Allowed

P.B.Pradeep Kumar v. Maradu Municipality

Kerala HC4 Mar 2022WA/133/2022

Case brief

AI extract

What is this about?

The Division Bench interpreted Section 67 of the Kerala Town and Country Planning Act, 2016, holding that land earmarked for road widening in a valid scheme is designated for compulsory acquisition. The court allowed the appeal, setting aside a Single Judge's dismissal and directing the Municipality to reconsider a building permit application.

What did the court decide?

Set aside the judgment of the learned Single Judge allowing the writ appeal; direct the Secretary of the Maradu Municipality to reconsider the building permit application within one month.

P.B.Pradeep Kumar Vs Maradu Municipality — Property and Title | Kerala HC (2022)

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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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FRIDAY, THE 4^TH DAY OF MARCH 2022 / 13TH PHALGUNA, 1943

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WA NO. 133 OF 2022

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AGAINST THE JUDGMENT IN WP(C) 17262/2020 OF HIGH COURT OF KERALA

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APPELLANTS:

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1 P.B.PRADEEP KUMAR AGED 69 YEARS FLAT NO.15C, WHITE WATERS II, PANDIT KARUPPAN ROAD, THEVARA, KOCHI - 682 013.

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2 RAJANI PRADEEP KUMAR FLAT NO.15C, WHITE WATERS II, PANDIT KARUPPAN ROAD, THEVARA, KOCHI - 682 013, REPRESENTED BY POWER OF ATTORNEY HOLDER P.B.PRADEEP KUMAR.

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3 SHEREEN FLAT NO.15C, WHITE WATERS II, PANDIT KARUPPAN ROAD, THEVARA, KOCHI - 682 013, REPRESENTED BY POWER OF ATTORNEY HOLDER P.B.PRADEEP KUMAR.

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5 ABAD BUILDERS PVT.LTD. 5TH FLOOR, NUCLEUS MALL, MARADU P.O., KOCHI, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADVS.

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K.I.MAYANKUTTY MATHER R.JAIKRISHNA NARAYANI HARIKRISHNAN

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RESPONDENTS:

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1 MARADU MUNICIPALITY REPRESENTED BY ITS SECRETARY, MARADU P.O.,MARADU - 682 304.

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2 SECRETARY MARADU MUNICIPALITY, MARADU P.O., ERNAKULAM - 682 304.

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3 MUNICIPAL ENGINEER (EXECUTIVE ENGINEER) MARADU MUNICIPALITY, MARADU P.O., ERNAKULAM - 682 304.

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4 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT (URBAN),SOUTH BLOCK, SECRETARIAT,

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W.A.No.133 of 2022

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GENERAL POST OFFICE, THIRUVANANTHAPURAM - 695 001. 5 CHIEF TOWN PLANNER OFFICE OF THE CHIEF TOWN PLANNER, DEPARTMENT OF TOWN AND COUNTRY PLANNING, SWARAJ BHAVAN 2ND FLOOR, NANTHANKODE, KOWDIAR P.O., THIRUVANANTHAPURAM - 695 003.

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BY ADVS, SRI.T.R.RAJAN FOR R1 TO R3 SMT. K.R. DEEPA, SPECIAL GOVERNMENT PLEADER FOR R4 TO R5.

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04.03.2022, THE

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COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A.No.133 of 2022

JUDGMENT

SHAJI P.CHALY,J.

This appeal is preferred by petitioners in the writ petition challenging the judgment of the learned Single Judge in W.P.(C) No.17262/2020 dated 17.1.0222, whereby the learned Single dismissed the writ petition holding that the property shown in a scheme as reserved for roads is not liable to be purchased by the Municipality/Government invoking section 67 of the Town and Country Planning Act, 2016. Brief material facts for the disposal of the writ appeal are as follows;

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According to the appellants, they are the absolute owners in possession of an extent of 24.73 Ares comprised in Re.Sy. Nos.221/4-2, 221/4-2-2, 221/4-2-2-2, 221/5-2-2, 221/5-3, 221/9, 221/10 and 221/12 of Maradu Village, Kanayannur Taluk, Ernakulam District, as per document Nos.3612/2001, 1192/1986, 2145/2002, 2101/2001 and Settlement Deed Nos.665/2018, 666/2018 and 667/2018 of Maradu Sub Registrar Office.

