Kerala High Court
Muhammed Musthafa K.V.M vs The Malappuram Municipality on 18 July, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 18TH DAY OF JULY 2025 / 27TH ASHADHA, 1947
WP(C) NO. 10675 OF 2024
PETITIONER/S:
MUHAMMED MUSTHAFA K.V.M,
AGED 61 YEARS, S/O. KOYAMU HAJI, MANNISSERI HOUSE,
34/246, PATTERKADAVU, HAJIYAR PALLI P.O, MALAPPURAM
DISTRICT, PIN - 676519
BY ADVS.
SRI.ABDUL JAWAD K.
SRI.ABDUL MAJEED.N
SMT.A.GRANCY JOSE
RESPONDENT/S:
1 THE MALAPPURAM MUNICIPALITY,
REPRESENTED BY ITS SECRETARY,OFFICE OF THE MALAPPURAM
MUNICIPALITY, MALAPPURAM P.O,MALAPPURAM, PIN - 676505
2 THE SECRETARY,
MALAPPURAM MUNICIPALITY,OFFICE OF THE MALAPPURAM
MUNICIPALITY,MALAPPURAM P.O,MALAPPURAM, PIN - 676505
BY ADV SHRI.K.I.ABDUL RASHEED, SC, MALAPPURAM
MUNICIPALITY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
26.03.2025, THE COURT ON 18.07.2025 DELIVERED THE FOLLOWING:
2025:KER:51884
WP(C) No.10675/2024 2
JUDGMENT
The petitioner and his wife named, Zubaida K.P., are the owners in possession of 21.9 Ares of property comprised in Re-Survey No.140/2-6 of Palakkad Village of Eranad Taluk of Malappuram District. The property of the petitioners abuts a public road ie. Malappuram-Vengara road which was included in the Master Plan prepared by the 1st respondent-Municipality. As per the Master Plan, there was a proposal to widen the road by 30 meters. The master plan was sanctioned in the year, 2013. As per the said proposal, the compulsory acquisition to the extent of 10 meters from the existing road boundary towards the side of the property of the petitioners is contemplated.
2. Even though the master plan was sanctioned in the year, 2013, no steps have been taken by the Municipality to acquire the land or to review the master plan as contemplated under Section 50 of the Kerala Town and Country Planning Act, 2016 (hereinafter referred to as 'Town Planning Act'). As the petitioners intended to 2025:KER:51884 WP(C) No.10675/2024 3 construct a commercial building on the said property, they submitted an application for building permit before the 1 st respondent- Municipality, leaving a space of 5 meters from the proposed widening line of the road ie., leaving a total space of 15 meters from the existing road margin. The Municipality considered the said application and Ext.P2 building permit was granted. Exhibit P3 is the approved plan of the said building.
3. On the basis of the said permit, the petitioner completed the construction in terms of the building plan and permit, by keeping sufficient distance from the proposed road widening line. After completion of the construction, a completion plan was submitted before the Municipality, for issuance of an occupancy certificate and allotment of building number. However, the 2 nd respondent-Secretary to the Municipality, rejected the said application by stating that, while carry out the construction, the petitioner did not maintain 5 meters distance from the widening line proposed in the master plan. Exhibit P4 is the intimation issued by the Municipality in this regard. According to the petitioner, even though the construction was strictly carried out by the petitioner in tune with Ext.P2 building permit and 2025:KER:51884 WP(C) No.10675/2024 4 Ext.P3 approved building plan, as per the Municipality's measurement, there is a deficiency of 40 centimetres on the right side single shutter of the building for a horizontal width of 2 meters. According to the petitioner it could be a mistake in identifying the widening line or the changes in the alignment of the proposed road widening. Moreover, the deficiency is very marginal as well.
