W.A. Nos. 1132 of 2020 and 932 of 2020, In The High Court of Kerala at Ernakulam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ## **`&`** ## **`THE HONOURABLE MR. JUSTICE SHAJI P.CHALY`** ``` TUESDAY, THE 22[ND] DAY OF FEBRUARY 2022 / 3RD PHALGUNA, 1943 ``` ## **`WA NO. 1132 OF 2020`** ## **`AGAINST THE JUDGMENT IN WP(C) 14002/2019 OF HIGH COURT OF KERALA`** ## **`APPELLANTS/RESPONDENTS 3 AND 4:`** ``` 1THE DISTRICT TOWN PLANNER, PALAKKAD-KODUVAYUR-MEENAKSHIPURAM HWY, SANTHI NAGAR, SULTHANPET, PALAKKAD, KERALA-678 001. 2THE CHIEF TOWN PLANNER, NANTHANCODU, THIRUVANANTHAPURAM, KERALA-695 003. ``` ``` BY SMT K.R.DEEPA, SPL. GOVERNMENT PLEADER ``` ## **`RESPONDENTS/PETITIONER & RESPONDENTS 1 AND 2:`** ``` 1DR.M.K.MUHAMMED IQBAL, AGED 69 YEARS, S/O.KADHERSHA, T.B.ROAD, 11/1179, PALAKKAD DISTRICT-678 014. 2PALAKKAD MUNICIPALITY, PALAKKAD-678 001, REPRESENTED BY ITS SECRETARY. 3THE SECRETARY, PALAKKAD MUNICIPALITY, PALAKKAD-678 001. BY ADVS. SRI.BABU KARUKAPADATH(B/O) SMT.M.A.VAHEEDA BABU SRI.P.U.VINOD KUMAR SRI.AVINASH P RAVEENDRAN SMT.ARYA RAGHUNATH SMT.VAISAKHI V. SMT.SNEHA SUKUMARAN MULLAKKAL SRI.SHELLY PAUL SRI.BINOY VASUDEVAN, SC, R2 & R3 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22.02.2022, ALONG WITH WA.932/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.A.Nos.1132 & 932 of 2020** **2** # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ``` & ``` ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY ``` ``` TUESDAY, THE 22[ND] DAY OF FEBRUARY 2022 / 3RD PHALGUNA, 1943 ``` ``` WA NO. 932 OF 2020 ``` ``` AGAINST THE JUDGMENT IN WP(C) 28736/2019 OF HIGH COURT OF ``` ## **`KERALA`** ``` APPELLANTS / RES PONDENTS 5, 6 * 4 IN WPC: ``` ``` 1THE CHIEF TOWN PLANNER OFFICE OF THE CHIEF TOWN PLANNER, DEPARTMENT OF TOWN AND COUNTRY PLANNING, KOTTARATHIL BUILDINGS, PALAYAM, THIRUVANANTHAPURAM – 33. 2THE DISTRICT TOWN PLANNING OFFICER KANNUR COLLECTORATE, CIVIL STATION P. O., KANNUR - 670 002. 3THE VILLAGE OFFICER THIRUVANGAD VILLAGE, THIRUVANGAD, THALASSERY - 670 101. BY SMT K.R.DEEPA, SPL. GOVERNMENT PLEADER ``` ## **`RESPONDENTS/PETITIONER & RESPONDENTS 1,2,3,7 & 8 IN WPC:`** ``` 1ABDUL SALIM AGED 48 YEARS,S/O. MUHAMMED IBRAHIM, SALMA MANZIL, PANNIYANNUR AMSOM, CHEMBAD P. O., THALASSERY TALUK, KANNUR, REPRESENTED BY POWER OF ATTORNEY HOLDER SALMA ASEES., W/O. ABDUL ASEES, BAITHUL NOOR, THALASSERY - 670 103. 2THE THALASSERY MUNICIPALITY REPRESENTED BY ITS SECRETARY, THALASSERY MUNICIPALITY, THALASSERY – 670 101. ``` **W.A.Nos.1132 & 932 of 2020** **3** - `3 THE SECRETARY, THALASSERY MUNICIPALITY, THALASSERY – 670 101.` - `4 THE ASSISTANT ENGINEER, LOCAL SELF GOVERNMENT DEPARTMENT, THALASSERY MUNICIPALITY (SOUTH SECTION), THALASSERY – 670 101.` - `5 K. P. AJAYAKUMAR, KATTILPARAMBATH, MOOZHIKARA P. O., KANNUR DISTRICT - 670 103.` - `6 MARKANDIYIL ANIL SHANKAR, SREE KARTHIKA, KUTTIMAKKOOL, THIRUVANGAD, THALASSERY - 620 103.` ``` ADV.SRI.C.KHALID FOR R1 SRI.I.V.PRAMOD, SC FOR R2 & R3 ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22.02.2022, ALONG WITH WA.1132/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.A.Nos.1132 & 932 of 2020** **4** ## **JUDGMENT** Dated this the 22[nd] day of February, 2022 ## **S.Manikumar, C.J.** Both the appeals arise out of the common facts and law. They are, therefore, heard together and disposed of by this common judgment. 2. Before the writ court, Exhibit P5 order passed by the Secretary, Palakkad Municipality and Exhibit P11 order passed by the Secretary, Thalassery Municipality, rejecting the applications for building permit, were under challenge. 