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It is the case of the appellants that being desirous of developing the properties and construct a multistoried residential complex they entered into a joint venture agreement with the 5^th petitioner. Thereupon, appellants authorised the 5^th petitioner builder – Abad Builders Pvt. Ltd., for obtaining a building permit from respondents 1 & 2 as well as other necessary permissions from the concerned

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authorities. Accordingly, appellants submitted an online application for building permit along with Fire NOC for the construction of 32 residential apartments spread in B+G+17 floors.

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After submitting the initial application for building permit, the 2^nd respondent gave oral instruction to the appellants to file a revised application to maintain a building line of 6 metres. Since the fire NOC and aviation NOC were obtained only after the resubmission of the application, those documents were again submitted before the 2^nd respondent on 24.9.2018 and 14.11.2018.

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It is submitted by the appellants that despite following all procedures and issuance of necessary NOC from concerned authorities, the 2^nd respondent has not processed or issued the building permit sought for by the appellants. Thereupon, appellants submitted a revised application for building permit for construction of 26 apartments after reducing the floor area ratio. On an enquiry, it is informed by the 2^nd respondent that building permit cannot be issued as there is a proposal for a 27 metre wide road from Willingdon Island to Muvattupuzha, passing through Sy.No.221 vide Structural Plan for Kochi - 1991 and the same is under consideration for acquisition in connection with the formation of the road and therefore, the request for building permit cannot be considered.

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Thereupon, according to the appellants, they issued a purchase notice under Section 67 of the Kerala Town and Country Planning Act, 2016, hereinafter called,

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“Act, 2016”, to the 2^nd respondent, however, respondents 1 and 2 viz., Maradu Municipality & Secretary - Maradu Municipality, have not complied with the requirements and obligations under section 67(2) and section 67(3) of the Act, 2016. It is in this background, the appellants have earlier approached this Court by filing W.P.(C) No.26281/2019, seeking the following reliefs:

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a) Issue a writ of mandamus or other appropriate writ or order directing respondents 1 and 2 to pass a resolution to seek variation of the structural plan to exclude the appellants' property comprised in Re-Sy Nos.Nos.221/4-2, 221/4-2-2, 221/4-2-2-2, 221/5-2-2, 221/5-3, 221/9, 221/10 and 221/12 of Maradu Village, Kanayannur Taluk, within a short time being fixed by this Hon'ble Court and thereby facilitate the appellants to develop their land as they like on the basis of the building permit being issued by respondents 1 to 3.

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b) Issue a writ of mandamus or other appropriate writ or order directing respondents 1 to 3 to accord building permit being sought by the appellants as per Exhibit P4 – application, to effect construction of residential complex in their distinct land comprised in Re-Sy Nos.Nos.221/4-2, 221/4-2-2, 221/4-2-22, 221/5-2-2, 221/5-3, 221/9, 221/10 and 221/12 of Maradu Village, Kanayannur Taluk,Ernakulam District as one unhindered by the provisions of the Kerala Country and Town Planning Act, 2016.

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But the said writ petition was disposed of directing the appellants to pursue

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further proceedings in terms of Section 67 of the Kerala Town and Country Planning Act 2016.

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A detailed counter affidavit was filed by the Maradu Municipality and its officials, wherein the steps taken by the Maradu Municipality on receipt of notice under section 67 of the Act, 2016 is clearly deliberated. It is evident from the counter affidavit of Municipality that, on receipt of notice, since the Municipality found that the area is reserved for road widening on account of a Scheme to be implemented by the State Government, and the State Government is the authority to acquire the property, forwarded the application to the State Government. Anyhow, the State Government, after considering the application submitted by the appellants under section 67 of Act, 2016, rejected the same, stating that the property in question is not a designated property for acquisition as contemplated under Section 67 of the Act 2016; thus not compelling the Government to acquire the property.

