Mani E.V vs Kodungallur Municipality
2021 Latest Caselaw 15709 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
   FRIDAY, THE 30TH DAY OF JULY 2021 / 8TH SRAVANA, 1943
                    WP(C) NO. 28258 OF 2020
PETITIONER:

         MANI E.V.,
         AGED 67 YEARS,
         S/O.VELAYUDHAN, ELAMKOOTTU HOUSE,
         PERINJANAM VILLAGE,
         KODUNGALLUR TALUK,
         THRISSUR DISTRICT-680686.

         BY ADVS.
         SRI. LINDONS C.DAVIS
         SMT.E.U.DHANYA


RESPONDENTS:

    1    KODUNGALLUR MUNICIPALITY,
         REPRESENTED BY ITS SECRETARY,
         MUNICIPAL OFFICE, KODUNGALLUR P.O.,
         THRISSUR-680664.
    2    SECRETARY,
         KODUNGALLUR MUNICIPALITY,
         MUNICIPAL OFFICE, KODUNGALLUR P.O.,
         THRISSUR-680664.
    3    DISTRICT TOWN PLANNER,
         AYYANTHOLE,
         THRISSUR-680003.

         BY ADVS.
         R1-2 BY SHRI.K.A.NOUSHAD, SC, KODUNGALOOR
         MUNICIPALITY, THRISSUR
         GOVERNMENT PLEADER SMT G.RANJITA
         SMT. AMREN FATHIMA


     THIS WRIT PETITION       (CIVIL) HAVING COME UP       FOR
ADMISSION ON 30.07.2021,      THE COURT ON THE SAME        DAY
DELIVERED THE FOLLOWING:
 WP(C) No.28258/2020
                                 :2 :




                        JUDGMENT

~~~~~~~~~

Dated this the 30th day of July, 2021

The petitioner is before this Court aggrieved by the

non-consideration of his application for building permit for

construction of the first floor to an existing building situated in

Lokamalleswaram Village in Kodungallur Municipality. The

petitioner though submitted an application for building permit,

the petitioner was issued with Ext.P1 notice directing to

explain as to why the proposed construction does not satisfy

the requirements of master plan under which there is a road

widening proposal. Ext.P1 also pointed out certain other

defects like non-construction of ramp for disabled persons and

lack of clarity as to the road from the ground floor to shop

rooms.

2. The petitioner contended that after the petitioner

received Ext.P1, the petitioner served a purchase notice on WP(C) No.28258/2020

the 1st respondent-Municipality invoking Clause (1) of Section

67 of the Kerala Town and Country Planning Act. The 1 st

respondent has not taken any decision on the issue and

therefore the petitioner is entitled to get the building permit

sought for.

3. The learned counsel for the petitioner further

submitted that in the judgment in District Town Planner,

Malappuram and others v. Vinod and others [2019 (3) KLT

154], this Court has held that if the authorities of the Local Self

Government Institutions do not act on purchase notice served

by citizens, then such Local Self Government Institutions are

required to consider application for building permit in

accordance with law.

4. The learned counsel for respondents 1 and 2 filed a

statement and contested the writ petition. Respondents 1 and

2 submitted that property of the petitioner is proposed in the

Master Plan of the Kodungallur Municipality and development

of or construction on the said land would directly impact the

future development plan of the Kodungallur Town. The WP(C) No.28258/2020

Municipality cannot issue building permit to the petitioner

without following the prescribed norms under the Master Plan.

Furthermore, the petitioner has to cure the other defects also

pointed out in Ext.P1. Ext.P1 is therefore sustainable and the

writ petition is liable to be dismissed, contended the learned

counsel for respondents 1 and 2.

5. Heard the learned counsel for the petitioner and the

learned Standing Counsel appearing for respondents 1 and 2.

6. The learned counsel for the petitioner pointed out

that in a case where purchase notice was served and the

Municipality did not acquire the land, this Court has directed

the authorities to consider the building permit application of

the petitioners in accordance with law, in the judgment in

District Town Planner, Malappuram and others (supra).

This Court in paragraph 15 of the judgment held as follows:-

"15. In the judgment impugned, the learned Judge has directed the Municipality to acquire the land for the development Scheme and if for any reason they are unable to do so within three months, the application for building permit rejected earlier, was directed to be reconsidered. In the scheme of the Act, 2016, such direction, in our view, could not have been issued, in the absence of any purchase notice by the WP(C) No.28258/2020

aggrieved property owners in the W.A.Nos.813/2019 [WP(C) No.27237/2018], 986/2019 [WP(C) No.10527/2018], 1073/2019 [WP(C) No.38855/2018], 1154/2019 [WP(C) No.1918/2018], 1318/2019 [WP(C) No.35882/2018], 1847/2018 [WP(C) No.19970/2016] and 1332/2015 [WP(C) No.21602/2014], requiring the authorities to purchase the interest in the land. Therefore, the impugned judgments are set aside, reserving the right of the respondents-writ petitioners to serve purchase notice on the Municipal authorities under sub-section (1) of Section 67 of the Act, 2016. If such purchase notice is received, the appellant authorities are required to take timely decision in accordance with law, to either acquire the land or initiate appropriate variation in the DTP Scheme. In the W.A.Nos.1958/2016 [WP(C) No.32587/2015] and 1161/2019 [WP(C) No.29602/2018] where purchase notices were actually sent to the Municipality, direction is issued to the Municipality to forthwith consider the applications for building permit, in accordance with law. It is ordered accordingly."

It is the petitioner's case that the judgment in District Town

Planner, Malappuram and others (supra) will squarely apply

to the petitioner.

7. In the facts and circumstances of the case, this

Court is of the opinion that respondents 1 and 2 can consider

the building permit application of the petitioner in the light of

the judgment of this Court in District Town Planner,

Malappuram and others (supra). Accordingly, the 2nd

respondent is directed to consider and take appropriate WP(C) No.28258/2020

decision on the building permit application submitted by the

petitioner, taking into account the judgment of this Court in

District Town Planner, Malappuram and others (supra).

The petitioner will also be at liberty to cure other defects

pointed out by respondents 1 and 2 in Ext.P1. If the petitioner

cures other defects mentioned in Ext.P1, the 2 nd respondent

shall take a final decision in the matter within a period of six

weeks.

Sd/-

N. NAGARESH, JUDGE

aks/30.07.2021 WP(C) No.28258/2020

APPENDIX OF WP(C) 28258/2020

PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE NOTICE NO.BA.25/2020-21 DATED 23.7.2020 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P2 A COPY OF THE REPRESENTATION DATED 26.11.2020 SUBMITTED BY THE PETITIONER BEFORE THE KODUNGALLUR MUNICIPALITY. EXHIBIT P3 COPY OF THE PURCHASE NOTICE DATED 17.02.2021 EXHIBIT P4 COPY OF THE POSTAL DELIVERY DETAILS

SR