3. After adverting to the rival contentions, writ court set aside the said orders and permitted the writ petitioners to prefer an application under Section 67 of the Kerala Town and Country Planning Act, 2016 (for short “Act 2016”) and if such an application is filed within ten days from the date of receipt of a copy of this judgment rendered in the writ petitions, directed the competent authority to pass orders within the statutory period provided thereunder and communicate the same to the writ petitioners without delay. **W.A.Nos.1132 & 932 of 2020** **5** 4. While doing so, writ court further directed the Secretary, Palakkad Municipality, respondent No.1 in W.P. (C)No.14002 of 2019, to consider the application under section 67 of the Act 2016 to be presented by the writ petitioner and if any such purchase notice is issued, the same shall be considered within a specified period, without construing the subject area in question to be under the “hazardous zone”. 5. As facts, provisions of law and judgment rendered in both the writ petitions are almost on the same lines, suffice to extract the relevant portion of the judgment in W.P. (C)No.14002 of 2019 dated 02.12.2019: “5. That said, as regards the statement in Ext.P5 that the area has been reserved in the Master Plan for being converted as a “Buffer Area” is concerned, it is now well established through the judgments of this Court in **District Town Planner, Malappuram and Others v. Vinod and others** [2019 (3) KHC 673] and **Regional Town Planner & Another v. Muhammed Rasheed & others** [2019 (3) KHC 9891]; that in such cases, the owner of a property obtains the right to issue a purchase notice to the Municipality in terms of Section 67 of the Kerala Town and Country **W.A.Nos.1132 & 932 of 2020** **6** Planning Act, 2016 and that, if the said notice is refused by the Municipality, then he obtains the right to have this application for Building Permit considered de hors the Master Plan/DTP Scheme. In the afore circumstances and since the pleadings filed on behalf of the Municipality do not explain how the area still remains as a “hazardous zone”, I allow this writ petition and set aside Ext.P5; and consequentially leave liberty to the petitioner to issue a purchase notice to the Municipality under Section 67 of the Kerala Town and Country Planning Act; and if this is done within a period of 15 days from the date of receipt of a copy of this judgment, same shall be considered by the competent Authority of the Municipality within the statutory period and the resultant order communicated to the petitioner without any further delay. If, for any reason, the purchase notice is rejected or is not answered within the statutory period, then the Secretary of the Municipality will be obligated to reconsider the petitioner's application for Building Permit, within a period of one month after the statutory period for consideration of the purchase notice under Section 67 of the Kerala Town and Country Planning Act expires. Needles to say, the afore consideration shall be made by the Secretary de hors the contents of Ext.P5 and without construing the area in question to be under the “hazardous zone”.” **W.A.Nos.1132 & 932 of 2020** **7** 6. Being aggrieved, the District Town Planner and another have preferred W.A.No.1132 of 2020 on the grounds inter alia that as per rule 3A of the Kerala Municipality Building Rules, 1999, provisions in the Town Planning Scheme shall prevail over the provisions of the Building rules. 7. Rule 3A of the Kerala Municipality Building Rules, 1999 reads thus: “3A. Provisions in the Town Planning Scheme shall prevail.- Notwithstanding anything contained in these rules, provisions or regulations in any Town Planning Scheme in force under the Town Planning Acts shall prevail over the respective provisions of these rules wherever such schemes exist.” 8. Reference has also been made to sub-rule (3) of rule 3 of the Kerala Municipality Building Rules, 2019, which has come into effect on 8.11.2019, which states thus: “(3) Provisions in the Master Plan, Detailed Town Planning - Scheme etc. shall prevail. Notwithstanding anything contained in these rules, provisions or regulations in any Master Plan/Detailed Town Planning Scheme/Interim Development Order in force under the Kerala Town and Country Planning Act, 2016 (9 of 2016) shall prevail over the **W.A.Nos.1132 & 932 of 2020** **8** respective provisions of these rules wherever such Plan/Scheme/Order exist.” 9. Contention has also been made that section 67 of the Act 2016 is not applicable to the facts on hand. 10. Reference has been made to section 113 of the Act 2016 which states that any Town Planning Scheme sanctioned under the repealed Town Planning Acts shall be deemed to be a Town Planning Scheme sanctioned under the Town and Country Planning Act, 2016 and, therefore, the Master Plan published under G.O.(Ms)No.210/09/LSGD dated 11.11.2009 for Palakkad Town is still valid. 11. Reliance is also made to a decision of this court in **Regional Town Planner and Another v. Muhammed Rasheed** **and Others** reported in 2019 (3) KHC 987 (DB), wherein a Hon’ble Division Bench held that a validly framed and duly notified scheme under a Town Planning Act would come within the ambit of the terms “other law” for the purpose of the Kerala Municipality Building Rules. 12. Reference has also been made to a decision in **Esha** **W.A.Nos.1132 & 932 of 2020** **9** ## **Ektha Apartments Co-operative Housing Society Limited and Others v. Municipal Corporation of Mumbai and Others** reported in AIR 2013 SC 1861, wherein the Hon’ble Supreme Court held thus: “…… We would like to reiterate that no authority administering municipal laws and other similar laws can encourage violation of the sanctioned plan. The Courts are also expected to refrain from exercising equitable jurisdiction for regularization of illegal and unauthorized constructions else it would encourage violators of the planning laws and destroy the very idea and concept of planned development of urban as well as rural areas.” 13. Added further, Ms.K.R.Deepa, learned Special Government Pleader appearing for the appellants submitted that as per section 113 of the Act 2016, the Scheme is still valid, but in 2016 a revision of the Master Plan has been initiated and draft Master Plan has been published in 2016. About 900 objections have so far been received. According to her, in terms of section 36(4) of the Act 2016, a Special Committee has to be constituted for examining the objections **W.A.Nos.1132 & 932 of 2020** **10** and suggestions. Thus for the above reasons, she reiterated that section 67 of the Act 2016 is not applicable to the case on hand. 14. Though Ms.Vaheeda Babu, learned counsel for the 1[st] respondent in W.A.No.1132 of 2020 made an attempt to justify the directions issued by the writ court, after adverting to the relevant statutory provisions, section 67 of the Act 2016 dealing with the obligation to acquire land in certain cases, section 36(4) of the Act which deals with the manner as to how the preparation, publication and sanctioning of Master Plan have to be done and also the proviso to section 63 of the Act, which deals with the effect of the approved plan, when there is no interim development orders issued for the use and development of the land, she fairly conceded that it is suffice that objections given as per Annexure R1(b) be considered by the Secretary, Palakkad Municipality, respondent No.3 in W.A.No.1132 of 2020. Submission of the learned counsel for respondent No.1 in W.A.No.1132 of 2020 is placed on record. 15. Mr.Binoy Vasudevan, learned standing counsel **11** ## **W.A.Nos.1132 & 932 of 2020** appearing for the Palakkad Municipality in W.A.No.1132 of 2020 submitted that the objections submitted in Annexure R1(b) would be considered by the Municipality in accordance with the statutory provisions. Submission of the learned standing counsel for the Palakkad Municipality is placed on record. 