Abdul Gafoor vs State Of Kerala
2022 Latest Caselaw 6255 Ker

W.P.(C)Nos.12928/2018
& 12729/2020
                                     1


              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE T.R.RAVI
     FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
                        WP(C) NO. 12928 OF 2018
PETITIONER:

            ABDUL GAFOOR
            AGED 65 YEARS, S/O. MONUTTY,
            ARAKKAL VETTAH HOUSE,POONKUNNAM P.O,
            THRISSUR DISTRICT.
            BY ADVS.
            SRI.SANTHEEP ANKARATH
            SMT.C.K.SHERIN


RESPONDENTS:

     1      STATE OF KERALA
            REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
            TOWN PLANNING, LOCAL SELF GOVERNMENT DEPARTMENT,
            SECRETARIAT,
            THIRUVANANTHAPURAM - 695 001.
     2      CHIEF TOWN PLANNER
            THIRUVANANTHAPURAM - 695 001.
     3      DISTRICT TOWN PLANNER
            CIVIL STATION, AYYANTHOLE, THRISSUR - 680 003.
     4      GURUVAYOOR MUNICIPALITY
            GURUVAYOOR - 680 101, REPRESENTED BY ITS SECRETARY.
            BY ADVS.
            SRI RAJEEV JYOTHISH GEORGE, GOVERNMENT PLEADER
            SMT.S.AMBILI, SC, GURUVAYUR MUNICIPALITY
            SRI.K.K.CHANDRAN PILLAI (SR.)

      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
24.02.2022, ALONG WITH WP(C).12729/2020, THE COURT ON 3.6.2022
DELIVERED THE FOLLOWING:
 W.P.(C)Nos.12928/2018
& 12729/2020
                                     2



              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE T.R.RAVI
     FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
                        WP(C) NO. 12729 OF 2020
PETITIONERS:

            CHANDRIKA AMMA,
            AGED 72 YEARS
            W/O.ARAVINDAKSHAN NAIR, RESIDING AT FLAT NO.7, 2ND
            FLOOR, NANDANAM ARCADE, HOUSING BOARD ROAD,
            GURUVAYOOR P.O., THRISSUR-680101.
            BY ADV SANTHEEP ANKARATH


RESPONDENTS:

     1      THE STATE OF KERALA
            REPRESENTED BY ITS SECRETARY,
            LOCAL SELF GOVERNMENT DEPARTMENT,
            GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.
     2      GURUVAYUR MUNICIPALITY,
            REPRESENTED BY ITS SECRETARY, GURUVAYUR-680101,
            THRISSUR DISTRICT.
     3      CHAIRMAN,
            GURUVAYUR MUNICIPAL COUNCIL, GURUVAYUR MUNICIPALITY,
            GURUVAYUR-680101, THRISSUR DISTRICT.
            BY ADVS.
            SRI RAJEEV JYOTHISH GEORGE, GOVT.PLEADER
            SRI.K.K.CHANDRAN PILLAI (SR.)
            SMT.S.AMBILI, SC, GURUVAYUR MUNICIPALITY


      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 24.02.2022, ALONG WITH WP(C).12928/2018, THE COURT ON
3.6.2022 DELIVERED THE FOLLOWING:
 W.P.(C)Nos.12928/2018
& 12729/2020
                                       3



                              T.R. RAVI, J.
               --------------------------------------------
              W.P.(C)Nos.12928 of 2018 & 12729 of 2020
                --------------------------------------------
                  Dated this the 3rd day of June, 2022

                              JUDGMENT

The above writ petitions relate to permission for construction of

building in the Guruvayur Municipality. The issues involved are

intrinsically connected and the writ petitions are being disposed of

together.

W.P.(C)No.12928/2018

2. The petitioner is the co-owner of 4.72117 Acres of land in

Sy.Nos.21/7, 22/6, 22/3, 20/3, 22/5, 20/2 and 23/2 of Chavakkad

Village. An application for development permit for construction of

residential buildings was submitted on 27.8.2013 before the

Municipality. The application was rejected as per Ext.P1 order dated

10.9.2013 stating that the properties which the petitioner wanted to

develop are included in the master plan as industrial zone and

railway zone. According to the petitioner, the master plan was of

the year 1976, drawn up at a time when the Guruvayur Municipality

was not having a railway station. Later, the Rail service was

extended to Guruvayur. It is submitted that the Railway Station and

the railway line are located far away from the property of the W.P.(C)Nos.12928/2018 & 12729/2020

petitioner. Since there was no requirement for acquiring the

property or classifying the property as a railway zone, the petitioner

challenged Ext.P1 in W.P.(C)No.23324 of 2013. By Ext.P2

judgment, this Court allowed the writ petition and directed the

Municipality to consider the application for a building permit afresh.

