W.P.(C) No.10904 of 2018

## **SHAJI P. CHALY, J.** ## **- - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.10904 of 2018** ## **- - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25[th] day of July, 2018** ## **J U D G M E N T** This writ petition is filed by the petitioner seeking the following reliefs:- - “ (i) To call for the records leading to Ext.P1 and to quash the sameby issuing a writ of certiorari; - (ii) To issue a writ of mandamus commanding the 3[rd] respondent to reconsider the appllication for building permit submitted by the petitioner dehors the reason stated in Ext.P1 and to grant the building permit, - (iii) To declare that Sec.61 and 67 of the Kerala Town and Country Planning Act, 2016 are ultra vires of the Constitution of India; or in the alternative to declare that those provisions will not curtail the petitioner to utilize the land unless and until proceedings for acquisition of land under the relevant laws are initiated; - (iv) Issue any such other writ order or direction as this Hon'ble Court deem fit in the interest of justice.” 2. Petitioner is the owner of an extent of 72 cents of property situate in Sy.No.81/11 of Malappuram Village, Eranad Taluk, Malappuram District, who has submitted an application for building permit to construct a shop room cum residential building. As per Ext.P1 order, 2[nd] respondent has rejected the W.P.(C)No. 10904 of 2018 -:2:- application submitted by the petitioner by stating the reason that, petitioner's land is included in the road widening proposal as per the Master Plan constituted in accordance with the provisions of Kerala Town and Country Planning Act, 2016. The case of the petitioner is that, Ext.P1 communication is illegal and arbitrary and therefore, liable to be interfered with by this Court. Petitioner has also challenged Sections 61 to 67 of Kerala Town and Country Planning Act, 2016. According to the petitioner, these provisions curtail the fundamental right of the petitioner. 3. A statement is filed for and on behalf of respondents 2 and 3, where the application submitted by the petitioner, and all consequential actions are admitted. It is further stated thereunder that, the contention of the petitioner that, the Master Plan was approved in the year 2013 and road widening proposal has been made in the Master plan for years and also even after five years of the approval of the scheme there is no acquisition, is baseless. The implementation of the Master Plan is a long term process and the period of the scheme is upto 2030, so the averment that after the approval of the scheme, within 5 years, no steps have been taken is baseless and denied by the W.P.(C)No. 10904 of 2018 -:3:- respondent. 4. I have heard learned counsel for the petitioner, learned Government Pleader, as well as learned Standing Counsel appearing for the 2[nd] and 3[rd] respondents, and perused the pleadings and documents on record. 5. Even though, various contentions are raised including the constitutional validity of the two provisions of the Act, 2016 under challenge, learned counsel for the petitioner submitted that, situation would suffice, if a direction is issued to the Municipality to consider the application in accordance with Section 67 of the Act, 2016, and the proposition of law laid down by this Court in _**'Abdul Hakeem v. Manjeri Municipality**_ [2018 (1) KLT 1026] and specifically invited my attention to paragraph 8, which read thus; _“ It is seen that unlike the town planning legislations which were prevailing in the State, the Town Planning Act contains appropriate provisions for de-reserving lands earmarked in terms of the sanctioned town planning schemes for acquisition for various development activities such as formation of new roads, widening of the existing roads etc. Section 67 of the Town Planning Act is the provision dealing with de-reservation. The said Section reads thus; ;_ "67. Obligation to acquire land in certain cases.—(1) Where any land is designated for compulsory acquisition in a Master Plan -:4:- ## W.P.(C)No. 10904 of 2018 or Detailed Town Planning Scheme sanctioned under this Act and no acquisition proceedings are initiated for such land under the Land Acquisition Act in force in the State within a period of two years from the date of coming into operation of the Plan, the owner or person affected may serve on the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned, within such time and in such manner, as may be prescribed, a notice (hereinafter referred to as “the purchase notice”) requiring the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned to purchase the interest in the land in accordance with the provisions of this Act; (2) On receipt of any purchase notice under sub-section (1), as soon as possible, but not later than sixty days from the date of receipt of the purchase notice, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat, as the case may be, through a resolution decide to acquire the land, where the land is designated for compulsory acquisition for the purpose of the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat. (3) Where the land is designated for compulsory acquisition for the purpose of any Government Department or Quasi-government Agency, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat shall forward such notice to the Government. (4) In case the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned decides not to acquire the land, it shall initiate variation of the plan suitably in accordance with this Act. (5) In case the land acquisition could not be effected within a period of two years from the date of resolution to acquire the land, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall initiate variation of the plan suitably in accordance with this Act. (6) On receipt of a purchase notice under sub-section W.P.