WA Nos. 913 & 1166 of 2020 (Common Judgment) - High Court of Kerala, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **MONDAY, THE 31[ST] DAY OF MAY 2021 / 10TH JYAISHTA, 1943** **WA NO. 913 OF 2020** **AGAINST THE JUDGMENT IN WP(C)NO.5111/2018 DATED 1.2.2019 OF HIGH COURT OF KERALA** **APPELLANTS/RESPONDENTS 3 & 4 IN W.P.(C):** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, TOWN PLANNING DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE CHIEF TOWN PLANNER, CIVIL STATION, KAKKANADU, KOCHI-682 030.** **BY ADV. SRI.K.V.SOHAN (STATE ATTORNEY) BY SR.G.P.SRI.T.K.ANANDAKRISHNAN** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2 IN W.P.(C):** - **1 MONY K.V,S/O.VASU, KOZHIKKAPARAMBIL HOUSE, NARAKAL P.O., NARAKKAL, KOCHI-682 505.** - **2 NARAKKAL GRAMA PANCHAYAT,REPRESENTED BY ITS SECRETARY, NARAKAL P.O., KOCHI TALUK, ERNAKULAM DISTRICT-682 505.** - **3 SECRETARY, NARAKKAL GRAMA PANCHAYAT,NARAKAL P.O., KOCHI TALUK, ERNAKULAM DISTRICT-682 505.** **R1 BY ADV.SRI.JOHN JOSEPH (ROY) R2&R3 BY ADV.SRI.M.N.SANJITH** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24.02.2021, ALONG WITH WA.1166/2020, THE COURT ON 31.05.2021 DELIVERED THE FOLLOWING:** W.A.Nos.913 & 1166 of 2020 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **MONDAY, THE 31[ST] DAY OF MAY 2021 / 10TH JYAISHTA, 1943 WA NO. 1166 OF 2020** **AGAINST THE JUDGEMENT IN WP(C) 31881/2018 DATED 20.2.2019 OF HIGH COURT OF KERALA** **APPELLANT/RESPONDENTS 4 TO 6:** - **1 THE CHIEF TOWN PLANNER OFFICER OF THE CHIEF TOWN PLANNER, NANTHANCODU SWARAJ BHAVAN, NANTHANCODU, THIRUVANANTHAPURAM-695 003.** - **2 THE DISTRICT TOWN PLANNER, DISTRICT TOWN PLANNING OFFICE, THANA P.O.,KANNUR-670012.** - **3 THE STATE OF KERALA,** - **REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **BY ADV.SRI.K.V.SOHAN (STATE ATTORNEY) BY SR.G.P.SRI.T.K.ANANDAKRISHNAN** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3:** - **1 K.LAKSHMANAN, AGED 61 YEARS S/O PAITHAL, WEAVER, RESIDING AT V/152, KOOLOTHUMMAL HOUSE, P.O.NETTUR, KANNUR DISTRICT-670 105.** W.A.Nos.913 & 1166 of 2020 3 - **2 THE SECRETARY,THALASSERY MUNICIPALITY, THALASSERY, KANNUR DISTRICT-670101.** - **3 THE THALASSERY MUNICIPALITY, REPRESENTED BY THE SECRETARY, THALASSERY MUNICIPALITY, THALASSERY, KANNUR DISTRICT-670 101** - **4 THE ASSISTANT ENGINEER, LOCAL SELF GOVERNMENT DEPARTMENT,** **KODIYERI SECTION, THALASSERY MUNICIPALITY, THALASSERY-670 101.** **R2 TO R4 BY ADV.SRI.I.V.PRAMOD** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24.02.2021, ALONG WITH WA.913/2020, THE COURT ON 31.05.2021 DELIVERED THE FOLLOWING:** W.A.Nos.913 & 1166 of 2020 4 ## **JUDGMENT** ## **Ravikumar, J.** Today, as per separate orders in Civil Miscellaneous Applications filed in the captioned appeals we have condoned the delay in filing the appeals. On consent of parties we have heard the appeals jointly, owing to the commonness of the issues involved, and they are being disposed of by this common judgment. 2. The former appeal is filed by the State of Kerala and the Chief Town Planner, who were respondent Nos.3 and 4 respectively in W.P.(C)No.5111 of 2018, against the judgment dated 1.2.2019 passed thereon. The latter appeal is filed by the Chief Town Planner, the District Town Planner, Kannur and the State of Kerala, who were respondent Nos.4 to 6 respectively in W.P.(C)No.31881 of 2018, against the judgment dated 20.2.2019 passed thereon. The respective first respondent in the appeals preferred the respective writ petitions seeking quashment of the order rejecting their respective application for building permit. The impugned order of rejection of the building permit application has been marked, in both the writ petitions, as Ext.P3. We will firstly state the facts of each of the above cases succinctly. The first respondent in the former appeal viz., the petitioner in W.P.(C) No.5111 of 2018 is the owner in possession of an extent of W.A.Nos.913 & 1166 of 2020 5 2.69 cents of property comprised in Survey No.170/2 of Narakkal Village, within the limits of Narakkal Grama Panchayat. He filed an application for building permit to construct a residential-cumcommercial building thereon. The said application was rejected as per Ext.P3 by the Secretary of Narakkal Grama Panchayat viz., the 3[rd] respondent in the former appeal. It is stated therein that as per the Town Planning Scheme there is a widening proposal for VypinMunambam road with 27 metres and as far as the site in question is concerned only 3 metres road margin is left. A statement was filed by the 4[th] respondent therein/the 2[nd] appellant justifying the reason stated in Ext.P3 for rejecting the building permit application submitted by the first respondent-petitioner, placing reliance on the provisions under Section 113 (2) of the Kerala Town and Country Planning Act, 2016 (for short 'Act 2016') . It is also stated therein that the Structure Plan sanctioned in the year 1991 is to be deemed as a Master Plan sanctioned as per the Act 2016 and hence, the plan of the year 1991 is still operational. The learned Single Judge upheld the contention that under Section 113(2) of the Act 2016 the existing schemes are protected though the erstwhile Town Planning Acts are repealed. However, the learned Single Judge referred to Sections 67(1) and (2) of the Act 2016 itself and took into consideration the factual circumstances pointed out in Ext.P3 invariably indicating the necessity to acquire the W.A.Nos.913 & 1166 of 2020 6 property of the first respondent-petitioner to widen the road as proposed, to hold thus:- “So far as acquisition of the property is concerned, Section 67(1) of Act 2016 stipulates that, a decision will have to be taken within a period of two years from the date of introduction of the Act and if any notice is issued by the applicant, the Panchayat or the local body will have to take a decision as to whether, the scheme is to be modified or else, to go ahead with the acquisition.” In that view of the matter, the writ petition was disposed of with a direction to the Panchayat, the 2[nd] respondent in the former appeal, to take a decision within 60 days from the date of receipt of copy of the judgment, as to whether the Panchayat intends to acquire the property and if not, to consider the application submitted by the first respondent-petitioner in accordance with law, within the time stipulated therein. Though the direction, as mentioned above, was given to the 2[nd] respondent-Panchayat respondents 3 and 4 felt aggrieved by the judgment and preferred the former appeal. 3. The first respondent in the latter appeal viz.,the petitioner in W.P(C) No.31881 of 2018, is the owner in possession of 3.47 Ares of property, whereon an old house situates, comprised in Resurvey No.25/5B in Thalassery Village, within the limits of Thalassery Municipality. His brother Kariyadan Raghavan is the owner in possession of 1.62 Ares of property comprised in Re-survey No.23/1 of W.A.Nos.913 & 1166 of 2020 7 the same Village. Putting together, by removing the partition in between, the said properties measure 5.5 Ares, it is claimed and on that basis, the first respondent in the latter appeal and his brother applied for building permit before the Secretary of Thalassery Municipality, the first respondent in the writ petition/the 2[nd] respondent in the appeal. As per Ext.P3 order dated 3.2.2018 the application was rejected assigning twin reasons; namely, (i) that as per the report of the Town Planner they are holding more extent of land than what is described in their title deeds and the plan is submitted based on the said extent; (ii) that there is a proposal for a road through the site in question as per the plan for Thalassery Town Variation, 2007. On receipt of Ext.P3 order of rejection the first respondent in the appeal and his brother issued notice dated 28.5.2018 under Section 67 of the Act 2016 to the second respondent requiring the Municipality to purchase their interest in the land at the present market rate and in accordance with law regarding compulsory acquisition. Despite the receipt of the said notice no action was taken by the second respondent within the upper time limit of 60 days as provided in Section 67(2) of the Act 2016. So also, no intimation whatsoever regarding the outcome of the said notice was also given. It is in the said circumstances that W.P.(C)No.31881 of 2018 was filed. The learned Single Judge after hearing the counsel on both sides disposed of the writ petition W.A.Nos.913 & 1166 of 2020 8 granting 60 days' time to the Municipality to take a decision as to whether the Municipality is going ahead with the acquisition of the properties of the petitioner and his brother and directed that if the Municipality is not taking a decision in that regard or is not communicating any order, the building permit application shall be reconsidered within 30 days from the date of expiry of the 60 days prescribed in the judgment. As in the case of the former appeal, though the direction was virtually issued to the first and second respondents in W.P.(C)No.31881 of 2018 appeal against the judgment was preferred by respondents 4 to 6 therein. 