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IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V. Kunhikrishnan, J.
Maymunath V.B, W/o Rasheed C. - Petitioner
Versus
State Of Kerala Represented By The Secretary, Revenue Department, Government Secretariat, Thiruvananthapuram District – 695001. - Respondents
WP(C) NO. 35536 OF 2018
Decided On : 01-09-2022
Constitution of India, 1950 - Article 300A - Kerala Town and Country Planning Act, 2016 - Sections 67(1) and 67(4)- Settlement Deed Sub Registrar Office - Entitled to construct house in property owned and possessed by petitioner - Notice - Conformity with the Master Plans Spatial plans for a Special Area - Acquisition - Petitioner is owner and is in possession and enjoyment hectares of land situated in District - Whether the local authority can consider building permit application before competent authority finalises variation is question to be decided in this case – Whether there is a resolution deciding to acquire the land and not a mere decision on a purchase notice under Section 67 (1) of Act 2016 - It is clear that if a purchase notice as contemplated in Section 67 of Act 2016 is issued by a land owner, and no steps are taken by competent authorities based on same within time prescribed, property owner is entitled to construct building in his property, and he is entitled to building permits from the local self Government authorities (Para 11).
Finding of the Court:
Land is designated for compulsory acquisition for purpose of Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat - Once Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned has decided not to acquire land, right of a person under Article 300A to enjoy property cannot be curtailed - If there is no resolution passed to acquire land after getting purchase notice under Section 67 (1), property owner has right to use property for his legitimate purposes, including building constructions - Deciding to acquire land and not a mere decision on a purchase notice under Section 67 (1) of Act 2016 - Decision should be to acquire the land - Municipal Council, as per decision decided to proceed as per Section 67(4) of Act 2016 for varying master plan - But it is true that in that decision, it is not specifically stated that Municipal Council decided not to petitioner is entitled to a building permit, if his building permit application is otherwise in order
Result: Writ petition allowed.
JUDGMENT :
1. If a purchase notice is issued as per Section 67(1) of the Kerala Town and Country Planning Act, 2016 (for short, Act 2016) by a land owner and after that, if the local authority initiated steps for variation of the plan in accordance with Section 67(4) of the Act 2016, whether the local authority can consider the building permit application before the competent authority finalises the variation is the question to be decided in this case.
2. The facts of the case are as follows: Petitioner is the owner and is in possession and enjoyment of 0.0172 hectares of land situated in Survey No.T.S.90, Ward No.3, Block No.3 in Vadikkakam Desom in Thalassery Taluk of Kannur District. The petitioner obtained the above said property vide Settlement Deed No.1169/16 of Thalassery Sub Registrar Office. After that, the petitioner submitted an application for a building permit before the 2nd respondent for constructing a house in the said property on 21.01.2017. The 2nd respondent rejected the petitioner's application for a building permit, stating that there is a proposed road widening plan as per the Development Plan for Tellicherrry Variation 2007. Ext.P3 is the order passed by the 2nd respondent. According to the petitioner, even though the plan was launched in the year 2007, it is not implemented so far. The petitioner submitted Ext.P4 representation narrating her grievances, but the same was not considered. Under such circumstances, the above writ petition is filed with the following prayers:
ii. To issue a writ of mandamus or any other writ or order directing the 2nd respondent to issue permit for construction of the house as applied by the petitioner in the light of Ext. P-2.
iii. To issue a writ of mandamus or any other writ or order directing the 2nd respondent to consider and pass appropriate orders within a period of 3 weeks on Ext.P-4 representation after affording an opportunity of hearing to the petitioner.
iv. To declare that petitioner is entitled to construct house in the property owned and possessed by the petitioner in Sy. No. T.S. 90, Ward 3, Block 3 in Vadikkakam desom in Thalassery Taluk, Kannur District.
v. To pass any other writ or order as is deemed fit by this Hon'ble Court in the interest of justice. (SIC)
3. Subsequently, the petitioner issued a purchase notice under Section 67(1) of the Act 2016, which is produced as an additional document in this writ petition as Ext.P7. After that, this Court, as per the order dated 16.12.2020, directed the Municipal Council to consider that application. The order dated 16.12.2020 is extracted hereunder:
Additional documents are received on record. IA.No.3/2020
This is an application seeking a direction to the 4th respondent Thalassery Municipality to consider and pass orders on Ext.P7.
2. Ext.P7 is a notice issued by the petitioner under Section 67 of the Kerala Town and Country Planning Act, 2016.
3. The petitioner's application for a building permit was rejected on account of the proposal to widen the road by including a portion of the petitioner's land. The proposed road widening is in accordance with the development plan which was sanctioned for Thalassery Municipality in the year 2007. It is in this context, since there was a delay in acquiring land, the petitioner moved the Municipal council with a purchase notice under Section 67 of the Kerala Town and Country Planning Act, 2016.
4. The Municipality is bound to consider such notice within 60 days from the date of receipt of the purchase notice. Ext.P7 notice appears to have been received by the Municipality on 23.10.2020. The term of the Municipal Council came to an end on the 1st week of November, 2020, New Municipal Council is to be re-constituted. In such circumstances, I am of the view that the Municipal Council shall take a decisi
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