Dismissed

U.Muhammed v. the State of Kerala

Kerala HC22 Nov 2019WP(C)/11451/2019

Case brief

AI extract

What is this about?

This public interest litigation challenged the Draft Master Plan for Kayamkulam, alleging procedural violations and reduction of land for bus stand construction. The court rejected the plea to reject the plan, holding that the Government must approve it following due procedure and that factual challenges are for appropriate proceedings.

What did the court decide?

Dispensed with the prerogative writs sought; the writ petition is dismissed.

U.Muhammed Vs the State of Kerala — Writ and Judicial Review | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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FRIDAY, THE 22ND DAY OF NOVEMBER 2019 / 1ST AGRAHAYANA, 1941

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WP(C).No.11451 OF 2019(S)

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PETITIONER:

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U.MUHAMMED AGED 58 YEARS S/O.USMANKUTTY, NOW RESIDING AT ALUMMOOTTIL SABI MANZIL, CHERAVALLY, KAYAMKULAM.

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BY ADV. SRI.A.SHAFEEK (KAYAMKULAM)

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RESPONDENTS:

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1 THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT INSTITUTION, SECRETARIAT, THIRUVANANTHAPURAM- 695001.

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2 THE SECRETARY, LOCAL SELF GOVERNMENT INSTITUTIONS, SECRETARIAT, THIRUVANANTHAPURAM- 695001.

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3 THE DIRECTOR, URBAN AFFAIRS DEPARTMENT, SWARAJ BHAVAN, KAVADIAR P.O., THIRUVANANTHAPURAM- 695003.

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4 THE CHIEF TOWN PLANNER, SWARAJ BHAVAN, NANTHANCODE, KAWDIAR P.O., THIRUVANANTHAPURAM- 695003.

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WP(C) No.11451/19

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5 THE DISTRICT TOWN PLANNER, MINI CIVIL STATION COMPLEX, ALAPPUZHA- 688001.

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6 THE KAYAMKULAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, KAYAMKULAM MUNICIPALITY, KAYAMKULAM- 690502.

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7 THE SECRETARY, KAYAMKULAM MUNICIPALITY, MUNICIPAL BUILDING, KAYAMKULAM- 690502.

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SR.GP.TEK CHAND FOR R1 TO R5, SRI.T.R.RAJAN SC FOR R6 TO R7

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) No.11451/19

J U D G M E N T

Dated this the 22^nd day of November 2019

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Shaffique, J.

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This writ petition has been filed in the form of a Public Interest Litigation inter alia seeking the following reliefs:-

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“i) To issue a writ of mandamus or any other appropriate writ or order compelling the 1^st respondent to pass the final master plan by converting Ext.P1 without any change or modification.

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ii) To issue a writ of certiorari or any other appropriate writ or order setting aside Ext.P8 resolution to the extent to which it reduces the extend of land for the central private bus stand from 70.4 Ares to 35 cents as it is passed in violation of the provision of the Act. iii) To declare that the respondents 6 and 7 have no right or authority to consider the special committee report and to change the Draft Plan as it did not convene the council meeting within 60 days from the date of receipt of the special committee report and in violation of section 36(6) of the Act.”

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2. The main contention urged by the petitioner is that the

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Draft Rules had not been submitted to the Government within the specified time and attempts are being made in the present Draft

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WP(C) No.11451/19

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Plan to help certain faction of the society and reduce the area required for construction of bus stand etc,. By an earlier order dated 13/6/2019, after hearing the learned counsel for the petitioner and the respondent and also the learned Government Pleader, the Division Bench has passed the following order:

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“2. It appears that in respect of the Draft Master Plan for the Kayamkulam town, 48 objections/suggestions were received and the Government has directed the Municipality to note those objections/suggestions and take an appropriate decision on the matter, by 30/9/2019. The Section 36 and Section 38 of the Kerala Town ad Country Planning Act, 2016 suggest that the Government after enquiry and consultation with the Chief Town Planner and the Municipal Corporation, would take a final decision on the Master Plan to be sanctioned, for a particular town.”

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It is submitted by the learned Government Pleader

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that the Draft Plan which was sent by the Municipality was sent

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back by the Government stating that certain corrections are to be effected in the said plan and that resolution as contemplated under Section 36(7) of the Kerala Town and Country Planning Act, 2016 has not been enclosed along with the draft. The Municipality

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had sent back the Draft Plan after necessary corrections, but on account of the fact that there was Code of Conduct prevailing on

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account of election, the resolution was not passed. Subsequently, a resolution had been passed on 29/10/2019 and the same is now sent to the Government. The Master Plan is now being considered by the Government and appropriate orders will be passed as early as possible. Though it is submitted by the learned counsel for the petitioner that there has been procedural infirmities in passing resolution within the specified time, it is clarified by the learned Government Pleader that the Municipality was unable to pass resolution within the specified time on account of the fact that there was Code of Conduct prevailing during the relevant period.

