JUDGMENT : 1. If a purchase notice is issued as per Section 67(1) of the Kerala Town and Country Planning Act, 2016 (for short, Act 2016) by a land owner and after that, if the local authority initiated steps for variation of the plan in accordance with Section 67(4) of the Act 2016, whether the local authority can consider the building permit application before the competent authority finalises the variation is the question to be decided in this case. 2. The facts of the case are as follows: Petitioner is the owner and is in possession and enjoyment of 0.0172 hectares of land situated in Survey No.T.S.90, Ward No.3, Block No.3 in Vadikkakam Desom in Thalassery Taluk of Kannur District. The petitioner obtained the above said property vide Settlement Deed No.1169/16 of Thalassery Sub Registrar Office. After that, the petitioner submitted an application for a building permit before the 2nd respondent for constructing a house in the said property on 21.01.2017. The 2nd respondent rejected the petitioner's application for a building permit, stating that there is a proposed road widening plan as per the Development Plan for Tellicherrry Variation 2007. Ext.P3 is the order passed by the 2nd respondent. According to the petitioner, even though the plan was launched in the year 2007, it is not implemented so far. The petitioner submitted Ext.P4 representation narrating her grievances, but the same was not considered. Under such circumstances, the above writ petition is filed with the following prayers: i. To issue a writ of certiorari or any other writ or order to call for records relating Ext. P-3, and all other records pursuant thereto, and quash the same. ii. To issue a writ of mandamus or any other writ or order directing the 2nd respondent to issue permit for construction of the house as applied by the petitioner in the light of Ext. P-2. iii. To issue a writ of mandamus or any other writ or order directing the 2nd respondent to consider and pass appropriate orders within a period of 3 weeks on Ext.P-4 representation after affording an opportunity of hearing to the petitioner. iv. To declare that petitioner is entitled to construct house in the property owned and possessed by the petitioner in Sy. No. T.S. 90, Ward 3, Block 3 in Vadikkakam desom in Thalassery Taluk, Kannur District. iv. To declare that petitioner is entitled to construct house in the property owned and possessed by the petitioner in Sy. No. T.S. 90, Ward 3, Block 3 in Vadikkakam desom in Thalassery Taluk, Kannur District. v. To pass any other writ or order as is deemed fit by this Hon'ble Court in the interest of justice. (SIC) 3. Subsequently, the petitioner issued a purchase notice under Section 67(1) of the Act 2016, which is produced as an additional document in this writ petition as Ext.P7. After that, this Court, as per the order dated 16.12.2020, directed the Municipal Council to consider that application. The order dated 16.12.2020 is extracted hereunder: “I.A.No.2/2020 Additional documents are received on record. IA.No.3/2020 This is an application seeking a direction to the 4th respondent Thalassery Municipality to consider and pass orders on Ext.P7. 2. Ext.P7 is a notice issued by the petitioner under Section 67 of the Kerala Town and Country Planning Act, 2016. 3. The petitioner's application for a building permit was rejected on account of the proposal to widen the road by including a portion of the petitioner's land. The proposed road widening is in accordance with the development plan which was sanctioned for Thalassery Municipality in the year 2007. It is in this context, since there was a delay in acquiring land, the petitioner moved the Municipal council with a purchase notice under Section 67 of the Kerala Town and Country Planning Act, 2016. 4. The Municipality is bound to consider such notice within 60 days from the date of receipt of the purchase notice. Ext.P7 notice appears to have been received by the Municipality on 23.10.2020. The term of the Municipal Council came to an end on the 1st week of November, 2020, New Municipal Council is to be re-constituted. In such circumstances, I am of the view that the Municipal Council shall take a decision within four weeks on its reconstitution.” 4. After that, the Municipality, as per the Decision No.12 dated 29.06.2022, requested the Government to make variations in the master plan as per Section 67(4) of the Act 2016. Even then, the petitioner's application for a building permit was not considered. Hence this writ petition. 5. Heard the learned counsel for the petitioner and the learned Standing Counsel for respondents 2 and 4. I also heard the learned Government Pleader. 6. Even then, the petitioner's application for a building permit was not considered. Hence this writ petition. 5. Heard the learned counsel for the petitioner and the learned Standing Counsel for respondents 2 and 4. I also heard the learned Government Pleader. 6. The counsel for the petitioner submitted that in the light of the purchase notice issued by the petitioner as evident by Ext.P7 and the decision of the Municipality to vary the plan under Section 67(4) of the Act 2016, the petitioner is entitled to a building permit. The Standing Counsel for the Municipality submitted that the Municipality has already decided to vary the master plan and the same is produced with a memo dated 20.07.2022 in this case. In the light of that decision, the Standing Counsel for the Municipality submitted that nothing survives in this case. The Government Pleader, on the other hand, submitted that when there is a master plan in force, as per Section 61 of the Act 2016, no person shall use or cause to use any land or carry out development in any land, or change the use of land otherwise than in conformity with the Master Plans Spatial plans for a Special Area and Detailed Town Planning Schemes under the Act. The Government Pleader submitted that, admittedly, the master plan exists in the area in dispute in this case; therefore, the petitioner cannot construct the building on the site unless it is varied. 