State Of Kerala vs Mony K.V
2021 Latest Caselaw 12637 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
          THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
                             &
            THE HONOURABLE MR. JUSTICE K.HARIPAL
   MONDAY, THE 31ST DAY OF MAY 2021 / 10TH JYAISHTA, 1943
                     WA NO. 913 OF 2020
 AGAINST THE JUDGMENT IN WP(C)NO.5111/2018 DATED 1.2.2019
                  OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 3 & 4 IN W.P.(C):

    1    STATE OF KERALA
         REPRESENTED BY THE SECRETARY TO GOVERNMENT, TOWN
         PLANNING DEPARTMENT, SECRETARIAT,
         THIRUVANANTHAPURAM-695 001.

    2    THE CHIEF TOWN PLANNER,
         CIVIL STATION, KAKKANADU, KOCHI-682 030.

         BY ADV. SRI.K.V.SOHAN (STATE ATTORNEY)
         BY SR.G.P.SRI.T.K.ANANDAKRISHNAN
RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2 IN W.P.(C):

    1    MONY K.V,S/O.VASU, KOZHIKKAPARAMBIL HOUSE, NARAKAL
         P.O., NARAKKAL, KOCHI-682 505.

    2    NARAKKAL GRAMA PANCHAYAT,REPRESENTED BY ITS
         SECRETARY, NARAKAL P.O., KOCHI TALUK, ERNAKULAM
         DISTRICT-682 505.

    3    SECRETARY, NARAKKAL GRAMA PANCHAYAT,NARAKAL P.O.,
         KOCHI TALUK, ERNAKULAM DISTRICT-682 505.

         R1 BY ADV.SRI.JOHN JOSEPH (ROY)
         R2&R3 BY ADV.SRI.M.N.SANJITH
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24.02.2021,
ALONG WITH WA.1166/2020, THE COURT ON 31.05.2021 DELIVERED
THE FOLLOWING:
 W.A.Nos.913 & 1166 of 2020                2




             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
             THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
                                      &
               THE HONOURABLE MR. JUSTICE K.HARIPAL
    MONDAY, THE 31ST DAY OF MAY 2021 / 10TH JYAISHTA, 1943
                             WA NO. 1166 OF 2020
 AGAINST THE JUDGEMENT IN WP(C) 31881/2018 DATED 20.2.2019
                        OF HIGH COURT OF KERALA
APPELLANT/RESPONDENTS 4 TO 6:

     1      THE CHIEF TOWN PLANNER
            OFFICER OF THE CHIEF TOWN PLANNER,
            NANTHANCODU SWARAJ BHAVAN, NANTHANCODU,
            THIRUVANANTHAPURAM-695 003.

     2      THE DISTRICT TOWN PLANNER,
            DISTRICT TOWN PLANNING OFFICE,
            THANA P.O.,KANNUR-670012.

     3      THE STATE OF KERALA,
            REPRESENTED BY THE SECRETARY TO GOVERNMENT,
            LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT,
            THIRUVANANTHAPURAM-695 001.

            BY ADV.SRI.K.V.SOHAN (STATE ATTORNEY)
            BY SR.G.P.SRI.T.K.ANANDAKRISHNAN


RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3:

     1      K.LAKSHMANAN, AGED 61 YEARS
            S/O PAITHAL, WEAVER, RESIDING AT V/152,
            KOOLOTHUMMAL HOUSE, P.O.NETTUR,
            KANNUR DISTRICT-670 105.
 W.A.Nos.913 & 1166 of 2020         3




     2      THE SECRETARY,THALASSERY MUNICIPALITY,
            THALASSERY, KANNUR DISTRICT-670101.

     3      THE THALASSERY MUNICIPALITY,
            REPRESENTED BY THE SECRETARY,
            THALASSERY MUNICIPALITY, THALASSERY,
            KANNUR DISTRICT-670 101
     4      THE ASSISTANT ENGINEER,
            LOCAL SELF GOVERNMENT DEPARTMENT,

            KODIYERI SECTION, THALASSERY MUNICIPALITY,
            THALASSERY-670 101.

            R2 TO R4 BY ADV.SRI.I.V.PRAMOD


THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24.02.2021,
ALONG WITH WA.913/2020, THE COURT ON 31.05.2021 DELIVERED
THE FOLLOWING:
 W.A.Nos.913 & 1166 of 2020              4




                              JUDGMENT

Ravikumar, J.

Today, as per separate orders in Civil Miscellaneous

Applications filed in the captioned appeals we have condoned the delay

in filing the appeals. On consent of parties we have heard the appeals

jointly, owing to the commonness of the issues involved, and they are

being disposed of by this common judgment.

