Point of Law: 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.

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;

2. 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.

3. 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 5th petitioner. Thereupon, appellants authorised the 5th petitioner builder - Abad Builders Pvt. Ltd., for obtaining a building permit from respondents 1 & 2 as well as other necessary permissions from the concerned 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.

4. After submitting the initial application for building permit, the 2nd 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 2nd respondent on 24.9.2018 and 14.11.2018.

5. It is submitted by the appellants that despite following all procedures and issuance of necessary NOC from concerned authorities, the 2nd 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 2nd 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.

6. Thereupon, according to the appellants, they issued a purchase notice under Section 67 of the Kerala Town and Country Planning Act, 2016, hereinafter called, Act, 2016”, to the 2nd 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:

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.

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