MOIDEEN MUHAMMED ABDULLA Vs. OTTAPPALAM MUNICIPALITY

JUDGEMENT

(1.) The petitioner is the owner in possession of an extent of 6.39 Ares of land situated within the territorial limits of the 1st respondent-Municipality. He proposes to construct a commercial building on the said property, and for that purpose, he submitted an application for a building permit. However, by Ext.P1 letter, the Municipality rejected the application for the reason that the property is reserved for future development of the Ottappalam bus stand as per the Detailed Town Planning Scheme (for brevity, 'Scheme') finalised in 2022. The Scheme was introduced and finalised two years ago. Many of the proposals in the Scheme require compulsory land acquisition of private properties. However, the Municipality has not taken any steps to acquire private properties, and none of the proposals contained in the Scheme has materialised till date. The Scheme gets legal sanctity under the Kerala Town and Country Planning Act, 2016 (in short, 'Act'). Under Sec. 67 of the Act, if the Municipality does not acquire the properties covered under the Scheme or the Master Plan within two years from the date of introduction of the Scheme/Master Plan, the Municipality cannot deter land owners from putting their land to legitimate use. In the present case, the Master plan was introduced in October 2022; therefore, two years have lapsed as on 2024. Accordingly, the petitioner has submitted Ext.P2 purchase notice under Sec. 67 of the Act to the Municipality on 11/11/2024, as evidenced by Ext.P2(a) receipt. Despite the lapse of 60 days, the respondents have failed to initiate land acquisition proceedings. Hence, the petitioner is entitled to get the building permit under Sec. 67 and the law laid down by this Court in Thalassery Municipality v. Puthalath Balakrishnan (2019 (3) KLT 154) and Abul Hakeem v. Manjeri Municipality and Another (2018 (1) KLT 1026). In a case of a similar nature, by Ext.P3 judgment, this Court has directed the respondents therein to issue a building permit to the petitioner in the said case. The petitioner is entitled to the benefit of a similar judgment. Hence, the writ petition.

(2.) In their counter affidavit, the respondents 1 and 2 contend that the Government of Kerala approved the Master plan for the Municipality on 13/10/2022, wherein Survey No.105. i.e., the property belonging to the petitioner, stands earmarked for the expansion of the bus stand. Since the Scheme is in force, the Municipality is bound by the Town Planning Scheme. The provisions of the Act prevail over the Kerala Municipality Building Rules, 2019. The Municipality cannot do any act in violation of the Act. The Town Planning Scheme was published after considering the objections raised by the aggrieved persons. The Municipality lacks the authority to make any modifications to the scheme. Granting permission to construct buildings against the Master plan will render the development of the Municipality futile. The purchase notice issued by the petitioner is pending consideration before the Municipal Council. The time period fixed in Sec. 67 (1) of the Act is only directory and not mandatory; and the private interest of the petitioner must give way to the larger public interest. Therefore, the writ petition may be dismissed.

(3.) Heard, Sri.Haroon Rasheed, the learned counsel for the petitioner, Sri.Vinod Madhavan, the learned Standing Counsel for respondents 1 and 2, and Smt. K.R. Deepa, the learned Special Government Pleader.