Partly allowed

The District Town Planner v. Joby. M.C

Kerala HC5 Nov 2020WA/577/2020

Case brief

AI extract

What is this about?

The High Court of Kerala partly allowed an appeal against a single judge order concerning a building permit. It held that while the existing Town Planning Scheme prevails over the Master Plan, landowners can条形 invoke Section 67 of the Kerala Town and Country Planning Act, 2016 to issue a purchase notice, compelling the authority to act or reconsider the permit application.

What did the court decide?

The single judge judgment was modified to hold that the Town Planning Scheme remains in force, but respondents are granted liberty to issue a statutory purchase notice under Section 67 of the Act, 201

The District Town Planner Vs Joby. M.C — Specific Performance | Kerala HC (2020)

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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 SHAJI P.CHALY

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THURSDAY, THE 05TH DAY OF NOVEMBER 2020 / 14TH KARTHIKA, 1942

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WA.No.577 OF 2020

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AGAINST THE JUDGMENT DATED 23.09.2019 IN WP(C) 15852/2019(F) OF HIGH COURT OF KERALA

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APPELLANTS/3RD RESPONDENT IN W.P.(C):

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THE DISTRICT TOWN PLANNER, THRISSUR 680 003.

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BY SRI. TEK CHAND, SR. GOVERNMENT PLEADER

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RESPONDENTS/PETITIONERS & RESPONDENTS 1 &2 IN W.P.(C):

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1 JOBY. M.C

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S/O. CHAKKUNNY, RESIDING AT MUNDADAN HOUSE, KOTTEKKAD , P.O KUTTUR, THRISSUR 680 013.

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2 DENIL JOHN, S/O. JOHNY, RESIDING AT THAIKKATTIL HOUSE, KOTTEKKAD, KUTTOOR, THRISSUR 680 013.

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3 THRISSUR CORPORATION, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, THRISSUR 680 001.

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4 THE EXECUTIVE ENGINEER, LOCAL SELF GOVERNMENT DEPARTMENT, THRISSUR CORPORATION, THRISSUR 680 001. R1 & R2 BY ADV. SRI.T.C.SURESH MENON R1-2 BY ADV. SRI.P.S.APPU

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R3 & R4 BY SRI. SANTHOSH P.PODUVAL, SC, THRISSUR CORPORATION

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Dated this the 5^th day of November, 2020.

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JUDGMENT

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SHAJI P. CHALY,J.

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This appeal is preferred by the third respondent in the writ petition i.e., the District Town Planner, Thrissur challenging the judgment of the learned Single Judge in W.P.(C) No. 15852 of 2019 dated 23.09.2019, whereby it was partly allowed, and held as follows at paragraphs 4 to 6:

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“4. When I consider the afore submissions, it is obvious that Secretary of the Thrissur Corporation is now incapacitated, on account of the old DTP Scheme, which reserves the area in question as the “lorry terminal in allowing the application for permit made by the petitioner”. Even if it is accepted that the old DTP is now antiquated and obsolescent and therefore, that Exts.P11 and P12 judgments have been delivered by this Court directing the Corporation to consider the permits even for construction in the said area, I do not deem it prudent to direct the grant of permit to the petitioner disregarding it going by the judgment of a Division Bench of this Court in The District Town Planner, Kottayam and Another v. Antony Joseph and Others ( WA No.109/2015).

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However, since, it is now conceded before me that a new Master Plan is being prepared for the Thrissur Corporation area, I deem it appropriate to accede to the suggestion made by its learned Standing Counsel and to direct the competent Authority of the Thrissur Corporation to reconsider the petitioners application, adverting to the new Master Plan to be published, within a period of four months from the date of receipt of a copy of this judgment.

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I am fixing the afore period so as to enable the Thrissur Corporation to be in possession of the new Master Plan and so that the petitioner's application can be considered in terms of it provisions rather than that of the old DTP Scheme. If, however, for any reason, the new Master Plan is not published within the time that I granted in this judgment, then the Secretary of the Corporation will reconsider the petitioner's application as has been done in the case of the petitioner's in Exts.P11 and 12 judgments and issue appropriate orders thereon.”

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The basic material facts projected by the writ petitioners /respondents 1 and 2 in the writ petition were as follows:

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Writ petitioners together own a parcel of land comprising 14 cents in Survey No. 927/5 of Chembukavu Village, Thrissur Taluk, Thrissur District within the limits of the Thrissur Municipal Corporation, the first respondent in the writ petition. According to the writ petitioners, it is a pucca dry land situated in the midst of commercial

