State of Kerala and others v. Meera Anil @ Meera D.C

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941** ## **WA.No.2186 OF 2015** **AGAINST THE ORDER/JUDGMENT IN WPC 24090/2014 DATED 15-10-2014 OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 TO 3 IN W.P.(C):** |**1**||**STATE OF KERALA**| |---|---|---| |||**REPRESENTED BY ITS SECRETARY ,DEPARTMENT OF LOCAL**| |||**SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT,**| |||**ANNEX, TRIVANDRUM-695 001**| |**2**||**CHIEF TOWN PLANNER**| |||**TOWN PLANNING OFFICE, THIRUVANANTHAPURAM-695 001**| |**3**||**TOWN PLANNING OFFICER**| |||**TOWN PLANNING OFFICE, KOTTAYAM -686 001**| |||**BY GOVERNMENT PLEADER**| |**RESPONDENTS**<br>**:**||| |**1**||**MEERA ANIL @ MEERA D.C**| |||**W/O ANIL VARGHESE, RESIDING AT KUTHOOR HOUSE,**| |||**KANJIKUZHI, MUTTAMBALAM, KOTTAYAM-686 001**| |**2**||**KOTTAYAM MUNICIPALITY**| |||**REPRESENTED BY ITS SECRETARY, KOTTAYAM-686 001**| |**3**||**EXECUTIVE ENGINEER**| |||**LSGD DEPARTMENT, KOTTAYAM MUNICIPALITY -686 001**| |||**R1 BY ADV. ADV.PEEYUS A.KOTTAM**| |||**R2&3 BY ADV. SRI.SIBY CHENAPPADY, SC, KOTTAYAM**| |||**MUNICIPALITY**| **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.2186 OF 2015 2 ## **JUDGMENT** ## **S.MANIKUMAR,CJ** State of Kerala and officials, respondents in W.P.(C) No.24090/2014, have preferred this writ appeal challenging the judgement dated 15.10.2014, by which, the writ court directed the Kottayam Municipality, Kottayam, 4[th] respondent therein, to consider the application submitted by the writ petitioner afresh, after conducting an inspection of the writ petitioner's land to verify whether the land is a paddy field and thereafter, to pass appropriate orders on the application in accordance with law as expeditiously as possible and at any rate within a period of one month from the date of receipt of a copy of the judgment. 2. W.P.(C) No.24090/2014 has been filed by the writ petitioner/1[st] respondent herein, aggrieved by Ext.P2 proceedings dated 15.7.2014 issued by the Executive Engineer, LSGD Department, Kottayam Municipality, 3[rd] respondent, rejecting the application of the 1[st] respondent to construct a commercial building in her property. According to the appellants, the proposed site where the construction is proposed is included in the Development Plan for Kottayam Town as per G.O.(MS) No.190/79 LA&SWD dated 18.8.1979 and later, the plan WA.No.2186 OF 2015 3 has been varied vide G.O.(P) No.219/2008/LSGD dated 4.8.2008. The Development Plan was sanctioned and the scheme is still in force and developmental activity according to the master plan is being implemented. The permit for construction was rejected since there was violation of the provisions of Development Plan as the 1[st] respondent's plot falls within the Agricultural Zone of the Development plan and also the alignment of a new 25 meter road passes through her plot. Hence the Municipality rejected the building permit submitted by the 1[st] respondent. According to the appellants, writ court without appreciating the above said facts, set aside Ext.P2 proceedings and directed Kottayam Municipality, 2[nd] respondent, to consider the application submitted by the 1[st] respondent afresh, after conducting an inspection of her land and verify whether the land is a paddy field and thereafter pass appropriate orders on the application in accordance with law. Being aggrieved, instant writ appeal is filed on the following grounds: - A. The writ petitioner's property is situated in the midst of Kottayam city and all the surrounding properties to the writ petitioner's property are fully developed and constructed with residential and commercial apartments and even now huge constructions are going on and in spite of that, writ petitioner's application for building permit has been rejected as per Ext.P2 order on the ground that writ petitioner's property is situated in the green strip in the master plan of Kottayam City and as per WA.No.2186 OF 2015 4 DTP Scheme, proposed M.C. Road bye-pass alignment is through this area. B. The writ petitioner and her husband submitted application for building permit with an intention to construct a residentialcum-commercial apartment for which they submitted an application for building permit strictly in accordance with Kerala Municipal Building Rules but the respondents without applying their mind in a casual manner dismissed writ petitioner's application for building permit on the ground that writ petitioner's property is situated in an area which is earmarked as "green strip" in the master plan of Kottayam city. c. The Municipal authorities ought to have found that the Hon'ble Supreme Court as well as this Court have repeatedly