4. The petitioner further contends that, even though the master plan was sanctioned in the year, 2013, which contains the proposal to acquire the land, no steps have been taken by the Municipality or any other authority to acquire the land, despite the fact that Section 50 of the Town Planning Act contemplates for review of the master plan on completion of 10 years. Apart from the above, the petitioner submitted Ext.P6 purchase notice to the Municipality under Section 67 of the Town Planning Act requiring the Municipality to acquire the land within the statutory period contemplated under Section 67(1) of the Act. Exhibit P7 is the acknowledgement evidencing the submission of Ext.P6, which was on 4.3.2024. However, there was no response from the Municipality to pass a resolution as contemplated under Section 67(2) of the Town Planning Act. This writ petition is 2025:KER:51884 WP(C) No.10675/2024 5 submitted by the petitioner in such circumstances, seeking the following reliefs:
(i) To call for the records leading to Ext.P4 and to quash the same by issuing a writ of certiorari;
(ii) To issue a writ of mandamus or any other appropriate writ or order or direction commanding the 2 nd respondent to reconsider the application for the occupancy certificate and pass orders thereon de horse the reason stated in Ext.P4 order and to grant occupancy in accordance with law within a time frame fixed by this Hon'ble Court;
(iii) To issue a writ of mandamus or any other appropriate writ or order or direction declaring that the petitioner has substantially complied with the road widening proposal of the Master Plan and that he is entitled to get occupancy certificate based on Ext.P5 completion plan;
(iv) To issue a writ of mandamus or any other appropriate writ or order or direction commanding the 2 nd respondent to grant occupancy certificate by accepting an undertaking from the petitioner that he would demolish that part of building where a deficiency of 40 centimetres was occurred in case the road widening proposal of the Master Plan gets implemented and any difficulty arises on account of the same;
(v) To dispense with production of the translation of documents in vernacular language;
And
(vi) Issue any such other writ, order or direction as this Hon'ble Court deem fit in the interest of justice.
5. A statement was filed on behalf of the respondents, wherein, it is averred that, the master plan is in existence for the Municipality with a proposal to widen Malappuram-Vengara road for 30 meters and from the widening point, a distance of 5 meter has to be left to the building. In the case of the petitioner, the construction carried out 2025:KER:51884 WP(C) No.10675/2024 6 was not by maintaining 5 meter distance. Therefore, the petitioner is not entitled to get occupancy certificate for the said building. Later an additional statement was submitted as directed by this Court on 02.09.2024. In the said additional statement, the respondents acknowledged the receipt of Ext.P6 purchase notice on 4.3.2024 under Section 67 of the Act and it was also averred that the same is now pending consideration of the Municipal Council.
6. I have heard Sri. Abdul Jawad K., the learned counsel for the petitioners and Sri. K.I.Abdul Rasheed, the learned Counsel for the respondents.
7. The contention raised by the learned counsel for the petitioner is that, in the light of Section 67 of the Town Planning Act, it was obligatory on the part of the respondents to act upon Ext.P6 purchase notice, within a period of two months from the date of receipt of the same, by passing a resolution as to whether they intend to acquire the land. In this case, admittedly, Ext.P6 purchase notice was received by the Municipality on 4.3.2024 and more than a year is elapsed since then, but yet, no resolution as contemplated under section 67(2) has been passed. Therefore, the petitioner has 2025:KER:51884 WP(C) No.10675/2024 7 got an indefeasible right to get the completion plan considered, and to get the occupancy certificate. The learned counsel for the petitioner also places reliance upon the decisions rendered by this Court in Pradeep Kumar v. Maradu Municipality [2022(2) KLT 523] and Abdul Hakeem N.T. v. Manjeri Municipality and Another [2018 (2) KHC 67). On the other hand, the learned Standing Counsel opposed the aforesaid contentions by reiterating the contentions raised in the statement.
