S. Subbalekshmy v. Corporation of Thiruvananthapuram and The Town Planning Officer

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY ,THE 22ND DAY OF MARCH 2019 / 1ST CHAITHRA, 1941** ## **WP(C).No.6447 of 2018** ## **PETITIONER:** **S.SUBBALEKSHMY AGED 50 YEARS SREYAS, TC 50/761, DEVI NAGAR, KALADY, KARAMANA P.O., THIRUVANANTHAPURAM-695002.** **BY ADVS. SRI.JACOB SEBASTIAN SRI.K.V.WINSTON** ## **RESPONDENTS:** **1 CORPORATION OF THIRUVANANTHAPURAM THIRUVANANTHAPURAM-695033, REPRESENTED BY ITS SECRETARY. 2 THE TOWN PLANNING OFFICER THIRUVANANTHAPURAM MUNICIPAL CORPORATION ENGINEERING SECTION, OFFICE OF THE TOWN PLANNING OFFICER, CORPORATION OF THIRUVANANTHAPURAM, OPP.LMS COMPOUND, TRIVANDRUM-695033.** **BY ADVS. SRI.N.NANDAKUMARA MENON (SR.) SRI.P.K.MANOJ KUMAR SC TVPM CORPORATION** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.01.2019, THE COURT ON 22.03.2019 DELIVERED THE FOLLOWING:** **WP(C).No.6447 of 2018** **2** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ Petitioner is owner of 2.33 Ares of land situated in Block No.181 in Re-survey No.77 of Thycaud Village, Thiruvananthapuram. The petitioner seeks to direct respondents 1 and 2 to consider the application submitted by her on 27.11.2017 for grant of a building permit as modified in accordance with the building rules in force, without taking into account the SMP of 1971. 2. The petitioner states that she has purchased 2.33 Ares of land as per document No.526 of 2017 of SRO Chalai, Thiruvananthapuram. The property is situated on the northern side of Thaliyal – Karamana Road. The petitioner wanted to construct a new house, demolishing the existing dilapidated building. She submitted a building plan for approval before the 1[st] respondent-Corporation on 27.11.2017. The Building Inspector made a site visit. **WP(C).No.6447 of 2018** **3** Thereafter, Ext.P1 communication dated 12.12.2017 was issued intimating the petitioner that providing staircase in the front open space is in violation of the provisions of the Kerala Municipality Building Rules, 1999 ('KMBR, 1999', for short). In Ext.P1, the petitioner was required to leave space to accommodate the proposed widening of the road as per Sanctioned Master Plan, 1971 (SMP, 1971). 3. The petitioner submitted Ext.P2 modified plan rectifying the defect as regards the staircase. The 2[nd] respondent-Town Planning Officer issued Ext.P3 communication dated 12.12.2018 affirming that the revised plan submitted is in tune with KMBR, 1999. However, the Town Planning Officer informed the petitioner that her application cannot be allowed since she has not left necessary space for widening the road as contemplated by SMP, 1971. The petitioner contends that several new buildings have come up in the same area during the decades since 1971. Ext.P3 communication is, therefore, absolutely illegal. **WP(C).No.6447 of 2018** **4** 4. The petitioner contends that there was a Sanctioned Master Plan in 1971 which was approved by the Government. In the year 1993, the 1[st] respondent prepared another draft Master Plan, which was not approved by the Government. In the meanwhile, the authorities decided to widen the Thaliyal – Karamana Road to a lesser extent. The Government issued notification dated 19.06.2006 under Section 4(1) of the Land Acquisition Act, 1894, for this purpose. On the basis of the said notification, 0.20 Ares of land was purchased from the predecessor-in-interest of the petitioner. Ext.P7 is the Award in respect of the said land acquisition. Ext.P8 list of eviction would show that the acquired property was actually taken possession by the Revenue Inspector on 10.12.2009 and was handed over to the Public Works Department for road widening, contended the petitioner. 5. Subsequently, in the year 2012, another Master Plan was proposed and it was approved in 2013. Objections were invited. After taking into account the **WP(C).No.6447 of 2018** **5** objections received, the Government suspended the said plan and directed the 1[st] respondent-Corporation to prepare a fresh plan. On 24.06.2014, the Government directed the 1[st] respondent-Corporation to resubmit the said proposed Master Plan, 2012, with necessary changes. The 1[st] respondent-Corporation on 26.11.2016, however, decided to have a new master plan. Accordingly, Ext.P10 Interim Development Order was published. Ext.P10 Interim Development Order covers the whole of Thiruvananthapuram Corporation. Widening of Thaliyal – Karamana Road was not included in the Interim Development Order. Therefore, according to the petitioner, the original proposal of a 21 metre wide expansion of Thaliyal – Karamana road should be treated as abandoned by the 1[st] respondent-Corporation. The respondents cannot reject building permit to the petitioner on the basis of decades old SMP of 1971. 6. The 1[st] respondent-Corporation filed statement and additional statement. The respondents stated that the **WP(C).No.6447 of 2018** **6** building plan submitted by the petitioner did not leave necessary land for widening the road as per SMP, 1971. Even though petitioner submitted a revised plan after receipt of Ext.P1, the petitioner had not left out property that is needed for road widening. The Karamana – Kalady Road lying in front of the property of the petitioner, has to be widened by 21 metres as per the proposal contained in SMP, 1971. The said road is vested and maintained by the Public Works Department. At present, no other draft Master Plan has been approved by the government. The property is included in the SMP, 1971. It is for the Public Works Department to take steps to acquire necessary land for widening the road by 21 metres. 