Vasantha N.K. v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 05TH DAY OF AUGUST 2019 / 14TH SRAVANA, 1941** ## **WP(C).No.5250 OF 2019(E)** ## **PETITIONER:** **VASANTHA.N.K.,** **AGED 55 YEARS, W/O.RAGHAVAN NAMBIAR, NIKKUNNATHU KIZHAKKE VEEDU, KOKKANISSERI, KOKANISSERI.P.O, PAYYANNUR, KANNUR DISTRICT, PIN-670307.** **BY ADVS. SRI.O.V.MANIPRASAD SRI.JOSE ANTONY SRI.S.SHIV SHANKAR** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVT., DEPARTMENT OF URBAN AFFAIRS, GOVT.SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.** - **2 PAYYANNUR MUNICIPALITY, REPRESENTED BY ITS SECRETARY, PAYYANNUR.P.O, KANNUR DISTRICT, PIN-670307.** - **3 THE SECRETARY, PAYYANNUR MUNICIPALITY, PAYYANNUR.P.O, KANNUR DISTRICT-670307.** - **4 THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, VANCHIYOOR.P.O, THIRUVANANTHAPURAM, PIN-695035.** **BY ADV. SRI.M.SASINDRAN SMT MABLE C.KURIEN- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.5250 of 2019 2 ## **JUDGMENT** The petitioner, who is stated to be the owner in possession of 1.88 Ares of land comprised in Re.Sy.No.78/18 of Payyannur Village in Kannur District, which comes under the area proposed for road widening under the draft DTP scheme, which was proposed in the year 1993 and yet to be sanctioned by the Government, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 order dated 05.12.2016 issued by the 3[rd] respondent Secretary of Payyannur Municipality and Ext.5 order dated 31.12.2018 of the Tribunal for Local Self Government Institutions. The petitioner has also sought for a writ of mandamus commanding the 3[rd] respondent to consider his application for building permit without reference to the draft Town Planning Scheme and to grant permission as applied for, within a time frame to be fixed by this Court. 2. On 21.02.2019, when this writ petition came up for admission, this Court admitted the matter on file. The learned Government Pleader took notice for the 1[st] respondent. Urgent notice by speed post was ordered to respondents 2 and 3. W.P.(C)No.5250 of 2019 3 Service of notice on the 4[th] respondent was dispensed with for the time being. 3. On 08.07.2019, when this writ petition came up for consideration, the learned counsel for the petitioner sought time to address the arguments with reference to the decision of this Court in **District Town Planner, Malappuram and others v. Vinod and others [2019 (3) KHC 673]** . 4. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for the 1[st] respondent and also the learned Standing Counsel for the Grama Panchayat, representing respondents 2 and 3. 5. In order to construct a residential building in the property in question, covered by Ext.P1 partition deed No.249/2011 of the Sub Registrar Office, Payyannur and Ext.P2 award passed in the Lok Adalath organised by the Taluk Legal Services Committee, Thaliparamba, the petitioner submitted an application for building permit before the 2[nd] respondent Municipality, as evidenced by Ext.P3 receipt dated 04.08.2016. However, the 3[rd] respondent Secretary of the Municipality rejected that application, by Ext.P4 order dated 05.12.2016, on the ground that the property in question W.P.(C)No.5250 of 2019 4 comes within the area for a proposed 9 meters road in the draft DTP Scheme. Feeling aggrieved by Ext.P4 order, the petitioner filed Appeal No.93 of 2017 before the Tribunal for Local Self Government Institutions, which ended in dismissal by Ext.P5 order dated 31.12.2018, holding that Ext.P4 order, whereby the application for building permit stands rejected is based on the DTP Scheme, which will apparently apply in terms of Rule 3A of the Kerala Municipality Building Rules. Therefore, it can only be found that the 3[rd] respondent has properly rejected the application for building permit as per Ext.P4 order. The Tribunal found that the petitioner is not left without any remedy, instead he can apply for de-reserving the property and excluding the same from acquisition, as stipulated under Section 67 of the Kerala Town and Country Planning Act, 2016. 6. In the writ petition, the petitioner would contend that though draft DTP Scheme for Payyannur Municipality was proposed in the year 1993, the same was not sanctioned by the Government or published as required under the provisions of the earstwhile Madras Town Planning Act or under the new enactment, i.e., the Kerala Town and Country Planning Act, W.P.(C)No.5250 of 2019 5 2016. The road proposed through the petitioner's property was never considered by the Municipality as a necessity and no steps for the acquisition of a property was ever commenced. Apart from that, the Municipality has constructed 9 meters wide road connecting the points which would have been connected by the proposed road in the draft DTP Scheme, through the property of the petitioner and others, which is at a distance of 100 meters away from the proposed road in the draft DTP Scheme. 7. In **District Town Planner, Malappuram and others v. Vinod and others [2019 (3) KHC 673]** a Division Bench of this Court held that a reading of the provisions of the Kerala Town and Country Planning Act, 2016 and the Kerala Municipality Building Rules, 1999 / the Kerala Panchayat Building Rules, 1999 indicate 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 pre-requisite for implementing the proposal. The provisions of Section 67 of the Act, 2016 are W.P.