Kerala High Court
Devadas vs The Palakkad Municipality on 28 June, 2022
W.P.(C)No.2562 of 2022
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 28TH DAY OF JUNE 2022 / 7TH ASHADHA, 1944
WP(C) NO. 2562 OF 2022
PETITIONER:
DEVADAS,
AGED 51 YEARS
S/O.SUBRAMANIAN, PULIKKAL HOUSE, KOTTEKAD P.O.,
MALAMPUZHA, PALAKKAD DISTRICT, PIN-678 732.
BY ADVS.
SRI JACOB SEBASTIAN
SRI K.V.WINSTON
SMT.ANU JACOB
RESPONDENTS:
1 THE PALAKKAD MUNICIPALITY,
REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE,
PALAKKAD DISTRICT, PIN-678 001.
2 THE SECRETARY, PALAKKAD MUNICIPALITY,
MUNICIPAL OFFICE, PALAKKAD DISTRICT, PIN-678 001.
3 THE DISTRICT TOWN PLANNING OFFICER, PALAKKAD,
DISTRICT TOWN PLANNING OFFICE, PALAKKAD, CIVIL
STATION, PALAKKAD DISTRICT, PIN-678 001.
4 THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL
SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM
DISTRICT, PIN-695 001.
BY ADV SHRI.BINOY VASUDEVAN, SC, PALAKKAD
MUNICIPALITY
SRI RAJEEV JYOTHISH GEORGE, GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON, THE COURT ON 28.06.2022 DELIVERED THE
FOLLOWING:
W.P.(C)No.2562 of 2022
2
T.R. RAVI, J.
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W.P.(C)No.2562 of 2022
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Dated this the 28th day of June, 2022
JUDGMENT
The petitioner had applied to the 1st respondent for a building
permit. By Ext.P2 order dated 27.8.2019, the application was rejected
stating that as per the approved DTP Scheme, the area is to be acquired
for the widening of the road. Another reason stated is that the property
is included in the data bank as paddy land. The petitioner was directed
to submit a fresh plan by leaving out the area required for the
acquisition. Since Ext.P2 stated that the land is to be acquired, the
petitioner issued Ext.P5 purchase notice under Section 67 of the Kerala
Town and Country Planning Act, 2016 (2016 Act for short). The notice is
dated 7.9.2019 and is seen to have been received on 16.9.2019. Copies
of the notice had been issued to the Town Planning Officer of the
Municipality as well as the Secretary to Government in the Local Self
Government Department. By Ext.P3 dated 17.6.2020, the Revenue
Divisional Officer, Palakkad ordered the removal of the property from the
data bank. Thereafter, by Ext.P4, the Revenue Divisional Officer
permitted the user of the land for other purposes under Section 27A of
the Kerala Conservation of Paddy Land and Wetland Act, 2008 on
payment of the requisite fee. The petitioner resubmitted the application
W.P.(C)No.2562 of 2022
after curing the defects as can be seen from Ext.P7 dated 23.12.2020.
Alleging refusal to reconsider the application, the petitioner moved this
Court by filing W.P.(C)No.135 of 2021 which was disposed of by Ext.P8
judgment directing the 1st respondent to consider the application for
building permit afresh in the light of the directions contained in Ext.P6
judgment of this Court and taking note of Ext.P5 purchase notice that
was not responded to by the Municipality within the time permitted
under the Statute. The Municipality was directed to consider the
application untrammeled by the stipulations in the DTP Scheme and
pass orders within three weeks. Ext.P8 judgment was taken up in
appeal in W.A.No.847 of 2021 which was disposed of by Ext.P9
judgment by a Division Bench of this Court. The appeal was allowed in
part and the judgment was modified. The Division Bench directed the
Municipality to consider the building permit application submitted by the
petitioner at the earliest, if the time prescribed under Section 67 of the
Act has expired or else within one month from the expiry of the time
period so fixed, after providing notice of hearing to the petitioner and
taking into consideration the Scheme if any, existing and applicable to
the property in question, purchase notice issued by the writ petitioner
under Section 67, and also taking into consideration Section 113 and
other relevant provisions of the 2016 Act and the Building Rules in force.
