Dismissed

The Palakkad Municipality, v. Devadas

Kerala HC29 Nov 2022WA/1536/2022

Case brief

AI extract

What is this about?

The Division Bench rejected the writ appeals preferred by the Municipality against a judgment of the learned Single Judge. The Single Judge had ordered the Municipality to consider a building permit application and discharged the restriction of a late resolution taken beyond the statutory time limit for purchasing land under Section 67(2) of the Kerala Town and Country Planning Act, 2016.

What did the court decide?

The writ appeals preferring Judgements of the Single Judge are dismissed.

The Palakkad Municipality, Vs Devadas — Municipal and Town Planning | Kerala HC (2022)

¶1

W.A. No. 1536/2022

¶2

: 1 :

¶3

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶4

PRESENT

¶5

THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

¶6

¶7

THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

¶8

TUESDAY, THE 29^TH DAY OF NOVEMBER 2022 / 8TH AGRAHAYANA, 1944

¶9

WA NO. 1536 OF 2022

¶10

JUDGMENT DATED 28.06.2022 IN WP(C) 2562/2022 OF HIGH COURT OF

¶11

KERALA

¶12

APPELLANTS/RESPONDENTS 1 AND 2:

¶13

1 THE PALAKKAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY,MUNICIPAL OFFICE,PALAKKAD,678 001.

¶14

2 THE SECRETARY, PALAKKAD MUNICIPALITY,MUNICIPAL OFFICE,PALAKKAD-678 001. BY ADV BINOY VASUDEVAN

¶15

RESPONDENTS/PETITIONER/RESPONDENTS 3 AND 4:

¶16

1 DEVADAS, S/O.SUBRAMANIAN,PULIKKAL HOUSE,KOTTEKAD P.O.,MALAMPUZHA,PALAKKAD DISTRICT-678 732.

¶17

2 THE DISTRICT TOWN PLANNING OFFICER, PALAKKAD,CIVIL STATION,PALAKKAD-678 001.

¶18

3 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY,DEPARTMENT OF LOCAL SELF GOVERNMENT,THIRUVANANTHAPURAM-695 001.

¶19

R1 BY SRI. JACOB SEBASTIAN

¶20

SRI. K.P. HARISH, SR. GOVERNMENT PLEADER

¶21

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶22

W.A. No. 1536/2022

¶23

: 2 :

¶24

S. MANIKUMAR, CJ & SHAJI P. CHALY, J.

¶25

¶26

W.A. No. 1536 of 2022

¶27

¶28

Dated this the 29^th day of November, 2022.

¶29

JUDGMENT

¶30

SHAJI P. CHALY, J.

¶31

The appeal is preferred by respondents 1 and 2 in W.P.(C) No. 2562 of 2022 challenging the judgment of a learned, single Judge dated 28.06.2022, whereby the writ petition was allowed directing the appellants to consider the application for building permit submitted by the first respondent/writ petitioner and to grant the same if he is otherwise entitled to.

¶32

It was observed therein that Exhibit P12 resolution shall not be a reason for rejecting the application for building permit, and Exhibits P10 and P11 insofar as they reject the request for building permit on the ground of the decision taken for acquiring the land, were set aside. It was further held that there is no requirement to quash Exhibit P12 resolution, except to observe that the said resolution will not, in any way, be considered as a resolution passed pursuant to Exhibit P5 notice issued under Section 67 of the Kerala Town and Country Planning Act, 2016 (‘Act, 2016’ for short).

¶33

Brief material facts for the disposal of the writ appeal are

¶34

W.A. No. 1536/2022 : 3 :

¶35

as follows:

¶36

The first respondent/writ petitioner is the absolute owner in possession of 0.0789 hectares of land comprised in re-survey No.2/75 (old survey No. 3215/1) of Palakkad III Village, Palakkad Taluk and District, as is evident from Exhibit P1 possession certificate dated 22.07.2019. He applied for a building permit to the Secretary of the Palakkad Municipality i.e., the second appellant, who, as per Exhibit P2 order dated 27.08.2019, rejected the same stating that the plot falls in a paddy zone in terms of the Master Plan; that the Municipality requires a portion of the plot for widening the Coimbatore-Kozhikode bypass from the current 20 meters to 30 meters and therefore, the petitioner should leave an additional set back of 9.5 meters; and that the plot is included in the draft data bank prepared in terms of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (‘Act, 2008’ for short)

¶37

According to the petitioner, later he approached the Revenue Divisional Officer, Palakkad and secured Exhibit P3 order dated 17.06.2020, whereby the property was removed from the data bank as per the provisions of the Act, 2008.

