Disposed

K.I.Antony v. State of Kerala

Kerala HC8 Nov 2018WP(C)/13137/2018

Case brief

AI extract

What is this about?

The Court held that pending Master Plans are protected under the Kerala Town and Country Planning Act, 2016. It directed the Thrissur Corporation to decide within two months whether to acquire disputed properties. Failure to decide or communicate within this period requires reconsideration of building permit applications in accordance with the law.

What did the court decide?

Granted two months to decide on acquisition; if no decision or communication is made, building permit application must be reconsidered.

K.I.Antony Vs State of Kerala — Writ and Judicial Review | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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THURSDAY ,THE 08TH DAY OF NOVEMBER 2018 / 17TH KARTHIKA, 1940

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WP(C).No. 13137 of 2018

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PETITIONER/S:

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K.I.ANTONY, AGED 56 YEARS, S/O. ITOOP, KANDUKKULANGARA HOUSE, PARAPPUR POST, THRISSUR DISTRICT.

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BY ADV. SRI.RAJIT

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT (DC) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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2 DISTRICT COLLECTOR, COLLECTORATE, AYYANTHOLE, THRISSUR DISTRICT - 680 003.

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3 THRISSUR CORPORATION, CORPORATION OFFICE, THRISSUR, PIN-680001, REPRESENTED BY ITS SECRETARY.

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4 THE SECRETARY, THRISSUR CORPORATION, CORPORATION OFFICE, THRISSUR, PIN-680001.

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5 TOWN PLANNER, THRISSUR CORPORATION, CORPORATION OFFICE, THRISSUR, PIN-680001.

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**ADDL. THE CHIEF TOWN PLANNER, R6 THIRUVANANTHAPURAM. (ADDL.R6 IS IMPLEADED AS PER ORDER DATED 28/09/2018 IN W.P.(C) NO.13137/2018) BY ADVS.

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R1, R2 & R6 BY SRI. MANURAJ K.J., GOVERNMENT PLEADER R3 TO R5 BY SRI. SANTHOSH P.PODUVAL SC THRISSUR CORPORATION

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.11.2018, ALONG WITH W.P.(C) NO.14401/18 & CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.13137/18 & conn. cases

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JUDGMENT

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The captioned writ petitions are materially

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connected in respect of the application submitted by the petitioners before the Secretary of the Thrissur Municipal Corporation seeking building permit, which were declined on the ground that a Master Plan is existing for widening of road and also declaring Zones for various categories of constructions. Therefore, I heard them together and propose to deliver a common judgment.

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Petitioners are owners of various extents of

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properties within the limits of the Thrissur Corporation. A Master Plan of the year 1985 is pending, and while so,

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the Corporation has prepared a Draft Master Plan and forwarded the same to the State Government. However, the State Government returned the same to the Corporation directing to make certain alterations and re-submit the same.

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Counter affidavits are filed by the Thrissur

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Corporation separately in all the writ petitions, except

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in W.P.(C) No.31778 of 2018. According to the

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Corporation, in compliance with the direction so issued, the Draft Master Plan is modified. It is also pointed

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out that, the Government had forwarded the proposal to

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W.P.(C) No.13137/18 & conn. cases

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the Chief Town Planner. But certain objections were

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raised regarding the changes made to the Draft Master Plan. The main objection was concerning the inclusion of

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new proposals for acquisition for new roads which were not part of the Draft Master Plan. The gist of the objection was to the effect that, the basic structure of the Draft Master Plan cannot be changed. It is also noted that, re-publication may be necessary if the Master Plan submitted by the Corporation has to be approved.

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As per the directions of the Minister for Local Self Government Department, a meeting was convened on

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30.07.2015 at the Kerala Institute of Local Administration, Thrissur, and it was decided that the Master Plan can be modified so as to include only those changes which do not require a re-publication. Thereafter, a modified Draft Master Plan was sent to the Government for approval. However, certain objections were noted in the Master Plan, evident from Ext.R3(a) communication issued by the State Government. The Secretary sought a clarification regarding the second objection contained in the letter regarding the noninclusion of a column concerning Council's final orders in Form No.14, evident from Ext.R3(b). The said letter was forwarded to the Chief Town Planner and thereafter, a

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W.P.(C) No.13137/18 & conn. cases

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letter has been received from the Chief Town Planner, stating that necessary directions may be issued to the Corporation for preparing modified Draft Master Plan in

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such a manner that it does not necessitate a republication of the Draft Master Plan, evident from Ext.R3(c). Therefore, according to the Secretary of the Corporation, the Master Plan could not be finalized due to the above said objection noted by the Government and the Chief Town Planner. Therefore, the application of the petitioners can be considered only after approval of the final Master Plan by the Government.

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Petitioners in W.P.(C) Nos.14401 and 31778 of 2018 have a case that in the Draft Master Plan, the property is included in the mixed zone, and therefore, there is no legal inhibition standing in the way in considering the building permit applications submitted by them.

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I have considered the rival submissions made

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across the Bar and perused the pleadings and the documents on record.

