W.P.C.Nos. 5198 and 36922 of 2009 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY ,THE 28TH DAY OF JANUARY 2019 / 8TH MAGHA, 1940 WP(C).No. 5198 of 2009 PETITIONER/S: 1 T.V.DHANISH KUMAR S/O. LATE KUMARAN, AGED 44 YEARS,, BUSINESSMAN, RESIDING AT KUMAR NIVAS,, P.O. KAVUMBHAGOM, THALASSERY,, THALASSERY TALUK, KANNUR DISTRICT. 2 MRS. GOLDA JITHESH W/O. JITHESH, HOUSEWIFE, AGED 27 YEARS,, R/AT SREENIVAS, P.O. KAVUMBHAGOM,THALASSERY TALUK,, KANNUR DISTRICT,REP.BY P/A HOLDER SABINA SREENIVAS, S/O.SREENIVAS, 27 YEARS,BUSINESSMAN,R/AT SREENIVAS, P.O. KAVUMBHAGOM BY ADV. SRI.R.SURENDRAN RESPONDENT/S: 1 THE SECRETARY, THALASSERY MUNICIPALITY THALASSERY MUNICIPALITY,, THALASSERY, KANNUR DISTRICT. 2 THE THALASSERY MUNICIPALITY REPRESENTED BY THE SECRETARY,, THALASSERY MUNICIPALITY, THALASSERY,, KANNUR DISTRICT. 3 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE, GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT,, SECRETARIAT, THIRUVANANTHAPURAM. 4 THE LOCAL LEVEL MONITORING COMMITTEE, THALASSERY MUNICIPALITY, (KERALA CONSERVATION OF PADDY LAND AND WETLAND ACT), REPRESENTED BY ITS W.P.C.Nos. 5198 and 36922 of 2009 2 CONVENER, THE AGRICULTURAL OFFICER, KRISHI BHAVAN, THALASSERY MUNICIPALITY, THALASSERY, KANNUR DISTRICT, PIN-670101. ------------------------------------- ADDITIONAL R4 IS IMPLEADED AS PER ORDER DATED 28/11/2016 IN IA 19587/2016. BY ADVS. GOVERNMENT PLEADER SRI.I.V.PRAMOD OTHER PRESENT: SRI.C.M.NAZAR-SPL.GP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.01.2019, ALONG WITH WP(C).25917/2008, WP(C).36863/2009, WP(C).36922/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.Nos. 5198 and 36922 of 2009 3 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY ,THE 28TH DAY OF JANUARY 2019 / 8TH MAGHA, 1940 WP(C).No. 36922 of 2009 PETITIONER/S: P.REEJA AGED 48 YEARS, ADVOCATE, RESIDING AT, "SIVASAKTHI BHAVAN", P.O.KAVUMBHAGOM,, THALASSERY, THALASSERY TALUK, KANNUR DISTRICT. BY ADV. SRI.R.SURENDRAN RESPONDENT/S: 1 THE SECRETARY, THALASSERY MUNICIPALITY THALASSERY MUNICIPALITY,, THALASSERY, KANNUR DISTRICT. 2 THE THALASSERY MUNICIPALITY REPRESENTED BY THE SECRETARY,, THALASSERY MUNICIPALITY, THALASSERY,, KANNUR DISTRICT. 3 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,, LOCAL SELF GOVERNMENT DEPARTMENT,, SECRETARIAT, THIRUVANANTHAPURAM. BY ADVS. GOVERNMENT PLEADER SRI.I.V.PRAMOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.01.2019, ALONG WITH WP(C).5198/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.Nos. 5198 and 36922 of 2009 4 JUDGMENT The petitioners herein impugn the Master Plan for the Thalassery Municipality, brought into force in the year 1983 and subsequently modified in the year 2007. According to them, their property, comprised of in Survey No.52 of the Thiruvangad Village is, as per the Master Plan, included as a “water logged area” and, therefore, on which no construction is permissible. 2. It is the petitioners’ specific contention that their properties are not factually water logged and in substantiation of this, they rely on the report obtained by this Court through the Kerala State Remote Sensing and Environmental Center, which is the nodal agency for remote sensing applications under the Department of Planning and Economic Affairs, Thiruvananthapuram. They assert that, as is clear from the report of the said Agency, the properties comprised of in Survey number 52 is not water logged but are garden lands, fully planted with trees and other vegetation. They also rely on the report of the concerned Agricultural Field Officer, again obtained by this Court, dated 09/03/2018; wherein it is clearly stated that the property of the petitioners were not included in W.P.C.Nos. 5198 and 36922 of 2009 5 the Data Bank prepared under Act 2 of 2008. The said report also states that the on properties involved herein stand several trees, including coconut trees of more than 20-25 years in age, Aracknet Palms of over 10-15 years, Mango trees of more than 50 years of age; in addition to several residential buildings, which are nearly 50 years in age. 3. The petitioners, therefore, content that the inclusion of the properties in Survey No.52, as a water logged area, in the Master Plan is completely erroneous. 