¶38

Later, as per Exhibit P4 order dated 20.10.2020, the Revenue Divisional Officer issued an order in terms of Section 27A of the Act, 2008 permitting the petitioner to utilise the property for

¶39

W.A. No. 1536/2022 : 4 :

¶40

other purposes other than the paddy cultivation and agricultural operations. After complying with the said requirements, the petitioner has issued Exhibit P5 notice in contemplation of Section 67 of the Act, 2016, as is evident from Exhibit P5 notice dated 07.09.2019; however, the same was not responded to on time.

¶41

Thereupon, petitioner has re-submitted the application for building permit, as is evident from Exhibit P7. But, it was refused to be considered and consequent to which he approached this Court by filing W.P.(C) No. 133 of 2021, which was disposed of as per Exhibit P8 judgment dated 18.01.2021 directing the Secretary of the Municipality to consider the application within three weeks, dehors the entries contained under the scheme and the Master Plan. 7. The said order was challenged by the Municipality in W.A. No. 847 of 2021, which was disposed of by us, as per Exhibit P9 judgment dated 05.08.2021, modifying Exhibit P8 judgment and directing the Municipality to take action in the notice issued by the first respondent/writ petitioner under Section 67 of the Act, 2016. The Secretary again rejected the application as per Exhibit P10 order dated 08.09.2021 and consequent to which C.O.(C) No. 1730 of 2021 was filed before the Division Bench.

¶42

When the Contempt Case came up for hearing, it was undertaken on behalf of the Secretary of the Municipality that

¶43

W.A. No. 1536/2022 : 5 :

¶44

Exhibit P10 order would be withdrawn and a fresh order be issued. Thereafter, the Secretary issued Exhibit P11 order dated 22.12.2021 stating that the Municipal Council on 04.12.2021 decided to acquire the petitioner’s plot for widening the road by its Resolution No.58, evident from Exhibit P12.

¶45

The case projected by the petitioner in the present writ petition is that Exhibit P12 decision was taken by the Municipality beyond the time prescribed under Section 67 of the Act, 2016 and therefore, bad and illegal; and further that the said resolution cannot stand as a hindrance to consider the building permit application submitted by the petitioner.

¶46

The learned single Judge, after taking into account the rival submissions and the point of law, has found that the contention advanced by the petitioner that the decision taken by the Municipal Council is beyond the period fixed under Section 67 of the Act, 2016 is correct, and accordingly directions were issued to consider the application for building permit within one month from the date of receipt of a copy of the judgment irrespective of the resolution, and by the law.

¶47

We have heard the learned counsel for the appellant Sri. Binoy Vasudevan and the learned counsel for the first respondent/writ petitioner, Sri. Jacob Sebastian, and the learned

¶48

W.A. No. 1536/2022 : 6 :

¶49

Senior Government Pleader Sri. K.P. Harish for the State and its officials, and perused the pleadings and material on record.

¶50

The sole question to be considered is whether any manner of interference is required to the judgment of the learned single Judge.

¶51

Insofar as the scheme and the master plan applicable for the area is concerned, it is for widening of a road by the Municipality. When a specific designation is made in a Master Plan or a detailed Town Planning Scheme and no acquisition proceedings are initiated for acquiring such land under the Land Acquisition Act, 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 etc. a notice to purchase the interest in the land in accordance with the provisions of the Act. If and when such a notice is issued, as provided under Section 67(2) of the Act, 2016, a decision has to be taken, not later than sixty days from the date of receipt of the purchase notice.

¶52

In the instant case, the Municipality has taken a decision as per Exhibit P12 on 04.12.2021; whereas, the purchase notice was issued by the petitioner on 03.08.2019. Therefore, the decision taken by the Municipality is beyond the time limit prescribed under Section 67(2) of the Act, 2016. Evaluating so, we believe that the

¶53

W.A. No. 1536/2022

¶54

: 7 :

¶55

learned Judge was legally and factually correct in issuing the directions.

¶56

In that view of the matter, we do not think, the appellants have made out a case of any jurisdictional error or other legal infirmities justifying our interference in an intra court appeal filed under Section 5 of the Kerala High Court Act, 1958.

¶57

Needless to say, writ appeal fails and accordingly, it is dismissed.

¶58

sd/- S. MANIKUMAR, CHIEF JUSTICE.

sd/-

SHAJI P. CHALY,

JUDGE.

The Palakkad Municipality, v. Devadas

Case brief

What is this about?

What did the court decide?

The Palakkad Municipality, v. Devadas

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

Government of India Vs C.H.Nabeesa

Union of India Vs K.K.Januamma

The Welfare Fund Inspector Vs K.S Antony

Cochin College of Engineering and Technology Vs Mgm Silver Jubilee College of Pharmacy

Mgm Silver Jubilee College of Polytechnic and Pharmaceutical Sciences Vs Mgm Silver Jubilee College of Pharmacy

V.Resalayyan Vs the Union of India