Partly allowed

Kozhikode Corporation v. Sainaba K.K.

Kerala HC1 Mar 2021WA/1143/2020

Case brief

AI extract

What is this about?

The High Court modified the Single Judge's order in a writ appeal. It upheld the direction to consider a purchase notice under Section 67 but corrected the instruction to consider the building permit application de hors the Town Planning Scheme, requiring consideration in light of Section 113 and building rules.

What did the court decide?

The judgment of the learned Single Judge was modified: building permit application to be considered under Section 113 of the Act and building rules.

Kozhikode Corporation Vs Sainaba K.K. — Land Acquisition | Kerala HC (2021)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

¶4

¶5

THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

¶6

MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942

¶7

WA.No.1143 OF 2020

¶8

AGAINST THE JUDGMENT IN WP(C) 24232/2018(D) OF HIGH COURT OF KERALA

¶9

APPELLANTS/RESPONDENTS 1 & 2:

¶10

1 KOZHIKODE CORPORATION

¶11

REPRESENTED BY ITS SECRETARY, BEACH ROAD, KOZHIKODE-673032.

¶12

2 THE SECRETARY, KOZHIKODE MUNICIPAL CORPORATION, BEACH ROAD, KOZHIKODE-673032.

¶13

BY ADVS. SMT.BINDUMOL JOSEPH SRI.B.S.SYAMANTHAK SHRI.SRIVIDYA K

¶14

RESPONDENTS/PETITIONER & RESPONDENT NO.3:

¶15

1 SAINABA K.K. AGED 49 YEARS D/O.MOIDU, RESIDING AT BISMILLATH MANZIKUNIYANGADU (P.O), PURAMERI (VIA), VADAKARA (PIN)-673503.

¶16

2 REGIONAL TOWN PLANNER, REGIONAL TOWN PLANNING OFFICE, CHAKKAROTHUKULAM, KOZHIKODE-673011.

¶17

SRI. V.N.HARIDAS FOR R1, SRI. TEK CHAND SENIOR GOVERNEMNT PLEADER FOR R2

¶18

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WA.No.1143 OF 2020

JUDGMENT

Dated this the 1st day of March 2021

¶23

SHAJI P.CHALY,J

¶24

This appeal is preferred by respondents 1 & 2 in W.P.(C) No.24232/2018, challenging the judgment of the learned Single Judge dated 25.11.2019, whereby the learned Single Judge directed the appellants to proceed with the formalities contained under section 67 of the Kerala Town and Country Planning Act, 2016, hereinafter called, 'Act, 2016', if a purchase notice is received from the writ petitioner/1^st respondent and to consider the application submitted by the writ petitioner seeking building permit for construction of a commercial building de hors the DTP Scheme and the zoning regulations made thereunder, irrespective of the fact that the area is earmarked as a residential zone. Material facts for the disposal of the writ appeal are as follows;

¶25

Writ petitioner, owner in possession of an extent of 1.2141 Ares situated in Re-Sy No.17/8/182 of Kasaba Village in Kozhikode Taluk within the limits of the appellant Corporation, has submitted an application for building permit to construct a commercial building. But the same was rejected as per Exhibit P3 order dated 10.4.2017 stating that the application submitted for construction of the commercial building having ground floor, 1^st floor and 2^nd floor, cannot be considered as the proposed plot falls within the area reserved

¶26

WA.No.1143 OF 2020

¶27

¶28

for residential zone and it falls within the proposed road widening having 7 meters width as per the DTP Scheme for Kottaraparambu area. It is thus challenging the legality and correctness of the said order, the writ petition was filed.

¶29

During the pendency of the writ petition, the writ petitioner has submitted a purchase notice dated 7.11.2019 before the appellant Corporation, copy of which is produced as Exhibit P5 along with an interlocutory application dated 12.11.2019. The learned Single Judge after considering the factual and legal circumstances and taking into account the content of Exhibit P3 impugned order of the Secretary of the appellant Corporation, has arrived at a finding that since the property is required for road widening as per the DTP scheme, necessarily the Corporation has to acquire the land and by virtue of section 67 of the Act, 2016, the writ petitioner is left with a remedy by issuing a purchase notice in contemplation of the said provision. It was accordingly that the directions were issued to the appellants to consider Exhibit P5 purchase notice submitted by the writ petitioner in accordance with section 67 of Act, 2016 and if the Corporation is not able to proceed with the procedure contemplated under section 67, then the application submitted by the writ petitioner for building permit is to be considered irrespective of any DTP Scheme and the zonal regulations done by the appellant Corporation.

