T. Padmajan (Managing Director, Archives Constructions Pvt. Ltd.) v. The Municipality of Guruvayur and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **TUESDAY, THE 22ND DAY OF JULY 2014/31ST ASHADHA, 1936** ## **WP(C).No. 8307 of 2014 (K)** **--------------------------------------** **PETITIONER(S):** **---------------------** **T.PADMAJAN, MANAGING DIRECTOR, ARCHIVES CONSTRUCTIONS PVT. LTD. NO. 28/3377, FIRST FLOOR, MENONS COMPLEX, BEHIND BPC PETROL PUMP, ELAMKULAM, KADAVANTHRA, KOCHI-682020.** **BY ADVS.SRI.P.CHANDRASEKHAR SRI.S.PRASANTH SRI.SOORAJ T.ELENJICKAL SRI.P.H.SHAJAHAN** **RESPONDENT(S):** **-------------------------** ## **1. THE MUNICIPALITY OF GURUVAYUR,** **REPRESENTED BY SECRETARY, GURUVAYUR MUNICIPALITY, GURUVAYUR, THRISSUR DISTRICT-680101.** **2. THE SECRETARY, GURUVAYUR MUNICIPALITY, GURUVAYUR, THRISSUR DISTRICT-680101.** ## **3. THE TOWN PLANNER,** **OFFICE OF DISTRICT TOWN PALLNER, PATTURACKAL, THRISSUR DISTRICT-680001.** **R1,2 BY ADV. SRI.P.A.AHAMMED R3 BY GOVERNMENT PLEADER SRI.THOMAS JOHN AMBUKAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 8307 of 2014 (K) --------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** - **P1. TRUE COPY OF THE PERMIT ISSUED BY THE OFFICE OF THE MUNCIPAL ENGINEER OF THE 1ST RESPONDENT MUNICIPALITY DATED 31-1-2013.** - **P2. TRUE COPY OF THE DICISION TAKNE BY THE MUNCIPAL COUNCIL DATED 19-9-2012.** - **P3. THE TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT DATED 27-12-13.** - **P4. THE TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 20-1-2014.** - **P5. THE TRUE COPY OF THE COMMUNICATION ISSUED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT DATED 13-1-2014.** **RESPONDENT(S)' EXHIBITS** - **---------------------------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **A.V.RAMAKRISHNA PILLAI, J.** = = = = = = = = = = = = = = = W.P(C) No.8307 of 2014 = = = = = = = = = = = = = = = = Dated this the 22[nd] day of July, 2014 ## **JUDGMENT** Ext.P5 order by which petitioner's application for lay out permit was rejected is under challenge. 2. The petitioner, who is the managing director of a private limited company, entered into a joint venture agreement with one Pradeep Kumar and one Abdul Razaq, for constructing a multi storied building. The said agreement was executed during the month of August, 2013. The petitioner alleges that before entering into the agreement Pradeep Kumar obtained a building permit to construct a commercial building and after entering into the agreement, the proposal was dropped. 3. The petitioner submitted application for building and layout permit for constructing a high rise building in a total plinth area of 5156.96 sq. metres. Since the total plinth area is more than 4000 sq. metres, the 2[nd] respondent forwarded his application to the 3[rd] respondent for approval as per the provisions of the Kerala Municipality Building Rules. WP(C).8307/14 ## **-:2:-** 4. On 20.01.2014, the 2[nd] respondent issued a communication to the petitioner to submit a fresh plan after rectifying 11 defects noted by the 3[rd] respondent. The petitioner further alleges that he is able to rectify the 10 defects noted by the 3[rd] respondent. However, on account of the 11[th] defect which says that the property is included in the classification “parks and open space” in the master plan, he could not construct the building. It is with this background, the petitioner has approached this Court. It is alleged that the property in question is included as parks and open spaces in the town planning scheme since 1976 and the above prohibition is continuing in the property for last 38 years. 5. In the counter affidavit filed by respondents 1 and 2, they have maintained the stand taken in Ext.P5. They stated that permit was issued to the Pradeep Kumar, in view of the observation made by the Tribunal for Local Self government Institutions in appeal No.304/2012 in the case of similarly situated land. 6. Arguments have been heard. 7. Admittedly, the petitioner's property is situated within the local limits of respondent municipality and, therefore, they wanted to construct building therein. The respondent municipality objected WP(C).8307/14 **-:3:-** to the same on the ground that the properties were included in the town planning scheme. The learned counsel for the petitioner submitted that the property in which the lay out approval is required, is included in the category “parks and open spaces” as per the provisions of General Town Planning Scheme for Guruvayoor Town since 1976. The learned counsel also submitted that neither the Government nor the municipality has initiated steps to acquire the property for retaining it as “park and open space”. Therefore, the action of the 3[rd] respondent relying on the obsolete scheme is illegal and arbitrary. 