7. I have heard the learned counsel for the petitioner and the Senior Counsel appearing for the respondents. 8. The learned counsel for the petitioner argued that since the SMP, 1971 has become obsolete and redundant due to the passage of time, the 1[st] respondent **WP(C).No.6447 of 2018** **7** itself has proposed fresh Master Plans in the years 1993, 2012 and again in 2016. Since these proposals did not materialise, the 1[st] respondent has passed an Interim Development Order on 11.09.2017 and published the same as per Ext.P10. The attempts of the Corporation to draft new Master Plans in 1993, 2012 and 2016 would show that, practically the Corporation has abandoned and dumped the SMP, 1971. Ext.P10 Interim Development Order would show that the Corporation has specifically abandoned the proposal for widening the road in question by 21 metres. The land acquisition proceedings made in the year 2006 contemplating widening of the road to a lesser extent would point only towards the abandonment of the proposal for expansion by 21 metres. Therefore, the respondents cannot deny building permit to the petitioner on the basis of an obsolete SMP, 1971. 9. The counsel for the petitioner relied on the judgment in _**Padmini v. State of Kerala** [1999 (3) KLT 465]_ wherein a Division Bench of this Court has held that **WP(C).No.6447 of 2018** **8** application for construction of a residential building can be rejected only if the land is under acquisition proceedings. In the petitioner's case, whatever acquisition was required was concluded in the year 2006. At present, there is not even a proposal for further acquisition of land. The learned counsel also relied on the judgment of the Apex Court in _**Raju S. Jethmalani and others v. State of Maharashtra and others** [(2005) 11 SCC 222],_ wherein it was held that unless the land is acquired by State Government or Municipal Corporation to effectuate the public purpose, the land owner cannot be deprived from using the private property. 10. The learned counsel for the petitioner further relied on a Division Bench judgment of this Court in _**Corporation of Thrissur v. Kunjilakutty** [2014 (1) KLT 188]_ to contend that if the authorities have not taken steps to implement Master Plan for long years, the Corporation cannot reject application for building permit. It is open for the authorities to acquire such land involved in the Master **WP(C).No.6447 of 2018** **9** Plan and then retain it in accordance with the plan. 11. The learned counsel for the petitioner also brought to the notice of the Court the judgment dated 19.08.2015 in W.P.(C) No.24474/2015, wherein following the judgment in _**Raju S. Jethmalani**_ ( _supra_ ), a learned Single Judge of this Court directed the Regional Town Planner to grant clearance for construction. In the judgment in _**Dakshayani Amma K. v. Guruvayur Municipality** [2016 KHC 159],_ a learned Single Judge of this Court has held that in the absence of Government or Municipality not proposing to acquire land in question, building permit cannot be rejected on the ground of implementation of Town Planning Scheme. In the judgment in _**Mahinkutty v. Perumbavoor Municipality** [2017 (3) KLT 638],_ a learned Single Judge of this Court held that there can be no interdiction of the construction, when the Master Plan has not been implemented. In view of the aforesaid judgments, the law is clear and the application for building permit of the petitioner cannot be **WP(C).No.6447 of 2018** **10** rejected, contended the counsel for the petitioner. 12. The learned Senior Counsel Sri.Nandakumara Menon appearing for the 1[st] respondent argued that the writ petition is unsustainable for _non joinder_ of Government of Kerala. According to the Senior Counsel, in view of the provisions contained in the Kerala Town and Country Planning Act, 2016 ('Act 2016', for short), SMP, 1971 still holds the field. There is absolute bar on granting building permits in violation of SMP, 1971. 13. The learned Senior Counsel appearing for the 1[st] respondent relied on the judgment in _**Philip George v. State of Kerala** [ 2014 (2) KLT 116]_ , wherein a learned Single Judge of this Court has held that where an area that has been developed in accordance with a Scheme validly prepared and duly notified in accordance with the Town Planning Act, future constructions must adhere to the terms of the Scheme and plans approved thereunder. The counsel for the 1[st] respondent also relied on the Division Bench judgment dated 09.04.2015 in W.A. No.759/2014 of **WP(C).No.6447 of 2018** **11** this Court arising from the judgment reported in 2014 (2) KLT 116. In the said judgment, the Division Bench held that the land owners, who have purchased the property subsequent to the coming into force of DTP Scheme, cannot contend that they are not bound by the Scheme. The learned counsel also relied on the Division Bench judgment of this Court dated 24.02.2016 in W.A. No.109/2015 and connected cases, wherein it has been held that when a DTP Scheme is in force, and certain land is designated for acquisition for common purpose, the remedy available to the land owner is to approach the Municipality or the Government for dereserving the land in accordance with the statutory provisions. 