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It is thus challenging the legality and correctness of the order passed by the State Government and seeking other consequential reliefs, the instant writ petition was filed. The learned Single Judge, after taking into account two Division Bench Judgments of this Court in District Town Planner, Malappuram and Others v. Vinod and Others [2019 (3) KHC 673 (DB) and in Regional Town Planner and Another v. Muhammed Rasheed and Others [2019(3) KHC 987(DB)] has held as follows:

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“13. The learned counsel for the petitioners argued that a distinction should be drawn between areas earmarked for Residential, Industrial, Commercial and Agriculture on the one hand and Parks and Roads on the other hand. In the case

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of the land earmarked for Residential, Industrial, Commercial and Agriculture purposes, a land owner can still utilise the land himself for the said purposes, whereas a land owner is not expected to use his land for maintaining Parks and Roads. Therefore, such land should be treated as land designated for compulsory acquisition.

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The learned counsel for the petitioners argued that since Section 67(6) contemplates confirmation of purchase notice by the Government, it would mean that in respect of land of the petitioners, there should be a decision by the Government on acquisition of land. The provision that “in any other case, Government may require the Municipal Corporation, Municipal Council, Town Panchayat to Village Panchayat concerned to vary the plan suitably in accordance with this Act” would indicate that a decision of the Government is required even where the land in question is not designated for compulsory acquisition.

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A plain reading of Section 67 of the Kerala Town and Country Planning Act, 2016 does not give any scope for such an interpretation. A Division Bench of this Court in the judgment in District Town Planner, Malappuram and others v. And others [2019 (3) KHC 673 (DB)] has held that:

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“12. The above provision in the Act, 2016 would imply that where any land designated for compulsory acquisition in the Town Planning Scheme but no acquisition proceedings are initiated within a period of two years from the date of coming into operation of the Plan, the owner of the affected persons may serve a purchase notice, requiring the authority to purchase the interest in the land. If any such purchase notice is served, within 60 days from the date of receipt, the authority is statutorily required to decide on acquisition of the property. If the land is designated for any Government Department or other authorities, the information on the receipt of purchase notice is to be forwarded to the said authority. In case the development plan should be made. Even otherwise, when the land acquisition could not be effected within two years from the date of resolution to acquire the land, the authorities are required under sub-section (5) of Section 67 of the Act, to initiate suitable

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variation of the Plan. As can be seen, the statutory consequences for failure of the authority to acquire the land notified under the Town Planning Scheme is clearly delineated. Thus the Act, 2016 itself suggests that the property owner cannot be indefinitely deprived of his right to enjoy the property, without finality on the acquisition of the land, earmarked under the DTP Scheme.”

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16. In Regional Town Planner and another v. Muhammed Rasheed

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and others [2019 (3) KHC 987 (DB)], this Court held that:

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“The earmarking of the areas into residential /industrial/commercial/agricultural or keeping apart areas for parks, roads, etc. is an exercise that is done in public interest and hence, the private interest of the land owners who seek to put up particular construction would have to necessarily yield to the overriding public interest that informs the provisions of the DTP Scheme.”

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In view of all the above, this Court finds no merit in the claims of the petitioners. The writ petition is therefore dismissed.”

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It is thus challenging the legality and correctness of the judgement of the learned Single Judge, the appeal is preferred by the writ petitioners.

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The paramount contention advanced in the appeal is that the learned Single Judge misconstrued the scope and ambit of Section 67 of the Kerala Town and Country Planning Act, 2016 and wrongly assumed that Section 67 would apply only in cases where the land has been designated for compulsory acquisition to sanction Master Plan or Detailed Town Planning Scheme, and where alone Section 67 would come into play; that such an interpretation drawn by the learned Single Judge, is

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without comprehending the factual and legal scenario involved in the matter.