7. This Court considered the contention of the petitioner and the respondents. It is now a settled position that the provisions of Section 67 of the Act 2016 are intended to balance the conflicting right of the State and private individual. This point is considered by this Court in Thalassery Municipality v. Puthalath Balakrishnan [ 2019 (3) KLT 154 ]. The relevant portion of the judgment is extracted hereunder: “10. The provisions of S.67 of the Act, 2016 are intended to balance the conflicting rights of the State and the private individual. While the State has the right to reserve lands for development proposals in public interest, the said right cannot be exercised in a manner designed to frustrate the Constitutional rights of the private individual under Article 300A, to deal with his property in the manner he chooses. While the State has the right to reserve lands for development proposals in public interest, the said right cannot be exercised in a manner designed to frustrate the Constitutional rights of the private individual under Article 300A, to deal with his property in the manner he chooses. A balance is therefore struck by directing the State to take affirmative action for implementing the proposal within a specified time-frame, failing which, the private individual is to be given the unfettered freedom to use his land for other permissible purposes.” 8. In Palakkad Municipality and Another v. Devadas and Others [ 2021 KHC 518 ], this Court again considered the matter and found that if a purchase notice under Section 67 of the Act 2016 is received by the Municipality, the Municipality has to take a decision without failure as to whether it intends to acquire the property in question for widening the road which is an imperative requirement as per the prescriptions contained in Section 67 of the Act 2016, within the time period prescribed in it. The relevant portion of the judgment is extracted hereunder: “15. We are also informed that since in Exhibit P2 impugned order, the property was stated to be required for the purpose of widening a road the writ petitioner has already issued a purchase notice in contemplation of section 67 of the Town and Country Planning Act, whereby an obligation is created to acquire the land in certain cases by the Municipality. Accordingly, the Municipality has to take a decision without failure as to whether it is intending to acquire the property in question for widening the road, which is an imperative requirement as per the prescriptions contained under section 67 of the Act 2016, including the time period of sixty days, prescribed for taking a decision. Even though the learned Senior Government Pleader Sri.Tek Chand submitted that by virtue of section 63 of the Kerala Town and Country Planning Act, 2016, the Secretary of the Municipality is entitled to look into any Draft Master Plan/Scheme, we are unable to agree with the same since section 63 of Act, 2016 will come into play only if any Interim Development Orders are issued pending any draft Scheme and restrictions imposed after notifying the intention to prepare the plan. There is no case for any of the parties to the proceedings that any Interim Development Orders were issued in regard to the Palakkad Town area.” (Underline supplied) 9. In Abdul Hakeem N.T. v. Manjeri Municipality and Another [ 2018 (2) KHC 67 ] this Court observed that, the provisions contained in Section 67 are understood as mandatory; needless to say that, if the Municipality does not pass a resolution either to acquire the land or not to acquire the land, the owner of the land will be entitled to the building permit sought by him immediately after sixty days, if he is otherwise entitled for the same. The relevant portion of the judgment in Abdul Hakeem's case (supra) is extracted hereunder: "8. It is seen that unlike the town planning legislations which were prevailing in the State, the Town Planning Act contains appropriate provisions for de-reserving lands earmarked in terms of the sanctioned town planning schemes for acquisition for various development activities such as the formation of new roads, widening of the existing roads etc. Section 67 of the Town Planning Act is the provision dealing with de-reservation. The said Section reads thus; "67. xxxxxxx As far as a land earmarked for development project of the local body in terms of the sanctioned town planning scheme is concerned, sub-section (1) of Section 67 creates an obligation on the local body to initiate proceedings for acquisition of the land within two years. The said provision provides that if action is not taken to initiate proceedings for acquisition of the land within two years, the owner of the land will be entitled to serve a notice to the local body requiring the local body to purchase the interest of the owner in the land. Subsection (2) of the said section provides that within 60 days from the date of receipt of the purchase notice provided for under sub-section (1), the local body shall decide by resolution to acquire the land. Sub-section (4) of the said section clarifies that in case the local body decides not to acquire the land, it shall initiate steps for variation of the plan suitably in accordance with the provisions contained in the Town Planning Act. Sub-section (4) of the said section clarifies that in case the local body decides not to acquire the land, it shall initiate steps for variation of the plan suitably in