4. After saying so, the petitioners submit that when objections were called for from the public against the said notification, they have preferred such; but that the same were not considered, leading to the Master Plan to be approved, including these properties as a water logged area. They, therefore, assail the Master Plan as being illegal and unlawful. 5. I have heard Sri. R. Surendran, learned counsel appearing for the petitioners in these cases; the learned standing counsel for the Thalassery Municipality and the learned special government Pleader appearing on behalf of the Government of Kerala. 6. When I analyze the submissions made before my by W.P.C.Nos. 5198 and 36922 of 2009 6 the learned counsel for the petitioners as afore, it is ineluctable that it is their specific case is that even though their properties can by no stretch of imagination, particularly in the light of going the report of the KSREC as also that if the Agricultural Field Officer, be construed to be water logged and that it has been so included in the Master Plan without taking note of the factual circumstances. However, since the petitioners are only concerned about their properties involved in Survey. No. 52 of the Tiruvangad village, I do not deem it is necessary to consider their larger challenge against the Master Plan as such, because they obviously have made such challenge solely to protect their property and for no other reason. I, therefore, propose to confine consideration of the reliefs to be granted to the petitioners solely to the extent of the properties in Survey No.52 of the Thiruvangad Village; and in such perspective, the challenge to the Master Plan, in my firm vie, is now unnecessary. 7. After I hold as above, the axiomatic question is as to the modus to be adopted by this Court to find resolution of the grievances voiced by the petitioners in this writ petition. As I have indicated above, it is the petitioner's specific case that W.P.C.Nos. 5198 and 36922 of 2009 7 their properties are not water logged and that its inclusion in the Master Plan, under such head, is on account of a factual error. 8. The learned Special Government Pleader, appearing for the State of Kerala submits that in the peculiar facts of this case, the petitioners will have to approach the Municipality with a representation, which can then be referred by the said Municipality, along with their remarks and recommendations, to the competent Authority of the Government of Kerala, which alone is empowered under the applicable Statutes and Regulations to vary or modify the Master Plan. He says that if the petitioners are so desirous, they may be given that liberty, so that all these issues can be considered by the Competent Authority, taking note of all the factual circumstances and after obtaining all relevant and germane reports, materials and inputs from the other concerned Authorities. 9. The learned standing counsel for the Thalassery Municipality affirms the submissions made on behalf of the Government and says that if the petitioners prefer a representation to the Municipality, seeking removal of the properties in Survey number 52 from the category of water W.P.C.Nos. 5198 and 36922 of 2009 8 logged area, they will forward the same to the competent Secretary of the Government of Kerala, along with all relevant and germane materials, which shall also include their recommendations in the matter, so that the said Authority can take a final decision as per law. 10. Sri. Surendran, learned counsel for the petitioners, in response to this, submits that since this matter has been pending before this Court for the last more than 10 years, the Authorities may be directed to take a decision as afore within the shortest possible period of time. 11. In the afore circumstances, I order these writ petitions, granting liberty to the