This Court noticed that putting a rider on the rights of a landowner

to utilise his property in any manner as deemed fit by him on the

basis of a Master Plan that has not been implemented by follow-up

land acquisition proceedings, is impermissible. Subsequently, the

District Town Planner wrote Ext.P3 to the Secretary of the

Municipality pointing out certain defects in the application submitted

by the petitioner. The 7 th defect pointed out is that the master plan

shows the area as an industrial zone and shows a railway line to

pass through the property. The 8th defect pointed out is that as per

the published master plan, the property is a recreation space. On

4.1.2016, the Secretary wrote Ext.P4 to the District Town Planner

forwarding Ext.P2 judgment of this Court and after rectifying the

defects pointed out. However, on 18.3.2016, the District Town

Planner issued Ext.P5 rejecting the plan showing that even though

the requirement of the railway is no longer there, the purpose of

industry still holds good, and hence building permit cannot be

granted. The petitioner submitted Ext.P6 representation seeking W.P.(C)Nos.12928/2018 & 12729/2020

the Secretary to reconsider the issue. On 26.7.2016, the

Municipality issued Ext.P7 to the petitioner asking him to produce

four sets of plans after curing the defects pointed out by the District

Town Planner. The petitioner resubmitted the plan along with Ext.P8

covering letter on 11.8.2016. On 22.1.2018, by Ext.P9, the request

was again rejected by the Secretary of the Municipality stating that

as per the approved master plan, the properties are included in the

residential industrial zone and the layout cannot be approved.

Ext.P10 is the request submitted under the Right to Information Act

seeking information about the existence of the master plan and

other details regarding it. Ext.P11 dated 7.3.2018 is the reply given

to Ext.P10, wherein it is stated that there is no new master plan

which has come into existence. In answer to the query regarding

the earlier master plan and the restrictions under the same, it was

informed that the master plan is contained in G.O.

(Ms.)No.2/2010/LSGD dated 1.1.2010. Ext.P12 is the above said

Government Order. It is seen that in the industrial user zone apart

from permitted uses there are restricted uses for which permission

can be granted, which includes several totally unconnected aspects

like daycare, creche, nursery, Kinder Garden, primary school,

Vocational Training Institute, lodges, crematorium, parking grounds.

Parks and open spaces are separately identified as a zone. So also, W.P.(C)Nos.12928/2018 & 12729/2020

recreation zone is also separately identified. The petitioner has

challenged Exts.P1 and P9 in the writ petition and seeks a direction

to respondents 3 and 4 to allow the lay out proposal submitted by

the petitioner.

3. The 3rd respondent has filed a counter affidavit. It is

submitted that the Town Planning Scheme was initially sanctioned

on 2.2.1996. It is stated that the Zoning Regulations of the Scheme

was varied by Ext.P12 Government Order to make the zoning

compatible with the present developments. It is further stated that

going by the provisions of the Kerala Town Planning Act, 2016,

which has been brought into force with effect from 23.9.2013, the

master plan which had been sanctioned prior to the Act are deemed

to be sanctioned under the Act and they are to remain in force till a

new plan comes into force. It is further stated that the zoning

regulations were revised in 2010 and the revised master plan was

also prepared, but the same is still pending approval of the

Government. Curiously, it is stated in paragraph 7 that the

respondents have received legal opinion that since neither the Chief

Town Planner nor the District Town Planner was made parties to the

writ petition, the judgment of this Court was not binding on it.

Ext.P2 shows that the Secretary to Government of the Town

Planning and Local Self Government Department is a party to the W.P.(C)Nos.12928/2018 & 12729/2020

writ petition and the State cannot take a stand that the judgment is

not binding on the State. It is further submitted that the new

master plan was published for Guruvayur Municipality on 5.4.2011

as per G.O.(Ms)No.3430/10/LSGD and that as per the said plan, the

property of the petitioner comes under "recreational in Zone-3

Urban activity zone". It is further submitted that residential use is

permissible with the concurrence of the Town Planner or Chief Town

Planner. It is also stated that the said revised master plan is not yet

approved.

