High Court of KeralaSingle Judge2019-11-22Writ petitions allowed in part; liberty granted...

Shaju v. Kodungalloor Municipality; C.K. Siddique and SABEENA v. Kodungalloor Municipality

Case / Petition Number:WP(C).No.26394 of 2019 (Y); WP(C).No.26419 of 2019 (B)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devan Ramachandran
Judgment Date: 2019-11-22
Court Decision / Holding: The writ petitions are allowed in part. The court grants liberty to the petitioners to move purchase proposals before the competent Authority of Kodungalloor Municipality under Section 67 of the Kerala Town and Country Planning Act, 2016, within two weeks of the judgment. The Municipality must consider the proposal within the statutory period. If the Municipality refuses or fails to issue orders within the statutory period, the Secretary must reconsider the petitioners’ applications for building permits de hors the Master Plan, as expeditiously as possible but no later than one month after the expiry of the statutory period.
Final Disposition: Writ petitions allowed in part; liberty granted to file Section 67 proposals; Municipality to decide within statutory period; if not, Secretary to reconsider de hors the Master Plan within one month after the statutory period ends; overall remand to consider building-permit applications under the statutory framework plus de hors Master Plan if required.

Parties to the Case

Appellants / Petitioners

Shaju
C.K. Siddique
SABEENA

Respondents

Kodungalloor Municipality
The Secretary, Kodungalloor Municipality
The Assistant Engineer, Local Self Government Department, Kodungalloorr Municipality

Legal Representation & Advocates

Counsels for Petitioners

• Sri S. Shanavas Khan
• Smt. S. Indu

Counsels for Respondents

• K. A. Noushad, Senior Counsel for Kodungalloor Municipality

Case Synopsis & Summary

Two writ petitions before the Kerala High Court (WP(C).No.26394 of 2019 and WP(C).No.26419 of 2019) challenge communications denying building permits for properties within Kodungalloor Municipality on the ground that the applicants did not leave the required setback for road widening as per the Master Plan. The petitioners contend that the Master Plan has not been actively operated by the Municipality for decades and that they should be allowed to rely on Section 67 of the Kerala Town and Country Planning Act, 2016, or at least have their applications considered de hors the Master Plan. The respondents argue that as long as the Master Plan contemplates road widening, the setback requirement must be observed and the permits rightly refused. The High Court recalls rulings in District Town Planner, Malappuram and Others v. Vinod and Others and Regional Town Planner and Another v. Muhammed Rasheed and Others, which held that property owners have the right to apply under Section 67 and that such applications should be considered even if the Master Plan is not operated, thereby supporting the petitioners’ position. Accordingly, the court grants liberty to the petitioners to move purchase proposals under Section 67 within two weeks and directs timely consideration by the Municipality; if not, the Secretary must reconsider de hors the Master Plan within one month after the statutory period.

Provisions of Law Cited

Section 67 of the Kerala Town and Country Planning Act, 2016

Legal Doctrines & Maxims

de hors the stipulations in the Master Plan
Right to apply under Section 67 of the Kerala Town and Country Planning Act, 2016 (independent of Master Plan)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners allege that the Master Plan has not been operated for decades, and that their building-permit applications should be considered under Section 67 of the Kerala Town and Country Planning Act, 2016, or at least be examined de hors the Master Plan. They contend that Exhibits P6 and P8 (their application and related communications) were rightly filed and that denial solely based on the Master Plan would prejudice development. They seek liberty to pursue purchase proposals before the competent Authority and a direction that, if the Municipality fails to decide within the statutory period, the Secretary must reconsider the applications under Section 67 de hors the Master Plan.