2. The former appeal is filed by the State of Kerala and the

Chief Town Planner, who were respondent Nos.3 and 4 respectively in

W.P.(C)No.5111 of 2018, against the judgment dated 1.2.2019 passed

thereon. The latter appeal is filed by the Chief Town Planner, the

District Town Planner, Kannur and the State of Kerala, who were

respondent Nos.4 to 6 respectively in W.P.(C)No.31881 of 2018,

against the judgment dated 20.2.2019 passed thereon. The respective

first respondent in the appeals preferred the respective writ petitions

seeking quashment of the order rejecting their respective application

for building permit. The impugned order of rejection of the building

permit application has been marked, in both the writ petitions, as

Ext.P3. We will firstly state the facts of each of the above cases

succinctly. The first respondent in the former appeal viz., the petitioner

in W.P.(C) No.5111 of 2018 is the owner in possession of an extent of

2.69 cents of property comprised in Survey No.170/2 of Narakkal

Village, within the limits of Narakkal Grama Panchayat. He filed an

application for building permit to construct a residential-cum-

commercial building thereon. The said application was rejected as per

Ext.P3 by the Secretary of Narakkal Grama Panchayat viz., the 3 rd

respondent in the former appeal. It is stated therein that as per the

Town Planning Scheme there is a widening proposal for Vypin-

Munambam road with 27 metres and as far as the site in question is

concerned only 3 metres road margin is left. A statement was filed by

the 4th respondent therein/the 2nd appellant justifying the reason stated

in Ext.P3 for rejecting the building permit application submitted by the

first respondent-petitioner, placing reliance on the provisions under

Section 113 (2) of the Kerala Town and Country Planning Act, 2016 (for

short 'Act 2016') . It is also stated therein that the Structure Plan

sanctioned in the year 1991 is to be deemed as a Master Plan

sanctioned as per the Act 2016 and hence, the plan of the year 1991 is

still operational. The learned Single Judge upheld the contention that

under Section 113(2) of the Act 2016 the existing schemes are

protected though the erstwhile Town Planning Acts are repealed.

However, the learned Single Judge referred to Sections 67(1) and (2) of

the Act 2016 itself and took into consideration the factual circumstances

pointed out in Ext.P3 invariably indicating the necessity to acquire the

property of the first respondent-petitioner to widen the road as

proposed, to hold thus:- "So far as acquisition of the property is

concerned, Section 67(1) of Act 2016 stipulates that, a decision will

have to be taken within a period of two years from the date of

introduction of the Act and if any notice is issued by the applicant, the

Panchayat or the local body will have to take a decision as to whether,

the scheme is to be modified or else, to go ahead with the acquisition."

In that view of the matter, the writ petition was disposed of with a

direction to the Panchayat, the 2nd respondent in the former appeal,

to take a decision within 60 days from the date of receipt of copy of

the judgment, as to whether the Panchayat intends to acquire the

property and if not, to consider the application submitted by the

first respondent-petitioner in accordance with law, within the time

stipulated therein. Though the direction, as mentioned above, was

given to the 2nd respondent-Panchayat respondents 3 and 4 felt

aggrieved by the judgment and preferred the former appeal.

