DEVADAS Vs. PALAKKAD MUNICIPALITY

JUDGEMENT

(1.) The petitioner had applied to the 1st respondent for a building permit. By Ext.P2 order dtd. 27/8/2019, the application was rejected stating that as per the approved DTP Scheme, the area is to be acquired for the widening of the road. Another reason stated is that the property is included in the data bank as paddy land. The petitioner was directed to submit a fresh plan by leaving out the area required for the acquisition. Since Ext.P2 stated that the land is to be acquired, the petitioner issued Ext.P5 purchase notice under Sec. 67 of the Kerala Town and Country Planning Act, 2016 (2016 Act for short). The notice is dtd. 7/9/2019 and is seen to have been received on 16/9/2019. Copies of the notice had been issued to the Town Planning Officer of the Municipality as well as the Secretary to Government in the Local Self Government Department. By Ext.P3 dtd. 17/6/2020, the Revenue Divisional Officer, Palakkad ordered the removal of the property from the data bank. Thereafter, by Ext.P4, the Revenue Divisional Officer permitted the user of the land for other purposes under Sec. 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 on payment of the requisite fee. The petitioner resubmitted the application after curing the defects as can be seen from Ext.P7 dtd. 23/12/2020. Alleging refusal to reconsider the application, the petitioner moved this Court by filing W.P.(C)No.135 of 2021 which was disposed of by Ext.P8 judgment directing the 1st respondent to consider the application for building permit afresh in the light of the directions contained in Ext.P6 judgment of this Court and taking note of Ext.P5 purchase notice that was not responded to by the Municipality within the time permitted under the Statute. The Municipality was directed to consider the application untrammeled by the stipulations in the DTP Scheme and pass orders within three weeks. Ext.P8 judgment was taken up in appeal in W.A.No.847 of 2021 which was disposed of by Ext.P9 judgment by a Division Bench of this Court. The appeal was allowed in part and the judgment was modified. The Division Bench directed the Municipality to consider the building permit application submitted by the petitioner at the earliest, if the time prescribed under Sec. 67 of the Act has expired or else within one month from the expiry of the time period so fixed, after providing notice of hearing to the petitioner and taking into consideration the Scheme if any, existing and applicable to the property in question, purchase notice issued by the writ petitioner under Sec. 67, and also taking into consideration Sec. 113 and other relevant provisions of the 2016 Act and the Building Rules in force. Thereafter, by Ext.P10, the 2nd respondent directed the petitioner to make necessary changes in the plan leaving provision for the widening of the road by providing 9.5 meters of open space from the road margin. Ext.P10 did not refer to Ext.P5 purchase notice issued under Sec. 67 of the 2016 Act. On 22/12/2021, the 2nd respondent issued an order stating that 9.5 meters of land belonging to the petitioner is required for the widening of the Kalmandapam-Sekharipuram-Calicut Bypass Road which is included in the sanctioned DTP Scheme. It is stated that pursuant to the notice issued by the petitioner under Sec. 67 of the 2016 Act, the Municipal Council has by Decision No.58 dtd. 4/12/2021 decided to acquire the land, and hence his request for a building permit cannot be considered. Ext.P12 is the copy of the resolution said to have been taken. A reading of Ext.P12 would show that the Council had granted approval for forwarding the Sec. 67 notice demanding acquisition, to the Government. The petitioner contends that what is decided is only to forward the Sec. 67 notice and no decision as such to acquire the land has been taken. This contention is contested by the Municipality stating that a decision has already been taken and what has been forwarded to the Government is only the proposal which has to be concluded by the Government by issuing acquisition proceedings. The petitioner has also produced Ext.P13 which is the decision regarding the zoning exemption to be granted to persons whose lands are to be acquired for the purpose of widening the existing road from 20 Meters to 24 Meters. It is submitted that even though the initial proposal was for widening up to 30 Meters, it was reduced to 24 Meters. On 8/5/2006, it appears that the 1st respondent had taken a decision based on Ext.P13 treating the required width as 24 Metres, with respect to an application submitted by one Krishnanunni. The writ petition has been filed challenging Ext.P2, P10, P11, and P12 and seeking a direction to the 1st respondent to issue a building permit to the petitioner. There is also a prayer for quashing the DTP Scheme and approved master plan of the 1st respondent insofar as it relates to the property of the petitioner and for a declaration that the petitioner is entitled to make constructions in the plot without leaving any additional set back for future acquisition.

(2.) A statement has been filed on behalf of respondents 1 and 2 wherein it is stated that the DTP Scheme is a sanctioned scheme and going by Sec. 113 of the 2016 Act, till a new Scheme is framed the earlier Scheme must prevail. It is further stated that by Ext.P12, the Council had decided to acquire the property and it is also decided to forward the said proposal to the Government for further action. It is further contended that the Government has not issued any orders reducing the width from 30 Metres to 24 Metres and as such, the contention of the petitioner cannot be countenanced. The statement does not however say anything about the statutory time fixed for consideration of notice under Sec. 67 of the 2016 Act.

(3.) Heard Sri Jacob Sebastian on behalf of the petitioners, Sri Binoy Vasudevan on behalf of respondents 1 and 2 and Sri B.S.Syamanthak, Government Pleader on behalf of respondents 3 and 4.