Disposed

Sreehari Achikanath Chirakkara v. Assistant Executive Engineer 1 1

Kerala HC15 Dec 2020WP(C)/803/2019

Case brief

AI extract

What is this about?

The Court addressed writ petitions challenging building permit rejections due to an unsanctioned draft town planning scheme. It held that the 2012 published master plan remains valid and restrictive until a new plan for the expanded Municipal Corporation is published. The Court directed the Government to invoke powers under Sections 36(8) and 38 of the Kerala Town and Country Planning Act, 2016, t

What did the court decide?

Directed the Government to reckon Section 36(8) and 38 of the Kerala Town and Country Planning Act, 2016 and take an appropriate decision within two months.

Sreehari Achikanath Chirakkara Vs Assistant Executive… — Landlord and Tenant | 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 MR. JUSTICE A.MUHAMED MUSTAQUE

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TUESDAY, THE 15TH DAY OF DECEMBER 2020 / 24TH AGRAHAYANA, 1942

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WP(C).No.22325 OF 2014(M)

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PETITIONER:

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SONA SURENDRANATH

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KOODAOLI HOUSE, NADAL, EDAKKAD.P.O., KANNUR-63.

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BY ADVS.

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SHRI.V.PREMCHAND SRI.V.TEKCHAND

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RESPONDENTS:

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1 THE KANNUR MUNICIPALITY REPRESENTED BY THE SECRFETARY, KANNUR MUNICIPALITY, KANNUR.

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2 THE SECRETARY KANNUR MUNICIPALITY, KANNUR.

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3 THE ASSISTANT ENGINEER KANNUR MUNICIPALITY, KANNUR.

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4 THE TOWN PLANNER DISTRICT TOWN PALANING OFFICE, KANNUR.

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5 ADDL.R5. KANNUR MUNCIPAL CORPORATION, REPRESENTED BY THE SECRETARY.

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(IS SUOMOTU IMPLEADED AS ADDITIONAL R5 AS PER ORDER DATED 16.11.2020 IN WPC 22325/2014).

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6 ADDL.R6. THE STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM.

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(IS SUOMOTU IMPLEADED AS ADDITIONAL R6 AS PER ORDER DATED 02.12.2020 IN WPC 22324/2014)

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BY ADV. SMT.S.AMBILY BY ADV. SRI.ABILASH THOMAS BY ADV. SRI.K.K.CHANDRAN PILLAI SR. BY ADV. SMT.M.MEENA JOHN, SC, KANNUR MUNICIPAL CORPORATION BY GOVERNMENT PLEADER

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[ WP(C).22325/2014, WP(C).22864/2014, WP(C).803/2019 ]

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ADV. SRI.C M NAZAR SPL GP LSGD

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.12.2020, ALONG WITH WP(C).22864/2014(G), WP(C).803/2019(A), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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[ WP(C).22325/2014, WP(C).22864/2014, WP(C).803/2019 ]

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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 A.MUHAMED MUSTAQUE

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TUESDAY, THE 15TH DAY OF DECEMBER 2020 / 24TH AGRAHAYANA, 1942

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WP(C).No.22864 OF 2014

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PETITIONER:

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MUHAMMED SAJID AGED 42 YEARS S/O. SAHEED, 'UMMARIYA', AANAYIDUKKU, P.O.THANA, KANNUR-670012.

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BY ADVS. SRI.P.U.SHAILAJAN SRI.O.B.NAVAS SMT.K.B.REKHA

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RESPONDENTS:

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1 THE KANNUR MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, KANNUR, KANNUR-670001.

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2 MUNICIPAL ENGINEER KANNUR MUNICIPALITY, MUNICIPAL OFFICE, KANNUR, KANNUR-670001.

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3 ADDL.R3. KANNUR MUNICIPAL CORPORATION, REPRESENTED BY THE SECRETARY

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ADDL.R3 SUO MOTU IMPLEADED AS PER ORDER DATED 1611-2020.

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4 ADDL.R4. THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM. ADDL.R4 IS SUO MOTU IMPLEADED AS PER ORDER DATED 02-12-2020.