4. A statement has been filed on behalf of the 4 th

respondent by the Standing Counsel. It is stated that the petitioner

has applied for layout approval for developing the plot for

constructing 52 residential houses. Since the 4 th respondent does

not have the authority to issue such an approval, the application

was forwarded to the 3rd respondent, who is the authority to

consider such applications. It is stated that since the 3 rd respondent

has rejected the application as per the letter dated 5.1.2018, the 4 th

respondent cannot proceed further. Regarding the master plan, it is

stated that a draft master plan was prepared as per the Town and

Country Planning Act, 2016(hereinafter referred to as the 2016 Act)

and was forwarded to the Government through respondents 2 and

3. While so, two other Grama Panchayats were added to the W.P.(C)Nos.12928/2018 & 12729/2020

Guruvayur Municipality, and hence the draft was returned for

preparing a scheme taking into consideration the newly added

areas. It is stated that the said process is going on. It is stated

that under the provisions of the 2016 Act, where a master plan

already exists, it shall be operational until a published master plan

is sanctioned in accordance with the Act.

5. The petitioners have filed a reply affidavit denying the

contentions of the respondents in their counter-affidavits and

statements. An additional statement has been filed by counsel for

the 4th respondent as directed by this Court on 6.9.2021. It is

stated that even though the master plan was forwarded for

approval, it remains not approved. It is also stated that as per the

new proposed master plan, the draft of which was published on

2.11.2010, the property of the petitioner is shown as "recreation

space".

6. The Government Pleader has also filed a memo

producing GO(Ms)No.2/2010/ LSGD dated 1.1.2010 by which

Zoning Regulations of the Town Planning Scheme issued on

2.2.1976 was varied by the Government.

W.P.(C)No.12729 of 2020

7. The petitioner in this case is the owner of 16.5 cents of W.P.(C)Nos.12928/2018 & 12729/2020

land situated in Sy.No.4/4A of Thycaud village. Her application for

a building permit was rejected stating that the area where the

construction is sought to be made is demarcated for "park and open

space" in the master plan of the Guruvayur Municipality.

Contending that the master plan is redundant, the petitioner filed

W.P.(C)No.15032 of 2013 which was disposed of by Ext.P2

judgment, directing reconsideration of her application. By Ext.P3,

the 1st respondent rejected the application stating that it is not

possible in the light of the approved master plan. The petitioner

thereafter filed W.P.(C)No.15342 of 2014 before this Court. By

Ext.P4 judgment, W.P.(C)No.15342 of 2014 was disposed of finding

that the petitioner's enjoyment of the property cannot be curbed

and directing the Municipality to ascertain if it intends to acquire the

property in accordance with the provisions of the 2016 Act, and if

not, grant building permit. Thereafter, the Municipality issued

Ext.P7 order on 6.3.2020 stating that on 27.11.2019 the Council

has decided to acquire the property and the Municipal Engineer has

been entrusted with the job. The petitioner has produced a rough

sketch as Ext.P10 to show that the entire properties surrounding

the petitioner's property have been developed with buildings and

the petitioner's small extent of land alone is sought to be acquired

and that too for the purpose of "park and open space" as per Ext.P7 W.P.(C)Nos.12928/2018 & 12729/2020

decision. It is apparent from Ext.P7 that the decision was not taken

within the three months' time granted by this Court for deciding on

whether the property is to be acquired. This Court had in Ext.P4

judgment considered the effect of Section 67 of the 2016 Act and

made it clear that the Municipality is given a further opportunity.

The decision has not been taken within the six months' time provided

for in the Statute. So also, even after two years of the issuance of

Ext.P7, no steps for acquisition have so far been taken. In such

circumstances, the petitioner submits that the petitioner cannot be

denied the benefit which is already granted under Ext.P4 judgment .

8. Heard Sri Santheep Ankarath, counsel for the petitioners in

both these writ petitions, Sri K.K.Chandran Pillai, Senior Advocate

instructed by Smt.S.Ambily, for the Guruvayur Municipality and

Sri Rajeev Jyothish George, Government Pleader on behalf of the

State.

