Disposed

P. Sasikala v. Thiruvananthapuram Corporation

Kerala HC2 Nov 2018WP(C)/1540/2018

Case brief

AI extract

What is this about?

The High Court held that a pending Master Plan under a repealed Act remains in force until superseded by the Kerala Town and Country Planning Act, 2016. However, since the two-year acquisition period under Section 67 of the new Act has lapsed, the petitioner's offer to sell requires a decision within sixty days. The Court granted the Corporation three months to decide on purchase; failing this, th

What did the court decide?

Three months granted to the Corporation to decide on acquisition; if no decision is made, the building permit application shall be processed within one month thereafter.

P. Sasikala Vs Thiruvananthapuram Corporation — Property and Title | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

¶4

FRIDAY ,THE 02ND DAY OF NOVEMBER 2018 / 11TH KARTHIKA, 1940

¶5

WP(C).No. 1540 of 2018

¶6

PETITIONER/S:

¶7

P. SASIKALA, AGED 67 YEARS, W/O.SADASIVAN NAIR, MUKKATTU, PLRA 115, PANACHAMOODU LANE, PATTOM P.O, THIRUVANANTHAPURAM.

¶8

BY ADV. SRI.V.M.KRISHNAKUMAR

¶9

RESPONDENT/S:

¶10

1 THIRUVANANTHAPURAM CORPORATION, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, THIRUVANANTHAPURAM, PIN -695 033.

¶11

2 SECRETARY, THIRUVANANTHAPURAM CORPORATION, CORPORATION OFFICE, THIRUVANANTHAPURAM,PIN - 695 033.

¶12

R1 & R2 BY SRI. N.NANDAKUMARA MENON (SR.) SRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION

¶13

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.11.2018, ALONG WITH WP(C).4976/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶14

W.P.(C) Nos.1540 & 4976 of 2018

¶15

¶16

JUDGMENT

¶17

The captioned writ petitions are materially connected in respect of an order passed by the Tribunal for Local Self Government Institutions, in favour of the petitioner in W.P.(C) No.1540 of 2018, and which is under challenge in the other connected writ petition filed by the Thiruvananthapuram Corporation. Therefore, I heard them together and propose to deliver a common judgment. Facts and circumstances pointed out in W.P.(C) No.4976 of 2018 are relied upon in order to dispose of the writ petitions.

¶18

Petitioner in W.P.(C) No.1540 of 2018 is in

¶19

possession of 2.84 Ares of property situated in Re-survey No.144 of Pattom Village. The said petitioner applied for building permit for construction of a residential building, before the Secretary of the Thiruvananthapuram Corporation, which was rejected on 13.01.2017 by the Secretary, stating that the petitioner's property is situated within the limits of the proposed Thiruvananthapuram Medical College Area Development Scheme included under the Town Planning Act. The said rejection order was taken in appeal before the Tribunal and as per an order dated 31.10.2017, the appeal filed by

¶20

W.P.(C) Nos.1540 & 4976 of 2018 3

¶21

the said petitioner was allowed, holding that the

¶22

Development Scheme based on which the application for building permit was rejected has not yet been announced by the Government. Therefore, the said Thiruvananthapuram Medical College Area Development Scheme is not in force as on the date of the impugned order. Therefore, it can only be found that the impugned order cannot be sustained

¶23

under law. Consequential directions were issued, directing the Secretary of the Corporation to re-consider

¶24

the application for building permit within 30 days from the date of receipt of the order.

¶25

I have heard learned Senior Counsel for the

¶26

Thiruvananthapuram Corporation, learned counsel appearing for the petitioner in the other writ petition, and the learned Government Pleader, and perused the pleadings and the documents on record.

¶27

In my considered view, the stand adopted by the

¶28

Tribunal cannot be sustained under law, since when there is a Scheme launched under a Master Plan, the same is binding on the property holders. However, fact remains, consequent to the introduction of the Kerala Town and

¶29

Country Planning Act, 2016 [for short, 'the Act, 2016'],

¶30

all the earlier Town Planning Acts are repealed. But as per sub-section (2) of Sec.113, if any Master Plan or

¶31

W.P.(C) Nos.1540 & 4976 of 2018

¶32

¶33

Scheme is pending under any of the repealed enactments, the same will be in force. Therefore, the finding of the Tribunal otherwise and contrary to the above provision cannot be sustained under law. However, the action under the provisions of Act, 2016 is guided under Sec.67 of the said Act, whereby if no action is initiated for acquisition of the property within two years period after the launching of the Scheme, if the property owner offers the property for purchase within a period of 60 days, a decision shall be taken by the Local Body, either to acquire or not to acquire and take necessary action in accordance with the other provisions of Sec.67 of Act, 2016. It is also mandated thereunder that, necessary steps shall be taken to forward such proceedings to the State Government, in order to satisfy the requirements of law.

¶34

In my considered view, if at all there was any Scheme pending, it is to be considered as a Scheme under Act, 2016, and the two year period prescribed under Sec.67 is over, since the Act has come into force with effect from 17.03.2016. Therefore, if the petitioner offers the land for purchase, the Corporation has to take

¶35

a decision within sixty days. In that view of the matter, and to satisfy the requirements of law, and in

¶36

W.P.(C) Nos.1540 & 4976 of 2018

¶37

¶38

order to have a quietus to the issue, I am of the

¶39

considered opinion that, the Corporation can be given reasonable time to think over the same and take a decision as to whether the Corporation is intending to acquire/purchase the property.

¶40

Therefore, three months time is granted to the

¶41

Corporation to take a decision, and if the Corporation is not taking a decision in order to acquire the land within the said period, the building permit application submitted by the petitioner in W.P.(C)No.1540 of 2018 shall be considered in accordance with law, at the

¶42

earliest, and at any rate, within a month from the expiry of the three months period. Which thus means, sufficient additional time is granted to cope up with the statutory requirements discussed above.

¶43

The writ petitions are disposed of accordingly.

Sd/-

SHAJI P.CHALY

JUDGE

St/02.11.2018.

W.P.(C) Nos.1540 & 4976 of 2018

¶49

¶50

APPENDIX OF WP(C) 1540/2018

¶51

PETITIONER'S/S EXHIBITS:

¶52

EXHIBIT P1 TRUE COPY OF THE ORDER OF THE CORPORATION DATED 13.01.2017

¶53

EXHIBIT P2 TRUE COPY OF THE ORDER OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS AS APPEAL NO.81/2017 DATED 31.10.2017 EXHIBIT P3 PHOTOGRAPH SHOWING PETITIONER'S PROPERTY AND THE RESIDENTIAL BUILDINGS IN NEIGHBOURING LAND. EXHIBIT P4 TRUE COPY OF THE DECISION REPORTED IN 2011(4) KHC 844.

¶54

RESPONDENTS' EXHIBITS: NIL

¶55

//TRUE COPY//

¶56

P.S. TO JUDGE

¶57

St/-

P. Sasikala v. Thiruvananthapuram Corporation

Case brief

What is this about?

What did the court decide?

P. Sasikala v. Thiruvananthapuram Corporation

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

N.v.Paulose Vs Ajayakumar I.A.S

Cable Network Operators Welfare Association Vs Asianet Digital Network [P] Limited

K.M.Mosah Vs the Secretary

Pushpavally Vs District Collector, Alappuzha

A.M. Faisal Vs Thrissur Corporation

Hari Prasad Vs the District Collector