Writ Appeal No. 1320 of 2021: State of Kerala and Others v. D. Sugathan and Others

W. A. No. 1320 of 2021 -1- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 10[TH] DAY OF NOVEMBER 2021 / 19TH KARTHIKA, 1943** **WA NO. 1320 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 3908/2019 OF HIGH COURT OF KERALA,** ## **ERNAKULAM** ## **APPELLANT/S:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM-695 001.** - **2 THE DIRECTOR OF PANCHAYATHS, THIRUVANANTHAPURAM-695 001.** - **3 TOWN PLANNING OFFICER, DISTRICT TOWN PLANNING OFFICE, KOLLAM-691 001. ADV. K. R. DEEPA, SPECIAL GP** ## **RESPONDENT/S:** - **1 D.SUGATHAN AGED 66 YEARS S/O K. DIVAKARAN, KRISHNAKRIPA, PEOPLES NAGAR, KOLLAM-691 001.** - **2 KOLLAM MUNICIPAL CORPORATION REPRESENTED BY ITS SECRETARY, KOLLAM MUNICIPAL CORPORATION, KOLLAM-691 001.** - **3 SECRETARY KOLLAM MUNICIPAL CORPORATION, KOLLAM-691 001.** - **4 MUNICIPAL COUNCIL, REPRESENTED BY ITS CHAIRMAN, KOLLAM, MUNICIPAL CORPORATION, KOLLAM-691 001. SRI.KALEESWARAM RAJ FOR R1, SRI.M.K.CHANDRAMOHAN DAS, SC FOR R2 TO R4** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W. A. No. 1320 of 2021 -2- ## **J U D G M E N T** Shaji P. Chaly, J. The State and the officials, who were respondents 1, 2 and 5 in W. P. (C) No. 3908 of 2019, have come up in appeal challenging the judgment of the learned Single Judge dated 04.12.2019. 2. The subject issue relates to the permit declined by the Secretary of the Kollam Municipal Corporation on the ground that the property of the 1[st] respondent / writ petitioner namely D. Sugathan situated in Survey Nos. 1/2/2/2 and 1/2/2, Block No. 78 of Vadakkevila Village in Kollam District within the limits of the Kollam Municipal Corporation is required for widening of a road. 3. The learned Single Judge, after assimilating the facts and circumstances, has found that the building permit application was declined by the Secretary of the Municipal Corporation on the ground that the property in question is required for widening of a road, and therefore, Section 67 of the Kerala Town and Country Planning Act, 2016 would come into play, and necessarily on a notice issued by the W. A. No. 1320 of 2021 -3- owner of the property, the Municipality would have to take a decision as to whether it is interested to acquire the property of the aggrieved person in accordance with the provisions of Section 67 of Act 2016. The relevant portion of the judgment reads thus:- “5. Even when I hear Sri.M.K.Chandra Mohan Das on the afore lines, the fact remains that it has already been declared by this Court through a catena of judgments, that when the Master Plan or DTP Scheme provides for compulsory acquisition of a land, it does not mean that its owner cannot use it ad infinitum until such processes are taken forward and completed by the competent Authority. It has been now well declared that in such circumstances, the owner of the land gets the right to issue a purchase notice under Section 67 of the of the Kerala Town and Country Planning Act, and that if it is not considered within the statutory period or rejected, then his application for building permit will certainly have to be considered de hors such provisions of the DTP Scheme or the Master Plan. I am certain that the petitioner also must be entitled to the said relief in the writ petition. (see for support : **Regional Town Planner and Another v. Muhammed Rasheed and Others** [2019 (3) KHC 987] and **District Town Planner, Malappuram and Others v. Vinod and Others** [2019 (3) KHC 673]). Resultantly, I order this writ petition and grant liberty to the petitioner to issue a purchase notice under Section 67 of the Kerala Town and Country Planning Act; and if this is done within a period of fifteen days from the date of receipt of a copy of this W. A. No. 1320 of 2021 -4- judgment, the competent Authority of the Municipality will consider the same and issue orders thereon within the statutory period. Needless to say, if the purchase notice is rejected or orders thereon are not issued within the statutory period, then the Secretary of the Municipality will be obligated to consider the application of the petitioner for Building Permit and issue orders thereon de hors the provisions of the Master Plan and DTP Scheme, as expeditiously as is possible, but not later than one month after the statutory period for consideration of the application to be made by the petitioner in terms of this judgment expires.” 4. Various grounds are raised in the writ appeal, however learned Special Government Pleader submitted that the ground 'E' raised by the appellants may have to be taken into consideration by this Court, which reads thus:- “E) Reservation of a parcel of land for a particular land use namely; roads, parks, green strip etc. imposes only reasonable restrictions on the development of the land, which is controlled by the Zoning Regulations of the TP Scheme. In the case of land reserved for roads, it puts up restrictions on the construction of structure/building in the plot beyond a certain distance from the existing road. The distance beyond which constructions could be carried out is termed as the building line. The right of the land owner in developing the site is not deprived W. A. No. 1320 of 2021 -5- by imposing this reservation. He can put up construction beyond this prescribed setback in accordance with the Zoning Regulations of the TP Scheme. He can use the area reserved