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It is also contended that the learned Single Judge omitted to note the fact that in paragraph 2 of the counter affidavit filed by the 5^th respondent – Chief Town Planner, their stand is that "there is a proposal for a new road to Muvattupuzha starting from beach road, Fort Kochi to central city boundary at the eastern end in Tripunithura Municipality; the stretch of the said Willingdon Island - Muvattupuzha road is passing through Sy.No.221 of the Maradu Village and is having a proposed width of 27 metres with 3 metres building line; therefore, no new construction shall be permitted through the alignment of this road”. According to the appellants, that being the fact situation, coupled with the directions made by this Court in W.P.(C) No. 26281/2019, the learned Single Judge should not have taken the view that Section 67 of the Act has no application to the present case. The observation made in paragraph 4 of the judgement in W.P.(C) No. 26281/2019 is worthwhile to the context, and therefore, it is extracted hereunder:

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“4. Having heard the leaned Counsel for the parties and also noticing the provisions of the Act as extracted in the writ petition, it is clear that once the road is to be widened or used by the Government and not by the Municipality, the role of the Municipality is to forward such request to the Government though they are having an obligation to forward the application within a period of 60 days. But in the instant case, that period expired in September, 2019. However, as indicated above, the request was sent in December, 2019, little belated. As per the provisions of such

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Section 6, the Government is statutorily required to take a decision with a period of six months. The decision for purchase of the land is to be taken by the Government in consultation with the Municipality and in the absence of the same, as per sub Section 7, the Municipality is at liberty to suo motu cause variation in the plan in accordance with law. I am of the view that the grievance of the petitioner for the time being has been addressed as the Municipality has forwarded the request to the Government and would have an independent cause of action on receipt of the intimation either in favour or otherwise. The writ petition is accordingly disposed of. This Court is sanguine of the fact that the Government will take decision on the request of the petitioner forwarded by the Municipality within the period prescribed".

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It is also contended by the appellants that the learned Single Judge should not have sustained the stand of the Government that to attract Section 67, the land has to be designated for compulsory acquisition in a Master Plan or Detailed Town Planning Scheme and that, if such a contention is to be accepted, Section 67 would become otiose and meaningless.

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It is also the contention advanced by the appellants that, the learned Single Judge ought to have comprehended that in a Master Plan, the lands will be earmarked as various zones such as residential, commercial, industrial, public offices, agriculture, green parks, roads etc. and in the case of residential, commercial, industrial, and similar types of categorization, the land owners of those properties cannot insist that such properties should be compulsorily acquired by the

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Government because by such categorization, the right of an owner to deal with his property is not taken away but only prescribes certain restrictions and owners can utilise their properties in the manner specified in the Master Plan, whereas, when properties are earmarked as green parks, roads etc., there imposes total restriction on the owners to utilise their property and such properties fall under the definition of 'designated for compulsory acquisition' is what is intended by the legislature and should be interpreted so by this Court.

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We have heard learned counsel for appellants Sri.K.I.Mayankutty Mather, learned Standing Counsel for the Maradu Municipality – Sri.T.R.Rajan, learned Special Government Pleader Smt.K.R.Deepa for the State, and perused the pleadings and materials on record.

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The question to be considered is whether, if the property is earmarked for widening a road under a structural plan for central city of Kochi, the provisions of section 67 of the Town and Country Planning Act, 2016 can be applied or not ? Therefore, for convenience, we are extracting section 67 of the Act, 2016, which reads thus:

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“ 67. Obligation to acquire land in certain cases.— 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

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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

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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: 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 in accordance with this Act under intimation to the Government. (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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On a reading of section 67 of Act, 2016, it can be seen that where any land

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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

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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 called 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 the Act, 2016, if the local body decides through a resolution to acquire the land where the land is designated for compulsory acquisition for the purpose of Municipal Corporation etc., within 60 days from the date of receipt of the notice. However, sub-section (3) thereto makes it clear that where the land is designated for compulsory acquisition for the purpose of any Government Department or Quasi-government Agency, the Municipal Corporation etc., shall forward such notice to the Government.