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BY ADV. SMT.S.AMBILY BY ADV. SRI.ARUN ANTONY BY ADV. SRI.K.K.CHANDRAN PILLAI SR. BY ADV. SRI.M.K.HARIPRIYESH BY ADV. SMT.K.V.SHENU

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[ WP(C).22325/2014, WP(C).22864/2014, WP(C).803/2019 ]

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BY ADV. SMT.M.MEENA JOHN, SC, KANNUR MUNICIPAL CORPORATION

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ADV. SRI.C M NAZAR SPL GP LSGD

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.12.2020, ALONG WITH WP(C).22325/2014(M), WP(C).803/2019(A), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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[ WP(C).22325/2014, WP(C).22864/2014, WP(C).803/2019 ]

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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 A.MUHAMED MUSTAQUE

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TUESDAY, THE 15TH DAY OF DECEMBER 2020 / 24TH AGRAHAYANA, 1942

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WP(C).No.803 OF 2019(A)

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PETITIONERS:

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1 SREEHARI ACHIKANATH CHIRAKKARA AGED 27 YEARS S/O. T.O GANGADHARAN, CHARTERED ACCOUNTANT, RESIDING AT NEERVANA, P.O KARIMBOM, KANNUR.

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2 LAKSHMI ACHIKANATH CHIRAKKARA, AGED 25 YEARS DOCTOR BY PROFESSION, RESIDING AT NEERVANA, P.O KARIMBOM, KANNUR.

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3 UTHAMAN P, AGED 45 YEARS S/O. KRISHNAN, PANNI HOUSE, KANNADIPARAMBA P.O, KANNUR.

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BY ADVS. SRI.T.RAMESH BABU SRI.C.K.SREEJITH SRI.M.RAMESH CHANDER (SR.) SMT.K.A.SANJEETHA SRI.BALU TOM

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RESPONDENTS:

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1 ASSISTANT EXECUTIVE ENGINEER 11 LSGD, KANNUR MUNICIPAL CORPORATION, KANNUR DISTRICT 670 001

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2 SECRETARY, N KANNUR MUNICIPAL CORPORATION, KANNUR 670 001

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3 MAYOR, KANNUR MUNICIPAL CORPORATION, KANNUR 670 001.

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4 ADDL R4, THE DISTRICT TOWN PLANNER, 2ND FLOOR, DISTRICT PLANNING COMMITTEE, SECRETARIAT BUILDING,CIVIL STATION ,

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[ WP(C).22325/2014, WP(C).22864/2014, WP(C).803/2019 ]

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KANNUR 670 002

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5 ADDL R5 THE CHIEF TOWN PLANNER, OFFICE OF THE CHIEF TOWN PLANNER, TOWN PLANNING DEPARTMENT, 2ND FLOOR, SWARAJ BHAVAN, NANDANKODE, KAVADIYAR, TRIVANDRUM 695 003 ADD R4 AND ADDL R5 ARE IMPLEADED AS PER ORDER DATED 03-06-2019 IN IA 2/2019 IN WP(C) 803/2019

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BY ADV. SMT.M.MEENA JOHN, SC, KANNUR MUNICIPAL CORPORATION BY ADV. SRI.K.K.CHANDRAN PILLAI (SR.) BY ADV. SMT.S.AMBILY BY ADV. SMT.NAMITHA NAMBIAR BY ADV. SRI.SAJI THOMAS BY ADV. SMT.VANIAH MARIA DOMINIC BY GOVERNMENT PLEADER

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ADV. SRI.C M NAZAR SPL GP LSGD

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.12.2020, ALONG WITH WP(C).22325/2014(M), WP(C).22864/2014(G), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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[ WP(C).22325/2014, WP(C).22864/2014, WP(C).803/2019 ]

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JUDGMENT

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Dated this the 15th day of December 2020

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These writ petitions present a common problem in regard to

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the grant of building permit within the limits of Kannur Municipal Corporation.

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Writ petitioners in WP(C) No.22325/2014 and WP(C) No.22864/2014 are the applicants for the building permit. Their applications were rejected pointing out the approval of draft town planning scheme. WP(C) No.803/2019 was filed by a holder of building permit challenging Ext.P10 order produced therein, whereby the permit was revoked. This was for the reason that in draft DTP scheme, the land is included for the proposal of road widening.

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These matters were heard on several occasions and directions were given accordingly. In WP(C) No.22325/2014, the learned Government pleader produced a report submitted by the Town Planner, Kannur. This report clearly give the picture of the issue. Hence, it is appropriate to reproduce the entire report.

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“A master plan is the long term perspective plan for

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[ WP(C).22325/2014, WP(C).22864/2014, WP(C).803/2019 ]

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guiding the sustainable planned development of the city. The master plan for Kannur Municipality (for an area of 11.03 sq.km) was published on 19.11.2012 after the Govt.of Kerala accorded sanction to publish the same vide GO(MS) 274/2012/LSGD dated 27.09.2012. It was open to the general public to give objection and suggestion till 25.01.2013. The status of the master plan remains as “Published” till this time and no further proceedings were initiated by the Municipality to get final approval from the State Government after receiving the objections and Suggestions from the public.