3. The first respondent in the latter appeal viz.,the

petitioner in W.P(C) No.31881 of 2018, is the owner in possession of

3.47 Ares of property, whereon an old house situates, comprised in Re-

survey No.25/5B in Thalassery Village, within the limits of Thalassery

Municipality. His brother Kariyadan Raghavan is the owner in

possession of 1.62 Ares of property comprised in Re-survey No.23/1 of

the same Village. Putting together, by removing the partition in

between, the said properties measure 5.5 Ares, it is claimed and on

that basis, the first respondent in the latter appeal and his brother

applied for building permit before the Secretary of Thalassery

Municipality, the first respondent in the writ petition/the 2 nd respondent

in the appeal. As per Ext.P3 order dated 3.2.2018 the application

was rejected assigning twin reasons; namely, (i) that as per the report

of the Town Planner they are holding more extent of land than what

is described in their title deeds and the plan is submitted based on the

said extent; (ii) that there is a proposal for a road through the site in

question as per the plan for Thalassery Town Variation, 2007. On

receipt of Ext.P3 order of rejection the first respondent in the appeal

and his brother issued notice dated 28.5.2018 under Section 67 of the

Act 2016 to the second respondent requiring the Municipality to

purchase their interest in the land at the present market rate and in

accordance with law regarding compulsory acquisition. Despite the

receipt of the said notice no action was taken by the second respondent

within the upper time limit of 60 days as provided in Section 67(2) of

the Act 2016. So also, no intimation whatsoever regarding the outcome

of the said notice was also given. It is in the said circumstances that

W.P.(C)No.31881 of 2018 was filed. The learned Single Judge

after hearing the counsel on both sides disposed of the writ petition

granting 60 days' time to the Municipality to take a decision as to

whether the Municipality is going ahead with the acquisition of the

properties of the petitioner and his brother and directed that if the

Municipality is not taking a decision in that regard or is not

communicating any order, the building permit application shall be

reconsidered within 30 days from the date of expiry of the 60 days

prescribed in the judgment. As in the case of the former appeal,

though the direction was virtually issued to the first and second

respondents in W.P.(C)No.31881 of 2018 appeal against the judgment

was preferred by respondents 4 to 6 therein.

4. The facts narrated above involved in both the appeals

would thus go to show that the first respondent in both the appeals

approached this Court on being aggrieved by the rejection of their

applications for building permit, inter alia, assigning the reason of the

proposed widening/construction of road through the respective

properties, in Town Planning Schemes introduced more than a decade

ago. In fact, in the case involved in the former appeal the Scheme was

of the year 1991 and in the latter appeal the Scheme in question was of

the year 2007. Essentially, the contention of the learned counsel

appearing for the respective local body as also Sri.K.V.Sohan, the State

Attorney is that by virtue of the impact of Section 113(2) of the Act

2016 all the DTP Schemes made under the repealed enactments are

protected and therefore, the reasons assigned for rejection of the

respective building permit application invite no interference. In other

words, the contention is that the orders of rejection ought not to have

been interfered with and further that the consequential directions under

the impugned judgments were absolutely uncalled for.

5. As noticed hereinbefore, under the impugned judgments

in the appeals the learned Single Judge upheld the contention of the

respondents therein that the DTP Schemes involved under the repealed

Town Planning enactments are protected under the provisions of

Section 113(2) of the Act. However, the learned Single Judge went on

to consider the factual position obtained from the impugned order of

rejection of building permit application in both the writ petitions and

rightly came to the conclusion that they would invariably indicate the

necessity to acquire the land involved in the cases. As already noticed,

in the former appeal, the land involved is required for widening of

Vypin-Munambam road and the land involved in the latter appeal is

required for the construction of a road proposed under the plan for

Thalassery Town Variation 2007. Upon finding the said indisputable

factual position making acquisition of the properties involved inevitable,

the learned Single Judge held that the local body concerned is

statutorily bound to consider whether to go ahead with the acquisition

of the properties in terms of the Scheme and in case of failure to take a

decision on that issue, as mandated under Section 67(2) of the Act

2016, to reconsider the application for building permit within the time

stipulated.

6. In the contextual situation, as relates the former appeal,

it is relevant to note, I.A.No.2 of 2020 filed by respondent Nos.2 and 3

in the appeal namely, Narakkal Grama Panchayat and its Secretary.

The affidavit accompanying the petition would reveal that since no

decision was taken within a period of 30 days since the expiry of 60

days period on the application for building permit submitted by the

petitioner in W.P.(C)No.5111/2018, a Contempt Case viz., C.O.

(C)No.134/2019 was filed and consequently, building permit was issued

on 11.9.2020 to the petitioner concerned viz., the first respondent in

the former appeal subject to the result of the appeal. Obviously, the

impugned judgments were passed respectively on 1.2.2019 and

20.2.2019. The appeals were filed with applications to condone the

delay.

7. The appellants in both the appeals against whom no

specific direction was issued in the judgment in the writ petition

concerned, preferred the appeals mainly contending that the learned

Single Judge issued a direction for reconsideration of building permit

applications submitted by the respective petitioner without looking into

the position that till a new master plan/development plan is notified and

implemented in accordance with the provisions of the Act 2016, the

existing sanctioned development plans under the repealed town

planning enactments would continue to operate, by virtue of the

provision under Section 113(2) of the Act, 2016. We have already

taken note of the directions issued by the learned Single Judge under

the impugned judgments. A bare perusal of the judgments would

undoubtedly go to show that the learned Single Judge did uphold the

contention that by virtue of the provisions under Section 113(2) of the

Act 2016 the DTP Schemes under the repealed town planning

enactments would continue to be in operation. In such circumstances,

it cannot be said that the provision under Section 113 of the Act was

not taken into account by the learned Single Judge. In fact, even after

upholding the said contention raised by the respondents in the writ

petition the learned Single Judge went on to consider the statutory

provisions under Section 67 of the Act 2016. In the face of the

provisions under Section 67 of the Act 2016 we are at a loss to

understand as to how the appellants could canvass the position that the

local body concerned was not under an obligation to consider whether

the land involved is to be acquired or not. Upon carefully scanning

Ext.P3, marked as such in the respective writ petition, we do not find

any reason at all to hold that the learned Single Judge went wrong in

coming to the conclusion that the land involved in the cases requires

acquisition going by the tenor of the said orders. Ext.P3 in W.P.

(C)No.5111/2018 would reveal that the land involved therein requires

for widening of Vypin-Munambam road. Likewise, Ext.P3 in W.P.

(C)No.31881/2018 would reveal that the land involved therein requires

for constructing a road proposed under the plan for Thalassery Town

Variation 2007. When that finding of the learned Single Judge based on

the materials on record remains indisputable we do not find any reason,

in the light of the provisions under Section 67(2) of the Act, to interfere

in the direction of the learned Single Judge to the local body concerned

to decide on the question whether the land in question is to be

acquired or not. True that, in that regard, the period of 60 days time

was granted. That also cannot be said to be against the provisions of

the Statute. The further direction to the local body concerned to

reconsider the building permit application of the respective respondent

in the appeals was issued only in the event of failure to take and

communicate a decision on the aforesaid question. There is no case for

the respective local body that a decision was already taken to go ahead

with acquisition of the properties involved in the appeals. In the

contextual situation, the judgment of a Division Bench of this Court in

W.A.No.2505 of 2019, in which one among us (C.T.Ravikumar, J) was a

party, assumes relevance. It was rendered relying on an earlier

Division Bench decision of this Court in Padmini v. State of Kerala

(1999 (3) KLT 465) and a decision of the Hon'ble Apex Court in Raju

S Jethmalani and Others v. State of Maharashtra and Others

[(2005) 11 SCC 222], while considering the question whether, based

on a Scheme or Plan under the Town Planning Scheme which is still in

its embryonic stage, despite the long lapse of time, the land owner

could be deprived of rights to use his own property. In the light of the

decisions in Shantistar Builders v. Narayan Khimlal Totame (AIR

1990 SC 630), Karnataka v. Narasimhamurthy (AIR 1996 SC

90), Chameli Singh v. State of Uttar Pradesh (AIR 1996 SC

1051) and various other decisions as also the Constitution (Forty-

fourth Amendment) Act, 1978 transforming the right to property from

the category of Fundamental Rights by repealing Articles 19(1)(f) and

31 of the Constitution and converting it into an ordinary constitutional

right by enacting Article 300A, it was held that a challenge against

violation of Article 300A is maintainable under Article 226 of the

Constitution of India. Relying on the decision in Jilubhai Nanbhai

Khachar v. State of Gujarat (AIR 1995 SC 142) holding that the

word 'law' used in Article 300A must be an Act of Parliament or of State

Legislature, a rule or statutory order having the force of law the

deprivation of the right under Article 300A can only be by an authority

of law. Taking the dictionary meaning of the word 'deprive' it was held

that the word 'deprive' conveys the idea of taking away that which one

has, or withholding that which one may have or to take something

from; to keep from acquiring, using or enjoy something. Ultimately, it

was held therein that denying right to effect construction in one's own

property citing existence of a scheme which has been in force for long

period without taking any contrary steps for its effectuation, is nothing

but taking away the right of a citizen to enjoy his property and in a way

it amounts to negation of human right.

8. In the case on hand, the impugned judgments would

reveal that the learned Single Judge gave the liberty to the respective

local body to decide the question whether the land involved in the

appeals is to be acquired or not for effectuation of the Scheme

concerned. In that regard, two months' time was granted, despite the

fact that the scheme/plan concerned was made more than a decade

ago. No material whatsoever is available or brought to our notice which

would show that concrete steps were already taken for the effectuation

of the Scheme which, of course, is protected in terms of the provisions

under Section 113 of the Act 2016. When the direction to decide on the

aforesaid question is perfectly in terms of the statutory provision and

the further direction to reconsider the application in the event of failure

to take a decision on the necessity or otherwise to acquire the land in

question is also not in derogation of any statutory provision the

impugned judgments of the learned Single Judge call for no

interference in exercise of the power under Section 5 of the High Court

Act.

In the result, the appeals are dismissed.

Sd/-

C.T.RAVIKUMAR Judge

Sd/-

K.HARIPAL Judge

TKS