Shameer v. Manjeri Municipality and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY WEDNESDAY, THE 24[TH] DAY OF AUGUST 2022 / 2ND BHADRA, 1944 WP(C) NO. 17998 OF 2016 ``` ## **`PETITIONER:`** ``` SHAMEER S/O. IBRAHIM, PALAPETTY HOUSE, PATHAPPIRIYAM P.O., EDAVANNA, MALAPPURAM DISTRICT. ``` ``` BY ADVS.SRI.P.SAMSUDIN SRI.JITHIN LUKOSE ``` ## **`RESPONDENTS:`** - **`1 MANJERI MUNICIPALITY REPRESENTED BY ITS SECRETARY, MANJERI -676 121, MALAPPURAM DISTRICT.`** - **`2 THE SECRETARY MANJERI MUNICIPALITY, MANJERI -676 121, MALAPPURAM DISTRICT.`** - **`*ADDL. R3 & R4 ADDED`** - **`3 DISTRICT TOWN PLANNER MALAPPURAM, COLLECTORATE-676505, MALAPPURAM DISTRICT.`** - **`4 STATE OF KERALA REPRESENTED BY THE SECRETARY TO DEPARTMENT OF URBAN DEVELOPMENT, GOVT SECRETARIAT, THIRUVANANTHAPURAM-695001.`** ``` *ADDITIONAL RESPONDENTS 3 & 4 ADDED AS PER ORDER ``` W.P.(C.) No. 17998/2016 2 ``` DATED 27.06.2016 IN I.A. NO. 9593/2016 IN THE W.P.(C.) ``` ``` R1 & R2 BY ADV. SRI.K.SHIBILI NAHA ``` ``` R3 TO R6 BY SRI. JOBY JOSEPH, SENIOR GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C.) No. 17998/2016 3 ## JUDGMENT Petitioner is the owner in possession of 3.33 ares of property in Survey No. 273/4 (Re-survey No. 166/32) of Narukara Village, Ernad Taluk within the limits of Manjeri Municipality, Malappuram District. The basic contention advanced by the petitioner is that even though petitioner has submitted an application seeking permit for construction of a residential building, it was declined as per Ext.P3 order dated 27.02.2016 on the ground that the area in question where the property of the petitioner is situated is included in the DTP scheme and the property is required for widening of a road passing adjacent to the property as per the DTP Scheme. 2. According to the learned counsel for the petitioner, Ext.P3 order suffers from the vise of arbitrariness and illegality since the scheme is an unworkable one. It is also submitted that the Apex Court has considered the very same question in **Raju S. Jethmalani and others v. State of Maharashtra and others [2015 (11) SCC 2221]** and held that the rightful ownership of a land cannot be prevented from being diverting in the guise of development schemes which are not workable. But W.P.(C.) No. 17998/2016 4 fact remains, after the judgment of the Apex Court in **Raju S. Jethmalani** ’s case (supra), the State Government has introduced the Kerala Town and Country Planning Act, 2016 (for short, the Act, 2016) in order to tackle various situations including the properties within the limits of master plan and scheme launched by the State Government. However, Section 67 of the Act, 2016 is a provision by which if any land is required for acquisition, if the owner of the land in prepared to comply with the procedure contemplated thereunder, the Municipality has to take a decision as to whether the land is required for widening of a road. In that view of the matter, I am of the considered opinion that the petitioner can be given the liberty in contemplation to Section 67 of the Act, 2016. Section 67 of the Act, 2016 reads thus:- _“_ _**67. Obligation to acquirelatul in certain cases. -** (1) Where any land is designated for compulsory acquisition in a Master Plan or Detailed Town Planning Scheme sanctioned under this Act and no acquisition proceedings are initiated for such land under the Land Acquisition Act in force in the State within a period of two years from the date of coming into operation of the Plan, the owner or person affected may serve on the Municipal Corporation. Municipal Council, Town Panchayat or Village Panchayat concerned, within such time and in such manner, as may be prescribed, a notice (hereinafter referred to as "the_ ## W.P.(C.) No. 17998/2016 5 _purchase notice") requiring the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned to purchase the interest in the land in accordance with the provisions of this Act;_ _(2) On receipt of any purchase notice under sub-section (1), as soon as possible, but not later than sixty days from the date of receipt of the purchase notice, the Municipal Corporation, Municipal Council. Town Panchayat or Village Panchayat, as the case may be, through a resolution decide to acquire the land, where the land is designated for compulsory acquisition for the purpose of the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat._ _(3) Where the land is designated for compulsory acquisition for the purpose of any Government Department or Quasi-government Agency, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat shall forward such notice to the Government._ _(4) In case the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned decides not to acquire the land, it shall initiate variation of the plan suitably in accordance with this Act_ _(5) In case the land acquisition could not be effected within a period of two years from the date of resolution to acquire the land, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall initiate variation of the plan suitably in accordance with this Act._ _(6) On receipt of a purchase notice under sub-section (3), the Government shall in consultation with the Government Department or Quasi-government Agency concerned, not later than six months from the date of receipt of the purchase notice, confirm the purchase notice. In any other_ ## W.P.(C.) No. 17998/2016 6 _case, Government may require the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned to vary the plan suitably in accordance with this Act:_ _Provided that in case the land acquisition could not be effected within a period of two years from the date of confirmation of the purchase notice, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall initiate variation of the plan suitably in accordance with this Act under intimation to the Government._ _(7) If no order has been passed by the Government within a period of six months from the date of receipt of the purchase notice, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall, suo moto initiate variation of the plan suitably in accordance with this Act:_ _Provided that where variation proceedings of the Plan are initiated under this section, the Secretary of the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall, in consultation with the Chief Town Planner, take suitable decision on any application for land development permit received under section 64.”_ 3. Therefore, I think it is only appropriate that liberty of the petitioner is left open to take up the proceedings in terms of Section 67 of the Act, 2016. Accordingly, the liberty of the petitioner is left open to initiate proceedings in terms of Section 67 of the Act, 2016. If the Municipality is not adhering to the mandatory requirements contained under Section 67 of the Act, W.P.(C.) No. 17998/2016 7 2016, necessarily any building permit application submitted by the petitioner is to be considered in accordance with law. 4. Anyhow, during the pendency of this writ petition, the Kerala Municipality Building Rules, 1999 is replaced by Kerala Municipality Building Rules, 2019. Therefore, necessarily an application for building permit is to be submitted by the petitioner in terms of the Rules, 2019. Therefore, if the petitioner is submitting any application for building permit after the time period prescribed under Section 67 of the Act, 2016, the Secretary of the Municipality shall consider the building permit application, in accordance with law, _dehors_ the provisions contained under the scheme in vogue. The writ petition is disposed of as above. Sd/- **SHAJI P. CHALY JUDGE** DCS/24.08.2022 W.P.(C.) No. 17998/2016 8 ## **`APPENDIX`** |**`PETITIONER`**|**`EXHIBITS`**| |---|---| |**`P1`**|**`TRUE COPY OF THE LAND TAX RECEIPT`**| ||**`DATED 26/08/2015`**| |**`P2`**|**`TRUE COPY OF THE LOCATION SKETCH OF`**| ||**`THE LAND`**| |**`P3`**|**`TRUE COPY OF THE PROCEEDINGS OF THE`**| ||**`2ND RESPONDENT DATED 27/02/2016`**|