Contentions of Respondents

The respondents contend that the Master Plan includes road widening provisions, obligating applicants to leave the required setback; the building permits were issued in accordance with law (Exhibits P6/P8). They argue that ignoring the Master Plan would undermine the planning framework and set a negative precedent for future development; thus, the writ petitions should be dismissed.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
District Town Planner, Malappuram and Others v. Vinod and Others	2019 (3) KHC 673	Positive	Cited to support the proposition that property owners have a right to apply under Section 67 and that such applications may be considered de hors the Master Plan if the Plan has not been operated.
Regional Town Planner and Another v. Muhammed Rasheed and Others	2019 (3)KHC 987	Positive	Cited to reinforce the principle that the Section 67 mechanism can be invoked and that a municipality must consider such applications notwithstanding non-operation of the Master Plan.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 22ND DAY OF NOVEMBER 2019 / 1ST AGRAHAYANA, 1941** ## **WP(C).No.26394 OF 2019(Y)** ## **PETITIONER/S:** **SHAJU AGED 41 YEARS S/O. ABDUL KHADER, KARUKAPADATH HOUSE, KANDAMKULAM P.O., METHALA VILLAGE, KODUNGALLOOR TALUK, THRISUR DISTRICT-680 669** **BY ADVS. SRI.S.SHANAVAS KHAN SMT.S.INDU** ## **RESPONDENT/S:** **1 THE KODUNGALLOOR MUNICIPALITY MUNICIPAL OFFICE, KODUNGALLOOR-680 664 2 THE SECRETARY, KODUNGALLUR MUNICIPALITY, MUNICIPAL OFFICE, KODUNGALLOOR, THRISSUR-680 664 3 THE ASSISTANT ENGINEER, LOCAL SELF GOVERNMENT DEPARTMENT, KODUNGALLOOR MUNICIPALITY, KODUGALLOOR P.O, THRISSUR-680 664** **R1-2 BY ADV. SRI.K.A.NOUSHAD, SC, KODUNGALOOR MUNICIPALITY, THRISSUR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.11.2019, ALONG WITH WP(C).26419/2019(B), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C)No.26394 OF 2019 & Con.case 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 22ND DAY OF NOVEMBER 2019 / 1ST AGRAHAYANA, 1941** **WP(C).No.26419 OF 2019(B)** ## **PETITIONER/S:** |**1**||**C.K.SIDDIQUE,**| |---|---|---| |||**AGED 48 YEARS**| |||**S/O.C.K.KOCHU, CHAMMANATTU HOUSE,**| |||**ANJAPPALAM WEST, METHALA VILLAGE,**| |||**KODUNGALLOOR TALUK, THRISSUR DISTRICT- 680669.**| |**2**||**SABEENA,**| |||**AGED 41 YEARS**| |||**W/O.C.K.SIDDIQUE, CHAMMANATTU HOUSE,**| |||**ANJAPPALAM WEST, METHALA VILLAGE,**| |||**KODUNGALLOOR TALUK, THRISSUR DISTRICT- 680669.**| |||**BY ADVS.**| |||**SRI.S.SHANAVAS KHAN**| |||**SMT.S.INDU**| |**DENT/S**|**:**|| |**1**||**THE KODUNGALLOOR MUNICIPALITY,**| |||**MUNICIPAL OFFICE, KODUNGALLOOR-680664,**| |||**REPRESENTED BY ITS SECRETARY.**| |**2**||**THE SECRETARY,**| |||**KODUNGALLOOR MUNICIPALITY, MUNICIPAL OFFICE,**| |||**KODUNGALLOOR, THRISSUR- 680664.**| |**3**||**THE ASSISTANT ENGINEER,**| |||**LOCAL SELF GOVERNMENT DEPARTMENT,**| |||**KODUNGALLOOR MUNICIPALITY,**| |||**KODUNGALLOOR P.O., THRISSUR- 680664.**| |||**R1-2 BY ADV. SRI.K.A.NOUSHAD, SC, KODUNGALOOR**| |||**MUNICIPALITY, THRISSUR**| ## **RESPONDENT/S:** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.11.2019, ALONG WITH WP(C).26394/2019(Y), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C)No.26394 OF 2019 & Con.case 3 ## **JUDGMENT** The petitioners have approached this Court impugning Exhibits P6 and P8 communications, as per which, their applications for building permit for making constructions in their properties have been rejected, saying that the petitioners have not left sufficient setback required for the purpose of widening the road in front of it, as per the provisions of the Master Plan applicable to the respondent-Municipality. They assert that the Master Plan in question for the Kodungalloor Municipality has not been operated at all by the said Authority for the last several decades and that none of the constructions made in the said locality have left the setback now required of them. They, therefore, pray that Exhibits P6 and P8 be set aside. 2. In response, the learned Standing Counsel for Kodungalloor Municipality submits WP(C)No.26394 OF 2019 & Con.case 4 that as long as the Master Plan provides for widening of the road in question, the petitioners will be obligated to leave sufficient setback for this purpose and therefore, that Exhibits P6 and P8 have been issued without fault. He, therefore, prays that these Writ Petitions be dismissed. 3. When I consider the afore submissions, it is ineluctable that the issues like this have already gained the attention of this Court and that judgments have been delivered in **District Town Planner, Malappuram and Others v. Vinod and Others** (2019 (3)KHC 673) and **Regional Town Planner and Another v.