accordance with the provisions contained in the Town Planning Act. In other words, if the local body, on receipt of purchase notice decides not to acquire the land for the development project mentioned in the town planning scheme, since the local body is bound to initiate proceedings for variation of the scheme, there cannot be any doubt that the owner of the property will be entitled to the building permit sought by him, if he is otherwise entitled for the same. If the provisions contained in Section 67 of the Town Planning Act are viewed in the light of the fundamental rights guaranteed to the citizens, it is beyond dispute that the provisions therein are mandatory. If the provisions contained in Section 67 are understood as mandatory, needless to say that if the Municipality does not pass a resolution either to acquire the land or not to acquire the land, the owner of the land will be entitled to the building permit sought by him immediately after sixty days, if he is otherwise entitled for the same. The reason is that in case a resolution is not adopted by the local body either way, a presumption can be drawn that the local authority does not intend to acquire the land. The provision in subsection (5) of Section 67 that the local body shall initiate steps for variation of the plan, in case the land acquisition could not be effected within a period of two years from the date of the resolution to acquire the land, indicates that in case the local body decides to acquire the land on receipt of the purchase notice, the owner of the land is entitled to building permit immediately on the expiry of the said period of two years, if the land has not been acquired within the said period and if he is otherwise entitled for the same.” [underline supplied] 10. Again in District Town Planner, Thrissur v. Joby M.C and others [ 2020 (6) KHC 455 ], this Court found that, if no steps are taken by the Municipal Corporation or the State Government to acquire the property within the period prescribed under Section 67 of the Act 2016, the person who issued the purchase notice is entitled to get the building permit. The relevant portion of the judgment is extracted hereunder: “9. On an analysis of Section 61 of Act 2016 and the note thereto, we have no doubt that if there is a Town Planning Scheme prevailing for an area, it will have supremacy over the Master Plan existing for the area. However, the basic contention advanced by the learned counsel for the writ petitioners is that in order to start a lorry terminal, acquisition of the property in question is required. But, no steps were taken by the Thrissur Municipal Corporation to acquire the property and therefore, the writ petitioners are entitled as of right for consideration of their application in accordance with law and without creating any fetter on the basis of the instant Town Planning Scheme. However, we do not think that the said contention is correct in view of the inhibitions created under Sections 61 and 113 of Act 2016 extracted above. But, in our considered view, as contended by learned counsel for the writ petitioners, there is a way out from the situation by resorting to Section 67 of Act 2016, since in the fact scenario the stipulations contained thereunder are bound to be followed by the Municipal Corporation in the event of the writ petitioners issuing a statutory purchase notice in contemplation of law. Therefore, it can be seen that the issue in question is actually guided by Section 67 of Act 2016 as extracted above, which provision takes care of the Master Plan or a detailed Town Planning Scheme sanctioned under Act, 2016, and whereby liberty is granted to the Municipal Corporation to acquire the properties in terms of the Master Plan or detailed Town Planning Scheme within two years from the date of coming into operation of the plan. It is an admitted fact that no steps were taken by the Municipal Corporation or the State Government to acquire the property within the period prescribed under Section 67 of Act, 2016. It is an admitted fact that no steps were taken by the Municipal Corporation or the State Government to acquire the property within the period prescribed under Section 67 of Act, 2016. Therefore, the writ petitioners are entitled, as of right, to issue a purchase notice to the Municipal Corporation requiring the Municipal Corporation to purchase the property. Sub-Section (2) of Section 67 of Act, 2016 makes it clear that the Municipal Corporation will have to take a decision not later than sixty days from the date of receipt of the purchase notice, through a resolution to acquire the land, where the land is designated for compulsory acquisition for the purpose of the Municipal Corporation. Which thus means, if the Municipal Corporation is not taking a decision as is mandatorily insisted upon as per Section 67(2) of Act, 2016 necessarily, the other provisions of Section 67 of Act, 2016 will come into operation and eventually, the writ petitioners are entitled to get their permit applications considered in accordance with law. We are also of the opinion that even though the Town Planning Acts, which were existing in the State of Kerala, are repealed by virtue of Section 113 of Act 2016, an exception is carved out under sub-Section (2) of Section 113, whereby any Master plan or detailed Town Planning Scheme, published under the repealed Acts shall be deemed to be a Master Plan or a Detailed Town Planning Scheme, as the case may be, as if the same are published under the Act, 2016. Therefore, we find force in the contention advanced by the learned Senior Government Pleader relying upon Sections 61 and 113 of Act, 2016 that the finding recorded by the learned Single Judge to consider the building permit application