4. The facts narrated above involved in both the appeals would thus go to show that the first respondent in both the appeals approached this Court on being aggrieved by the rejection of their applications for building permit, inter alia, assigning the reason of the proposed widening/construction of road through the respective properties, in Town Planning Schemes introduced more than a decade ago. In fact, in the case involved in the former appeal the Scheme was of the year 1991 and in the latter appeal the Scheme in question was of the year 2007. Essentially, the contention of the learned counsel appearing for the respective local body as also Sri.K.V.Sohan, the State Attorney is that by virtue of the impact of Section 113(2) of the Act 2016 all the DTP Schemes made under the repealed enactments are W.A.Nos.913 & 1166 of 2020 9 protected and therefore, the reasons assigned for rejection of the respective building permit application invite no interference. In other words, the contention is that the orders of rejection ought not to have been interfered with and further that the consequential directions under the impugned judgments were absolutely uncalled for. 5. As noticed hereinbefore, under the impugned judgments in the appeals the learned Single Judge upheld the contention of the respondents therein that the DTP Schemes involved under the repealed Town Planning enactments are protected under the provisions of Section 113(2) of the Act. However, the learned Single Judge went on to consider the factual position obtained from the impugned order of rejection of building permit application in both the writ petitions and rightly came to the conclusion that they would invariably indicate the necessity to acquire the land involved in the cases. As already noticed, in the former appeal, the land involved is required for widening of Vypin-Munambam road and the land involved in the latter appeal is required for the construction of a road proposed under the plan for Thalassery Town Variation 2007. Upon finding the said indisputable factual position making acquisition of the properties involved inevitable, the learned Single Judge held that the local body concerned is statutorily bound to consider whether to go ahead with the acquisition of the properties in terms of the Scheme and in case of failure to take a W.A.Nos.913 & 1166 of 2020 10 decision on that issue, as mandated under Section 67(2) of the Act 2016, to reconsider the application for building permit within the time stipulated. 6. In the contextual situation, as relates the former appeal, it is relevant to note, I.A.No.2 of 2020 filed by respondent Nos.2 and 3 in the appeal namely, Narakkal Grama Panchayat and its Secretary. The affidavit accompanying the petition would reveal that since no decision was taken within a period of 30 days since the expiry of 60 days period on the application for building permit submitted by the petitioner in W.P.(C)No.5111/2018, a Contempt Case viz., C.O. (C)No.134/2019 was filed and consequently, building permit was issued on 11.9.2020 to the petitioner concerned viz., the first respondent in the former appeal subject to the result of the appeal. Obviously, the impugned judgments were passed respectively on 1.2.2019 and 20.2.2019. The appeals were filed with applications to condone the delay. 7. The appellants in both the appeals against whom no specific direction was issued in the judgment in the writ petition concerned, preferred the appeals mainly contending that the learned Single Judge issued a direction for reconsideration of building permit applications submitted by the respective petitioner without looking into the position that till a new master plan/development plan is notified and W.A.Nos.913 & 1166 of 2020 11 implemented in accordance with the provisions of the Act 2016, the existing sanctioned development plans under the repealed town planning enactments would continue to operate, by virtue of the provision under Section 113(2) of the Act, 2016. We have already taken note of the directions issued by the learned Single Judge under the impugned judgments. A bare perusal of the judgments would undoubtedly go to show that the learned Single Judge did uphold the contention that by virtue of the provisions under Section 113(2) of the Act 2016 the DTP Schemes under the repealed town planning enactments would continue to be in operation. In such circumstances, it cannot be said that the provision under Section 113 of the Act was not taken into account by the learned Single Judge. In fact, even after upholding the said contention raised by the respondents in the writ petition the learned Single Judge went on to consider the statutory provisions under Section 67 of the Act 2016. In the face of the provisions under Section 67 of the Act 2016 we are at a loss to understand as to how the appellants could canvass the position that the local body concerned was not under an obligation to consider whether the land involved is to be acquired or not. Upon carefully scanning Ext.P3, marked as such in the respective writ petition, we do not find any reason at all to hold that the learned Single Judge went wrong in coming to the conclusion that the land involved in the cases requires W.A.Nos.913 & 1166 of 2020 12 