IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
WP(C) NO. 12172 OF 2018
PETITIONER:
NISAR VALIYA UCHUMMAL
AGED 50 YEARS,S/O.ABOOBACKER,
KAITHERI PARAMBA HOUSE,
KUNNOTH.P.O,NETTUR,THALASSERY,
KANNUR DISTRICT-670105.
BY ADV SRI.C.P.PEETHAMBARAN
RESPONDENT/S:
1 THALASSERY MUNICIPALITY
REPRESENTED BY ITS SECRETARY,THALASSERY,
KANNUR DISTRICT-670101.
2 THE EXECUTIVE ENGINEER
THALASSERY MUNICIPALITY,THALASSERY-670101,
KANNUR DISTRICT.
ADDL.R3. THE DISTRICT TOWN PLANNER
DPC BUILDING, CIVIL STATION, KANNUR-670002.
ADDL.R3 IMPLEADED SUOMOTU AS PER ORDER DATED
21.05.2019 IN W.P.(C).
BY ADV SRI.I.V.PRAMOD
OTHER PRESENT:
SMT.DEEPA NARAYANAN, SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 03.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C).No.12172/2018
2
P.V.KUNHIKRISHNAN, J.
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W.P.(C).No.12172 of 2018
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Dated this the 03rd day of June, 2022
JUDGMENT
This writ petition is filed with following prayers:
i. Call for records leading to issuance of Exhibit P-4 order from the 1st respondent and quash Exhibit P-4 Order, by issuing a Writ of Certiorari or any other appropriate, Writ, Order or Direction ii. Issue a Writ of Mandamus or any other appropriate Writ, Order or direction, directing the Respondents to grant building permit and approve the plan for construction of the buildings of the petitioner as applied.
iii. Grant such other relief that this Hon'ble Court deem fit and proper in the circumstances of the case.
(SIC)
2. Main challenge in this writ petition is against Ext.P4 order by which the application of the petitioner for W.P.(C).No.12172/2018 3 building permit is rejected mainly for the reason that there is a proposal for widening the road and as per the master plan it is earmarked as public zone. Subsequent to the filing of this writ petition, the petitioner filed Ext.P7 application under Section 67 of the Kerala Town and Country Planning Act, 2016. According to the petitioner, the same was filed on 17.09.2021. No orders are passed in it. The counsel submitted that if no orders are passed within two months, the respondents are bound to consider the building permit application in the light of the judgment of this Court in District Town Planner, Malappuram & Others v. Vinod & Others [2019 (3) KLT 154]. Hence this writ petition.
3. Heard the learned counsel for the petitioner and the counsel appearing for the Municipality. I also heard the learned Government Pleader for the 3rd respondent.
4. The short point raised by the petitioner is that in the light of the fact that there is no order passed in Ext.P7, the Municipality is bound to issue building permit. The counsel for the Municipality submitted that as per the decision reported in Regional Town Planner and Another v. W.P.(C).No.12172/2018 4 Muhammed Rasheed and Others [2019 (3) KLT 433], a different view is taken by this Court.
5. After hearing both sides, I think the Municipality should take a decision in Ext.P7 application submitted by the petitioner. Based on such decision, the Municipality should pass consequential orders in the building permit application also. To facilitate the Municipality to pass fresh orders, Ext.P4 can be set aside. I make it clear that I have not considered the matter on merit and the Municipality is free to pass appropriate orders in accordance to law.
Therefore, this writ petition is disposed of in the following manner:
1. Ext.P4 is set aside.
2. The 1st respondent is directed to consider and pass appropriate orders in Ext.P7, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment.
2. Based on the decision taken in Ext.P7, application for building permit shall be W.P.(C).No.12172/2018 5 reconsidered by the Municipality during the above period itself.
sd/-
P.V.KUNHIKRISHNAN JV JUDGE W.P.(C).No.12172/2018 6 APPENDIX OF WP(C) 12172/2018 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE BASIC TAX RECEIPT DATED 11/10/2017 ISSUED BY THE VILLAGE OFFICER,THIRUVANGAD.
EXHIBIT P2 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 25.12.2017 ISSUED BY THE VILLAGE OFFICER,THIRUVANGAD. EXHIBIT P3 TRUE COPY OF THE CERTIFICATE DATED 2/2/2018 ISSUED BY THE 1ST RESPONDENT EXHIBIT P4 TRUE COPY OF THE ORDER DATED 15/3/2018 ISSUED BY THE 1ST RESPONDENT EXHIBIT P5 TRUE PHOTOGRAPH SHOWING THE PRESENT CONDITION OF THE PETITIONER'S BUILDING.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 14/6/2013 IN WP(C)NO.3503/2013 OF THIS HON'BLE COURT.
EXHIBIT P7 TRUE COPY OF HTE PURCHASE NOTICE DATED 17.09.2021 SUBMITTED BY THE PETITIONER BEFORE THE MINICIPAL COUNCIL OF THE 1ST RESPONDENT UNDER SECTION 67 OF KERALA TOWN AND COUNTRY PLANNING ACT, 2016.