallized on the land owner to use the land ``` WP(C) 20495/2022 ``` ``` 6 ``` for any purpose in accordance with law, and he is not bound by the approved Master Plan or DTP Scheme. Similarly in the decision in Maymunath V.B. v. State of Kerala & others 2022 (5) KLT 338, the learned single Judge of this Court had observed that, if there is no resolution passed to acquire the land after getting the purchase notice under Section 67(1), the property owner has the right to use the property for his legitimate purposes, including building construction. 10. Copy of the resolution of the Corporation dated 02.11.2023, which was handed over by the learned Standing counsel, indicates that they are not ready to acquire the land of the petitioner but has only decided to initiate proceedings to acquire the land. There is no certainty about acquisition of the petitioner's property; immediately. It is in a state of vacuum as to when such an acquisition will be initiated and when petitioner’s property will be acquired. Such a state of ambiguity is not what is contemplated under the Statute. Hence, ``` WP(C) 20495/2022 ``` ``` 7 ``` petitioner cannot be bound or restricted from constructing on his property that too on the basis of the proposal for road widening. Considering the fact that no action has been taken even after the purchase notice was issued under Section 67 of the Act, the petitioner is entitled to enjoy his property without any restrictions. Hence the proposal to widen the road as stipulated in the Master Plan or DTP Scheme cannot be a reason to reject petitioner’s application for building permit. 11. In this context it is observed that, petitioner had undertaken to clear the defects specified as No.2 in Ext.P2. Therefore, to the extent petitioner’s application for building permit has been rejected, on the ground of the proposal to widen the road to 7 mtrs; is illegal, without any authority and is liable to be set aside. 12. Accordingly, I allow this writ petition and set aside Ext.P2 to the extent it has declined to allow the application for building permit of the petitioner on the ground of the proposed road widening. There will be a ``` WP(C) 20495/2022 ``` ``` 8 ``` direction to the 3[rd] respondent to consider petitioner’s application for building permit afresh, as early as possible, at any rate, within a period of 30 days from the date of receipt of a copy of this judgment, bearing in mind the observations made in this judgment. BECHU KURIAN THOMAS JUDGE AMV/07/11/2023 ``` WP(C) 20495/2022 ``` ``` 9 ``` ## **`APPENDIX OF WP(C) 20495/2022`** ## **`PETITIONER EXHIBITS`** |**`EXHIBIT P1`**|**`TRUE`**<br>**`COPY`**<br>**`OF`**|**`THE`**<br>**`POSSESSION`**|**`THE`**<br>**`POSSESSION`**| |---|---|---|---| ||**`CERTIFICATE ISSUED BY THE VILLAGE`**||| ||**`OFFICER, KASABA,`**|**`IN THE PETITIONER'S`**|| ||**`NAME.`**||| |**`EXHIBIT P2`**|**`TRUE COPY OF THE`**|**`ORDER OF REJECTION`**|| ||**`FOR`**<br>**`PERMIT`**|**`APPLICATION`**|**`DATED`**| ||**`01/06/2022`**<br>**`ISSUED`**<br>**`BY`**<br>**`THE`**||**`3RD`**| ||**`RESPONDENT.`**||| |**`EXHIBIT P3`**|**`COPY`**<br>**`OF`**<br>**`THE`**|**`PURCHASE`**|**`NOTICE`**| ||**`CONTEMPLATE U/S 67(1) OF THE`**||**`KERALA`**| ||**`TOWN AND COUNTRY`**|**`PLANNING ACT`**|**`ISSUED`**| ||**`BY THE PETITIONER TO THE `**||**`3RD`**| ||**`RESPONDENT.`**||| TRUE COPY