State of Kerala and The Senior Town Planner, Regional Town Planning Office v Kalamassery Municipality and The Secretary, Kalamassery Municipality

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY WEDNESDAY, THE 3[RD] DAY OF AUGUST 2022 / 12TH SRAVANA, 1944 ## WA NO. 404 OF 2021 THE JUDGMENT DATED 27.08.2019 WP(C) 8447/2019 OF HIGH COURT OF KERALA ## APPELLANTS/RESPONDENTS 1 & 4 IN W.P.(C): - 1 STATE OF KERALA REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001. - 2 THE SENIOR TOWN PLANNER REGIONAL TOWN PLANNING OFFICE, CIVIL STATION, KAKKANAD - 682 030. BY ADV SRI. K.P. HARISH, SR. GOVERNMENT PLEADER ## RESPONDENTS/PETITIONERS & RESPONDENTS 2 & 3 IN THE W.P.(C): - 1 K.K.YOUSUF, AGED 58 YEARS, ASIF MANZIL, KIZHAKKEKARA, MASJID ROAD, KOONAMTHAI, EDAPPALLY, ERNAKULAM. 682 024. - 2 BEEVI YOUSF, ASIF MANZIL, KIZHAKKEKARA, MASJID ROAD, KOONAMTHAI, EDAPPALLY, ERNAKULAM. 682 024. - 3 KALAMASSERY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, KALAMASSERY P.O., ERNAKULAM 683 104. - 4 THE SECRETARY, KALAMASSERY MUNICIPALITY, KALAMASSERY P.O., ERNAKULAM 683 104. - BY ADVS. K.P.SATHEESAN (SR.) R1 & R2 BY SRI. P.MOHANDAS (ERNAKULAM) K.SUDHINKUMAR S.K.ADHITHYAN SABU PULLAN GOKUL D. SUDHAKARAN R3 & R4 BY SRI.M.K.ABOOBACKER, SC THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. No. 404/2021 : 2 : ## **S. MANIKUMAR, CJ & SHAJI P. CHALY, J.** --------------------------------------------------------W.A. No. 404 of 2021 --------------------------------------------------------Dated this the 3[rd ] day of August, 2022. ## **JUDGMENT** ## **S. MANIKUMAR,CJ.** Being aggrieved by the judgment dated 27.08.2019 in W.P.(C) No. 8447 of 2019, this appeal is filed. 2. Before the writ court, the petitioner has sought for the following reliefs: 1. To issue a writ of certiorari or such other appropriate writ, order or direction quashing Ext. P4 communication No. BA-115/16 dated 07.03.2019 issued by the 3[rd] respondent as it is arbitrary, illegal and void. 2. To issue a writ of mandamus or order or direction to the 3[rd] respondent to issue building permit to the petitioners based on the application filed by him dated 12.04.2016. 3. To issue a writ of mandamus or order or direction to the 3[rd] respondent to accept an affidavit from the petitioners agreeing to demolish the construction without claiming any compensation as and when Ext. P3 scheme is implemented. 3. Writ Court, after considering the averments, materials on record and taking note of the judgments of this Court in **District** **Town Planner, Malappuram and others v. Vinod and others** W.A. No. 404/2021 : 3 : ## [2019 (3) KHC 673], _**District Town Planner and another v. Antony**_ _**Joseph and others**_ (judgment dated 24.02.2016 in W.A.No.109 of 2015), _**Regional Town Planner and another v. Muhammed Rasheed and others**_ [2019 (3) KHC 987], and the statutory provisions, ordered thus: “17. In view of the law laid down by the Division Bench in Vinod's case (supra), it is for the petitioners to serve a purchase notice on the 2nd respondent Municipality to purchase the interest in the land in terms of the provisions under Section 67 of the Kerala Town and Country Planning Act, 2016. 18. As per sub-section (3) of Section 67 of the Kerala Town and Country Planning Act, 2016 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. As per sub-section (6) of Section 67, 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 W.A. No. 404/2021 : 4 : concerned to vary the plan suitably in accordance with this Act. As per the proviso to sub-section (6), 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. As per sub-section (7) of Section 67, 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. As per the proviso to sub-section (7), 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. 19. If the petitioners serve a purchase notice to the the 2nd respondent Municipality to purchase the interest in the land in terms of the provisions under Section 67 of the Kerala Town and Country Planning Act, 2016, within three weeks from the date of receipt of a certified copy of this W.A. No. 404/2021 : 5 : judgment, the 2nd respondent shall forward the same to the 1 st respondent State, within a period of two weeks from the date of receipt of that notice. The 1st respondent State, on receipt of that purchase notice, shall consider the same under sub-section (6) of Section 67, within the time limit specified thereunder, with notice to the petitioners and after affording them an opportunity of being heard. In the event of a favourable decision by the 1st respondent State, it is for the petitioners to make a request before the 3rd respondent to reconsider the application for building permit dated 12.04.2016 (referred to in Ext.P1 notice), in which event the 3rd respondent shall reconsider that application, untrammeled by Ext.P4, taking note of the law laid down by the Division Bench of this Court in the decisions referred to supra.” 