Kerala High Court
Sunil Kumar C vs Kozhikode Corporation on 28 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942
WP(C).No.21892 OF 2020(J)
PETITIONER/S:
SUNIL KUMAR C.,
AGED 55 YEARS,
S/O. M. M. KRISHNAN,
'KRISHNA KRIPA', 5/994,
RARICHAN ROAD,
ERANHIPALAM (PO),
KOZHIKODE - 673 006.
BY ADV. SRI.K.PRAVEEN KUMAR
RESPONDENT/S:
1 KOZHIKODE CORPORATION
REPRESENTED BY ITS SECRETARY,
KOZHIKODE CORPORATION OFFICE,
KOZHIKODE - 673 032.
2 THE SECRETARY,
KOZHIKODE CORPORATION,
KOZHIKODE CORPORATION OFFICE,
KOZHIKODE - 673 032.
3 THE SUPERINTENDING ENGINEER,
KOZHIKODE CORPORATION,
KOZHIKODE CORPORATION OFFICE,
KOZHIKODE - 673 032.
4 THE ASSISTANT ENGINEER,
KOZHIKODE CORPORATION,
KOZHIKODE CORPORATION OFFICE,
KOZHIKODE - 673 032.
W.P.(C)No.21892 of 2020
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5 THE REGIONAL TOWN PLANNER,
REGIONAL TOWN PLANNING OFFICE,
B. G. ROAD, WEST HILL P.O.,
KOZHIKODE - 673 005.
R1-4 BY SRI.G.SANTHOSH KUMAR, SC, KOZHIKODE
MUNICIPAL CORPORATION
R5 BY SMT.G.RANJITA, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
28.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.21892 of 2020
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W.P.(C)No.21892 of 2020
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JUDGMENT
Petitioner holds a land measuring 10.40 cents within the
limits of the first respondent Corporation. He preferred an application on
20.02.2020 for building permit. The application of the petitioner was
however rejected by the Corporation as per Ext.P2 communication
stating that there is a proposal for widening the road abutting the land of
the petitioner in terms of the Detailed Town Planning Scheme framed for
the area and the construction proposed by the petitioner would cause
hindrance to the proposed road widening. On receipt of Ext.P2
communication, the petitioner issued a purchase notice to the
Corporation invoking Section 67(1) of the Kerala Town and Country
Planning Act, 2016 (the Act). Ext.P3 is the purchase notice. Ext.P4 is a
communication issued on Ext.P3 purchase notice by the Corporation. In
Ext.P4, it is stated that the road widening proposal referred to in Ext.P2
does not fall within the scope of Section 67 of the Act. Ext.P2 and Ext.P4
are under challenge in the writ petition.
2. A statement has been filed on behalf of the Corporation
contending that since the land of the petitioner is not one proposed to be
acquired compulsorily, Section 67 of the Act has no application.
W.P.(C)No.21892 of 2020
3. Heard the learned counsel for the petitioner as also the
learned Standing Counsel for the Corporation.
4. In Abdul Hakeem N.T. v. Manjeri Municipality and
Another, 2018 (2) KHC 67, this Court held that as far as a land
earmarked for a development project of the local body in terms of the
sanctioned town planning scheme, sub section (1) of Section 67 creates
an obligation on the local body to initiate proceedings for acquisition of
the land within two years; 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 interest of the owner in the land as provided for in
the said provision; that if the local body does not take a decision within
sixty days thereafter to acquire the land, the owner of the land is entitled
to the building permit sought by him.
5. As noted, the fact that a portion of the land of the
petitioner is earmarked for a development project of the local body in
terms of the sanctioned Town Planning Scheme is not disputed by the
Corporation. The stand of the Corporation is that the land of the
petitioner is not one proposed to be acquired compulsorily by the
Corporation, indicating that the road widening is proposed to be
undertaken after obtaining the land required for the same free of cost
from the owners. If the owners of the land are prepared to surrender the
land free of cost to the Corporation for its development project, Section
67 of the Act does not compel the Corporation to acquire the said land.
But, if the owners are not prepared to surrender the land free of cost to
W.P.(C)No.21892 of 2020
the Corporation and intend to make use of the land for their purposes as
in the case on hand by putting up a building therein, according to me,
the Corporation is bound to take a decision to acquire the land on receipt
of the purchase notice and if they do not take a decision to acquire the
land on receipt of the purchase notice, it cannot create an impediment
for the owner of the land in enjoying the land beneficially. In other words,
if there is no decision to acquire the land, the Corporation cannot deny
the building permit applied for by the owner.
In the said view of the matter, the writ petition is allowed,
Exts.P2 and P4 are quashed and the Corporation is directed to grant the
building permit sought for by the petitioner, if the application of the
petitioner is otherwise in order. This shall be done within three weeks.
Sd/-
P.B.SURESH KUMAR, JUDGE
rkj
W.P.(C)No.21892 of 2020
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE TAX RECEIPT DATED
07.09.2020.
EXHIBIT P2 TRUE COPY OF THE PROCEEDING
NO.TP9/17439/2020 DATED 01.04.2020.
EXHIBIT P3 TRUE COPY OF THE APPLICATION SUBMITTED
BEFORE THE 1ST RESPONDENT ON 17.04.2020.
EXHIBIT P4 TRUE COPY OF THE PROCEEDING
NO.TP9/17439/2020 DATED 09.09.2020.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED
17.03.2017 ON WP(C)25956/2014.
EXHIBIT P6 TRUE COPY OF THE PROCEEDING NO.TP 11(TP
4)/2978/10 DATED 03.10.2017.
EXHIBIT P7 TRUE COPY OF THE REPRESENTATION SUBMITTED
BEFORE THE TOWN PLANNING OFFICER, DATED
NIL.
EXHIBIT P8 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY SHRI BABURAJ T. C. BEFORE THE 5TH
RESPONDENT DATED 13.03.2020.
