IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
WP(C) NO. 8801 OF 2016
PETITIONERS:
1 MOHAMMED ASHRAF
S/O.MOIDEENKUTTY HAJI,
POONTHOTTATHIL HOUSE, MELAKAM,
KARUVAMBRAM P.O, MANJERI,
MALAPPURAM DISTRICT PIN 676 123
2 ABDUL HAMEED
S/O.MOIDEENKUTTY HAJI,POONTHOTTATHIL HOUSE,
MELAKAM, KARUVAMBRAM P.O, MANJERI,
MALAPPURAM DISTRICT PIN 676 123
BY ADVS.
SRI.K.M.SATHYANATHA MENON
SMT.KAVERY S THAMPI
RESPONDENTS:
1 THE SECRETARY
MANJERI MUNICIPALITY,
MALAPPURAM DISTRICT PIN 676 123
2 MANJERI MUNICIPALITY
MUNICIPAL OFFICE, MANJERI,
MALAPPURAM, PIN 676 123
REPRESENTED BY ITS SECRETARY
BY ADV SRI.K.SHIBILI NAHA, SC, MANJERI
MUNICIPALITY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P(C)8801/2016
2
JUDGMENT
Dated this the 1st day of July, 2022 This writ petition is filed by the petitioners seeking the following reliefs:
"Issue a writ of certiorari or any other appropriate writ, order or direction, calling for the original of Exts. P1 and P3 and quash the same and direct the respondents to approve the building plan and issue building permit for the commercial building proposed to be constructed in the property of the petitioners."
2. The grievance of the petitioners is that though the petitioners have submitted an application seeking building permit, it was rejected by the Secretary of Manjeri Municipality as per Exhibit P1 order dated 18.10.2014, assigning the reason that in the application submitted by the petitioners, they have not left sufficient space for widening of the road, passing in front of the petitioners property since the area is included in the DTP Scheme as Mixed Zone.
3. Even though the petitioners have submitted a reply and tried their best efforts, the Municipality did not budge to the request made by the petitioner and it was aggrieved by the same, W.P(C)8801/2016 3 writ petition is filed by the petitioner. This writ petition is pending before this Court from 8.3.2016, without securing any interim order. But fact remains , during the pendency of the writ petition, the Kerala Town and Country Planning Act, 2016, came into force , by which several enabling features are provided to the owners of the land, whose properties are earmarked for acquisition under various schemes, including road widening.
4. Section 67 of the Act will be relevant to the context, which 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 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 W.P(C)8801/2016 4 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 (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 W.P(C)8801/2016 5 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.
5. Therefore, I am of the considered opinion that the building permit application rejected by the Secretary of the Municipality, assigning the reason that petitioner has not left sufficient space for widening of the road, passing in front of the property, can only be treated as a property earmarked for widening of the road. Even though erstwhile Town Planning Acts were repealed consequent to the introduction of the Act 2016, as W.P(C)8801/2016 6 per Section 113 of Act 2016, all the erstwhile schemes are protected. However if any requisition is made by the petitioner to the Municipality, to ascertain as to whether the Municipality is interested to acquire the property, Municipality is duty bound to follow the procedure contemplated under Section 67 of the Act 2016, failing which an owner of the property is entitled as of right for consideration of the application irrespective of the restrictions contained under the scheme.
6. In that view of the matter, it can be seen that a clear mechanism is provided under law for ventilating the grievances of the land owners as specified in the said provision. Therefore, after having heard Sri. K.M. Sathyanatha Menon, learned counsel for the petitioner, and perusing the pleadings and material on record, I am of the view that writ petition can be disposed of with suitable directions.
Therefore, the writ petition is disposed of leaving open the liberty of the petitioners to make suitable application, in accordance with Section 67 of Act 2016, to Manjeri Municipality within a month. If any such application is received, the Municipality shall take appropriate action in terms of the W.P(C)8801/2016 7 mandatory requirements contained under Section 67 of the Act, 2016. I make it clear that if the Municipality/Secretary is not taking any action in contemplation of the said provisions, the application submitted by the petitioners or any fresh application submitted by the petitioners, shall be considered by the Municipality in accordance with law, at the earliest possible time and at any rate within one month from the expiry of the time prescribed under Section 67 of the Act 2016.
Sd/-
Shaji P. Chaly, Judge sou.
W.P(C)8801/2016
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APPENDIX OF WP(C) 8801/2016
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE COMMUNICATION DATED
18-10-2014 ISSUED BY THE 1ST
RESPONDENT
EXHIBIT P2 TRUE COPY OF THE REPLY TO EXT P1 DATED
29-10-2014 SUBMITTED BY THE
PETITIONERS
EXHIBIT P3 TRUE COPY OF THE COMMUNICATION DATED
5-12-2014 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P4 TRUE COPY OF THE APPLICATION SUBMITTED
BY THE 1ST PETITIONER BEFORE THE PUBLIC
INFORMATION OFFICER OF THE 2ND
RESPONDENT
EXHIBIT P5 TRUE COPY OF THE REPLY DATED 16-12-
2015 ISSUED BY THE PUBLIC INFORMATION
OFFICER OF THE 2ND RESPONDENT
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 1-12-
2010 IN W.P(C) NO 8236 OF 2010
EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED
7/11/2005 IN W.P(C) NO 20315/2005
EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 26-3-
2013 IN W.A NO 429 OF 2013