Writ Appeals Nos. 2244 of 2015, 11 of 2016 and 2631 of 2015, Palakkad Municipality v. Rajagopal Menon and others; High Court of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ## **`&`** ## **`THE HONOURABLE MR. JUSTICE SHAJI P.CHALY`** ``` THURSDAY, THE 17[TH] DAY OF NOVEMBER 2022 / 26TH KARTHIKA, 1944 ``` ## **`WA NO. 2244 OF 2015`** ``` AGAINST THE JUDGMENT IN WPC 20459/2015 OF HIGH COURT OF KERALA ``` ## **`APPELLANT/1ST RESPONDENT:`** ``` PALAKKAD MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, PALAKKAD - 678 001. ``` ``` BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD SHRI.BINOY VASUDEVAN, SC, PALAKKAD MUNICIPALITY ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1RAJAGOPAL MENON AGED 75 YEARS, S/O.LATE THACHU MENON, RESIDING AT DILKUSH,17/461, NSC BOSE ROAD, PALAKKAD - 678 001. ``` ``` 2THE TOWN PLANNING OFFICER PALAKKAD MUNICIPALITY MUNICIPAL OFFICE PALAKKAD - 678 001. ``` ``` 3THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM - 695 001. ``` ``` *ADDL. RESPONDENTS IMPLEADED. ``` ``` 4ADDL.R4:RAJASANKAR M., S/O.LATE RAJAGOPAL MEMON, AGED 37 YEARS, DILKUSH, 17/461,NSC BOSE ROAD,PALAKKAD-678 001. ``` **2** ## **W.A.No.2244 of 2015 & conn. Cases** ``` 5ADDL.R5:ANUJA JAYAKRISHNAN, D/O.LATE RAJAGOPAL MENON, AGED 35 YEARS, DILKUSH, 17/461, NSC BOSE ROAD, PALAKKAD-678 001. ``` ``` *ADDL. RESPONDENT NOS.4 AND 5 ARE IMPLEADED AS PER ORDER DATED 20.12.16 IN I.A.1461/16. ``` ``` BY ADV SRI.JACOB SEBASTIAN SRI.K.P. HARISH, SR. GP ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.11.2022, ALONG WITH WA.11/2016, 2631/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.A.No.2244 of 2015 & conn. Cases** **3** # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ``` & ``` ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY ``` ``` THURSDAY, THE 17[TH] DAY OF NOVEMBER 2022 / 26TH KARTHIKA, ``` ``` 1944 ``` ``` WA NO. 11 OF 2016 ``` ``` AGAINST THE JUDGMENT IN WPC 20459/2015 OF HIGH COURT OF ``` ## **`KERALA`** ## **`APPELLANTS/RESPONDENTS 2 & 3 IN WPC:`** ``` 1THE TOWN PLANNING OFFICER, PALAKKAD MUNICIPALITY MUNICIPAL OFFICE, PALAKKAD-678 001. 2THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM-695 001. ``` ``` BY SR. GOVERNMENT PLEADER SRI.K.P. HARISH ``` ## **`RESPONDENTS/PETITIONER & 1ST RESPONDENT IN WPC:`** ``` 1RAJAGOPAL MENON AGED 75 YEARS, S/O.LATE THACHU MENON, DILKUSH,17/461,NSC BOSE ROAD, PALAKKAD-678 001. 2PALAKKAD MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE,PALAKKAD-678 001. ``` ``` BY ADV SHRI.BINOY VASUDEVAN, SC, PALAKKAD MUNICIPALITY ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.11.2022, ALONG WITH WA.NOS.2244/2015 & 2631/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.A.No.2244 of 2015 & conn. Cases** **4** ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 17[TH] DAY OF NOVEMBER 2022 / 26TH KARTHIKA, 1944 ``` ``` WA NO. 2631 OF 2015 AGAINST THE JUDGMENT IN WPC 12115/2015 OF HIGH COURT OF KERALA ``` ## **`APPELLANT/1ST RESPONDENT:`** ``` PALAKKAD MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, PALAKKAD - 678 001. ``` ``` BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD SHRI.BINOY VASUDEVAN, SC, PALAKKAD MUNICIPALITY ``` ## **`RESPONDENTS/PETITIONER & 2ND RESPONDENT:`** ``` 1M.BHAKTHA VALSALAN, AGED 62 YEARS, RESIDING AT KANOOR VEEDU, CHERAMANGALAM, PALAKKAD-678 703, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER M.JANARDHANAN, S/O. P. GOPALAN NAIR, RESIDING AT MUNOORKODE VEEDU, THACHAMKADU P.O, MATHUR, PALAKKAD-678 571. 2THE TOWN PLANNER, PALAKKAD - 678 001. BY ADVS. SRI.S.ANANTHAKRISHNAN BY SR.GOVERNMENT PLEADER SRI.K.P. HARISH ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.11.2022, ALONG WITH WA.2244/2015 & 11/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.A.No.2244 of 2015 & conn. Cases** **5** ## **JUDGMENT** Dated this the 17[th] day of November, 2022 ## **Shaji P.Chaly, J.** Writ Appeal Nos.2244 of 2015 and 11 of 2016 are filed by the Palakkad Municipality and the State Government respectively challenging the judgment of the learned single Judge in W.P.(C)No.20459 of 2015 dated 28.07.2015; whereas Writ Appeal No.2631 of 2015 is filed by the Palakkad Municipality challenging the judgment of the learned single Judge in W.P.(C)No.12115 of 2015 dated 10.04.2015. 2. The issues raised by the writ petitioners in the writ petitions are based on the orders passed by the Secretary of the Palakkad Municipality/authorised authority declining permit for construction of buildings on the ground that the properties belonging to the writ petitioners are required for widening a road to 18 meter as per a Master Plan and Detailed Town Planning Scheme existing for the Municipal area. ## **W.A.No.2244 of 2015 & conn. Cases** ## **6** 3. The learned single Judge, in W.P.(C)No.20459 of 2015, after taking into account the judgment of the Apex Court in **Raju S. Jethmalani v. State of Maharashtra** [(2005) 11 SCC 222] allowed the writ petition and quashed the order passed by the Secretary of the Municipality declining permit and directed to reconsider the petitioner’s application and to pass positive orders within a period of one month from the date of receipt of a copy of the judgment. 4. Insofar as the judgment in W.P.(C)No.12115 of 2015 is concerned, a learned single Judge followed the ratio laid down in the judgment in W.P.(C)No.30426 of 2014 dated 03.12.2014 and directed to consider the application of the petitioner for building permit afresh, if necessary, by referring the matter to the District Town Planner and thereafter pass appropriate orders, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of the judgment. 