14 Feb 2023 6:43 AM GMT
The Kerala High Court recently held that after a purchase notice has been issued by a land owner under Section 67(2) of the Kerala Town and Country Planning Act, 2016, it is not mandatory for the person to wait for completion of variation of the Detailed Town Planning Scheme or Master Plan, to utilise the land. A division bench of Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen...
The Kerala High Court recently held that after a purchase notice has been issued by a land owner under Section 67(2) of the Kerala Town and Country Planning Act, 2016, it is not mandatory for the person to wait for completion of variation of the Detailed Town Planning Scheme or Master Plan, to utilise the land.
A division bench of Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen was considering the procedure to be followed after issuance of a purchase notice by a land owner under Section 67(2) of the Kerala Town and Country Planning Act, 2016 in an appeal filed by the Town Planner of Kottayam district.
The court noted that clarity of law is required on whether the land owner needs to wait until variation of the plan is complete to be able to utilise his land, if no action is taken for acquiring the land within the period of purchase notice.
Under 67(1) of the Act, when a land is designated for compulsory acquisition in a Master Plan or Detailed Town Planning Scheme by the local authority, and acquisition proceedings have not been initiated within two years, the land owner can serve a purchase notice to the local authority concerned requiring the said authority to purchase the interest in the land according to the provisions of the Act.
Under Section 67(2) of the Act, a purchase notice has to be issued by a land owner to be able to utilise land that has been designated for public purposes under the approved Master Plan or DTP Scheme.
The local authority must act within sixty days after the issuance of purchase notice if it were to compulsorily acquire the land. Under 67(4) of the Act in case the local authority concerned decides not to acquire the land, variation of the Detailed Town Planning Scheme must be carried out in accordance with the act.
The court while considering the question of whether a land owner can be prevented from utilising his land after the lapse of the purchase period solely on the ground that the formalities relating to variation of the plan were not complete, observed:
"On assimilation of the various provisions under Section 67 of the Act, it can be observed that once a purchase notice is issued and the authority [fails] to act within the time as stipulated under the Statute, the right is crystalised on the land owner to use the land for any purpose in accordance with law and he is not bound by the approved Master Plan or DTP Scheme. It is true that the formalities have to be complied as regards to the variation. That is a procedure to be followed for logical conclusion for the public records. That cannot prevent a land owner from utilising his land in accordance with law. The procedure to be followed cannot be considered as a clog on the right of the land owner, consequent upon not acting on the purchase notice."
The counsel for the appellant argued that the owner of the land has to wait till variation proceedings are completed under the approved Detailed Town Planning Scheme after issuing notice under Section 67(2) of the Act.
The counsel for the respondent on the other hand averred that the owner of a property cannot be deprived of enjoyment of his property. He cannot be expected to wait indefinitely for formalities related to the variation of the plan to be concluded. Such formalities are only for internal administrative purposes the respondent argued.
The court also noted that the proviso to Section 67 of the Act, which stipulates that the local authority needs to process applications for building permits in consultation with the Chief Town Planner, does not create an embargo on the land.
The proviso to Section 67 is only to make sure that the Chief Town Planner is notified regarding non acquisition of the land which was proposed to be acquired in the Master Plan or DTP Scheme, said the bench.
"The embargo on the land would stand automatically released from the approved Master Plan or the DTP Scheme after the lapse of period mentioned in the purchase notice," said the court.
The court in this case, directed the local authority to inform the Chief Town Planner about the applications received from respondents for consideration of building permit, if any, without awaiting the approval of variation by the Chief Town Planner.
Case Title: The Town Planner, District Town Planning Officer V Joseph Jacob & Others.
Citation: 2023 LiveLaw (Ker) 74
Click to read/download judgment