acquisition going by the tenor of the said orders. Ext.P3 in W.P. (C)No.5111/2018 would reveal that the land involved therein requires for widening of Vypin-Munambam road. Likewise, Ext.P3 in W.P. (C)No.31881/2018 would reveal that the land involved therein requires for constructing a road proposed under the plan for Thalassery Town Variation 2007. When that finding of the learned Single Judge based on the materials on record remains indisputable we do not find any reason, in the light of the provisions under Section 67(2) of the Act, to interfere in the direction of the learned Single Judge to the local body concerned to decide on the question whether the land in question is to be acquired or not. True that, in that regard, the period of 60 days time was granted. That also cannot be said to be against the provisions of the Statute. The further direction to the local body concerned to reconsider the building permit application of the respective respondent in the appeals was issued only in the event of failure to take and communicate a decision on the aforesaid question. There is no case for the respective local body that a decision was already taken to go ahead with acquisition of the properties involved in the appeals. In the contextual situation, the judgment of a Division Bench of this Court in W.A.No.2505 of 2019, in which one among us (C.T.Ravikumar, J) was a party, assumes relevance. It was rendered relying on an earlier Division Bench decision of this Court in **Padmini** v. **State of Kerala** W.A.Nos.913 & 1166 of 2020 13 **(1999 (3) KLT 465)** and a decision of the Hon'ble Apex Court in **Raju S Jethmalani and Others** v. **State of Maharashtra and Others** **[(2005) 11 SCC 222],** while considering the question whether, based on a Scheme or Plan under the Town Planning Scheme which is still in its embryonic stage, despite the long lapse of time, the land owner could be deprived of rights to use his own property. In the light of the decisions in **Shantistar Builders** v. **Narayan Khimlal Totame** ( **AIR 1990 SC 630), Karnataka** v. **Narasimhamurthy (AIR 1996 SC 90), Chameli Singh** v. **State of Uttar Pradesh (AIR 1996 SC 1051)** and various other decisions as also the Constitution (Fortyfourth Amendment) Act, 1978 transforming the right to property from the category of Fundamental Rights by repealing Articles 19(1)(f) and 31 of the Constitution and converting it into an ordinary constitutional right by enacting Article 300A, it was held that a challenge against violation of Article 300A is maintainable under Article 226 of the Constitution of India. Relying on the decision in **Jilubhai Nanbhai Khachar** v. **State of Gujarat** ( **AIR 1995 SC 142)** holding that the word 'law' used in Article 300A must be an Act of Parliament or of State Legislature, a rule or statutory order having the force of law the deprivation of the right under Article 300A can only be by an authority of law. Taking the dictionary meaning of the word 'deprive' it was held that the word 'deprive' conveys the idea of taking away that which one W.A.Nos.913 & 1166 of 2020 14 has, or withholding that which one may have or to take something from; to keep from acquiring, using or enjoy something. Ultimately, it was held therein that denying right to effect construction in one's own property citing existence of a scheme which has been in force for long period without taking any contrary steps for its effectuation, is nothing but taking away the right of a citizen to enjoy his property and in a way it amounts to negation of human right. 8. In the case on hand, the impugned judgments would reveal that the learned Single Judge gave the liberty to the respective local body to decide the question whether the land involved in the appeals is to be acquired or not for effectuation of the Scheme concerned. In that regard, two months' time was granted, despite the fact that the scheme/plan concerned was made more than a decade ago. No material whatsoever is available or brought to our notice which would show that concrete steps were already taken for the effectuation of the Scheme which, of course, is protected in terms of the provisions under Section 113 of the Act 2016. When the direction to decide on the aforesaid question is perfectly in terms of the statutory provision and the further direction to reconsider the application in the event of failure to take a decision on the necessity or otherwise to acquire the land in question is also not in derogation of any statutory provision the impugned judgments of the learned Single Judge call for no W.A.Nos.913 & 1166 of 2020 15 interference in exercise of the power under Section 5 of the High Court Act. In the result, the appeals are dismissed. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.HARIPAL Judge** TKS