4. Even though Mr. K. P. Harish, learned Senior Government Pleader, relying upon various statutory provisions and the grounds raised in the appeal memorandum, made submissions seeking reversal of the judgment, we are of the view that the issue raised in this appeal is already dealt with by this Bench in _**Pradeep Kumar v. Maradu Municipality**_ 2022 (2) KLT 523], in which after taking into account various judgments of this Court and the Apex Court, it is held thus: 26. Therefore, reading together the provisions of S.67 and S.50, necessary action will have to be taken, if the W.A. No. 404/2021 : 6 : Government or the Municipal Corporation is not intending to acquire the property on receipt of notice under S.67 of Act, 2016. If such an interpretation is not provided to S.67, then the owner of a property, whose property is designated in any Master Plan or Town Planning Scheme, will not be in a position to develop the property to his advantage. 27. The said aspect is to be considered, taking into account Art.300A of the Constitution of India, which clearly specifies that persons not to be deprived of property save by the authority of law. Therefore, the said Constitutional provision protects an individual from interference by the State and dispossess a person from the property unless it is in accordance with the procedure established by law. 28. Anyhow, this issue was considered by a Division Bench of this Court in District Town Planner, Malappuram & Ors. v. Vinod & Ors. (2019 (3) KLT 154 = 2019 (3) KHC 673) and held as follows: “9. A reading of the provisions of the Act, 2016 and the Municipality/Panchayat Building Rules indicates that the DTP Schemes prepared under the Act, 2016 are to have overriding effect over the provisions of the Building Rules. Accordingly, the procedure under Section 67 has to be followed in case the project envisaged under the DTP Scheme involves acquisition of land by the Local Authorities as a prerequisite for implementing the proposal. 10 . The provisions of Section 67 of the Act, 2016 are intended to balance the conflicting rights of the State and the private individual. While the State has the right to reserve lands for development proposals in public interest, the said right cannot be exercised in a manner designed to frustrate W.A. No. 404/2021 : 7 : the Constitutional rights of the private individual under Article 300A, to deal with his property in the manner he chooses. A balance is therefore struck by directing the State to take affirmative action for implementing the proposal within a specified time frame, failing which, the private individual is to be given the unfettered freedom to use his land for other permissible purposes. .... 12. The above provision in the Act, 2016 would imply that where any land is designated for compulsory acquisition in the Town Planning Scheme but no acquisition proceedings are initiated within a period of two years from the date of coming into operation of the Plan, the owner or the affected person may serve a purchase notice, requiring the authority to purchase the interest in the land. If any such purchase notice is served, within 60 days from the date of receipt, the authority is statutorily required to decide on acquisition of the property. If the land is designated for any Government Department or other authorities, the information on the receipt of purchase notice is to be forwarded to the said authority. In case decision is taken by the concerned authority not to acquire the land, variation of the development plan should be made. Even otherwise, when the land acquisition could not be effected within two years from the date of resolution to acquire the land, the authorities are required under sub-section (5) of Section 67 of the Act, to initiate suitable variation of the Plan. As can be seen, the statutory consequences for failure of the authority to acquire the land notified under the Town Planning Scheme is clearly delineated. Thus the Act, 2016 itself suggests that the property owner cannot be indefinitely deprived of his right to enjoy the property, without finality on the acquisition of the land, earmarked under the DTP Scheme. ... 14. The implication of the Act, 2016 as explained above appears to be sound and we are in agreement. It would therefore be logical for us to conclude that the respondents/writ petitioners cannot be prevented from lawful enjoyment of their property, merely because, such property is included in the DTP Scheme of the W.A. No. 404/2021 : 8 : Thalassery Municipality. It does not however mean that the authorities are deprived of their right to acquire the land at a future date, if the same would be needed for the development Scheme of the Town. The only burden in that future event would be, the need to compensate the owner to the extent of development or the construction, made over the property.” 29. Again, the very same question was considered bus in District Town Planner, Thrissur v. Joby M.C. & Ors. (2020 (6) KLT 600 = 2020 (6) KHC 455 ), which was concerning a property earmarked for a lorry stand within the limits of the Thrissur Municipal Corporation. After having considered the provisions of S.67 and other relevant provisions of the Act, 2016, we came to a definite conclusion that whenever a land is earmarked in any Town Planning Scheme or Master Plan for any particular purpose, the land owner is entitled to invoke S.67 of Act, 2016. 