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buildings and as per Ext.P2 judgment in L.A.A. No. 1138 of 1998 dated 05.06.2002, it was held by a Division Bench of this Court that the said property is a commercially valuable property, which was confirmed by the Apex Court as per Ext.P3 order in Civil Appeal No. 6161 of 2002 dated 22.04.2009. The case of the writ petitioners was that an application for building permit submitted earlier by the writ petitioners were rejected stating that the description of the property was 'paddy field' in the village records and that there was a proposal to acquire the land for the establishment of a lorry terminal. The said order was quashed by this Court as per Ext.P7 judgment dated 13.03.2018 and the Revenue Divisional Officer, Thrissur was directed to re-consider the building permit application, in the event of the writ petitioners obtaining permission under the Kerala Land Utilisation Order, 1967 for utilization of the property for other purposes other than the paddy cultivation. It is also undisputed that the petitioners have secured necessary orders certifying that the property in question was not included in the data bank prepared under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008. But, in spite of production of the order from the Revenue Divisional Officer, the building permit application submitted by the writ petitioners was

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rejected by the Thrissur Municipal Corporation as per Ext P10 order stating that as per the existing Town Planning Scheme, there is a proposal to set up a lorry terminal and therefore, petitioners have to secure zonal exemption from the State Government .

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The paramount contention advanced by the writ petitioners was that no acquisition proceedings have been initiated against the properties, which has also been certified by the Village Officer concerned. It was also submitted that the Town Planning Scheme was remaining in force for more than 3 decades and all the adjacent property owners were granted building permit pursuant to the directions issued by this Court in writ petitions and therefore, it is no more possible to establish the lorry terminal in the midst of the residential as well as commercial buildings. It was in the aforesaid background that the learned single Judge had disposed of the writ petition with the directions as extracted above.

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The paramount contention advanced by the District Town Planner, Thrissur in the appeal is that the District Town Planning Scheme prepared by the Government as per G.O(MS) No.208/90/LAD dated 11.12.1990 in regard to Erattachira-Chettiyangadi area is in force and therefore, the direction issued by the learned single Judge

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that if the Master Plan is not published within 4 months from the date of receipt of a copy of the judgment, the Secretary shall reconsider the writ petitioners' application taking into account Exts.P11 and P12 judgments passed under similar circumstances, cannot be sustained. It is also submitted that as per Section 61 of the Kerala Town and Country Planning Act, 2016 ('Act, 2016 for short), dealing with the control of use and development of land, even if a master plan is in force by virtue of the note contained under Section 61, the provisions of detailed Town Planning Schemes shall prevail over the provisions of the Master Plan, where both the plans are in force in an area. It is, accordingly, submitted that by virtue of the supremacy of the scheme specified above, the direction issued by the learned single Judge to the Secretary of the Municipal Corporation to reconsider the application if the master plan is not published, is in absolute violation of the imperatives contained under Section 61 of the Act, 2016.

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On the other hand, the learned counsel appearing for the writ petitioner submitted that in spite of the pendency of the scheme in question for more than 3 decades, no action was taken by the Municipal Corporation to acquire the property for the purpose of starting a lorry terminal. It is also submitted that the area where the

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property in question is situated is already constructed with residential and commercial buildings and therefore, the proposed scheme for starting a lorry terminal is not a viable scheme as is contended by the District Town Planner.

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The learned counsel for the Thrissur Municipal Corporation has also addressed arguments supporting the contentions put forth by the learned Senior Government Pleader for the appellants.

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We have heard Sri. Tek Chand, learned Senior Government Pleader appeared for the appellant, Sri. T.C. Suresh Menon for the party respondents i.e., respondents 1 and 2 and Sri. Santhosh P. Poduval for the Thrissur Municipal Corporation and the Secretary, and perused the materials and pleadings on record.

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Respective counsel have addressed their arguments in accordance with the contentions as discussed above. The issue revolves around, in our considered opinion, Sections 61, 67 and 113 of the Act, 2016 and they read thus:

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61. Use and development of land to be in conformity with Master Plans and Detailed Town Planning Schemes under this Act. - After the coming into operation of a Master Plan or Detailed Town Planning Scheme under this Act, no person shall use or cause to use any land or

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carry out development in any land, or change the use of land otherwise than in conformity with or with prejudicial to the Master Plans and Detailed Town Planning Schemes under this Act.

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Note. - Provisions of Detailed Town Planning Schemes shall prevail over the provisions of the Master Plans where both Plans are in force in an area.

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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;

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(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.

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(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.

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(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.

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(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.

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(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:

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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

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in accordance with this Act under intimation to the Government.

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(7) If no order has been passed by the Government within a period of six months from the date of receipt of the purchase 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:

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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.

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113. Repeal and saving. — (1) With effect on and from the commencement of this Act, the Town Planning Act, 1108 ME (Act IV of 1108 ME), the Travancore Town and Country Planning Act, 1120 (Act XXI of 1120 ME), the Madras Town Planning Act, 1920 (Madras Act VII of 1920) and the Kerala Town and Country Planning Ordinance, 2016 (4 of 2016) shall stand repealed.