held that the authorities have to consider the ground reality and accordingly make changes in the master plan and merely for the reason that an area is earmarked as green strip, residential or agricultural zone, a person's right to construct a building in his property cannot be denied without ascertaining the ground reality and developmental activities already been carried in the adjacent properties. D. The Municipality ought to have found that even though this property is earmarked as Green Strip, all the surrounding properties are fully developed in that area and several multi storied residential and commercial apartments are permitted to be constructed in the surrounding properties. E. In the light of the dictum laid down by the Hon'ble Apex Court and this Court in various judgments, it is very pertinent to note that local body has to consider the ground reality and on the basis of that apprise the zone whether it is an green strip or not. F. As far as the property of the writ petitioner is concerned, all WA.No.2186 OF 2015 5 other surrounding properties are fully developed and filled with residential and commercial apartments and hence, this area cannot be termed or held as "green strip". - G. There is no proposal to acquire land under section-4 (1) of the Land Acquisition Act pertaining to the writ petitioner's property comprised in re-survey nos. 27, 28, 27/1, 27/2, 42, 42/1, 27/3, 42/2, 27/4 and 28/2 865/1 of Muttambalam Village and the Kottayam Municipality cannot reject writ petitioner's application by saying that the property in Muttambalam village comprised in re-survey nos.27, 27/1,27/2, 27/3, 27/4 and 28 is set apart within the green strip as per the master plan and there is a scheme for the proposed M.C. Road bye-pass is highly objectionable and unsustainable under law. - H.It has been held by catena of judgments of this Hon'ble Court as well as the Apex Court that a mere proposal for acquisition of property for implementation of any plan or developmental activity, cannot be a ground for rejection of an application for building permit and also held that municipality or corporation cannot freeze the land for an indefinite period on the pretext that they are taking steps to acquire the land. ## 3. Heard learned counsel for parties and perused material available on record. ## 4. Section 113 of the Kerala Town and Country Planning Act, 2016 protects the scheme already framed and it reads thus: “113. Repeal and saving.—(1) With effect on and from the commencement of this Act, the Town Planning Act, 1108 ME (Act IV of 1108 ME), the Travancore Town and Country Planning Act, 1120 (Act XXI of 1120 ME), the Madras Town Planning Act, 1920 (Madras Act VII WA.No.2186 OF 2015 6 of 1920) and the Kerala Town and Country Planning Ordinance, 2016 (4 of 2016) shall stand repealed. (2) Notwithstanding such repeal,— (i) any draft General Town Planning Scheme for an area including Master Plan or Development Plan or a draft Detailed Town Planning Scheme published under the repealed Acts shall be deemed to be a draft Master Plan or a draft Detailed Town Planning Scheme, as the case may be, published under this Act; (ii) any General Town Planning Scheme for an area including Master Plan or Development Plan or a Detailed Town Planning Scheme sanctioned under the repealed Acts shall be deemed to be a Master Plan or a Detailed Town Planning Scheme, as the case may be, sanctioned under this Act; (iii) any appointment, rules, bye-laws, regulations or forms made, notifications, notice, order, scheme or direction issued, tax, fee, fine or other penalty imposed, license, permission or exemption granted or plans prepared under the repealed enactments and in force at such commencement, shall in so far as they are not inconsistent with the provisions of this Act, continue to be in force as if made, issued, imposed or granted, as the case may be, under the provisions of this Act, until superseded, amended or modified by any appointment, rules, by-laws or regulations, notifications, notice, order, scheme, direction, tax, fee, fine or other penalty, license, permission or exemption made, issued, imposed, or granted or plans prepared, as the case may be, under this Act; (iv) the Committees in office at the commencement of this Act appointed by the Government to exercise the powers and perform the functions under the repealed Acts shall continue as if it were Committees constituted under the said Acts, till corresponding Committees are constituted under this Act or they are dissolved by the Government, whichever occurs earlier; WA.No.2186 OF 2015 7 (v) any tax, cess, fee, fine, surcharge or other amount due to the Government, the Development Authorities or the Local