30. However, learned Special Government Pleader has invited our attention to a judgement of a Division Bench of this Court in Regional Town Planner & Anr. v. Muhammed Rasheed & Ors. (2019 (3) KLT 433 = 2019 (3) KHC 987(DB)) and submitted that it is clearly specified therein that whenever there is a Scheme or Master Plan, the owner of the property cannot seek a permit overlooking the provisions of the Town Planning Scheme/Master Plan and R.3A of the Kerala Municipality Building Rules, 1999. 31. But, fact remains, the said Writ Petition was W.A. No. 404/2021 : 9 : considered by the Division Bench not in the context of S.67 of the Act, 2016. Therefore, we do not find force in the submission made by the learned Special Government Pleader. It is equally important to note that it was the very same Division Bench that has rendered the judgement in District Town Planner, Malappuram & Ors. (supra) and held under similar circumstances that when a road is earmarked for widening, the provisions of S.67 of Act, 2016 would come into play. 32. In this regard, judgement of the Apex Court in Raju S. Jethmalani & Ors. v. State of Maharashtra & Ors. (2005 (2) KLT OnLine 1105 (SC) = (2005) 11 SCC 222) would assume importance, which held that refusing grant of building permit by placing reliance on obsolete DTP scheme would tantamount to clear violation of the provisions of the Constitution of India. The relevant portion of paragraph 3 of the said judgement is appropriate to be extracted, which reads thus: “3. It is true that a Development Plan can be prepared of a land comprising of a private person but that plan cannot be implemented till the land belonging to the private person is acquired by the Planning authority. It is not that the Planning authority was ignorant of this fact. It acquired some land from Plot No.437 for developing garden but the land from plot No.438 was not acquired for garden. Therefore, the question is whether the Government can prepare a development plan and deprive the owner of the land from using that land? There is no prohibition of including private land in a development plan but no development can be made W.A. No. 404/2021 : 10 : on that land unless that private land is acquired for development. The Government cannot deprive the persons from using their private property. We quite appreciate the interest of the residents of that area that for the benefit of the ecology, certain areas should be earmarked for garden and park so as to provide fresh air to the residents of that locality. In order to provide such amenities to the residents of the area private land can be acquired in order to effectuate their public purpose but without acquiring the private land the Government cannot deprive the owner of the land from using that land for residential purpose. In the present case, it is clear that Plot No. 438 belonged to the private person and it was shown as a garden in the development plan of 1966. But no effort was made by the Municipal Corporation or the Government to acquire this plot for the purpose of developing it as a garden. When it was not acquired for the purpose of garden, the owner of this land i.e. the appellants moved the Government for de-reserving this land and the Government after resorting to necessary formalities dereserved the land by the impugned notification. All the procedures which were required under the 1966 Act were observed, the notification was issued inviting objections against de-reservation. No objection was filed by the residents of the area and ultimately a proposal was put up before the Municipal Council it also resolved that Municipal Council is not in a position to acquire the land because of the financial crunch and accordingly, the Government was intimated.” 33. It is true, the said judgment was rendered before the introduction of the Kerala Town and Country Planning Act, 2016. However, we are of the opinion that, if the Government is interested in acquiring the land, the Government has liberty to do so when it has received a purchase notice from the land owner. Even if it decides not to acquire the property at that stage of the proceedings, the W.A. No. 404/2021 : 11 : Government may be at liberty to notify the land for acquisition in accordance with the provisions of the Land Acquisition Act in force. This we say also for the reason that S.77 of the Act, 2016 clearly specifies that any land required, reserved or designated in a plan under the Act, 2016 shall be deemed to be a land needed for public purpose within the meaning of the Land Acquisition Act in force, and may be acquired by the Government on request by the District Planning Committee, Metropolitan Standing Committee, the Municipal Corporation, the Municipal Council, etc., as the case may be, or by any Development Authorities constituted under this Act or Government Departments or QuasiGovernment Agencies. 