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Here is a case where when a purchase notice was issued by the appellants to the 1^st respondent Municipality, the Municipality in turn forwarded the same to the State Government since the structural plan for central city of Kochi in regard to the widening of road is a matter to be considered by the State Government in contemplation of the above discussed provision. This is evident from Exhibit R2(a) letter dated 21.11.2019, addressed by the Secretary of the Municipality to the Additional Chief Secretary, Local Self Government, Thiruvananthapuram. The Government in turn has issued Exhibit R2(b) letter dated 20.3.2020 to the Secretary of the Maradu Municipality stating that though owing to the approved structural plan,

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a new road is envisaged at the portion where the property of the applicant is situated, it is not envisaged for compulsory acquisition in the structural plan and therefore, section 67 of the Act, 2016 cannot be made applicable in the instant case. Anyhow, the Secretary of the Municipality, on receipt of the said letter from the Government, has addressed the Chief Town Planner, Local Self Government, Thiruvananthapuram that though the property is required for construction of Kochi – Muvattupuzha proposed road with 27 metre width, and a new road has been envisaged passing through the property of the appellants and requested the Chief Town Planner as to whether the permit can be granted to the appellants for construction of the building utilising the entire property.

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The paramount contention advanced by the learned Special Government Pleader Smt.K.R.Deppa is that the property in question is not specifically earmarked for compulsory acquisition in the Master Plan or detailed Town Planning Scheme and therefore, the appellants are not entitled to issue a notice under section 67 of the Act, 2016.

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But we are of the opinion that in the structural plan, the property is designated for road widening. Which means that, without securing the property, the road cannot be widened, as envisaged in the structural plan/Town Planning Scheme. In fact, the structural plan in question is of the year 1991. According to the learned Special Government Pleader, it has got a validity upto 2033 and therefore, since the

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scheme is in force, the Government is entitled as of right to retain the property as such in the structural plan till its expiry or a new Town Planning Scheme or a Detailed Town Planning Scheme is approved by the Government. But, fact remains, as per section 113 (1) of the Act, 2016, though the erstwhile Town Planning Acts were repealed sub-section 2 thereto clearly specifies that notwithstanding any such repeal, any approved 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 the Act, 2016 and in the General Town Planning Scheme for an area including Master Plan or Development Plan or a Detailed Town Planning Scheme sanctioned under the repealed Act, 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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Therefore, it can be seen that if a new Master Plan or Approved Master Plan or draft Town Planning Scheme or Town Planning Scheme, is not introduced as per the provisions of the Act, 2016, the existing Master Plan and scheme would come into play. It is also worthwhile to note that as per rule 3A of the Kerala Municipality Building Rules, 1999, notwithstanding anything contained in the Rules, 1999, provisions or regulations in any Town Planning Scheme in force under the Town Planning Act, shall prevail over the respective provisions of the Rules 1999 wherever

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such scheme exists. Therefore, it is clear that the Building Rules have no force, whenever a Town Planning Scheme is existing.

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Admittedly, in the case on hand, a scheme is existing for the central city of Kochi and the property in question is included in the same. Therefore, reading the provisions of section 67, section 113 of the Act, 2016 and rule 3A of the Kerala Municipality Building Rules, 1999 conjointly, it is clear that the issue has to be considered taking into account the imperative aspects contained under the said provisions. The word “designated” contained under section 67 is not defined under the Act, 2016. However, the Chambers Concise Dictionary Delux Edition defines the word “designated” to mean, “to mark out so as to make known, to show, indicate; to be a name or label for for and therefore, the expression used in section 67 as to the compulsory acquisition is largely dependent on the word “designated” contained under section 67.

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In that view of the matter, we have no hesitation to hold that whenever a property is earmarked for acquisition for any purpose in any structural plan or Detailed Town Planning Scheme, definitely the property has to be seen as a property designated for compulsory acquisition. This can be explained in a better manner, if we analyse sub-section 6 & 7 of section 67 of the Act, 2016. sub-section (6) makes it clear that on receipt of a purchase notice under sub-section (3) the Government shall in consultation with the Government Department or Quasi-government Agency

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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 etc. to vary the plan suitably in accordance with the Act, 2016.

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However, the proviso makes it clear 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 etc., shall initiate variation of the plan suitably in accordance with this Act under intimation to the Government. So also sub-section (7) makes it clear that 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, Panchayat concerned etc. shall, suo moto initiate variation of the plan suitably in accordance with the Act, 2016.