if the Master Plan is not published within four months is not legally sustainable. But, fact remains, the writ petitioners are entitled, as of right, to exercise the option provided under Section 67 of Act, 2016 by issuing a purchase notice in contemplation of law since the Municipal Corporation. Thus, it can also be seen that the intention of the legislature by incorporating Section 67 in Act, 2016 is with the avowed object of protecting the interest of all stakeholders and in the larger public interest of developmental activities. Thus, it can also be seen that the intention of the legislature by incorporating Section 67 in Act, 2016 is with the avowed object of protecting the interest of all stakeholders and in the larger public interest of developmental activities. But, at the same time, it is also an indicator clearly expressing that an owner of the property cannot be kept in limbo in the guise of public interest and town planning. This is more so in view of the constitutional right of the owner of a property conferred under Article 300A of the Constitution of India, whereby no person shall be deprived of property save by authority of law, which includes the right of an owner of a property to commercially exploit the property and venture in business in accordance with law. [underline supplied] 11. From the above decisions, it is clear that if a purchase notice as contemplated in Section 67 of the Act 2016 is issued by a land owner, and no steps are taken by the competent authorities based on the same within the time prescribed, the property owner is entitled to construct the building in his property, and he is entitled to the building permits from the local self Government authorities. Article 300A of the Constitution of India states that, no person shall be deprived of his property save by authority of law. If no action is taken even after the purchase notice is issued under Section 67 of Act the 2016, the property owner is entitled to enjoy his property without any restrictions. In this case, the petitioner issued a purchase notice to the Municipality, as evident by Ext.P7. After that a decision was taken by the Municipal Council on 29.06.2022. The decision is produced by the Standing Counsel with a memo. It will be better to extract the same: 12. From the above decision, it is clear that the Municipality decided to vary the master plan as per Section 67(4) of the Act 2016. Section 67 (4) is extracted hereunder: “(4) In case the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned decides not to acquire the land, it shall initiate variation of the plan suitably in accordance with this Act.” 13. Section 67 (4) is extracted hereunder: “(4) In case the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned decides not to acquire the land, it shall initiate variation of the plan suitably in accordance with this Act.” 13. From a reading of Section 67(4), it is clear that the variation of the plan initiated in this provision is in a situation where the Municipality decides not to acquire the land. Therefore, if a decision is taken by the Municipality to vary from the master plan as per Section 67(4), it is implied that the Municipality has decided not to acquire the land. In such a situation, a property owner need not wait till the master plan is varied by the competent authority. Section 67(2) of the Act 2016 says that, on receipt of any purchase notice under subsection (1), as soon as possible, but not later than sixty days from the date of receipt of the purchase notice, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat, as the case may be, through a resolution decide to acquire the land, where the land is designated for compulsory acquisition for the purpose of the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat. Once the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned has decided not to acquire the land, the right of a person under Article 300A to enjoy the property cannot be curtailed. Similarly, if there is no resolution passed to acquire the land after getting the purchase notice under Section 67 (1), the property owner has the right to use the property for his legitimate purposes, including building constructions. The question is whether there is a resolution deciding to acquire the land and not a mere decision on a purchase notice under Section 67 (1) of Act 2016. The decision should be to acquire the land. Any other decision on the purchase notice by the competent authority will not curtail the rights of a property owner to enjoy his property. 14. In this case, admittedly, the Municipal Council, as per the decision dated 29.06.2022, decided to proceed as per Section 67(4) of the Act 2016 for varying the master plan. But it is true that in that decision, it is not specifically stated that the Municipal Council decided not to acquire the land. 14. In this case, admittedly, the Municipal Council, as per the decision dated 29.06.2022, decided to proceed as per Section 67(4) of the Act 2016 for varying the master plan. But it is true that in that decision, it is not specifically stated that the Municipal Council decided not to acquire the land. But once the Municipal Council decided to vary the master plan as per Section 67(4) of the Act 2016, it can be safely presumed that the Municipality decided not to acquire the land. If that is the case, the petitioner is entitled to a building permit, if his building permit application is otherwise in order. Therefore, this writ petition is allowed in the following manner: 1. Ext.P3 is set aside. 2. Respondents 2 and 4 are directed to reconsider the building permit application and pass appropriate orders in it, dehors the reasons mentioned in Ext.P3, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment.