Swapna K.M. and others v. The Manjeri Municipality and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` TUESDAY, THE 27[TH] DAY OF FEBRUARY 2024 / 8TH PHALGUNA, 1945 WP(C) NO. 625 OF 2024 ``` ## **`PETITIONERS:`** ``` 1SWAPNA K.M, AGED 52 YEARS W/O. SAJIVE KUMAR , "RAGAM" KARUVAMBRAM P.O MELAKKAM, MANJERI, MALAPPURAM DISTRICT REPRESENTED BY POWER OF ATTORNEY SIVASANKARAN AGED 77 YEARS, S/O. SANKARAN AIR, RAGAM, KARUAMBRAM P.O., GANDHI NAGAR, ELANKUR, MANHAPPATTA, MALAPPURAM DISTRICT, PIN – 676 123. 2PRIYADARSINI P.K, AGED 43 YEARS W/O. SANOOP K.M, PALAKKUNATHU HOUSE, KARUVAMBRAM P.O, MELAKKAM, MANJERI, MALAPPURAM DISTRICT REPRESENTED BY POWER OF ATTORNEY SIVASANKARAN AGED 77 YEARS, S/O. SANKARAN NAIR, RAGAM, KARUAMBRAM P.O., GANDHI NAGAR, ELANKUR, MANHAPPATTA, MALAPPURAM DISTRICT, PIN - 676 123. 3AKHILESH SUKUMARAN, AGED 49 YEARS S/O. PAKIDERI SUKUMARAN "SUPRABHA" CHERAKARA ROAD, MANJERI, MALAPPURAM DISTRICT REPRESENTED BY POWER OF ATTORNEY SIVASANKARAN AGED 77 YEARS, S/O. SANKARAN NAIR, RAGAM, KARUAMBRAM P.O., GANDHI NAGAR, ELANKUR, MANHAPPATTA, MALAPPURAM DISTRICT, PIN - 676 123. 4SMITHA AKHILESH, AGED 44 YEARS W/O. SUKUMARAN AKHILESH, "SUPRABHA" CHERAKARA ROAD, MANJERI, MALAPPURAM DISTRICT REPRESENTED BY POWER OF ATTORNEY SIVASANKARAN AGED 77 YEARS, S/O. SANKARAN NAIR, RAGAM, KARUAMBRAM P.O., GANDHI NAGAR, ELANKUR, MANHAPPATTA, MALAPPURAM DISTRICT, PIN - 676 123. ``` ``` WP(C).No.625 OF 2024 ``` ``` 2 ``` ## **`BY ADV K.M.SATHYANATHA MENON`** ## **`RESPONDENTS:`** - **`1 THE MANJERI MUNICIPALITY, MUNICIPAL OFFICE, CALICUT ROAD, MANJERI, MALAPPURAM DISTRICT, REPRESENTED BY ITS SECRETARY, PIN – 676 121.`** - **`2 THE SECRETARY, MANJERI MUNICIPALITY, MUNICIPAL OFFICE, CALICUT ROAD, MANJERI, MALAPPURAM DISTRICT, PIN – 676 121.`** - **`3 THE DISTRICT TOWN PLANNER, LSGD (PLANNING), OFFICE OF THE DISTRICT TOWN PLANNER CIVIL STATION, MALAPPURAM, PIN – 676 505.`** ``` SRI. R.RANJITH – SC SMT. AMMINIKUTTY – SR. GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.625 OF 2024 ``` ``` 3 ``` ## **`JUDGMENT`** ## The petitioners have filed this writ petition for the following reliefs:- “i) Issue a writ of certiorari or any other appropriate writ order or direction, calling for the original of Ext.P2 quash the same; ii) Issue a writ of mandamus or any other appropriate writ order or direction directing respondents 1 and 2 to issue building permit on the application submitted by the petitioners on 19.08.2023, without placing reliance on Melakkam Detailed Town Planning Scheme.” 2. The petitioners are the absolute owners and in possession of the property having an extent of 9.60 Ares (23.72 cents) comprised in Re.Sy.Block No.50, Re.Sy. Nos.166/45-8, 166/45-10 and 166/66 of Narukara Village, Ernad Taluk, Malappuram District. The petitioners submitted an application for building permit before the 2[nd] respondent, the Secretary of the 1[st] respondent Municipality on 19.08.2023. ``` WP(C).No.625 OF 2024 ``` ## **`4`** Thereupon, the 2[nd] respondent issued Ext.P2 communication stating that since the property referred to in the application is earmarked for road in the Melakkam Detailed Town Planning Scheme (for short, 'the Melakkam DTP Scheme'), application cannot be considered. 3. The petitioners submit that the Melakkam DTP Scheme was notified almost three decades ago and the Scheme has become obsolete. However, the petitioners submitted Ext.P4 application before respondents 1 and 2 under Section 67 of the Kerala Town and Country Planning Act, 2016 (for short, 'the Act') requiring to purchase the interest in the land. Ext.P4 was received by the 2[nd] respondent on 20.10.2023 as evident from Ext.P5(a). The petitioners submit that the statutory period of sixty days as mandated under Section 67(2) of the Act is over and the 1[st] respondent has not taken any decision to acquire the land of the petitioners within ``` WP(C).No.625 OF 2024 ``` ``` 5 ``` the said period. Accordingly, the petitioners contend that they are entitled to be issued with building permit. 