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Proviso to sub-section (6) also makes it clear that where variation proceedings of the Plan are initiated under section 67, the Secretary of the Municipal Corporation, Municipal Council, etc. shall in consultation with the Chief Town Planner, take suitable decision on any application or land development permit received under section 50 of Act, 2016 contained under Chapter VIII dealing with review, revision, variation and revocation of plan prepared under the Act under various circumstances. Sub-section (2) there to obligate the Municipal Corporation, Municipal Council etc. to

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review, vary a Plan in part and get such varied Plan sanctioned in accordance with the provisions of the Act. The Government is also vested with power to vary a plan.

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Therefore, reading together the provisions of section 67 and section 50, necessary action will have to be taken, if the Government or the Municipal Corporation is not intending to acquire the property on receipt of notice under section 67 of Act, 2016. If such an interpretation is not provided to section 67, then the owner of a property, whose property is designated in any Master Plan or Town Planning Scheme, will not be in a position to develop the property to his advantage.

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The said aspect is to be considered, taking into account Article 300A of the Constitution of India, which clearly specifies that persons not to be deprived of property save by the authority of law. Therefore, the said Constitutional provision protects an individual from interference by the State and dispossess a person from the property unless it is in accordance with the procedure established by law.

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Anyhow, this issue was considered by a Division Bench of this Court in District Town Planner, Malappuram and Others v. Vinod and Others [2019 (3) KHC 673] and held as follows:

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“9. A reading of the provisions of the Act, 2016 and the Municipality/Panchayat Building Rules indicates that the DTP Schemes prepared under the Act, 2016 are to have overriding effect over the provisions of the Building Rules. Accordingly, the procedure under Section 67 has to be followed in case the project envisaged under the DTP Scheme involves

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acquisition of land by the Local Authorities as a pre-requisite for implementing the proposal.

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10 . The provisions of Section 67 of the Act, 2016 are intended to balance the conflicting rights of the State and the private individual. While the State has the right to reserve lands for development proposals in public interest, the said right cannot be exercised in a manner designed to frustrate the Constitutional rights of the private individual under Article 300A, to deal with his property in the manner he chooses. A balance is therefore struck by directing the State to take affirmative action for implementing the proposal within a specified time frame, failing which, the private individual is to be given the unfettered freedom to use his land for other permissible purposes.

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The above provision in the Act, 2016 would imply that where any land is designated for compulsory acquisition in the Town Planning Scheme but no acquisition proceedings are initiated within a period of two years from the date of coming into operation of the Plan, the owner or the affected person may serve a purchase notice, requiring the authority to purchase the interest in the land. If any such purchase notice is served, within 60 days from the date of receipt, the authority is statutorily required to decide on acquisition of the property. If the land is designated for any Government Department or other authorities, the information on the receipt of purchase notice is to be forwarded to the said authority. In case decision is taken by the concerned authority not to acquire the land, variation of the development plan should be made. Even otherwise, when the land acquisition could not be effected within two years from the date of resolution to acquire the land, the authorities are required under sub-section (5) of Section 67 of the Act, to initiate suitable variation of the Plan. As can be seen, the statutory consequences for failure of the authority to acquire the land notified under the Town Planning Scheme is clearly delineated. Thus the Act, 2016 itself suggests that the property owner cannot

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be indefinitely deprived of his right to enjoy the property, without finality on the acquisition of the land, earmarked under the DTP Scheme.

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The implication of the Act, 2016 as explained above appears to be sound and we are in agreement. It would therefore be logical for us to conclude that the respondents/writ petitioners cannot be prevented from lawful enjoyment of their property, merely because, such property is included in the DTP Scheme of the Thalassery Municipality. It does not however mean that the authorities are deprived of their right to acquire the land at a future date, if the same would be needed for the development Scheme of the Town. The only burden in that future event would be, the need to compensate the owner to the extent of development or the construction, made over the property.”