34. A Division Bench of this Court in Padmini v. State of Kerala (1999 (3) KLT 465) had occasion to consider the very same question in the context of a town planning scheme and held that the rejection of permission to construct a building would tantamount to deprivation of the property of the parties therein without the authority of law and is in violation of Art.300A of the Constitution of India. 35. That apart, the Apex Court had occasion to consider almost a typical question in respect of Maharashtra Regional and Town Planning Act, 1966 in Hari Krishna Mandir Trust v. State of Maharashtra (2020 (4) KLT OnLine 1118 (SC) = (2020) 9 SCC 356), taking into account the provisions of the Town Planning Act, 1966, act relating to W.A. No. 404/2021 : 12 : the Local Self Government Institutions, as also the proprietary right of a property owner protected under Art.300A of the Constitution of India and held as follows: “31. The High Court failed to appreciate that the mere sanctioning of a Town Planning Scheme would not wipe out a patently erroneous recording in the scheme. The High Court did not examine how the road measuring 414.14 sq.m. could have been allotted to Pune Municipal Corporation. ... 98. It has been established beyond any iota of doubt that the private road admeasuring 414 sq.m. area had never been acquired by Pune Municipal Corporation. The right to property includes any proprietary interest, hereditary interest in the right of management of a religious endowment, as well as anything acquired by inheritance. However, laudable be the purpose, the executive cannot deprive a person of his property without specific legal authority, which can be established in a court of law. ... 107. In the facts and circumstances of the instant case, in the light of admissions, on the part of the respondent authorities that the private road measuring 414 sq.m. was private property never acquired by Pune Municipal Corporation or the State Government, the respondents had a public duty under Section 91 to appropriately modify the scheme and to show the private road as property of its legitimate owners, as per the property records in existence, and or in the award of the arbitrator. In our considered opinion, the Bombay High Court erred in law in dismissing the writ petition with the observation that the land in question had vested under Section 88 of the Regional and Town Planning Act. ... 115. In the absence of any proceedings for acquisition or for purchase, no land belonging to the appellant Trust could have vested in the State.” 36. Yet another point emerges for consideration in the context of S.77 of Act 2016 is that, whenever a land is W.A. No. 404/2021 : 13 : designated in a plan under the Act required for acquisition, it shall be deemed to be a land needed for public purpose. Therefore, the argument advanced by the learned Special Government Pleader that since the property is not designated as compulsorily acquired land, there is no requirement for the Government to take the appropriate action envisaged under S.67 of the Act, 2016 can never be sustained under law . 37. Now coming back to the facts of the case on hand, it is evident that a notice was issued under S.67 of Act, 2016 by the appellants, which was forwarded by the Secretary of the Maradu Municipality to the State Government. However, the State Government declined acquisition on the ground that S.67 would not come into play, thus coercing the Government to acquire the property. Therefore, on an analysis of the legal and factual circumstances, it is clear that the modalities contained under S.67 of Act, 2016 is completed and therefore, the Secretary of the Municipality is liable to consider the building permit application submitted by the appellants in accordance with the provisions of the Kerala Municipality Act 1994 and the Kerala Municipality Building Rules 2019, which is in force now. 38. Having considered the legal position so, we have no doubt in our mind that interference is required to the judgement of the learned Single Judge. Therefore, we set aside the judgement of the learned Single Judge and allow W.A. No. 404/2021 : 14 : the Writ Appeal and accordingly, direct the Secretary of the Maradu Municipality, to reconsider the building permit application submitted by the appellants, in accordance with the provisions of the Kerala Municipality Act, 1994, the Kerala Municipality Building Rules, 1999 and the provisions of the Kerala Town and Country Planning Act, 2016, bearing in mind the observations and findings contained in this judgement with respect to the parameters to be adopted under S.67 of the Act, 2016 at the earliest and at any rate within a month from the date of receipt of a copy of this Judgment.” Going through the materials on record, we are of the view that the facts and law involved in _**Pradeep Kumar's**_ case are squarely applicable to the case on hand. Therefore, the judgment dated 27.08.2019 in W.P.(C) No. 8447 of 2019 passed by the writ court does not call for interference. Accordingly, this appeal is dismissed. sd/- **S. MANIKUMAR, CHIEF JUSTICE.** sd/- **SHAJI P. CHALY, JUDGE.** _Rv_