(C)No.5250 of 2019 6 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 the Constitutional rights of the private individual under Article 300A of the Constitution of India, 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. 8. In **Vinod's case (supra)** the Division Bench held further that, the provisions in Section 67 of the Kerala Town and Country Planning 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 W.P.(C)No.5250 of 2019 7 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, 2016 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. 9. In **Vinod's case (supra)** the Division Bench referred to the law laid down by another Division Bench in **District Town Planner and another v. Antony Joseph and others** (judgment dated 24.02.2016 in W.A.No.109 of 2015), wherein it was held that, in cases where acquisition of land is W.P.(C)No.5250 of 2019 8 required for the purpose of utilising the said land for a public purpose in terms with a Master Plan or DTP Scheme, which apparently restricts the right of the owners, steps in that regard has to be taken within a time limit. A bare reading of Section 67 of the Kerala Town and Country Planning Ordinance, 2013 (Ordinance 51/2013) indicates that the owner of the property which is designated for compulsory acquisition is entitled to issue a notice referred as 'purchase notice' requiring the Municipality to purchase the interest in the land in accordance with the provisions of the Ordinance. Thereafter, in terms of sub-section (2), the Municipality will have to take a decision to acquire the land. If the decision is not to acquire the land, the Municipality can initiate steps to vary the plan suitably in accordance with the Ordinance. If the land acquisition could not be effected within a period of two years from the date of resolution to acquire the land, then also the Municipality has to initiate variation of the plan in accordance with the Ordinance. Therefore, sufficient provisions have been made under the Ordinance for de-reserving the property and excluding the same from acquisition if the acquisition is not made within a specified time. Therefore, when a DTP Scheme W.P.(C)No.5250 of 2019 9 is in force, and certain land is designated for acquisition for common purposes, the remedy available to the land owner is to approach the Municipality or the Government, as the case may be, for de-reserving the land in accordance with the statutory provisions. Unless there is compliance with the statutory provisions by which the Municipality may either take a decision to exclude the land from acquisition or to acquire the land within a specified time limit as provided under the statute, it may not be possible for the land owner to seek a building permit ignoring the sanctioned scheme nor will it be possible for the Municipality to grant the permit. 10. In **Vinod's case (supra)** the Division Bench observed that the implication of the Act, 2016 as explained above in **Antony Joseph's case (supra)** appears to be sound. The Division Bench concluded 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 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 W.P.(C)No.5250 of 2019 10 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. In the judgment impugned, the learned Single Judge has directed the Municipality to acquire the land for the development Scheme and if for any reason they are unable to do so within three months, the application for building permit rejected earlier, was directed to be reconsidered. The Division Bench held that, in the scheme of the Act, 2016, such a direction could not have been issued, in the absence of any purchase notice by the aggrieved property owners requiring the authorities to purchase the interest in the land. Therefore, the Division Bench set aside the impugned judgments, reserving the right of the respondents / writ petitioners to serve purchase notice on the Municipal authorities under sub-section (1) of Section 67 of the Act, 2016. If such purchase notice is received, the Municipal authorities are directed to take timely decision in accordance with law, to either acquire the land or initiate appropriate variation in the DTP Scheme. In cases where purchase notices were actually sent to the Municipal authorities, the Division Bench directed the Municipal authorities to forthwith consider W.P.(C)No.5250 of 2019 11 the applications for building permit, in accordance with law. 11. In **Regional Town Planner and another v. Muhammed Rasheed and others [2019 (3) KHC 987]** a Division Bench of this Court held that the local authorities concerned issue building permits in terms of the provisions of the Kerala Municipality Building Rules, 1999 or the Kerala Panchayat Building Rules, 2011 as the case may be. The said Rules are framed by the State Government in exercise of the rule making power under the respective enactments, namely Kerala Municipality Act, 1994 or the Kerala Panchayat Raj Act, 1994. A Reference to Rule 11 of the Kerala Municipality Building Rules (or the corresponding provisions of the Kerala Panchayat Building Rules) would indicate that the Secretary of the local authorities, while approving the plan and issuing any permit, has to verify whether the plan and the work pursuant thereto conforms to the Rules and Bye-laws made under the Act or any other law. Rule 3A of the Kerala Municipality Building Rules clarifies that wherever a Town Planning Scheme under the Town Planning Act is in force, the provisions or regulations thereunder shall prevail over the respective provisions of the Kerala Municipality Building Rules. The W.P.