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Again, the very same question was considered by us in District Town Planner, Thrissur v. Joby M.C. and Others [2020 (6) KHC 455 = 2020 (6) KLT 600], which was concerning a property earmarked for a lorry stand within the limits of the Thrissur Municipal Corporation. After having considered the provisions of section 67 and other relevant provisions of the Act, 2016, we came to a definite conclusion that whenever a land is earmarked in any Town Planning Scheme or Master Plan for any particular purpose, the land owner is entitled to invoke section 67 of Act, 2016.

¶137

However, learned Special Government Pleader has invited our attention to a judgement of a Division Bench of this Court in Regional Town Planner and Another v. Muhammed Rasheed and Others [2019(3) KHC 987(DB)] and

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submitted that it is clearly specified therein that whenever there is a Scheme or Master Plan, the owner of the property cannot seek a permit overlooking the provisions of the Town Planning Scheme/Master Plan and rule 3A of the Kerala Municipality Building Rules, 1999.

¶141

But, fact remains, the said writ petition was considered by the Division Bench not in the context of section 67 of the Act, 2016. Therefore, we do not find force in the submission made by the learned Special Government Pleader. It is equally important to note that it was the very same Division Bench that has rendered the judgement in District Town Planner, Malappuram and others (supra) and held under similar circumstances that when a road is earmarked for widening, the provisions of section 67 of Act, 2016 would come into play.

¶142

In this regard, judgement of the Apex Court in Raju S. Jethmalani and Others v. State of Maharashtra and Others [(2005) 11 SCC 222] would assume importance, which held that refusing grant of building permit by placing reliance on obsolete DTP scheme would tantamount to clear violation of the provisions of the Constitution of India. The relevant portion of paragraph 3 of the said judgement is appropriate to be extracted, which reads thus:

¶143

“3. It is true that a Development Plan can be prepared of a land comprising of a private person but that plan cannot be implemented till the land belonging to the private person is acquired by the Planning authority. It is not that the Planning authority was ignorant of this fact. It acquired

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some land from Plot No. 437 for developing garden but the land from plot No. 438 was not acquired for garden. Therefore, the question is whether the Government can prepare a development plan and deprive the owner of the land from using that land ? There is no prohibition of including private land in a development plan but no development can be made on that land unless that private land is acquired for development. The Government cannot deprive the persons from using their private property. We quite appreciate the interest of the residents of that area that for the benefit of the ecology, certain areas should be earmarked for garden and park so as to provide fresh air to the residents of that locality. In order to provide such amenities to the residents of the area private land can be acquired in order to effectuate their public purpose but without acquiring the private land the Government cannot deprive the owner of the land from using that land for residential purpose. In the present case, it is clear that Plot No. 438 belonged to the private person and it was shown as a garden in the development plan of 1966. But no effort was made by the Municipal Corporation or the Government to acquire this plot for the purpose of developing it as a garden. When it was not acquired for the purpose of garden, the owner of this land i.e. the appellants moved the Government for de-reserving this land and the Government after resorting to necessary formalities de-reserved the land by the impugned notification. All the procedures which were required under the 1966 Act were observed, the notification was issued inviting objections against de-reservation. No objection was filed by the residents of the area and ultimately a proposal was put up before the Municipal Council it also resolved that Municipal Council is not in a position to acquire the land because of the financial crunch and accordingly, the Government was intimated.”

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It is true, the said judgment was rendered before the introduction of the Kerala Town and Country Planning Act, 2016. However, we are of the opinion that, if the Government is interested in acquiring the land, the Government has liberty to do so when it has received a purchase notice from the land owner. Even if it decides not to acquire the property at that stage of the proceedings, the Government may be at liberty to notify the land for acquisition in accordance with the provisions of the Land Acquisition Act in force. This we say also for the reason that section 77 of the Act, 2016 clearly specifies that any land required, reserved or designated in a plan under the Act, 2016 shall be deemed to be a land needed for public purpose within the meaning of the Land Acquisition Act in force, and may be acquired by the Government on request by the District Planning Committee, Metropolitan Standing Committee, the Municipal Corporation, the Municipal Council, etc., as the case may be, or by any Development Authorities constituted under this Act or Government Departments or Quasi-Government Agencies.