9. The counsel for the petitioners submits that in both these

cases, the petitioners had already approached this Court earlier

when building permits were refused and this Court had specifically

found that the rejection of the building permit for the reason that

the property falls under the industrial/railway zone and park and

open space zone cannot be sustained. It is after setting aside the

said orders refusing building permits that this Court had directed W.P.(C)Nos.12928/2018 & 12729/2020

reconsideration by the authorities. The counsel points out that even

after reconsideration, the very same reasons are stated for the

denial of the building permit, which is totally unwarranted. The

counsel points out that as far as the petitioner in W.P.(C)No.12928

of 2018 is concerned, Ext.P1 rejecting the permit cited the reason

that the property falls under the industrial zone and railway zone.

In Ext.P5 dated 18.3.2016, the District Town Planner writes to the

Secretary of the Municipality stating that even though the Railway

has already been set up in a different area, the purpose for industry

is still relevant. The counsel points out that such reasoning is

totally unwarranted in the light of Ext.P2 judgment in W.P.

(C)No.23324 of 2013, wherein this Court set aside Ext.P1 and

directed fresh consideration without reference to the reasons stated

in Ext.P1. As such, the reason that the property falls under the

industrial zone is not one that was available for rejection of the

permit. In Ext.P9 order issued by the Secretary, the very same

reason that it comes under the industrial zone is stated. It is

further stated that it comes under the residential zone. One fails to

understand why a permit is refused if the property comes under the

residential zone since the permission sought is for the construction

of residential houses. The counsel points out that the reason stated

in the counter affidavit of the 3rd respondent also cannot be W.P.(C)Nos.12928/2018 & 12729/2020

countenanced. It is admitted that what is available is only the 1976

Master Plan and even though a new Master Plan was prepared, the

same has not been approved. The changes made to the Zoning

Regulation also do not help the cause of the respondents, in the

light of the binding judgment Ext.P2. One another reason stated is

that since the Chief Town Planner and the District Town Planner

were no parties to Ext.P2 judgment, they are not bound by the

judgment. Such a contention is not available to the 3rd respondent,

since it can be seen from Ext.P2 that the 1 st respondent in the writ

petition is the Secretary to Government in the Town Planning and

Local Self Government Departments. Even though arguments were

advanced to say that the Master Plan of 1976 should still be

followed, the said argument cannot be accepted, since this Court

has already considered the said argument in a case inter partes and

has decided against the respondents.

10. Regarding the petitioner in W.P.(C)No.12729 of 2020, the

counsel for the petitioner points out that the reason for denial was

that the property is included in the park and open zone in the

Master Plan. Ext.P1 order whereby the building permit was rejected

was set aside in Ext.P2 judgment specifically finding that no

proceedings for acquisition of land had been initiated for

implementation of the 1976 Master Plan and the petitioner cannot W.P.(C)Nos.12928/2018 & 12729/2020

be prevented from putting her property to any use on the ground

that there is a Master Plan in existence that has not been

implemented. Admittedly, the said judgment has become final. It

is after the direction issued in Ext.P2 that Ext.P3 order was issued

by the Government. However, the zoning of the property is again

relied on as the reason for rejection. Ext.P3 was challenged before

this Court and in Ext.P4 judgment, this Court after taking note of

the arguments and the earlier judgment of this Court granted a

further opportunity to the Municipality to take a decision regarding

the acquisition of the property. Admittedly, no decision was taken

within the time granted by this Court. The counsel hence submits

that the time available under the 2016 Act was further extended by

this Court by granting three months' time in Ext.P4 and since no

decision was taken even within the said time, the petitioner cannot

be deprived of her rights based on a decision which is taken

thereafter. It is further pointed out that even though the decision

was taken by the Municipality for acquiring the property, no further

steps for acquisition were also taken.

11. Having considered the contentions put forward by either

side and the documents on record and the earlier judgments inter

partes, this Court finds that the petitioners in both these cases are

entitled to succeed in these writ petitions. W.P.(C)Nos.12928/2018 & 12729/2020

12. In the result, W.P.(C)No.12928 of 2018 and 12729 of

2020 are allowed. Exts.P1 and P9 orders in W.P.(C)No.12928 of

2018 are quashed. There will be a direction to respondents 3 and 4

in W.P.(C)No.12928 of 2018 to grant the layout approval for the

petitioner, if the application is otherwise in order, within one month

from the date of receipt of a copy of this judgment. The reasons

stated in Exts.P1 and P9 shall not be reasons for rejection of the

layout approval.