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(2) Notwithstanding such repeal,—

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(i) 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 this Act:

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(ii) any General Town Planning Scheme for an area including Master Plan or Development Plan or a Detailed Town Planning Scheme sanctioned under the repealed Acts shall be deemed to be a Master Plan or a Detailed Town Planning Scheme, as the case may be, sanctioned under this Act:

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On an analysis of Section 61 of Act 2016 and the note thereto, we have no doubt that if there is a Town Planning Scheme prevailing for an area, it will have supremacy over the Master Plan existing for the area. However, the basic contention advanced by the learned counsel for the writ petitioners is that in order to start a lorry terminal, acquisition of the property in question is required. But, no steps were taken by the Thrissur Municipal Corporation to acquire the property and therefore, the writ petitioners are entitled as of right for consideration of their application in accordance with law and without creating any fetter on the basis of the instant Town Planning Scheme. However, we do not think that the said contention is correct in view of the inhibitions created under Sections 61 and 113 of Act 2016 extracted above. But, in our considered view, as contented by learned counsel for the writ petitioners, there is a way out from the situation by resorting to Section 67 of Act 2016, since in the fact scenario the stipulations contained thereunder are bound to be followed by the

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Municipal Corporation in the event of the writ petitioners issuing a statutory purchase notice in contemplation of law . Therefore, it can be seen that the issue in question is actually guided by Section 67 of Act 2016 as extracted above, which provision takes care of the Master Plan or a detailed Town Planning Scheme sanctioned under Act, 2016, and whereby liberty is granted to the Municipal Corporation to acquire the properties in terms of the Master Plan or detailed Town Planning Scheme within two years from the date of coming into operation of the plan. It is an admitted fact that no steps were taken by the Municipal Corporation or the State Government to acquire the property within the period prescribed under Section 67 of Act, 2016. Therefore, the writ petitioners are entitled, as of right, to issue a purchase notice to the Municipal Corporation requiring the Municipal Corporation to purchase the property. Sub-Section (2) of Section 67 of Act, 2016 makes it clear that the Municipal Corporation will have to take a decision not later than sixty days from the date of receipt of the purchase notice, through a resolution to acquire the land, where the land is designated for compulsory acquisition for the purpose of the Municipal Corporation. Which thus means, if the Municipal Corporation is not taking a decision as is mandatorily insisted upon as per Section

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67(2) of Act, 2016 necessarily, the other provisions of Section 67 of Act, 2016 will come into operation and eventually, the writ petitioners are entitled to get their permit applications considered in accordance with law. We are also of the opinion that even though the Town Planning Acts, which were existing in the State of Kerala, are repealed by virtue of Section 113 of Act 2016, an exception is carved out under sub-Section (2) of Section 113, whereby any Master plan or detailed Town Planning Scheme, published under the repealed Acts shall be deemed to be a Master Plan or a Detailed Town Planning Scheme, as the case may be, as if the same are published under the Act, 2016. Therefore, we find force in the contention advanced by the learned Senior Government Pleader relying upon Sections 61 and 113 of Act, 2016 that the finding recorded by the learned Single Judge to consider the building permit application if the Master Plan is not published within four months is not legally sustainable. But, fact remains, the writ petitioners are entitled, as of right, to exercise the option provided under Section 67 of Act, 2016 by issuing a purchase notice in contemplation of law since the Municipal Corporation. Thus, it can also be seen that the intention of the legislature by incorporating Section 67 in Act, 2016 is with the avowed object of protecting the interest of

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all stakeholders and in the larger public interest of developmental activities. But, at the same time, it is also an indicator clearly expressing that an owner of the property cannot be kept in limbo in the guise of public interest and town planning. This is more so in view of the constitutional right of the owner of a property conferred under Article 300A of the Constitution of India, whereby no person shall be deprived of property save by authority of law, which includes the right of an owner of a property to commercially exploit the property and venture in business in accordance with law .

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In that view of the matter, we are of the considered opinion that the judgment of the learned single Judge can be modified and the appeal can be disposed of with appropriate directions.

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In the result, the appeal is partly allowed and the judgment of the learned single Judge is modified in terms of Sections 61 and 113 of the Act, 2016 as discussed above and hold that the Town Planning Scheme existing in the area in question as specified above would remain in force, however, subject to the liberty exercised by the writ petitioners under Section 67 of the Act, 2016. Therefore, respondents 1 and 2/writ petitioners are given the liberty to issue a statutory purchase notice in terms of Section 67 of Act, 2016 and if any such

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notice is received by the Thrissur Municipal Corporation, adequate steps shall be taken within the time frame fixed under Section 67(2) and act accordingly. If no steps are taken in contemplation of Section 67(2) of the Act, 2016, the application submitted by the writ petitioners shall be reconsidered in accordance with law at the earliest, and at any rate, within a month from the expiry of the time period prescribed under Section 67(2) of the Act, 2016.

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The writ appeal is partly allowed and disposed of with the observations and directions contained above.

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sd/- S. MANIKUMAR, CHIEF JUSTICE.

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sd/- SHAJI P. CHALY, JUDGE.

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The District Town Planner v. Joby. M.C

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The District Town Planner v. Joby. M.C

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