¶150

A Division Bench of this Court in Padmini v. State of Kerala [1999 (3) KLT 465] had occasion to consider the very same question in the context of a town planning scheme and held that the rejection of permission to construct a building would tantamount to deprivation of the property of the parties therein without the authority of law and is in violation of Article 300A of the Constitution of India.

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That apart, the Apex Court had occasion to consider almost a typical question in respect of Maharashtra Regional and Town Planning Act, 1966 in Hari Krishna Mandir Trust v. State of Maharashtra [(2020) 9 SCC 356], taking into account the provisions of the Town Planning Act, 1966, act relating to the Local Self Government Institutions, as also the proprietary right of a property owner protected under Article 300A of the Constitution of India and held as follows:

¶154

“31. The High Court failed to appreciate that the mere sanctioning of a Town Planning Scheme would not wipe out a patently erroneous recording in the scheme. The High Court did not examine how the road measuring 414.14 sq.m could have been allotted to Pune Municipal Corporation.

¶155

It has been established beyond any iota of doubt that the private road admeasuring 414 sq m area had never been acquired by Pune Municipal Corporation. The right to property includes any proprietary interest, hereditary interest in the right of management of a religious endowment, as well as anything acquired by inheritance. However, laudable be the purpose, the executive cannot deprive a person of his property without specific legal authority, which can be established in a court of law.

¶156

In the facts and circumstances of the instant case, in the light of admissions, on the part of the respondent authorities that the private road measuring 414 sq m was private property never acquired by Pune Municipal Corporation or the State Government, the respondents had a public duty under Section 91 to appropriately modify the scheme and to show the private road as property of its legitimate owners, as per the property records in existence, and

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or in the award of the arbitrator. In our considered opinion, the Bombay High Court erred in law in dismissing the writ petition with the observation that the land in question had vested under Section 88 of the Regional and Town Planning Act.

¶160

In the absence of any proceedings for acquisition or for purchase, no land belonging to the appellant Trust could have vested in the State.”

¶161

Yet another point emerges for consideration in the context of Section 77 of Act 2016 is that, whenever a land is designated in a plan under the Act required for acquisition, it shall be deemed to be a land needed for public purpose. Therefore, the argument advanced by the learned Special Government Pleader that since the property is not designated as compulsorily acquired land, there is no requirement for the Government to take the appropriate action envisaged under section 67 of the Act, 2016 can never be sustained under law .

¶162

Now coming back to the facts of the case on hand, it is evident that a notice was issued under section 67 of Act, 2016 by the appellants, which was forwarded by the Secretary of the Maradu Municipality to the State Government. However, the State Government declined acquisition on the ground that section 67 would not come into play, thus coercing the Government to acquire the property. Therefore, on an analysis of the legal and factual circumstances , it is clear that the modalities contained under section 67 of Act, 2016 is completed and therefore, the Secretary of the Municipality is liable to consider the building permit application submitted by the

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appellants in accordance with the provisions of the Kerala Municipality Act 1994 and the Kerala Municipality Building Rules 2019, which is in force now.

¶166

Having considered the legal position so, we have no doubt in our mind that interference is required to the judgement of the learned Single Judge. Therefore, we set aside the judgement of the learned Single Judge and allow the writ appeal and accordingly, direct the Secretary of the Maradu Municipality, to reconsider the building permit application submitted by the appellants, in accordance with the provisions of the Kerala Municipality Act, 1994, the Kerala Municipality Building Rules, 1999 and the provisions of the Kerala Town and Country Planning Act, 2016, bearing in mind the observations and findings contained in this judgement with respect to the parameters to be adopted under section 67 of the Act, 2016 at the earliest and at any rate within a month from the date of receipt of a copy of this Judgment.

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Sd/- S.MANIKUMAR CHIEF JUSTICE

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Sd/ SHAJI P.CHALY

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smv

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JUDGE

P.B.Pradeep Kumar v. Maradu Municipality

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P.B.Pradeep Kumar v. Maradu Municipality

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