for roads in his plot for other purposes such as gardens, open spaces, parking (other than mandatory parking as per building rules) etc. except for the construction of structures. This area reserved for roads is even taken into account for the calculation of coverage. FAR etc. Thus the total floor area that can be built up in the plot is not affected by this area reservation for road widening in the plot which implies that the development right of the land owner is not affected by this reservation in his plot. The intention of prescribing reservation of land for road widening is that by putting restrictions of the land developments within certain distance from the roads which requires widening, it will facilitate the procurement of land without compromising the safety and convenience and also will ease down the land acquisition procedure/costs when the same is getting implemented in the future, especially in urban areas. Also this will avoid evacuation and rehabilitation requirements. The widening of the 42 km roads in the Capital City of Thiruvananthapuram could be implemented mainly due to the land reservation policy adopted in the Sanctioned Master Plan/DTP Schemes that were in force. High costs and practical difficulties in pulling down many relatively new structures would have been incurred in the absence of such controls and would have made the project impossible.” ## 5. Therefore according to the learned Special Government Pleader, when a property is reserved for acquisition, the Secretary of W. A. No. 1320 of 2021 -6- the Municipality is not bound to take a decision if a notice is issued under Section 67 of the Kerala Town and Country Planning Act, 2016 by the owner of the property. 6. We have heard learned Special Government Pleader Smt. K. R. Deepa for the appellants, counsel representing Sri Kaleeswaram Raj for respondent No. 1, and the Standing Counsel for the Kollam Municipality and its officials Sri. M. K. Chandramohan Das, and perused the pleadings and material on record. 7. On a perusal of the orders passed by the Secretary of the Kollam Municipal Corporation in the application submitted by the writ petitioner for issuance of building permit, it is clear that the property in question is situated by the side of the Kollam – Chenkotta National Highway, and there is a scheme existing for the widening of the said road to 25 meters, and therefore acquisition is required up to 12.50 meters to both sides of the road from the central line. It was accordingly the Secretary informed the petitioner that his building permit application cannot be considered in accordance with the plan submitted by the petitioner. W. A. No. 1320 of 2021 -7- 8. So also in Ext. P5 letter issued by the Town Planning Officer, Kollam to the Secretary, Corporation of Kollam dated 28.09.2015, it is stated that the width of the road as of now is 20.30 meters to 22.20 meters at different places. 9. Therefore according to the District Town Planner, as per the scheme existing, the width of the road is to be increased by 10 meters by acquiring the property of the writ petitioner and 4 meters from the Revenue property situated on the opposite side, and therefore directed the Secretary of the Corporation to permit any construction only after leaving aside 10 meters for the construction of the road. 10. On an analysis of Exts. P5 and P6, it is clear that the property of the petitioner is required for widening the road as per a town planning scheme pending, which may have to be done by resorting to acquisition, and therefore, we have no hesitation to hold that Section 67 of the Kerala Town and Planning Act, 2016, would come into play. This is exactly what the learned Single Judge held and accordingly directed the Secretary of the Municipality to consider any purchase notice issued by the writ petitioner under Section 67 of the Kerala Town and Country Planning Act, 2016. Section 67 of Act 2016 W. A. No. 1320 of 2021 -8- is a scheme by itself and for convenience and brevity, it is extracted:- “67. Obligation to acquire land in certain cases.—(1) Where any land is designated for compulsory acquisition in a Master Plan 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 W. A. No. 1320 of 2021 -9- 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 (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 W. A. No. 1320 of 2021 -10- 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.” 11. Therefore it is quite clear and evident that whenever a land is earmarked for compulsory acquisition under any scheme prevailing for any area, the said property ought to have been acquired within two years from the date of commencement of Act 2016, which is apparently not done by the concerned authority. Therefore the writ petitioner as of right is entitled to issue a purchase notice in contemplation of Section 67 of Act 2016. Taking into account all the above factual and legal aspects, we are of the view that the appellants have not made out any grounds for interfering with the judgment of the learned Single Judge, there being no jurisdictional error or other legal infirmities liable to be interfered in an intra court appeal filed under Section 5 of the Kerala High Court Act, 1958. W. A. No. 1320 of 2021 -11- Needless to say, the writ appeal fails. Accordingly, it is dismissed. **Sd/-** **S. MANIKUMAR CHIEF JUSTICE** **Sd/-** **SHAJI P. CHALY JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE