Point of Law : 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.

JUDGMENT :

The question arising in this writ petition is whether the Government is legally bound to compulsorily acquire the 24.73 Ares of land of petitioners 1 to 4 situated in Maradu Village in view of issuance of purchase notice by them under Section 67 of the Kerala Town and Country Planning Act, 2016 since there is a proposal for construction of Kochi-Muvattupuzha Road which is to pass through the petitioners’ land. The further question is that in view of the refusal of the Government to acquire the land in spite of service of purchase notice, whether the Maradu Municipality is bound to review the Town Planning Scheme/Master Plan and consider the application submitted by the petitioners for issuance of Building Permit.

2. Petitioners 1 to 4 own 24.73 Ares of land in Re-Surey 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. Petitioners 1 to 4 made a Joint Venture with the 5th petitioner-Company with an intention to develop the land and construct an Apartment Complex. Application for Building Permit was submitted in June, 2018. The original building plan had to be changed and a fresh application was submitted in February, 2019. The Municipal Authorities refused to entertain the Building Permit applications for the reason that there is a proposal for a 27 metre wide road from Willingdon Island to Muvattupuzha through this area, in the Structural Plan for Kochi 1991.

3. The said plan exists for more than 30 years and the authorities are not genuinely interested in implementing the same. The petitioners therefore submitted Exts.P5 and P5(a) purchase notices to the Municipality invoking Section 67 of the Kerala Town and Country Planning Act, 2016 in July, 2019. As the Municipal authorities declined to act, the petitioner filed W.P.(C) No.26821/2019. This Court finding that it is the Government who is to construct the road, disposed of the writ petition as per Ext.P7 judgment dated 08.01.2020 directing the Government to take a decision on Section 67 purchase notice.

4. The petitioners state that since the Government has not acted on Section 67 purchase notice within the stipulated time, the Municipality is bound to suo motu initiate variation of the Plan and should process the petitioners’ application for Development Permit.

5. The 5th respondent-Chief Town Planner filed counter affidavit and resisted the writ petition. The 5th respondent submitted that as per the Structure Plan (Master Plan) for Central City of Kochi, there is a proposal for a new Kochi–Muvattupuzha Road starting from Beach Road (Fort Kochi) to Central City boundary at eastern end in Tripunithura Municipality. The stretch of the land identified for Kochi–Muvattupuzha road is passing through Survey No.221 of Maradu Village and is having a proposed width of 27 metres with 3 metre building line. Hence, no new constructions shall be permitted through the alignment of this road. Since no application for layout approval pertaining to the said construction is received in the office of the Chief Town Planner or Senior Town Planner, Ernakulam, the 5th respondent is not in a position to check or verify on site whether the alignment of the road affects the petitioners' property.

6. The 5th respondent submitted that Section 67 of the Act, 2016 applies only in respect of lands which are designated for compulsory acquisition in a Master Plan or Detailed Town Planning Scheme. In this case, the land in question and other pieces of land at the stretch have been reserved and categorised for road construction. Therefore, Section 67 will not apply and the petitioners cannot have any right based on Section 67, contended the 5th respondent.

7. The 3rd respondent-Secretary to Municipality also filed counter affidavit. The 3rd respondent stated that the application for building permit was processed. As per the structural plan proposed, Willingdon Island–Muvattupuzha Road passes through the properties wherein construction is sought to be eff