Kerala High Court

The Changanacherry Municipality vs The Changanacherry Municipality on 9 February, 2021

W.A. No. 410/2020                       : 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

        TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942

                               WA.No.410 OF 2020

  AGAINST THE JUDGMENT DATED 26.11.2019 IN WP(C) 26602/2015(A) OF HIGH
                          COURT OF KERALA

APPELLANTS/RESPONDENTS 1 TO 3:

       1       THE CHANGANACHERRY MUNICIPALITY
               CHANGANACHERRY.P.O, PIN-686 101, KOTTAYAM DISTRICT,
               REPRESENTED BY ITS SECRETARY.
       2       THE SECRETARY,
               CHANGNACHERRY MUNICIPALITY, CHANGANACHERRY.P.O,
               PIN-686 101, KOTTAYAM DISTRICT.
       3       THE MUNICIPAL ENGINEER
               CHANGNACHERRY MUNICIPALITY, CHANGANACHERRY.P.O, PIN-686
               101, KOTTAYAM DISTRICT.
               BY ADV. SRI.M.P.MADHAVANKUTTY

RESPONDENTS/PETITIONER & 4TH RESPONDENT:
      1      BIJU A.LATHEEF, AGED 40 YEARS
             ALAYIL HOUYSE, PERUNNA POST, CHANGANACHERRY, KOTTAYAM
             DISTRICT, PIN-686 102.

       2       THE DISTRICT TOWN PLANNER
               KOTTAYAM, PIN-686 001.

               R1 BY ADV. SRI.MATHEW JOHN (K)

               R1 BY SRI. MATHEW JOHN(K) FOR R1,
               R2 BY SRI. ARAVINDA KUMAR BABU, SR. GOVERNMENT PLEADER

      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.02.2021, THE
      COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A. No. 410/2020                        : 2:


                    Dated this the 9th day of February, 2021.

                                        JUDGMENT

SHAJI P. CHALY, J.

The appeal is preferred by the Changanacherry Municipality, the

Secretary and the Municipal Engineer, who are respondents 1 to 3 in

the writ petition, challenging the judgment of the learned single Judge

dated 26.11.2019, whereby the following directions are issued:

5. In the afore perspective and taking note of the specific circumstances presented in this case, I order this writ petition and leave liberty to the petitioner to make a purchase notice under Section 67 of the Kerala Town and Country Planning Act before the Municipality; and if this is done within a period of fifteen days from the date of receipt of a copy of this judgment, the competent Authority of the Municipality will consider the same and issue appropriate orders thereon, within the statutory period fixed under the Act and will communicate the resultant order to the petitioner It goes without saying that if the Municipality either rejects the purchase notice or does not answer it within the statutory period, then the Secretary of the Municipality will be obligated to reconsider the petitioner's application for building permit dated 01.10.2014, de hors the provisions of the Master Plan/Detailed Town Planning Scheme and issue appropriate orders thereon, as expeditiously as is possible, but not later than one month from the date on which the statutory period for consideration of the petitioner's notice, under

Section 67 of the Act, expires."

2. The basic material facts for the disposal of the writ appeal are

as follows:

The writ petitioner is an owner of a plot adjoining the Alappuzha-

Changanassery road, who filed an application dated 01.10.2014

before the Secretary of the Municipality seeking to issue a building

permit for the construction of a commercial building in his property.

The said application was rejected as per Ext. P1 communication dated

28.10.2017 by the Municipal Engineer, the third appellant, pointing out

certain defects in the application submitted. According to the writ

petitioner, he cured those defects and resubmitted the application

before the Secretary of the Municipality. The Secretary of the

Municipality forwarded the application to the District Town Planner,

Kottayam, who is the second respondent in the appeal and the 4 th

respondent in the writ petition.

3. It is the case of the writ petitioner that there was no

requirement for referring the application to the District Town Planner,

since the direction sought for by the writ petitioner has no

consequence so as to secure any permission from the District Town

Planner. Anyhow, the District Town Planner addressed Ext. P2

communication dated 21.03.2015 to the Secretary of the Municipality,

in which the Town Planner has pointed out a development plan for

Changanassery, and referring to the said plan informed the Secretary

that a portion of the plot of land belonging to the petitioner would fall

within Park and Open Space zone and another portion comes within

the residential zone. That apart, it is stated that a proposed road

having access from Alappuzha-Changanassery road also passes

through the writ petitioner's plot of land in accordance with the plan

and thereupon, the petitioner has sought certain information under the

Right to Information Act in regard to the development plan.

4. According to the petitioner, on inspection of the said plan

secured as per the Right to Information Act by the experts, it was

found that the plan contained a large number of mistakes and the said

mistakes were pointed out by the writ petitioner to the Municipal

authorities. Anyhow, the Municipal Engineer has rejected the

application for building permit submitted by the writ petitioner as per

Ext. P5 order dated 09.07.2015, stating that a road having a width of

12 meter is proposed to be constructed through the property in

question of the writ petitioner and therefore, permit cannot be granted

as is sought for by the writ petitioner.

5. The learned single Judge, after assimilating the factual and

legal situations, has found that the issue is guided by Section 67(1) of

the Kerala Town and Country Planning Act, 2016 ('Act, 2016' for

brevity) and it was thereupon that directions were issued as is

extracted above. It is thus, challenging the legality and correctness of

the said judgment and the directions, the appeal is preferred by the

Municipality and its officials.

6. We have heard the learned counsel for the appellants Sri. M.P.

Madhavankutty, Sri. Aravindakumar Babu for the District Town Planner

and Sri. Mathew John for the writ petitioner/first respondent, and

perused the pleadings and materials on record.

7. The reliefs sought for by the writ petitioner is basically

concerning Ext. P5 order passed by the Municipal Engineer in the

application submitted by the writ petitioner for building permit. The

sole reason assigned in Ext. P5 rejection order is that the Municipality

proposes a road having a width of 12 meters through the property in

question belonging to the writ petitioner under a town planning

scheme. From the above reasonings contained in Ext. P5, it is

categoric and clear that in order to construct a road through the

property of the writ petitioner, acquisition is required. Section 67(1) of

Act, 2016 takes care of dealing with the properties of private persons

for the requirement of developmental activities and the procedure to

be followed for acquiring the property. In that context, it is profitable

to extract Section 67 of Act, 2016, 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 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 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."

8. On an analysis of the said provision, and bearing in mind the

other provisions of the Act 2016 and the provisions of the Kerala

Panchayat Raj Act, 1994 and the Rules thereto, and co-relating it with

the facts at hand, it is categoric and clear that the Municipality will

have to take a decision as to whether it is interested in proceeding

with any acquisition for developmental activities and if so, it has to

take a decision within the time period prescribed under law, failing

which the Municipality is liable to reconsider the application submitted

by the writ petitioner for building permit. In that view of the matter, it

cannot be said that the rejection order declining building permit

impugned in the writ petition is sustainable under law.

9. Upshot of the discussion is that, we do not think the appellants