¶30

We have heard Adv.Bindumol Joseph for the appellants,

¶31

WA.No.1143 OF 2020

¶32

¶33

Adv.Sri.V.N.Haridas for the 1^st respondent/ writ petitioner and learned Senior Government Pleader Sri.Tek Chand for the 2^nd respondent – Regional Town Planner, Kozhokode and perused the pleadings and materials on record.

¶34

The discussion of facts made above would make it clear that the learned Single Judge issued the directions in contemplation of section 67 of Act, 2016 since in Exhibit P3 impugned order of the Secretary of the appellant Corporation, it was accordingly specified that the property in question belonging to the writ petitioner is required for widening of a road as per the DTP Scheme. Section 67 of the Act, 2016 deals with obligation to acquire land in certain cases, which stipulates that where any land is designated for compulsory acquisition in a Master Plan or Detailed Town Planning Scheme sanctioned under the 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, a purchase notice requiring the Municipal Corporation to purchase interest in the land in accordance with the provisions of the Act.

¶35

No doubt since in Exhibit P3 impugned order, the Secretary has catergorically made clear that the property belonging to the writ petitioner is required for road widening under a Detailed Town Planning Scheme, in fact on receipt of notice, a procedure is contemplated in regard to the acquisition and

¶36

WA.No.1143 OF 2020

¶37

¶38

if the land acquisition could not be effected within the period of two years from the date of resolution to acquire land, the Municipal Corporation concerned, shall initiate variation of the plan suitably in accordance with Act, 2016. Therefore, if the acquisition is not made in terms of the Detailed Town Planning Scheme, on receipt of purchase notice, ultimately the building permit application shall be considered after seeking variation of the plan suitably in accordance with the Act.

¶39

Therefore, it has to be seen that in order to issue a purchase notice, there should be a Master Plan or Detailed Town Planning Scheme sanctioned under the Act, which only enables the Municipal Corporation to acquire land or the property owner to issue a purchase notice. Admittedly an old Detailed Town Planning Scheme is in existence in the area in question, whereby the property belonging to the writ petitioner is included in the residential zone. While considering so it has to be borne in mind that consequent to the introduction of Act, 2016 by virtue of section 113 of Act, 2016, all the existing Town Planning Acts were repealed, however notwithstanding such repeal, any 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 Detailed Town Planning Scheme, as the case may be published under the Act, apart from protecting other plans and General Planning Scheme. Which thus means till

¶40

WA.No.1143 OF 2020

¶41

¶42

such time any new Detailed Town Planning Scheme or Master Plan is brought into force in accordance with the provisions of Act, 2016, the old Town Planning Scheme, Master Plan, Development Plan etc, would be in force.

¶43

In fact the learned Single Judge has identified the said situation but said that if the land is not acquired in accordance with the provisions of section 67 of Act, 2016, the application for building permit has to be considered de hors any Detailed Town Planning Scheme pending. In our considered opinion, the directions issued by the learned Single Judge, taking into account section 67 of Act, 2016, is in accordance with law due to the fact that, in Exhibit P3 impugned order, it is clearly specified that the property of the writ petitioner is required for widening of a road under the Detailed Town Planning Scheme. However, with respect to the directions issued to the appellants to consider the application de hors the Town Planning Scheme may not be correct in view of the protection of the DTP Scheme under section 113 of the Act, 2016. But fact remains if any violation of the zonal regulations, commercial buildings are permitted in the area in question, it may not be proper on the part of the appellants to reject the application of the writ petitioner on that ground. At the same time, if the acquisition is proceeded with, then the question of considering the application for building permit of the writ petitioner would not arise.

¶44

That apart the provisions of the Kerala Municipality Building Rules,

¶45

WA.No.1143 OF 2020

¶46

¶47

1999, replaced by the Kerala Municipality Building Rules, 2019, would show that a Detailed Town Planning Scheme, would have procedure over the building rules, which shows any pending Town Planning Schemes, cannot be merely overlooked while considering an application for building permit. Therefore, we dispose of the writ appeal by modifying the judgment of the learned Single Judge to the effect that if the property is not acquired, the building permit application of the writ petitioner, shall be considered taking into account the provisions of section 113 of Act, 2016 and the building rules in force, but make it clear that in all other respects, the directions issued by the learned Single Judge would remain in tact.

¶48

Writ appeal is disposed of accordingly.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

SHAJI P.CHALY

JUDGE

smv

Kozhikode Corporation v. Sainaba K.K.

Case brief

What is this about?

What did the court decide?

Kozhikode Corporation v. Sainaba K.K.

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

The Regional Transport Officer, Vs Binson

Manveer Oberoi Vs Micro and Small Enterprises Facilitation Council

K.X.George Vs State of Kerala

Chalai S Dileep Vs State of Kerala

Ramshad Rahim Vs the State of Kerala

Marakkara Grama Panchayath Vs Ibrahim