(C)No. 10904 of 2018 -:5:- (3), the Government shall in consultation with the Government Department or Quasi-government Agency concerned, not later than six months from the date of receipt of the purchase notice, confirm the purchase notice. In any other case, Government may require the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned to vary the plan suitably in accordance with this Act: Provided that in case the land acquisition could not be effected within a period of two years from the date of confirmation of the purchase notice, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall initiate variation of the plan suitably in accordance with this Act under intimation to the Government. (7) If no order has been passed by the Government within a period of six months from the date of receipt of the purchase notice, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall, suo moto initiate variation of the plan suitably in accordance with this Act: Provided that where variation proceedings of the Plan are initiated under this section, the Secretary of the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall, in consultation with the Chief Town Planner, take suitable decision on any application for land development permit received under section 64.” _As far as a land earmarked for development project of the local body in terms of the sanctioned town planning scheme is concerned, sub-section (1) of Section 67 creates an obligation on the local body to initiate proceedings for acquisition of the land within two years. The said provision provides that if action is not taken to initiate proceedings for acquisition of the land within two years, the owner of the land will be entitled to serve a notice to the local body requiring the local body to purchase the_ W.P.(C)No. 10904 of 2018 -:6:- _interest of the owner in the land. Sub-section (2) of the said section provides that within 60 days from the date of receipt of the purchase notice provided for under sub-section (1), the local body shall decide by resolution to acquire the land. Subsection (4) of the said section clarifies that in case the local body decides not to acquire the land, it shall initiate steps for variation of the plan suitably in accordance with the provisions contained in the Town Planning Act. In other words, if the local body, on receipt of purchase notice decides not to acquire the land for the development project mentioned in the town planning scheme, since the local body is bound to initiate proceedings for variation of the scheme, there cannot be any doubt that the owner of the property will be entitled to the building permit sought by him, if he is otherwise entitled for the same. If the provisions contained in Section 67 of the Town Planning Act are viewed in the light of the fundamental rights guaranteed to the citizens, it is beyond dispute that the provisions therein are mandatory. If the provisions contained in Section 67 are understood as mandatory, needless to say that if the Municipality does not pass a resolution either to acquire the land or not to acquire the land, the owner of the land will be entitled to the building permit sought by him immediately after sixty days, if he is otherwise entitled for the same. The reason being that in case a resolution is not adopted by the local body either way, a presumption can be drawn that the local authority does not intend to acquire the land. The provision in sub-section (5) of Section 67 that the local body shall initiate steps for variation of the plan, in case the land acquisition could not be effected within a period of two years from the date of the resolution to acquire the land, indicates that in case the local body decides to acquire the land on receipt of the purchase notice, the owner of the land is entitled to building permit immediately on the expiry of the_ W.P.(C)No. 10904 of 2018 -:7:- _said period of two years, if the land has not been acquired within the said period and if he is otherwise entitled for the same.”_ 6. After considering the rival submissions made across the Bar and on a detailed survey of the judgment rendered by this Court quoted above, I am of the considered opinion that, there is force in the contentions raised by the petitioner. Therefore, there will be a direction to the 3[rd] respondent to consider the application submitted by the petitioner, _de hors_ the findings contained under Ext.P1, taking into account, the proposition law laid down by this Court in ' **Abdul Hakeem'** ( _supra)_ , which is specifically quoted above, and attain finality, at the earliest possible time, and at any rate, within one month from the date of receipt of a copy of this judgment, if required, after securing participation and hearing to the petitioner. The writ petition is disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** SPV/ 31.07.2018 //TRUE COPY// PA TO JUDGE W.P.(C)No. 10904 of 2018 -:8:- The words **“Malappuram Village”** occuring in the second line in paragraph number 2 of judgment dated 25.07.2018 in W.P.(C).No.10904 of 2018 are corrected as **“Panakkad Village”** as per order dated 12.12.2018 in I.A. No.2 of 2018. **Sd/Registrar (Judicial)**