4. Heard the learned counsel for the petitioners, the learned Standing Counsel for the Municipality and the learned Government Pleader. 5. Though the petitioners have submitted Ext.P4 purchase notice, admittedly, no orders have been passed thereon and the property has not been decided to be acquired. Therefore, the legal consequences contemplated under Section 67(2) of the Act have to follow. A Division Bench of this Court in **District Town Planner, Malappuram and Others v. Vinod and Others** [2019 (3) KHC 673], considering the scope of Section 67 of the Act, has held as follows:- “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 ``` WP(C).No.625 OF 2024 ``` ``` 6 ``` manner designed to frustrate 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.” 6. Another Division Bench of this Court, in **Town Planner, District Town Planning Officer v. Joseph Jacob** [2023 KHC 145 : 2023 (2) KLT 35], has held that once a purchase notice is issued and the authority failed to act within the time as stipulated under the statute, the right is crystallised on the land owner to use the land for any purpose in accordance with law and he is not bound by the approved master plan or the DTP Scheme. The Court observed as follows:- “10. The proviso to Section 67 of the Act stipulates the local authority to act upon the applications for building permits etc. in consultation with the Chief Town Planner. This is only to ensure that Chief Town Planner is put on notice in regard, not acquiring the land which was proposed to be acquired in ``` WP(C).No.625 OF 2024 ``` ``` 7 ``` the Master Plan or DTP Scheme. That itself is not an embargo for the local authority in acting upon the building permit application in accordance with law. 11. It is also to be noted that the consultation referred to in proviso to Section 67 of the Act cannot be treated as concurrence of Chief Town Planner for granting development permit. The embargo on the land would stand automatically released from the approved Master Plan or the DTP Scheme after the lapse of period mentioned in the purchase notice. 12. In such circumstances, we are of the view that the rest of the matters are only a formality to be completed for the purpose of the record of the administration of the public authorities.” 7. In the light of the said binding precedents, the application of the petitioners for building permit has to be considered in accordance with law as respondents 1 and 2 have failed to act upon the purchase notice sent by the petitioners within the stipulated period. Accordingly, Ext.P2 is set aside and there will be a direction to the 2[nd] respondent to process the application submitted by the petitioners for building permit and pass orders in accordance ``` WP(C).No.625 OF 2024 ``` ``` 8 ``` with law, within a period of one month from the date of receipt of a copy of this judgment, without reference to the Melakkam DTP Scheme. The writ petition is disposed of with the above direction. Sd/- ``` MURALI PURUSHOTHAMAN JUDGE ``` SPR ``` WP(C).No.625 OF 2024 ``` ``` 9 ``` ## **`APPENDIX`** ## **`PETITIONERS EXHIBITS :-`** ``` EXHIBIT P1A TRUE COPY OF THE TAX RECEIPT ISSUED IN FAVOR OF PETITIONER 1 AND 2 FROM NARUKARAVILLAGEOFFICEDATED 20.01.2023. EXHIBIT P1 (a)A TRUE COPY OF THE TAX RECEIPT ISSUED IN FAVOR OF PETITIONERS 3 AND 4 FROM NARUKARAVILLAGEOFFICEDATED 08.06.2023. EXHIBIT P2A TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT TO THE PETITIONERS DATED 19.09.2023. ``` - **`EXHIBIT P3 A TRUE COPY OF THE JUDGMENT DATED 23.06.2015 IN W.P.(C) NO. 17918 OF 2015 ON THE FILES OF THIS HON'BLE COURT.`** - **`EXHIBIT P4 A TRUE COPY OF THE APPLICATION FORWARDED BY REGISTERED POST BY THE PETITIONERS TO RESPONDENTS 1 AND 2 UNDER SECTION 67 OF THE KERALA TOWN AND COUNTRY PLANNING ACT 2016 DATED 19.10.2023.`** ``` EXHIBIT P5A TRUE COPY OF THE ACKNOWLEDGEMENT RECEIVED FOR RECEIPT OF EXT.P4 BY THE 1ST RESPONDENT. EXHIBIT P5 (a)A TRUE COPY OF THE ACKNOWLEDGEMENT RECEIVED FOR RECEIPT OF EXT.P4 BY THE 2ND RESPONDENT. ``` ``` RESPONDENTS EXHIBITS: NIL. ```