14. I have considered the pleadings in the writ petition and the arguments raised on either side. 15. The Master Plan relied on by the respondents and which governs the field according to the respondents, is of the year 1971. Section 50 of the Kerala Town and Country Planning Act, 2016 (Act, 2016, for short) **WP(C).No.6447 of 2018** **12** contemplates review, revision, variation and plans prepared under the Act. As per Section 50(1), immediately after the expiry of ten years of a master plan, or at an earlier date with the concurrence of the Government, the Municipal Corporation, Municipal Council, Town Panchayat, Village Panchayat, as the case may be, shall review, revise or get revised such plan incorporating such modifications as may be considered necessary and get it sanctioned in accordance with the provisions of this Act. The 1[st] respondent-Corporation had prepared a revised draft Master Plan in the year 1993. However, it was not approved by the Government. Subsequently, in the year 2012 also, yet another master plan was proposed. Though it was approved by the Government in 2013, the Government subsequently suspended the said plan and directed the Corporation to prepare another plan. No such plan was proposed/submitted thereafter. However, in view of the proviso to Section 36(12), the 1971 Master Plan shall apply until another published Master Plan is sanctioned in **WP(C).No.6447 of 2018** **13** accordance with this Act. 16. Though the counsel for the petitioner relied on judgments of this Court reported in 2016 KHC 159, 2017 (3) KLT 638, 1999 (3) KLT 465 and unreported judgments in W.P.(C) No.9846/2017 and W.P.(C) No.24474/2015, I do not propose to deal with those judgments since the field is now covered by a Division Bench judgment of this Court in W.A.109/2015. In the said judgment, this Court categorically held that when a DTP Scheme is in force and certain land is designated for acquisition of common purposes, the remedy available to the land owner is to approach the Municipality or the Government, for dereserving the land in accordance with the statutory provisions. The Division Bench further held that unless there is compliance with the statutory provision by which the Municipality may either take a decision to exclude the land from acquisition or to acquire the land within a specified time limit as provided under the statute, it may not be possible for the land owner to seek a building permit, **WP(C).No.6447 of 2018** **14** ignoring the sanctioned scheme nor will it be possible for the Municipality to grant the permit. Therefore, going by the dictum laid down by the said Division Bench judgment, the option open to the petitioner is to serve a purchase notice on the Corporation/Government as contemplated under Section 67 of the Act, 2016. 17. The petitioner has purchased the property in the year 2017. The SMP, 1971 was subsisting when the petitioner purchased the land. Therefore, in the light of the Division Bench judgment in W.A. No.109/2015, in order to get building permit as per the plan submitted by the petitioner, necessarily the petitioner has to issue purchase notice and give option to the respondents to take over the land necessary for road widening as per the SMP, 1971. In the circumstances of the case, the writ petition is disposed of permitting the petitioner to issue purchase notice to the respondents under Section 67 of the Act, 2016. If the form of purchase notice has not been prescribed by the authorities so far, it will be open to the **WP(C).No.6447 of 2018** **15** petitioner to issue the notice, without adhering to any such form. If the respondents receive such purchase notice, they shall act on it expeditiously as per the provisions contained in the Act, 2016. Sd/- **N. NAGARESH, JUDGE** aks/21.03.2019 **WP(C).No.6447 of 2018** **16** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOCOPY OF THE SITE PLAN OF THE PROPERTY, CULLED FROM THE ENTIRE PLAN.** **EXHIBIT P2 TRUE PHOTOCOPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT DATED 12-12-2017.** - **EXHIBIT P3 TRUE PHOTOCOPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT DATED 12-02-2018.** - **EXHIBIT P4 TRUE PHOTOCOPY OF THE PHOTOGRAPH SHOWING THE BUILDING NEWLY CONSTRUCTED ON THE WESTERN SIDE OF THALIYAL-KARAMANA ROAD.** - **EXHIBIT P5 TRUE COPY OF THE DEED OF SALE EXECUTED BY S.RAMAKRISHNA SARMA, REGISTERED AS DOCUMENT NUMBER 526 OF 2017 OF SRO CHALAI, DATED 15.3.2017** **EXHIBIT P6 TRUE COPY OF THE NOTIFICATION DATED 19.6.2006** - **EXHIBIT P7 TRUE COPY OF THE AWARD PASSED BY THE LAND ACQUISITION OFFICER IN LAC 152/2009 DATED 2.11.2009** - **EXHIBIT P8 TRUE COPY OF THE EVICTION LIST RELATING TO THE PROPERTY BEARING DATE 10.12.2009** - **EXHIBIT P9 TRUE COPY OF THE MINUTES OF THE MEETING DATED JUNE 24, 2014 CONCERNING THE MASTER PLAN FOR TRIVANDRUM CORPORATION** **EXHIBIT P10 TRUE COPY OF THE INTERIM DEVELOPMENT ORDER DATED SEPTEMBER 11, 2017 ALONG WITH THE REGULATIONS FOR DEVELOPMENT.**