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Under such circumstances, we do not think that there is any infirmity to reject the Draft Plan itself. Though the learned counsel for the petitioner would submit that there was a deliberate attempt to avoid certain area for the construction of bus stand and that construction is going to be done within the Coastal Regulation Zone area, we do not think that this Court should look into such factual aspects at this stage of the proceedings. It is ultimately for the Government to approve the Master Plan, which, according to us, would be done in accordance

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WP(C) No.11451/19

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with the procedure prescribed under law. If there is any challenge

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to the Master Plan, it shall be open for the petitioner to challenge

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the same in appropriate proceedings.

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With the above observation, writ petition is dismissed.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

A.M.SHAFFIQUE

JUDGE

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APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE DRAFT MASTER PLAN APPROVED BY THE 1ST RESPONDENT ALONG WITH ENGLISH TRANSLATION.

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EXHIBIT P2 TRUE COPY OF THE REPORT OF THE SPECIAL COMMITTEE SUBMITTED ON 07.10.2017 ALONG WITH ENGLISH TRANSLATION.

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EXHIBIT P3 TRUE COPY OF THE LETTER DATED 24.07.2017 SENT BY THE 5TH RESPONDENT TO THE 1ST RESPONDENT ALONG WITH ENGLISH TRANSLATION.

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EXHIBIT P4 TRUE COPY OF THE REPORT DATED 09.03.2017 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER LSGD, KAYAMKULAM MUNICIPALITY REGARDING THE ACQUISITION OF THE ABOVE PROPERTY ALONG WITH ENGLISH TRANSLATION.

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EXHIBIT P5 TRUE COPY OF THE LETTER SENT BY THE 6TH RESPONDENT TO THE TAHSILDAR KARTHIKAPPALLY REQUESTING HIM TO DEMARCATE THE BOUNDARIES OF THE PROPERTY THAT IS PROPOSED TO BE ACQUIRED FOR THE PURPOSE OF THE CENTRAL BUS STAND ALONG WITH ENGLISH TRANSLATION.

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EXHIBIT P6 TRUE COPY OF THE DECISION OF THE MUNICIPAL COUNCIL DATED 30.05.2017 FOR ACQUIRING THE ABOVE PROPERTY FOR THE CENTRAL BUS STAND ALONG WITH ENGLISH TRANSLATION.

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EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 05.10.2018 SUBMITTED BY THE PETITIONER BEFORE THE 7TH RESPONDENT ALONG WITH ENGLISH TRANSLATION. EXHIBIT P8 TRUE COPY OF THE RELEVANT PORTION OF THE MINUTES OF THE COUNCIL MEETING HELD ON 24.10.2018 ALONG WITH ENGLISH TRANSLATION. EXHIBIT P9 TRUE COPY OF THE REPORT AND SKETCH PREPARED BY THE ASSISTANT ENGINEER ATTACHED TO THE 6TH RESPONDENT ALONG WITH ENGLISH TRANSLATION. EXHIBIT P10 TRUE COPY OF THE NOTICE DATED 21.02.2019 ISSUED BY THE 7TH RESPONDENT ALONG WITH ENGLISH TRANSLATION. EXHIBIT P11 TRUE COPY OF THE ORDER NO.G/2427/2019/A DATED 24.7.2019 OF THE RTA, ALAPPUZHA ALONG WITH ENGLISH TRANSLATION. EXHIBIT P12 TRUE COPY OF THE LETTER DATED 25.7.2019 SENT BY THE 7TH RESPONDENT INTIMATING THE PAYMENT OF RS.3,15,000/- + 18% GST ALONG WITH ENGLISH TRANSLATION. EXHIBIT P13 TRUE COPY OF THE MINUTES DATED 10.7.2019 OF THE COUNCIL MEETING OF THE 6TH RESPONDENT ALONG WITH ENGLISH TRANSLATION. True Copy PS to Judge Rp

U.Muhammed v. the State of Kerala

Case brief

What is this about?

What did the court decide?

U.Muhammed v. the State of Kerala

Case brief

What is this about?

What did the court decide?

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