(C)No.5250 of 2019 12 position is similar under the Kerala Panchayat Building Rules also. Thus, the Secretary of a local authority, while issuing building permits in terms of the respective rules, is statutorily obliged to ensure that the construction in respect of which the permit is issued does not breach the provisions of any law. 12. In **Muhammed Rasheed's case (supra)** the Division Bench held further that, a validly framed and duly notified scheme under a Town Planning Act would come within the ambit of the term 'other law' for the purposes of the Kerala Municipality Building Rules or the Kerala Panchayat Building Rules, and it was to clarify this aspect that Rule 3A was inserted in the Kerala Municipality Building Rules and a similar provision inserted in the Kerala Panchayat Building Rules. It would also follow that, in an area that has been developed in accordance with the Scheme that was validly prepared and duly notified in accordance with the provisions of the Town Planning Act, future constructions would have to adhere to the terms of the Scheme and the plans approved thereunder. This must be so unless and until the Scheme itself is altered or varied by the State Government in accordance with the provisions of the Town and Country Planning Act. The mandate W.P.(C)No.5250 of 2019 13 and purport of the Scheme so framed assumes the nature of a law that regulates future construction in the area and would also bind subsequent purchasers of land and users thereof. The earmarking of the areas into residential / industrial / commercial / agricultural or keeping apart areas for parks, roads, etc. is an exercise that is done in public interest and hence, the private interest of the land owners who seek to put up particular construction would have to necessarily yield to the overriding public interest that informs the provisions of the DTP Scheme. In view of the above settled position, the Division Bench allowed the writ appeals by setting aside the impugned judgments of the learned Single Judge, to the extent they direct the local authority concerned to consider the application for building permit submitted by the writ petitioners without reference to the Zoning provisions under the DTP Schemes in force. 13. As per Section 61 of the Kerala Town and Country Planning Act, 2016, after the coming into operation of a Master Plan or Detailed Town Planning Scheme under the said Act, no person shall use or cause to use any land or carry out development in any land, or change the use of land otherwise W.P.(C)No.5250 of 2019 14 than in conformity with or with prejudicial to the Master Plans and Detailed Town Planning Schemes under this Act. As per Note to Section 61, the provisions of Detailed Town Planning Schemes shall prevail over the provisions of the Master Plans where both Plans are in force in an area. 14. Section 113 of the Kerala Town and Country Planning Act, 2016 deals with repeal and saving. As per subsection (1) of Section 113, 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 of 1920) and the Kerala Town and Country Planning Ordinance, 2016 (4 of 2016) shall stand repealed. As per clause (i) of sub-section (2) of Section 113, notwithstanding such repeal, 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. As per clause (ii) of sub-section (2) of Section 113, notwithstanding such repeal, W.P.(C)No.5250 of 2019 15 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. 15. In view of the law laid down by the Division Bench in **Vinod's case (supra)** , it is for the petitioner to serve a purchase notice to the 2nd respondent Municipality requiring the 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. 16. If the petitioner serves 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 judgment, the 2 nd respondent shall consider the same under sub-section (2) of Section 67, within the time limit specified thereunder, with notice to the petitioner and after affording him an opportunity of being heard. In the event of a favourable decision by the 2nd respondent Municipality, it is for the petitioner to make a W.P.(C)No.5250 of 2019 16 request before the 3rd respondent to reconsider the application for building permit submitted before the 2nd respondent Municipality, as evidenced by Ext.P3 receipt, in which event the 3rd respondent shall reconsider that application, untrammeled by Exts.P4 and P5, taking note of the law laid down by the Division Bench of this Court in the decisions referred to supra. The writ petition is disposed as above. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** W.P.(C)No.5250 of 2019 17 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE PARTITION DEED. EXHIBIT P2 A TRUE COPY OF THE AGREEMENT EXECUTED BY THE TALUK LEGAL SERVICES AUTHORITY. EXHIBIT P3 A TRUE COPY OF THE RECEIPT DATED 04.08.2016 ISSUED BY THE 3RD RESPONDENT ON THE PETITIONER MAKING APPLICATION FOR BUILDING PERMIT.** **EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 05.12.2016 OF THE 3RD RESPONDENT. EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 31.12.2018 IN APPEAL NO.93/2017 OF THE TRIBUNAL.** **EXHIBIT P6 A TRUE COPY OF THE JUDGMENT DATED 29.05.2018 IN WPC NO.7447/2018 OF THIS HON'BLE COURT.** ## **RESPONDENT'S EXHIBITS: NIL** **TRUE COPY** **P.A. TO JUDGE**