16. Inasmuch as the learned counsel for the respondents have fairly conceded to the legal provisions governing the grant of permit and also restricted the remedy, only to the consideration of Annexure R1(b), there is no need to delve into the merits of the rival contentions. 17. Suffice to direct the Secretary, Palakkad Municipality and the Secretary, Thalassery Municipality, respondent No.3 in both the writ appeals, to constitute a Special Committee as required under section 36(6), as expeditiously as possible, to process the objections and suggestions and hear such persons, who have made a request in writing. 18. For brevity, suffice to extract sub-sections (4), (5) and (6) of section 36 of the Act 2016: **W.A.Nos.1132 & 932 of 2020** **12** ## “ **36. Procedure for preparation, publication and sanctioning of Master Plan.** — xxx xxx xxx xxx xxx xxx (4) The Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall, within sixty days from the date of receipt of approval for publication under sub-section (3), publish the draft Master Plan in the website; and a notice of publication, in the Official Gazette and in at least two newspapers having wide circulation in the Local Planning Area of which one must be in the regional language, inviting objections and suggestions to be submitted within sixty days from the date of publication of the notice in the Gazette, specifying the place or places where a copy thereof shall be available for inspection by the public: Provided that the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall publish such a notice, even if the draft Plan is prepared or got prepared by the Chief Town Planner under clause (e) of section 11. (5) Immediately after a draft Master Plan is published under this Act, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall forward a copy of the published Master Plan to the District Planning Committee and Metropolitan Planning Committee, if any and the District Planning Committee or the Metropolitan Planning Committee may, **W.A.Nos.1132 & 932 of 2020** **13** as far as possible, within sixty days from the date of the receipt of such Plan furnish their remarks, if any, on the Plan, to Government. (6) Simultaneously with the publication of the notice under sub-section (4), the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall, appoint a special committee under section 32 of this Act, which shall process the objections and suggestions and hear all such persons who have made a request in writing for being so heard and submit its report in the prescribed format to the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat, as far as possible within sixty days from the time limit prescribed for receiving objections and suggestions.” 19. Palakkad and Thalassery Municipalities (respondent No.3 in both the writ appeals) are directed to adhere to the statutory requirements set out in section 36 of the Act 2016, which deals with the preparation, publication and sanctioning of the Master Plan. 20. Mr.Binoy Vasudevan, learned standing counsel for the Palakkad Municipality submitted that the Committee, as contemplated under section 36 of the Act 2016, would be **14** ## **W.A.Nos.1132 & 932 of 2020** constituted within two months from the date of receipt of a copy of this judgment. Such Committee so constituted, shall consider the suggestions and objections on the draft Plan. 21. Accordingly, the appellants are directed to discharge the duties as enjoined in section 36 of the Act 2016. With the above directions, writ appeals are disposed of. Pending interlocutory applications, if any, shall stand closed. Sd/- **S.Manikumar Chief Justice** Sd/- **Shaji P.Chaly Judge** **vpv** //true copy// P.A. to Judge