5. When the writ appeals were admitted to the files of this court, an interim stay of the judgment of the learned **W.A.No.2244 of 2015 & conn. Cases** **7** single Judge was granted for a short period which was extended until further orders by a subsequent order and the stay orders are in force now. 6. The paramount contention advanced by the Municipality as well as the State Government is that since the properties in question are included in the Master Plan as well as the Detailed Town Planning Scheme, the learned single Judge was not right in quashing the said orders and directing the Secretary/authorised officer to reconsider the building permit application in accordance with law, otherwise. 7. A detailed adjudication of the said matter is not required since during the pendency of the appeal the Kerala Town and Country Planning Act, 2016 has come into force on and with effect from 17.03.2016. So also, the Kerala Municipality Building Rules, 1999 is now replaced by the Kerala Municipality Building Rules, 2019. It is to be noted that as per section 113 of Act 2016, all the existing Town Planning Acts were repealed. However, as per sub-section (2) thereto, any draft General Town Planning Scheme for an **W.A.No.2244 of 2015 & conn. Cases** ## **8** 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 the Act; and 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 the Act. But fact remains, as per section 67 of Act 2016, an obligation is cast upon the Municipality or the State Government, as the case may be, to acquire land in certain cases. The said provision reads thus: “ **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 **W.A.No.2244 of 2015 & conn. Cases** **9** 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 subsection (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 **W.A.No.2244 of 2015 & conn. Cases** **10** with this Act. (6) On receipt of a purchase notice under subsection (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 **W.A.No.2244 of 2015 & conn. Cases** **11** section 64.” 8. On an analysis of the said provision, it is quite clear and evident that a clear cut procedure is prescribed if a land is designated for compulsory acquisition in a Master Plan or Detailed Town Planning Scheme sanctioned under the 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; then the owner or any person affected is vested with the right to issue a notice and request for acquisition of the properties required for widening the road. It is also clear from the said provision that other modalities are also prescribed if the widening scheme is to be undertaken by the State Government. Anyhow, it is clear from the said provision that if the Municipality is not taking a decision within the time period prescribed thereunder, necessarily, the Municipality has to take a decision in the building permit application irrespective of the Master Plan or the DTP Scheme existing for the area in question. **W.A.No.2244 of 2015 & conn. Cases** **12** 9. That apart, section 78 of Act 2016 deals with acquisition of property for implementation of plans; which specifies that a Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat or Development Authority may acquire any movable or immovable property by purchase, exchange, gift, lease, mortgage, negotiated purchase or by any other method permissible under any law, for the purpose of the implementation of a Plan under the Act. 10. A conjoint reading of section 67 and section 78 makes it clear that the designation of land for compulsory acquisition mentioned under section 67 includes a property earmarked for widening of a road as per the Master Plan or the DTP Scheme. In that view of the matter, we are of the undoubted opinion that the writ petitioners are entitled to invoke the rights conferred on them under section 67 of Act 2016. This we say also due to the reason since the matter was pending in appeal and stay was granted, as of now, the Secretary of the Municipality may not be in a position to **W.A.No.2244 of 2015 & conn. Cases** **13** comply with the directions issued by the learned single Judge especially due to the fact that a new Municipality Building Rules was introduced in the year 2019.e Analysing so, we are of the view that the findings of the learned single Judge at that point of time cannot be said to be without jurisdiction in view of the principles of law laid down by the Apex Court in **Raju S. Jethmalani** ’s case (supra) and other judgments rendered by this court. 11. Therefore, the appeals have no merit. However, in view of the provisions contained under section 67 of Act 2016, we dispose of the appeals leaving open the liberty of the writ petitioners to exercise their right conferred under the said provision and proceed in accordance with law. We make it clear that if the Municipality is not taking a decision on receipt of any notice from the writ petitioners within the time prescribed thereunder, any application submitted seeking building permit shall be considered by the Secretary of the Municipality or any authorised officer in accordance with law at the earliest possible from the date of ## **W.A.No.2244 of 2015 & conn. Cases** ## **14** receipt of the application(s) irrespective of the existing Master Plan or any DTP Scheme. Pending interlocutory applications, if any, shall stand closed. Sd/- **S.Manikumar Chief Justice** Sd/- **Shaji P.Chaly Judge** **vpv** **==> picture [59 x 11] intentionally omitted <==** **----- Start of picture text -----**<br> //true copy//<br>**----- End of picture text -----**<br> P.A. to Judge