Kerala High Court

Mohammed Ashraf vs The Secretary on 1 July, 2022

         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

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

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

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

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

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




                    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