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IN THE HIGH COURT OF KERALA AT ERNAKULAM
BECHU KURIAN THOMAS, J.
P.H. Babu Ansari, S/o. Hameed Rawther – Appellant
Versus
The Municipal Council Kottayam Municipality – Respondent
WP(C) No. 6533 of 2023
Decided on : 24-11-2023
Fact of the Case:
The petitioners sought to exclude their property from the category of 'Park and Open space' as per the Master Plan for Kottayam and requested permission to construct buildings without reference to the Master Plan. They issued purchase notices under section 67(1) of the Kerala Town and Country Planning Act, 2016 as no steps had been taken to acquire their land for establishing the park.Finding of the Court:
The court found that since no steps were initiated for acquiring the property designated as a park and open space, the purchase notices issued by the petitioners should be deemed valid under section 67 of the Act. Consequently, their applications for building permits should be considered without reference to the Master Plan. ISSUES Whether properties designated for compulsory acquisition under the Master Plan can be excluded from such designation based on non-compliance with procedural requirements? Whether substantial compliance with statutory provisions should prevail over procedural shortcomings?Ratio Decidendi:
The court held that substantial compliance with statutory requirements cannot be hindered by procedural shortcomings. It emphasized that in cases where a form is not prescribed by rules despite statutory mandates, parties are at liberty to issue notices conveying intent and purpose as contemplated under the statute. FINAL DECISION The writ petition was allowed, directing the respondent to process the applications for building permit submitted by the petitioners without reference to the Master Plan.JUDGMENT :
Writ Petitioners seek directions to exclude their property from the category of ‘Park and Open space’ as stipulated in the Structural Plan/Master Plan for Kottayam. Petitioners also seek for a direction to accept their applications for building permits and to grant permissions to construct buildings without reference to the Master Plan.
2. Petitioners are the owners of an extent of 137.86 Ares and another 176.52 Ares of land in Block No.18 of Muttambalam Village, Kottayam. Petitioners allege that though the total area of 314.38 Ares is earmarked as ‘Park and Open Space’ in the Master Plan for Kottayam, which was sanctioned on 14.05.2020, the Municipality ought to have acquired the land for establishing the said park. Despite the lapse of two years from the date the Master Plan came into operation, the Municipality failed to take any steps to acquire the property. In such a situation, petitioners issued purchase notices under section 67(1) of the Kerala Town and Country Planning Act, 2016 (for short 'the Act'). Though the notices were served on the respondents on 02.12.2022, there has been no response and therefore, the statutory scheme contemplated under the said provision will apply. Petitioners also allege that their applications for building permits will have to be considered without regard to the Master Plan.
3. A statement has been filed on behalf of the respondents contending that the property was included in the Master Plan and is earmarked for ‘Park and Open Space’ and that no construction can be permitted. It is stated that if the petitioners have to carry out constructions, they have to get approval from the Chief Town Planner/the District Town Planner and that in the instant case, no such approval has also been obtained. The Municipality alleges that the notice produced in the writ petition is not a purchase notice prescribed under the Act. It was pointed out that, in the absence of a purchase notice issued in the prescribed form, as contemplated under the Statute, the Municipality has no obligation to consider such a notice. It was also submitted that the application for building permit submitted by the petitioners was dismissed on 11.08.2022 and that the same has not been challenged.
4. I have heard Sri.V.V.Asokan, learned Senior Counsel duly instructed by Sri.Anand Geo on behalf of the petitioners as well as Sri.C.S.Manilal, the learned Standing Counsel for the Municipality apart from Smt. K.Amminikutty, the learned Senior Government Pleader.
5. Admittedly, petitioners' properties have been earmarked as ‘Park and Open Space’ as per the Master Plan. The scheme envisaged under the Master Plan can be implemented only by acquiring those properties. Thus, petitioners' properties are designated for compulsory acquisition under the Master Plan. Concededly, the Master Plan was notified by the Government on 14.05.2020. Therefore, steps for acquisition of the property ought to have been taken within two years from the date of coming into operation of the Master Plan. No such steps have been initiated.
6. In the decision in P.B.Pradeep Kumar and Ors. v. Maradu Municipality and Ors. (2022 (3) KHC 253), a Division Bench of this Court, after elaborately considering the various decisions, held that:
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26. 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, wi
Substantial compliance with statutory requirements prevails over procedural shortcomings when no prescribed form is provided by rules despite statutory mandates.
The court affirmed that property owners are entitled to building permits despite pending municipal acquisition if statutory provisions are not followed.
A local authority's failure to act on a purchase notice within the statutory timeframe allows the landowner unfettered rights to proceed with the use of the land.
A purchase notice under Section 67 of the Kerala Town and Country Planning Act, 2016, is premature if issued before the expiry of two years from the date of coming into operation of the sanctioned Ma....
Court found that, if no steps are taken by Municipal Corporation or State Government to acquire property within period prescribed under Section 67 of Act 2016, person who issued purchase notice is en....
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 ....
Failure to act on a purchase notice under local planning laws negates acquisition claims.
Court emphasized the need for compliance with zoning regulations in application decisions under the Kerala Town and Country Planning Act.
Property owners must be compensated or allowed development when compulsory acquisition is not executed within statutory time frames, upholding their rights under the Town and Country Planning Act.
Property owners cannot be deprived of the right to develop their land indefinitely due to unexecuted acquisition schemes if the authority fails to act within the statutory notice period mandated by S....
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