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The Government have published “The Kerala Town and Country Planning Act, 2016”, on 17^th March, 2016. As per section 113 of the Town and country Planning Act, 2016 (Act 9 of 2016), any town planning schemes published under the repealed town planning act shall be deemed to be Town Planning Scheme published under Town and/Country planning Act, 2016 and therefore Development Plan for Kannur Municipal area is still valid. Implementation of the master plan is carried out by imposing restriction of development and such restrictions start from the date of publication.

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The present Kannur Municipal Corporation is formed by adding adjacent GramaPanchayaths to the erstwhile Kannur Municipality. The above said master plan is prepared and published for the erstwhile Municipality area alone and now a new master plan is being prepared for the entire Kannur Municipal Corporation area. And it is hereby informed that the

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[ WP(C).22325/2014, WP(C).22864/2014, WP(C).803/2019 ]

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existing published Master Plan and Detailed Town Planning Schemes for erstwhile Kannur Municipal area and implementation of the same is valid until a new or revised master plan for the entire Kannur Municipal area is published.”

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As seen from the report, the master plan for Kannur Municipality was published on 19.11.2012. Thereafter, Kannur Municipality became the Kannur Muncipal Corporation by adding adjacent Grama Panchayats to the Kannur Municipality. A new master plan is being prepared for the entire Kannur Municipal Corporation, including the newly added area. The existing master plan is continue to be in force until a new and revised master plan is published. If the original master plan is finally sanctioned and if the land is not acquired, the parties can seek invocation of section 67 of the Kerala Town and Country Planning Act, 2016. Section 67 of the Kerala Town and Country Planning Act permits the owner of the land to serve notice on Municipal Corporation, if no acquisition proceedings are initiated as per the sanctioned plan within two years from the date of coming into force of the operation of the plan. This is not possible in this case as the master plan originally proposed has

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[ WP(C).22325/2014, WP(C).22864/2014, WP(C).803/2019 ]

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not been finally sanctioned for the reasons mentioned above. The Municipal Council could not present the new master plan before the Government. Under Section 61 of the Kerala Town Planning Act, no person shall use any land other than in conformity with the master plan or the detailed town planning scheme under the Act. Taking note of the interdiction as above, a Division Bench of this Court, in respect of the master plan under Kannur Municipality in reported judgment in Kannur Municipality and Another v. Nafeesa Yousf and Others [2015 KHC 559], adverting to the same master plan approved in 2012 held that the restrictions in the master plan approved would prevail in the matter.

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The Municipality is yet to prepare a final master plan. The draft master plan was approved in the year 2012 and it has not been varied so far. Section 38 of the Kerala Town and Country Planning Act covers the law to meet the situation like this. Section 38 of the Kerala Town and Country Planning Act, 2016 reads thus:-

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“ Master Plans that are published but not sanctioned within the time limit prescribed- Notwithstanding anything contained in this Act, in respect of any area for which a planned development is necessary and the published plan is

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[ WP(C).22325/2014, WP(C).22864/2014, WP(C).803/2019 ]

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not sanctioned within the time limit prescribed, the Government may, after making such enquiry if it may deem necessary, in consultation with the Chief Town Planner and the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned require the Master Plan to be processed and sanctioned as provided for in this Act.”

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6. It is to be noted that Section 36 of the Kerala Town and

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Country Planning Act laid down the procedure for preparation, publication and sanctioning the master plan. The legislature conceived preparation, publication, sanctioning the master plan in a time bound manner. If there is a considerable delay, the Government is also given necessary power to act upon such delay and issue necessary direction. It is seen from Section 36(8) that the Government retained such power. Section 36(8) is reproduced herewith.

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“ The Government may, as far as possible within a period of sixty days from the date of receipt of the Master Plan as per sub-section (7), after considering the objections and suggestions, if any, the recommendations of the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned thereon, the remarks, if any, received from the District Planning

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[ WP(C).22325/2014, WP(C).22864/2014, WP(C).803/2019 ]

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Committee and the Metropolitan Planning Committee on the draft plan and after ensuring compliance with the provisions of the Perspective Plans and any other Plans prepared under this Act, accord sanction to the Plan with or without modifications and publish a notice in the Official Gazette intimating the fact of sanction of the Master Plan:

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Provided that the Government may obtain technical remarks of the Chief Town Planner to ensure compliance with Plans under this Act and priorities and objectives set by the Government and Government of India and also on any other aspects pertaining to the Master Plan.

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Provided further that if the Master Plan is returned for incorporating modifications, if any, suggested by the Government, the modified Plan shall be resubmitted afresh under this Act:

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Provided also that if the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned fails to resubmit the Plan within the time limit specified in the foregoing proviso, the Government may, in relation to the Plan, pass such orders as they may deem fit.”