** **Muhammed Rasheed and Others** (2019 (3)KHC 987), wherein it has been declared that in such cases, the owner of the properties have a right to make an application under Section 67 of the Kerala Town and Country Planning Act, 2016 and that if the Municipality, thereafter, do not accede to the same, then the owner's application for building permit will have to WP(C)No.26394 OF 2019 & Con.case 5 be considered _de hors_ the stipulations in the Master Plan. I am sure that the petitioners herein also deserve such opportunity in these Writ Petitions. Resultantly, I order these writ petitions granting liberty to the petitioners to move purchase proposals before the competent Authority of Kodungalloor Municipality under Section 67 of the Kerala Town and Country Planning Act, 2016; and if this is done within a period of two weeks from the date of receipt of a copy of this judgment, the competent Authority of the Municipality will consider the proposal within the statutory period and issue appropriate orders in terms of law. I make it clear that if the Municipality refuses the purchase proposals or does not issue orders within the statutory period, then the Secretary will be obligated thereafter to reconsider the petitioners' applications for building permit, _de hors_ the stipulations in the Master Plan, as expeditiously as is WP(C)No.26394 OF 2019 & Con.case 6 possible, but not later than one month after the statutory period for disposal of the applications of the petitioners under Section 67 of the Kerala Town and Country Planning Act,2016 expires. **Sd/-** **DEVAN RAMACHANDRAN** **JUDGE** sn WP(C)No.26394 OF 2019 & Con.case 7 ## **APPENDIX OF WP(C) 26394/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.2866/2018 DATED 14/11/2018 OF KODUNGALLOOR SRO** **EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT DATED 01.07.2019 EVIDENCING THE PAYMENT OF TAX EXHIBIT P3 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 08.07.2019 ISSUED BY THE VILLAGE OFFICE, METHALA** - **EXHIBIT P4 TRUE COPY OF THE SKETCH PROVING THE LIE OF THE PROPERTY** - **EXHIBIT P5 TRUE COPY OF THE PLAN PREPARED BY THE LICENCED ENGINEER** - **EXHIBIT P6 TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT DOWNLOADED FROM THE WEBSITE** - **EXHIBIT P7 TRUE COPY OF THE RECEIPT EVIDENCING THE SUBMISSION OF EXT.P6** - **EXHIBIT P8 TRUE COPY OF THE COMMUNICATION NO.PW2 (BA) -109/19-20 DATED 07/08/2019 OF THE 2ND RESPONDNET** - **RESPONDENT'S/S EXHIBITS:** **EXHIBIT-R1(a) TRUE PHOTOSTAT COPY OF THE EXTRACT OF THE RESOLUTION DATED 29.09.2016. EXHIBIT-R1(B) TRUE PHOTOSTAT COPY OF THE ORDER DATED 03.10.2017 OF LOCAL SEL GOVERNMENT (RD)DEPARTMENT. EXHIBIT-R1(c) TRUE PHOTOSAT COPY OF THE RELEVANT PAGES OF MALAYALA MANORAMA DAILY DATED 30.11.2017. EXHIBIT-R1(d) TRUE COPY OF THE RELEVANT PAGES OF MADHYAMAM DAILY DATED 30.11.2017. EXHIBIT-R1(e) TRUE PHOTOSTAT COPY OF THE RELEVANT PAGES OF KERALA GAZETTE DATED 24.04.2018 (VOLUME 7, PAGE 631) EXHIBIT-R1(f) TRUE PHOTOSTAT COPYOF THE RELEVANT PATES OF DESHABHIMANI DAILY DATED 07.06.2018. EXHIBIT-R1(g) TRUE PHOTOSTAT COPY OF THE RELEVANT PAGES OF MADHYAMAM DAILY DATED 07.06.2018** WP(C)No.26394 OF 2019 & Con.case 8 ## **APPENDIX OF WP(C) 26419/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE TAX RECEIPT DATED 02.04.2019 EVIDENCING THE PAYMENT OF TAX.** - **EXHIBIT P2 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 29.03.2019 ISSUED BY THE VILLAGE OFFICE, METHALA.** - **EXHIBIT P3 TRUE COPY OF THE SKETCH PROVING THE LIE OF THE PROPERTY.** - **EXHIBIT P4 TRUE COPY OF THE PLAN PREPARED BY THE LICENCED ENGINEER.** - **EXHIBIT P5 TRUE COPY OF APPLICATION FOR BUILDING PERMIT DOWNLOADED FORM THE WEBSITE.** - **EXHIBIT P6 TRUE COPY OF THE COMMUNICATION NO.PW2(BA)6/19-20 DATED 09.08.2019 OF THE 2ND RESPONDENT.** - **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R1(A) TRUE PHOTOSTAT COPY OF THE EXTRACT OF THE RESOLUTION DATED 29.09.2016.** - **EXHIBIT R1(B) TRUE PHOTOSTAT COPY OF THE ORDER DATED 03.10.2017 OF LOCAL SELF GOVERNMENT (RD) DEPARTMENT.** - **EXHIBIT R1(C) TRUE PHOTOSTAT COPY OF THE RELEVANT PAGES OF MALAYALA MANORAMA DAILY DATED 30.11.2017.** - **EXHIBIT R1(D) TRUE PHOTOSTAT COPY OF THE RELEVANT PAGES OF MADHYAMAM DAILY DATED 30.11.2017.** **EXHIBIT R1(E) TRUE PHOTOSTAT COPY OF THE RELEVANT PAGES OF KERALA GAZETTE DATED 24.04.2018 (VOLUME 7, NO.17, PAGE 631).** **EXHIBIT R1(F) TRUE PHOTOSTAT COPY OF THE RELEVANT PAGES OF DESHABHIMANI DAILY DATED 07.06.2018.** **EXHIBIT R1(G) TRUE PHOTOSTAT COPY OF THE RELEVANT PAGES OF MADHYAMAM DAILY DATED 07.06.2018.** **sn** **//TRUE COPY// CA TO JUDGE**