8. On examining the statutory stipulations, it is evident that, Section 67 creates a burden upon the Municipality to take a decision on the purchase notice as to whether the property is to be acquired or not, within a period of two months from the date of such notice. It is also an admitted fact that, the notice in the case was received by the Municipality on 4.3.2024. To consider implications of Section 67, it is necessary to examine the stipulations contained therein. The said provision reads as follows:
"67. Obligation to acquire land in certain cases.--
(1) Where any land is designated for compulsory acquisition in a Master Plan or Detailed Town Planning Scheme sanctioned under this Act and no acquisition proceedings are initiated for such land under the Land Acquisition Act in force in the State within a period of two 2025:KER:51884 WP(C) No.10675/2024 8 years from the date of coming into operation of the Plan, the owner or person affected may serve on the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned, within such time and in such manner, as may be prescribed, a notice (hereinafter referred to as "the purchase notice") requiring the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned to purchase the interest in the land in accordance with the provisions of this Act;
(2) On receipt of any purchase notice under sub-section (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.
(3) Where the land is designated for compulsory acquisition for the purpose of any Government Department or Quasi-government Agency, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat shall forward such notice to the Government.
(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.
(5) In case the land acquisition could not be effected within a period of two years from the date of resolution to acquire the land, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall initiate variation of the plan suitably in accordance with this Act.
(6) On receipt of a purchase notice under sub-section (3), the Government shall in consultation with the Government Department or Quasi-government Agency 2025:KER:51884 WP(C) No.10675/2024 9 concerned, not later than six months from the date of receipt of the purchase notice, confirm the purchase notice. In any other case, Government may require the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned to vary the plan suitably in accordance with this Act:
Provided that in case the land acquisition could not be effected within a period of two years from the date of confirmation of the purchase notice, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall initiate variation of the plan suitably in accordance with this Act under intimation to the Government.
(7) If no order has been passed by the Government within a period of six months from the date of receipt of the purchase notice, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall, suo moto initiate variation of the plan suitably in accordance with this Act:
Provided that where variation proceedings of the Plan are initiated under this section, the Secretary of the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall, in consultation with the Chief Town Planner, take suitable decision on any application for land development permit received under section 64."
From the above, it is evident that, sub section (1) of Section 67 imposes a burden on the Municipality to acquire the land where the master plan contemplates for compulsory acquisition, within two years from the date of coming into operation of the plan. In case no such acquisition takes place, it shall be open for the owner of the property to submit a purchase notice, requiring the Municipality to 2025:KER:51884 WP(C) No.10675/2024 10 purchase the interest in the land, in accordance with the provisions of the Act. In this case, master plan was sanctioned in the year, 2013 and despite expiry of about 12 years, no steps have been taken by the Municipality to acquire the land. It is also an undisputed fact that, the master plan, which is the subject matter in this writ petition, contemplates for compulsory acquisition. In the light of the above, the owner of the land, the petitioner herein, acquired a right to demand before the Municipality, to take necessary steps to acquire the property by issuing a statutory notice as referred to above. The petitioner exercised the said right by issuing Ext.P6 notice, as early as on 4.3.2024. Moreover, despite the fact that, there was a statutory obligation on the part of the Municipality to act upon Ext.P6 purchase notice within a period of two months, admittedly no steps have been taken on the same and the said purchase notice is even now pending consideration before the Municipal Council.
9. The consequence of inaction on the part of the Municipality on a statutory purchase notice under section 67(1) of the Act, despite the expiry of the statutory period, was considered by this Court in Abdul Hakeem's case (supra). In the said decision, after 2025:KER:51884 WP(C) No.10675/2024 11 elaborately considering the statutory stipulations contained in the Town Planning Act, this Court categorically observed 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 60 days, if he is otherwise entitled to the same. It was also observed that, in case, a resolution is not passed by the local body a presumption can be drawn that the local authority does not intend to acquire the land .
10. In Pradeep Kumar's case (supra), a Division Bench of this Court considered the said question and by referring to the stipulations contained in Sections 67 and 50, reiterated the obligation of the Municipality to act upon the purchase notice under Section 67(1), by keeping the timeline contemplated under the said provision. The observations in Pradeep Kumar's case (supra) were made taking into account the possible infringement of the Constitutional right of the owner of the property contemplated under Article 300A of Constitution of India, which specifically provides that no person shall be deprived of his property save by authority of law. The observations in Pradeep Kumar's case (supra) were made after referring to 2025:KER:51884 WP(C) No.10675/2024 12 various other decisions rendered by this Court including the District Town Planner, Malappuram and Others v. Vinod and Others [2019(3)KLT 154] and District Town Planner, Thrissur v. Joby M.C. [2020(6) KLT 600] where the legal proposition as mentioned above was reiterated.