Thereafter, by Ext.P10, the 2nd respondent directed the petitioner to
make necessary changes in the plan leaving provision for the widening
W.P.(C)No.2562 of 2022
of the road by providing 9.5 meters of open space from the road
margin. Ext.P10 did not refer to Ext.P5 purchase notice issued under
Section 67 of the 2016 Act. On 22.12.2021, the 2 nd respondent issued
an order stating that 9.5 meters of land belonging to the petitioner is
required for the widening of the Kalmandapam-Sekharipuram-Calicut
Bypass Road which is included in the sanctioned DTP Scheme. It is
stated that pursuant to the notice issued by the petitioner under Section
67 of the 2016 Act, the Municipal Council has by Decision No.58 dated
4.12.2021 decided to acquire the land, and hence his request for a
building permit cannot be considered. Ext.P12 is the copy of the
resolution said to have been taken. A reading of Ext.P12 would show
that the Council had granted approval for forwarding the Section 67
notice demanding acquisition, to the Government. The petitioner
contends that what is decided is only to forward the Section 67 notice
and no decision as such to acquire the land has been taken. This
contention is contested by the Municipality stating that a decision has
already been taken and what has been forwarded to the Government is
only the proposal which has to be concluded by the Government by
issuing acquisition proceedings. The petitioner has also produced
Ext.P13 which is the decision regarding the zoning exemption to be
granted to persons whose lands are to be acquired for the purpose of
widening the existing road from 20 Meters to 24 Meters. It is submitted
that even though the initial proposal was for widening up to 30 Meters,
W.P.(C)No.2562 of 2022
it was reduced to 24 Meters. On 8.5.2006, it appears that the 1 st
respondent had taken a decision based on Ext.P13 treating the required
width as 24 Metres, with respect to an application submitted by one
Krishnanunni. The writ petition has been filed challenging Ext.P2, P10,
P11, and P12 and seeking a direction to the 1 st respondent to issue a
building permit to the petitioner. There is also a prayer for quashing the
DTP Scheme and approved master plan of the 1 st respondent insofar as
it relates to the property of the petitioner and for a declaration that the
petitioner is entitled to make constructions in the plot without leaving
any additional set back for future acquisition.
2. A statement has been filed on behalf of respondents 1 and 2
wherein it is stated that the DTP Scheme is a sanctioned scheme and
going by Section 113 of the 2016 Act, till a new Scheme is framed the
earlier Scheme must prevail. It is further stated that by Ext.P12, the
Council had decided to acquire the property and it is also decided to
forward the said proposal to the Government for further action. It is
further contended that the Government has not issued any orders
reducing the width from 30 Metres to 24 Metres and as such, the
contention of the petitioner cannot be countenanced. The statement
does not however say anything about the statutory time fixed for
consideration of notice under Section 67 of the 2016 Act.
3. Heard Sri Jacob Sebastian on behalf of the petitioners, Sri
Binoy Vasudevan on behalf of respondents 1 and 2 and Sri
W.P.(C)No.2562 of 2022
B.S.Syamanthak, Government Pleader on behalf of respondents 3 and 4.
4. The only objection that remains as far as grant of building
permit is concerned is the requirement for widening of the road. As far
as the said requirement is concerned, the objection is based on the DTP
Scheme. It is admitted that Ext.P5 notice has been received. There is
also no dispute regarding the date of receipt of the said notice. Section
67 of the 2016 Act is extracted below;
"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.
W.P.(C)No.2562 of 2022
(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
W.P.(C)No.2562 of 2022
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. Section 67(2) says that on receipt of any purchase notice,
the Municipal Corporation must decide to acquire the land through a
resolution, within sixty days. The period of sixty days fixed statutorily
expired in November, 2019. Admittedly, Ext.P12 decision has been
taken only on 4.12.2021. Even if Ext.P12 is to be considered as a
decision taken by the Municipality to acquire the land by means of a
resolution, as stipulated in Section 67 (2), the same cannot be treated
as a decision taken within the time fixed by the Statute. In Ext.P8
judgment, this Court specifically found that the purchase notice was not
responded to by the respondent Municipality within the time permitted
under the Statute. In Ext.P9 judgment also this Court specifically held
that Municipality has to consider the building permit application if the
time period prescribed under Section 67 of the Act has expired. The
Division Bench did not render any finding on the fact whether the period
has expired. The Division Bench answered the question only from the
perspective of the primacy of the DTP Scheme. The operation of Section
W.P.(C)No.2562 of 2022
67 itself is based on such a scheme that provides for the acquisition of
lands. As such, Ext.P9 judgment cannot in any way be understood to
mean that this Court permitted respondents 1 and 2 to reconsider the
application for building permit on the basis of the DTP Scheme, dehors
the notice under Section 67 of the 2016 Act. In fact the Division Bench
specifically stated that the said notice has also to be considered. In
view of the specific requirement under Section 67, Ext.P12 resolution
cannot be treated to be a resolution taken within the time fixed by the
Statute. As such, respondents 1 and 2 cannot reject the application for
building permit for the reason that they have decided to acquire the land
pursuant to a notice under Section 67 of the 2016 Act. The obligation to
issue the building permit is hence not taken away. This Court has in
several decisions held that if no decision is taken either way by means of
a resolution, pursuant to a notice under Section 67, the Municipal
Corporation was obliged to issue a building permit if the petitioner is
otherwise entitled. In view of the settled position, the petitioner is
entitled to succeed.