8. The learned counsel for the respondents invited my attention to Section 42 of the Kerala Town & Country Planning Ordinance (Ordinance No.51/2013) (hereinafter referred to as, the Ordinance) and argued that any plan submitted after the date of promulgation of the aforesaid Ordinance has to comply with the provisions of draft master plan already published which shall be deemed to be the notification under Section 38(1) of the said Ordinance for the town. Section 42 reads as under: _“Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat to necessarily make_ WP(C).8307/14 ## **-:4:-** _Detailed Town Planning Scheme in certain cases - Notwithstanding anything contained in this Ordinance, in respect of any area for which planned development is necessary but not initiated by the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned, the District Planning Committee or the Metropolitan Planning Committee, as the case may be, or the Government, may, after making such enquiry as may be deemed necessary, by a notification in the Official Gazette require the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat to prepare, publish and submit for sanction a detailed Town Planning Scheme as provided under this Ordinance and the notification so issued shall be deemed to be the notification of the intention to prepare the plan under subsection (1) of Section 38.”_ ## 9. A Full Bench in **Francis** v. **Chalakudy Municipality** [1999 (3) KLT 560 (F.B)] observed that the scheme notified under Section 12 of the Town Planning Act, 1108 will not lapse on the steps for acquisition not being taken within three years of the notification. However, the Full Bench while considering the issue in the aforesaid case referred to the decision of the Calcutta High Court in **Ratan Chand Burman** v. **Calcutta Improvement Trust** [AIR 1991 Cal.282] which struck down the proceedings for acquisition under a Town Planning Scheme which was not executed even after lapse of 26 years of the scheme. There the Calcutta High Court held that unexplained and inordinate delay is relevant, if not a conclusive WP(C).8307/14 **-:5:-** factor in determining the colourable exercise of power in the context of land acquisition proceedings. 10. It is true that the proceedings for acquisition was not struck down in _**Ratan Chand Burman's** case_ (cited supra) on the ground that the scheme had lapsed in view of the fact that the land had not been acquired within the period prescribed under the Town Planning Act. This Court in _**Francis's** case_ (supra) observed that the respondent municipality in that case was not in a position to submit that the scheme would be implemented immediately so that the land concerned would be acquired for the purpose envisaged by the scheme within a specified time limit, though it was submitted that steps were being taken to implement the scheme. In the cases on hand also, the respondent municipality is not sure as to when the aforesaid scheme would be implemented. They have no case that any step has been initiated in that direction. 11. In _**Francis's** case_ (cited supra) the Full Bench further observed that the scheme in that case was notified on 6.3.1984 and the original petition was filed after the lapse of 11 years from the date of that notification. Therefore, it was observed that in the context of indefiniteness in the implementation of the scheme and WP(C).8307/14 ## **-:6:-** the stand adopted by the respondent municipality, it may be open to the petitioner to challenge the scheme itself as having become arbitrary and unconstitutional since the restrictions imposed by the scheme have become oppressive and unreasonable. In this context, the learned counsel for the respondent municipality has pointed out that the petitioner has not so far challenged the scheme. 12. However, such an opportunity will be available to the petitioner only when the proceedings for acquisition are initiated. The question whether the proceedings for acquisition, if any, initiated would be constitutionally valid would arise only when the land in possession of the petitioner is sought to be acquired invoking the provisions of Land Acquisition Act. 13. A Division Bench of this Court in **Kalpetta Municipality** v. **M. Mohandas and Others** [2011 (4) KHC 844] held that merely because of a land is proposed to be acquired under the town planning scheme the building permit cannot be rejected. 14. The learned counsel for the petitioner invited my attention also to a Division Bench decision of this Court in **Padmini** v. **State of Kerala** [1999 (3) KLT 465] wherein it was held that no building permit can be refused to any person because there is a proposal to WP(C).8307/14 **-:7:-** acquire the land in future. Reliance was also placed on the decision of the Apex court in **Raju S. Jethmalani** v. **State of Maharastra** [(2005) 11 SCC 222] wherein it was held that refusing to grant permits relying on obsolete DTP schemes is a clear violation of the provisions of the Constitution. On a consideration of the entire materials now placed on record, this Court is of the definite view that the petitioner is entitled to get the reliefs prayed for. Therefore, the writ petition is allowed. The respondent municipality is directed to reconsider the application of the petitioner in the light of what has been stated above and to pass orders on the same, after affording the petitioner an opportunity of being heard, within a period of one month from the date of receipt of a copy of this judgment. ## Sd/- ## **A.V.RAMAKRISHNA PILLAI JUDGE** krj /True Copy/ P.A to Judge