11. Thus the Municipality is under an obligation to strictly follow the timeline contemplated under section 67 in the matter of acting upon the master plan and also to take appropriate decision by passing a resolution on the purchase notice, within the statutory period from the date of receipt of such notice. As observed in Abdul Hakeem's case (supra), when the Municipality fails to take any action on purchase notice and sitting over the same without passing any resolution, it infringes the right of the petitioner to utilize the said property for his beneficial purposes, which in turn, would be against the spirit of Article 300A of the Constitution of India.
12. In this case, it is evident from the statement and additional statement submitted by the respondents that, the only discrepancy alleged is that, a small portion of the building of the petitioner falls within the distance of 5 meters from the widening line of the road as 2025:KER:51884 WP(C) No.10675/2024 13 proposed in the Master Plan. The projection alleged is very marginal ie., 40 centimetres alone and such projection is only at the horizontal distance of 2 meters alone. It is also evident from the statement that, apart from this violation, no other violations could be detected. Since the projection is very marginal, it could be a case of mistake in taking the measurement while carrying out the construction and therefore the possibility of a wilful violation is highly improbable. Therefore, the said fact, coupled with the inaction on the part of the Municipality to comply with the timeline contemplated under section 67 of the Act would lead to a definite conclusion that the petitioner is entitled to the relief sought for in this writ petition. It is also to be noted in this regard that, in addition to Sections 67, Section 50 of the Town Planning Act contemplate a further obligation to review or revise the master plan within 10 years. As the master plan in this case was sanctioned in the year, 2013, the said statutory period is also expired and no action has been taken by the Municipality. Therefore, on that reason also the petitioner is entitled to a relief sought for. The inaction on the part of the Municipality cannot deprive the petitioner to utilize his property for beneficial purposes, as the petitioner has 2025:KER:51884 WP(C) No.10675/2024 14 the Constitutional right to utilize the said property, which cannot be interfered with, save by authority of law.
In such circumstances, this Writ Petition is disposed of quashing Ext.P4, with a direction to the respondents to re-consider the completion plan submitted by the petitioner, to grant occupancy certificate and allot building permit if the petitioner is otherwise eligible for the same. It is clarified that, the fact that petitioner's construction projects into the proposed widening line as per the master plan cannot be a ground to reject the application. Appropriate orders in this regard shall be passed by the respondents, within a period of one month from the date of receipt of copy of this judgment.
Sd/-
ZIYAD RAHMAN A.A. JUDGE.
pkk
2025:KER:51884
WP(C) No.10675/2024 15
APPENDIX OF WP(C) 10675/2024
PETITIONER EXHIBITS
EXHIBIT - P1 A TRUE COPY OF THE TITLE DEED OF THE
PETITIONER DATED 15/09/1995
EXHIBIT - P2 A TRUE COPY OF THE BUILDING PERMIT DATED
23/09/2021 ISSUED BY THE 2ND RESPONDENT
EXHIBIT - P3 A TRUE COPY OF THE RELEVANT PARTS OF THE
BUILDING PLAN SUBMITTED BY THE PETITIONER
EXHIBIT - P4 A TRUE COPY OF THE COMMUNICATION DATED
16/02/2024 ISSUED TO THE PETITIONER BY THE
2ND RESPONDENT
EXHIBIT - P5 A TRUE COPY OF THE COMPLETION PLAN
SUBMITTED BY THE PETITIONER AT THE
INSTRUCTION OF THE MUNICIPALITY
EXHIBIT - P6 A TRUE COPY OF THE PURCHASE NOTICE DATED
29/02/2024 SUBMITTED BY THE PETITIONER ON
04/03/2024 BEFORE THE 2ND RESPONDENT
EXHIBIT - P7 A TRUE COPY OF THE RECEIPT DATED 04/03/2024
OF THE MUNICIPALITY