6. The writ petition is allowed. There will be a direction to
respondents 1 and 2 to consider the application for building permit
submitted by the petitioner and to grant the same if the petitioner is
otherwise entitled. Ext.P12 resolution shall not be a reason for rejecting
the application for building permit. Exts.P10 and P11 insofar as they
reject the request for building permit on the ground of the decision
W.P.(C)No.2562 of 2022
taken for acquiring the land are set aside. In view of the above, there is
no requirement to quash Ext.P12 resolution except to observe that the
said resolution will not in any way be considered as a resolution passed
pursuant to Ext.P5 notice under Section 67. Necessary orders shall be
issued within one month from the date of receipt of a copy of this
judgment.
Sd/-
T.R. RAVI
JUDGE
dsn
W.P.(C)No.2562 of 2022
APPENDIX OF WP(C) 2562/2022
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE POSSESSION CERTIFICATE
NO.41717455 DATED 22.07.2019 ISSUED BY
THE VILLAGE OFFICER, PALAKKAD III
VILLAGE, PALAKKAD TALUK & DISTRICT.
Exhibit P2 A TRUE COPY OF THE ORDER DATED 27.08.2018
ISSUED BY THE SECRETARY, PALAKKAD
MUNICIPALITY.
Exhibit P3 A TRUE COPY OF THE ORDER DATED 17.06.2020
ISSUED BY THE REVENUE DIVISIONAL OFFICER,
PALAKKAD.
Exhibit P4 A TRUE COPY OF THE ORDER DATED 20.10.2020
ISSUED BY THE REVENUE DIVISIONAL OFFICER,
PALAKKAD.
Exhibit P5 A TRUE COPY OF THE PURCHASE NOTICE DATED
07.09.2019 ISSUED BY THE PETITIONER ALONG
WITH POSTAL ACKNOWLEDGEMENT.
Exhibit P6 A TRUE COPY OF THE JUDGMENT DATED
22.11.2019 IN WPC NO.30841 OF 2017 OF
THIS HONOURABLE COURT.
Exhibit P7 A TRUE COPY OF THE LETTER DATED
23.12.2020 ISSUED BY THE PETITIONER.,
Exhibit P8 A TRUE COPY OF THE JUDGMENT DATED
18.01.2021 IN WPC NO.133/2021 OF THIS
HONOURABLE COURT.
Exhibit P9 A TRUE COPY OF THE JUDGMENT DATED
05.08.2021 IN WA NO.847/2021 OF THIS
HONOURABLE COURT.
Exhibit P10 A TRUE COPY OF THE ORDER DATED 08.09.2021
ISSUED BY THE SECOND RESPONDENT.
Exhibit P11 A TRUE COPY OF THE ORDER DATED 22.12.2021
ISSUED BY THE SECOND RESPONDENT.
Exhibit P12 A TRUE COPY OF THE RESOLUTION NUMBER 58
DATED 04.12.2021 REFERRED TO IN EXHIBIT
P11.
Exhibit P13 A TRUE COPY OF MINUTES OF THE MEETING
HELD IN THE CHAMBER OF THE SECRETARY TO
W.P.(C)No.2562 of 2022
GOVERNMENT, LOCAL SELF GOVERNMENT
DEPARTMENT ON 31.08.2005.
Exhibit P14 A TRUE COPY OF THE DECISION OF MUNICIPAL
COUNCIL DATED 08.05.2006.