13. Ext.P1, P3 and P7 orders produced in W.P.(C)No.12729 of

2020 are quashed. There will be a direction to the 2 nd respondent

in W.P.(C)No.12729 of 2020 to issue a building permit to the

petitioner based on the application evidenced by Ext.P6, if the

petitioner is otherwise entitled, within one month from the date of

receipt of a copy of this judgment. The reasons stated in Exts.P1,

P3, and P7 in W.P.(C)No.12729 of 2020 shall not be reasons to

reject the building permit.

Sd/-

T.R. RAVI JUDGE

dsn W.P.(C)Nos.12928/2018 & 12729/2020

APPENDIX OF WP(C) 12928/2018

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF ORDER NO.B.A NO.152/13-14 DATED 10.9.2013 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 23.1.2014 IN WP(C) NO.23324 OF 2013 PASSED BY THIS HON'BLE COURT.

EXHIBIT P3 TRUE COPY OF LETTER DATED 8.5.2014 FROM THE 3RD RESPONDENT TO THE 4TH RESPONDENT.

EXHIBIT P4 TRUE COPY OF FORWARDING LETTER DATED 4.1.2O16 FROM THE 4TH RESPONDENT TO THE 3RD RESPONDENT. EXHIBIT P5 TRUE COPY OF THE LETTER DATED 18.3.2016 ADDRESSED TO THE 4TH RESPONDENT ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P6 TRUE COPY OF PETITION DATED 28.4.2016 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT ALONG WITH ITS RECEIPT.

EXHIBIT P7 TRUE COPY OF LETTER DATED 26.7.2016 FROM THE 4TH RESPONDENT TO THE PETITIONER.

EXHIBIT P8 TRUE COPY OF THE COVERING LETTER DATED 11.8.2016 SUBMITTED BY THE PETITIONER ALONG WITH THE PLAN BEFORE THE 4TH RESPONDENT.

EXHIBIT P9 TRUE COPY OF ORDER NO.B.A 152/13-14 DATED 22.01.2018 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P10 TRUE COPY OF QUESTIONNAIRE DATED 5.2.2018 SUBMITTED ON BEHALF OF THE PETITIONER BEFORE THE INFORMATION OFFICER OF THE 4TH RESPONDENT UNDER RIGHT TO INFORMATION ACT.

EXHIBIT P11 TRUE COPY OF REPLY DATED 07.03.2018 ISSUED BY THE 4TH RESPONDENT UNDER RIGHT TO INFORMATION ACT.

EXHIBIT P12 TRUE COPY OF THE MASTER PLAN OF GURUVAYOOR MUNICIPALITY AND DATED 1.1.2010 NOTIFIED IN THE GAZETTE.

W.P.(C)Nos.12928/2018 & 12729/2020

APPENDIX OF WP(C) 12729/2020

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF ORDER NO.B.A.NO.206/12-13 DATED 12.2.2013 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P2 TRUE COPY OF JUDGMENT DATED 26.7.2013 IN WP(C) NO.15032/2013 PASSED BY THIS HON'BLE COURT.

EXHIBIT P3 TRUE COPY OF G.O.(RT) NO.2798/LSGD DATED 15.11.2013 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P4 TRUE COPY OF JUDGMENT DATED 10.10.2018 IN WP(C) NO.15342/2014 PASSED BY THIS HON'BLE COURT.

EXHIBIT P5 TRUE COPY OF RECEIPT DATED 25.10.2018 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P6 TRUE COPY OF RECEIPT DATED 7.12.2019 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P7 TRUE COPY OF ORDER NO.E2-B.A.-206/12-13 DATED 6.3.2020 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE QUESTIONNAIRE DATED 5.2.2018 SUBMITTED BEFORE THE INFORMATION OFFICER OF THE 2ND RESPONDENT.

EXHIBIT P9 TRUE COPY OF THE REPLY GIVEN TO EXT.P8 AND DATED 7.3.2018.

EXHIBIT P10 TRUE COPY OF SKETCH SHOWING PETITIONER'S PROPERTY AND THE NEARBY PROPERTIES PREPARED BY THE PETITIONER.