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The issue with respect to pendency of Master

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Plan and other Schemes are guided by the provisions of

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the Kerala Town and Country Planning Act, 2016 [for brevity, 'the Act, 2016']. In accordance with Sec.113(1)

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W.P.(C) No.13137/18 & conn. cases

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of Act, 2016, on and with effect from the commencement of Act, 2016, the Town Planning Act, 1108 ME, the Travancore Town and Country Planning Act, 1120 ME, the Madras Town

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Planning Act, 1920 and the Kerala Town and Country Planning Ordinance, 2016 are repealed. Notwithstanding the said repeal, sub-section (2) of Sec.113 protects any draft General Town Planning Scheme for an area including Master Plan or Development Plan or a draft Detailed Town Planning Scheme published under the repealed Acts, “shall be deemed to be a draft Master Plan or a draft Detailed Town Planning Scheme, as the case may be, published under Act, 2016”.

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Likewise, various other provisions are made in order to protect the pending Master Plans and Schemes. However, Sec.67 of Act, 2016 is relevant to the context, so far as acquisition of properties are concerned, which stipulates that, where any land is designated for compulsory acquisition in a Master Plan or Detailed Town Planning Scheme sanctioned under Act, 2016, 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,

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W.P.(C) No.13137/18 & conn. cases 6

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Town Panchayat or Village Panchayat concerned, within

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such time and in such manner, as may be prescribed, a notice requiring the Municipal Corporation, Municipal Council etc. etc. to purchase the interest in the land in accordance with the provisions of the Act.

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Corporation, on receipt of any purchase notice, not later than sixty days from the date of receipt of the purchase notice, through a resolution decide to acquire the land, where the land is designated for compulsory acquisition for the purpose of the Municipal Corporation and other local bodies. Other action to be taken by the local body is also stipulated under the subsequent provisions of Sec.67. Therefore, in accordance with the protection granted under sub-section (2) of Sec.113, the Master Plan of the year 1985 is in vogue.

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It is an admitted fact that the Draft Master Plan is only pending consideration. Therefore, the provisions of sub-sections (1) and (2) of Sec.67 of Act, 2016 will come into operation. Accordingly, the maximum period that the local body is entitled is two years from the date of coming into operation of the Plan to acquire the property, and if within the time period the local body is not acquiring the property, on receipt of a

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W.P.(C) No.13137/18 & conn. cases 7

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notice from the property owner, a decision has to be taken by passing a resolution within sixty days. In that view of the matter, so far as the building permit applications rejected or kept pending on the ground of acquisition of property are concerned, the local body is duty bound to take a decision in accordance with the afore-specified provisions of Act, 2016.

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Taking into account the time period provided thereunder, I am of the considered opinion that, the Thrissur Corporation can be granted with two months time from the date of receipt of a copy of this judgment, to decide as to whether they are interested in acquiring the properties of the petitioners. If the Corporation takes a decision in accordance with the statutory prescription to acquire the property, the same shall be communicated to the petitioners within thirty days thereafter. If the Corporation is not taking a decision within the period of

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two months and not making any communication to the petitioners, the building permit application submitted by the petitioners shall be considered/re-considered in accordance with law.

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So far as W.P.(C) Nos.14401 and 31778 of 2018

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are concerned, I think it is only appropriate that the same time limit is granted to the Corporation to take a

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W.P.(C) No.13137/18 & conn. cases

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final decision so far as the zoning also is concerned, in

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order to avoid any further complexity in the matter. Therefore, the directions contained above will apply to the said writ petitions also.

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The writ petitions are disposed of accordingly, directing the Secretary of the Thrissur Municipal Corporation to take appropriate action in accordance with the directions contained above, and also in accordance with the developments that would take place in compliance of the afore-specified directions.

Sd/-

SHAJI P.CHALY

JUDGE

St/09.11.2018

W.P.(C) No.13137/18 & conn. cases

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APPENDIX IN W.P.(C) NO.13137/2018

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN WPC 34661/2008 DT. 22.9.2009.

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EXHIBIT P2 TRUE COPY OF THE ORDER DTD. 12.2.2016 ISSUED BY THE THRISSUR CORPORATION ALONG WITH A LETTER ISSUED BY THE TOWN PLANNER 30.12.2015.

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EXHIBIT P3 TRUE COPY OF THE RELEVANT PORTION OF THE ORDER BEARING NO.G.O.(RT)NO.2766/2009/LSGD DTD. 24.10.2009. EXHIBIT P4 TRUE COPY OF THE NOTIFICATION DATED 6.11.2012.

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EXHIBIT P5 TRUE COPY OF THE ORDER DATED 07.01.2013. EXHIBIT P6 TRUE COPY OF THE JUDGMENT DTD. 02.03.2017 IN WPC NO. 33509/2016.

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EXHIBIT P7 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER.

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EXHIBIT P8 TRUE COPY OF THE COMMUNICATION DATED 20.2.2018 ISSUED BY THE 3RD RESPONDENT.

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT R3(A) : TRUE COPY OF LETTER ISSUED BY THE GOVERNMENT.

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EXHIBIT R3(B) : TRUE COPY OF LETTER DATED 23-4-2018 ISSUED BY THE SECRETARY, THRISSUR CORPORATION TO THE PRINCIPAL SECRETARY, LSGD, THIRUVANANTHAPURAM.

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EXHIBIT R3(C) : TRUE COPY OF LETTER ISSUED BY THE CHIEF TOWN PLANNER TO THE ADDITIONAL CHIEF SECRETARY, LSGD, THIRUVANANTHAPURAM.

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//TRUE COPY//

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P.S. TO JUDGE

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St/-

K.I.Antony v. State of Kerala

Case brief

What is this about?

What did the court decide?

K.I.Antony v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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