Self Government Institutions at such commencement shall, without prejudice to any action already taken under the repealed enactments, be recoverable under this Act in accordance with the provisions therein as if they were due under the provisions of this Act; (vi) all contracts entered into and all instruments executed under the repealed Acts shall be deemed to have been entered into or executed under this Act; (vii) in all suits and legal proceedings pending at such commencement in which the officers of the Town and Country Planning Department are parties the corresponding officers under this Act shall be deemed to have been substituted; (viii) the officers and employees in the service of the department of Town and Country Planning in office at such commencement shall be deemed to have been transferred to the services of the corresponding department constituted under this Act; (ix) any Development Authority constituted under the repealed enactments and in office at such commencement shall be deemed to be a Development Authority constituted under this Act. Such Development Authorities shall continue in office till such time as the Government may, by notification in the Official Gazette, constitute Development Authorities under this Act. (3) Notwithstanding the repeal of the Kerala Town and Country Planning Ordinance, 2016 (4 of 2016) anything done or deemed to have been done or any action taken or deemed to have been taken under the said Ordinance shall be deemed to have been done or taken under this Act. (4) Notwithstanding anything contained in this Act, no person alleged to have committed an offence, during the period from the 21st day of July, 2015 to the 17[th] day of September, 2015 is liable to be convicted WA.No.2186 OF 2015 8 under this Act 5. Section 67 of the Kerala Town and Country Planning Act, 2016 is relevant to the context which deals with the obligation to acquire land in certain cases, which read thus: “67. Obligation to acquire land 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 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 WA.No.2186 OF 2015 9 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 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: WA.No.2186 OF 2015 10 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.” 6. In similar circumstances, in Writ Appeal No.1413/2016 dated 24.1.2020, a Hon'ble Division Bench of this Court, after considering the statutory provisions and submissions, ordered thus: “6. So also, it is submitted by the learned counsel for the writ petitioner that in the area where the property of the writ petitioner is situated, large number of commercial buildings are constructed after securing building permit from the appellant Municipality and he brought to our notice a judgment of a Division Bench of this Court in **Gopalakrishnan T.V. v. State of Kerala & others** [2011 (3) KHC 162], taking into account the Zoning Regulations vis-a vis the construction of commercial buildings. The Division Bench of this Court has categorically found that when there are commercial buildings put up already on the basis of the permit granted and the plan approved by the Municipality, then the Zoning Regulations have lost its relevance and the application for the construction of a commercial building should be considered dehors the Zoning Regulations. 7. After hearing the respective counsel across the Bar, we are of the considered opinion that the learned single Judge has taken note of the legal as well as the factual requirements when the judgment was rendered but for Sections 67 and 113 of Act, 2016 discussed above and therefore, we modify the judgment to WA.No.2186 OF 2015 11 the extent leaving open the liberty of the petitioner to take appropriate steps in accordance with Section 67 of Act, 2016. It is further made clear that depending upon the development accordingly the permit application of the writ petitioner shall be reconsidered adhering strictly to the time period provided under the said provisions. This writ appeal is disposed of as above. ” 7. On the facts and circumstances of this appeal, and grounds, we are of the view that the appellants have made out a case for interference. Accordingly, judgment in W.P.(C) No.24090/2014 dated 15.10.2014 is set aside. While allowing the writ appeal, we deem it fit to grant leave to the 4[th] respondent to take appropriate steps and issue notice under section 67 of the Act, 2016 for purchasing the right in the subject property. If any such application is filed, the competent authority is directed to pass orders in accordance with law, as expeditiously as possible. ## **Sd/-** **S.MANIKUMAR CHIEF JUSTICE** **Sd/-** **SHAJI P.CHALY** smv **JUDGE**