petitioners to make a representation seeking removal of the properties in Survey number 52 from the category of water logged area in the Master Plan, enclosing all the relevant materials that are available with them, before the Municipality within a period of 2 weeks from the date of receipt of a copy of this judgment; in which event, the Secretary of the Municipality will consider the same and forward it to the Competent Authority of the Government along with the remarks and recommendations of the Municipality, within a further period of 1 month thereafter. W.P.C.Nos. 5198 and 36922 of 2009 9 Once the representation of the petitioners, along with the recommendations of the Municipality, reach the competent Authority of the Government, all necessary action for enquiring into the grievances of the petitioner, based on a factual survey of the property if required, will be embarked upon by the competent Authority and a final decision taken, after affording an opportunity of being heard to the petitioners, as expeditiously as is possible but not later than four months thereafter. I make it clear that the competent Authority of the Government will be enjoined to consider the representation of the petitioner adverting to the recommendations of the Municipality in its true spirit and to thereafter take a considered decision whether the properties of the petitioners, or such other properties that may be included in Survey No. 52, can be reclassified from being a water logged area in the Master Plan, so that the petitioners can thereupon deal with their properties, as entitled to them in law. Sd/- DEVAN RAMACHANDRAN Dxy JUDGE W.P.C.Nos. 5198 and 36922 of 2009 10 APPENDIX OF WP(C) 5198/2009 PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE PARTITION DEED DATED 15/05/1999 AND REGISTERED AS DOCUMENT NO.1193/1999 OF SRO KADIRUR. EXHIBIT P2 TRUE COPY OF THE DOCUMENT NO.1423/1963 DATED 04/10/1963 DATED 25/06/1964 OF SRO KADIRUR. EXHIBIT P3 TRUE COPY OF THE DOCUMENT NO.845/1964 DATED 25/06/1964 OF SRO KADIRUR. EXHIBIT P4 TRUE COPY OF THE SALE DEED DATED 26/04/2007 REGISTERED AS DOCUMENT NO.1055/2007 OF SRO KADIRUR. EXHIBIT P5 TRUE COPY OF THE SALE DEED DATED 26/04/2007 REGISTERED AS DOCUMENT NO. 1056/2007 OF SRO KADIRUR. EXHIBIT P6 TRUE COPY OF THE SALE DEED DATED 26/04/2007 REGISTERED AS DOCUMENT NO.1057/2007 OF KADIRUR. EXHIBIT P7 TRUE COPY OF THE SALE DEED DATED 26/04/2007 REGISTERED AS DOCUMENT NO.1058/2007 OF KADIRUR. EXHIBIT P8 TRUE COPY OF THE RENEWAL LEASE DEED DATED 02/11/1940 AND REGISTERED AS DOCUMENT NO.2246 OF 1940 OF SRO KADIRUR. EXHIBIT P9 TRUE COPY OF THE PARTITION DEED 17/08/1991 AND REGISTERED AS DOCUMENT NO.1514/1991 OF SRO KADIRUR. EXHIBIT P10 TRUE COPY OF THE DEVELOPMENT PLAN FOR TELLICHERRY TOWN VARIATION 2007. EXHIBIT P10 A TRUE COPY OF THE DEVELOPMENT PLAN MAP FOR TELLICHERRY TOWN VARIATION 2007. W.P.C.Nos. 5198 and 36922 of 2009 11 EXHIBIT P11 TRUE COPY OF THE OBJECTION DATED 15/03/2008 FILED BY THE FIRST PETITIONER. EXHIBIT P12 TRUE COPY OF THE ACKNOWLEDGEMENT DATED 18/03/2008 GIVEN BY FIRST RESPONDENT. EXHIBIT P13 TRUE COPY OF THE GOVERNMENT ORDER PUBLISHED AS SRO NO.835/2008 DATED 31/07/2008. EXHIBIT P14 TRUE COPY OF THE APPLICATION DATED 09/12/2008 FILED BY THE SECOND PETITIONER BEFORE INFORMATION OFFICER. EXHIBIT P15 TRUE COPY OF THE REPLY DATED 30/12/2008 ISSUED BY THE INFORMATION OFFICER. W.P.C.Nos. 5198 and 36922 of 2009 12 APPENDIX OF WP(C) 36922/2009 PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE SALE DEED DATED 15/11/2007 AND REGISTERED AS DOCUMENT NO.2778/2007 OF SRO KADIRUR. EXHIBIT P2 TRUE COPY OF THE DEVELOPMENT PLAN FOR TELLICHERRY TOWN VARIATION 2017. EXHIBIT P2 A TRUE COPY OF THE MAP ATTACHED TO THE DEVELOPMENT PLAN FOR TELLICHERRY TOWN VARIATION 2007. EXHIBIT P3 TRUE COPY OF THE OBJECTION DATED 15/03/2008 FILED BY MR. T.V.DHANISH KUMAR BEFORE THE FIRST RESPONDENT. EXHIBIT P4 TRUE COPY OF THE GOVERNMENT ORDER PUBLISHED AS SRO NO.835/2008 DATED 31/07/2008. EXHIBIT P5 TRUE COPY OF THE REJECTED PLANS AND HE REJECTION ORDER DATED NIL.