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(emphasis supplied)

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It is to be noted that the original proposal was approved in the year, 2012. More than 8 years have elapsed. Citizens' right to enjoy

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their property in accordance with law has been deprived of. The Government, therefore, must act promptly and give necessary

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[ WP(C).22325/2014, WP(C).22864/2014, WP(C).803/2019 ]

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direction. Taking note of the fact that the citizens' right to enjoy

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their property has been unnecessarily deprived of for reasons beyond their control. I am of the view that the Government shall act upon Section 36(8) and 38 to take an appropriate decision in this matter. The petitioner's claim for building permit will depend upon the outcome of such decision. The Government shall take a decision

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in this matter, within a period of two months.

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The writ petition are disposed of as above.

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Sd/-

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A.MUHAMED MUSTAQUE

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JUDGE

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SAS/15/12/2020

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[ WP(C).22325/2014, WP(C).22864/2014, WP(C).803/2019 ]

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APPENDIX OF WP(C) 22325/2014

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 P1. TRUE CPY OF THE PLAN IN RESPECT OF THE RESIDENTIAL BUILDING. EXHIBIT P2 P2. TRUE COPY OF THE COMMUNICATION DATED 2- 6-2014 BY THE 3RD RESPONDENT.

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EXHIBIT P3 P3. TRUE COPY OF THE COMMUNICATION DATED 22-5-2014 ISSUED BY THE 4TH RESPONDENT.

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RESPONDENTS' EXHIBITS:

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EXHIBIT R5 A A TRUE COPY OF THE GO (MS) NO.33/16/LSGD DATED 12/02/2016 EXHIBIT R5 (B) A TRUE COPY OF THE GO (MS) NO.33/16/LSGD DATED 19/02/2016

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[ WP(C).22325/2014, WP(C).22864/2014, WP(C).803/2019 ]

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APPENDIX OF WP(C) 22864/2014

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 EXHIBIT P1- TRUE COPY OF THE REGISTERED SALE DEED NO. 2810/2013 OF S.R.O., KANNUR. EXHIBIT P2 EXHIBIT P2- TRUE COPY OF THE PLAN. EXHIBIT P3 EXHIBIT P3- TRUE COPY OF THE NOTICE DATED 15-5-2014 ISSUED BY THE 2ND RESPONDENT.

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RESPONDENTS' EXHIBITS: EXHIBIT R3 A A TRUE COPY OF THE G.O (MS) NO.33/16/LSGD DATED 12/02/2016 EXHIBIT R3 B A TRUE COPY OF THE G.O (MS) NO-38/16/LSGD DATED 19//02/2016

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[ WP(C).22325/2014, WP(C).22864/2014, WP(C).803/2019 ]

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APPENDIX OF WP(C) 803/2019

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	THE TRUE COPY OF TITLE DEEDS EXECUTED BETWEEN ALI AND 1ST PETITIONER DATED 18/3/2017
EXHIBIT P2	THE TRUE COPY OF TITLE DEEDS EXECUTED BETWEEN ALI AND 2ND PETITIONER DATED 18/3/2017
EXHIBIT P3	THE TRUE COPY OF THE SANCTIONED PERMIT WITH PLAN DT. 20/3/2018
EXHIBIT P4	THE TRUE COPY OF THE PERMIT FEE BEFORE THE CORPORATION DT 17/3/18
EXHIBIT P5	THE TRUE COPY OF THE NOTICE DT. 29/10/18 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONERS
EXHIBIT P6	THE TRUE COPY OF THE REPLY DATED 5/11/2018
EXHIBIT P7	THE COPY OF THE PHOTOGRAPHS
EXHIBIT P8	THE TRUE COPY OF THE JUDGMENT IN W.P(C) NO. 38039/2018 ON THE FILE OF HON'BLE COURT OF KERALA, ERNALKULAM DT. 23/11/2018
EXHIBIT P9	THE TRUE COPY OF THE REPLY NOTICE DT. 17/12/2018
EXHIBIT P10	THE TRUE COPY OF THE REJECTION ORDER NO. E3-BA-427/17-18 DT. 24/12/18
EXHIBIT P11	PHOTOSTATE COPY OF THE JUDGMENT IN WPC 20999/10 OF THIS HON'BLE COURT DATED 16/7/2010
RESPONDENTS' EXHIBITS:-	NIL //TRUE COPY// P.A. TO JUDGE

Sreehari Achikanath Chirakkara v. Assistant Executive Engineer 1 1

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Sreehari Achikanath Chirakkara v. Assistant Executive Engineer 1 1

Case brief

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