Abdul Rahim vs Kozhikode Muinicipal ...
2022 Latest Caselaw 8150 Ker

W. P. (C) No. 2209 of 2016
                                       -1-



              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
              THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
    FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
                             WP(C) NO. 2209 OF 2016
PETITIONER/S:

      1       ABDUL RAHIM
              AGED 56 YEARS
              S/O. VEERAN KOYA, 25/1275-B, KOZHAMPURATH HOUSE,
              KUANGARA PEEDIKA, G.A.COLLEGE P.O., KOZHIKODE-
              673014.
      2       SHAREEFA T.
              AGED 43 YEARS
              25/1275-B, KOZHAMPURATH HOUSE, KUANGARA PEEDIKA,
              G.A.COLLEGE P.O., KOZHIKODE-673014.
              BY ADV SRI.C.M.SURESH BABU


RESPONDENT/S:

      1       KOZHIKODE MUINICIPAL CORPORATION
              REP. BY ITS SECRETARY, CORPORATION OFFICE, BEACH
              ROAD, KOZHIKODE, PIN-673032.
      2       SECRETARY
              KOZHIKODE MUNICIPAL CORPORATION, CORPORTION
              OFFICE, BEACH ROAD, KOZHIKODE, PIN-673032.
              BY ADV SRI.K.D.BABU,SC,KOZHIKODE CORPORATION



       THIS     WRIT     PETITION     (CIVIL)    HAVING    COME    UP    FOR
ADMISSION      ON    01.07.2022,      THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W. P. (C) No. 2209 of 2016
                                       -2-




                              JUDGMENT

This writ petition is filed by the petitioners seeking the following

reliefs:-

"(i) Issue a writ of certiorari calling for the records pertaining to Ext.P1 building permit;

(ii) Issue a writ of certiorari or any other appropriate writ, order or direction, quashing Exts. P-3 and P-4 notices issued by the respondent Corporation;

(iii) Issue a writ of mandamus or any other appropriate writ, direction or order directing the 2nd respondent to approve the revised plan submitted by the petitioners and permit them to carry out the construction in accordance with the Kerala Municipal Building Rules, without imposing any restrictions provided in the old Town planning scheme."

2. The grievances highlighted by the petitioners are as follows:-

3. The petitioners are the owners in possession of 16.80 cents of

land comprised in Re. Sy. No. 412 of Valayanad village within the

limit of Kozhikode Corporation. In the month of January 2015,

petitioners obtained a building permit for a two storied commercial

building situated on the side of Francis - Pukkunnam road. When the W. P. (C) No. 2209 of 2016

construction started, petitioners submitted a revised plan for a three

storied building. Now the construction of the structure of two storied

building has been completed.

4. While so, the Secretary, Kozhikode Municipal Corporation,

2nd respondent has issued Ext. P3 notice requiring the petitioners to

show cause as to why the permit shall not be cancelled on the ground

that the construction violates Rule 3A of the Kerala Municipality

Building Rules, 1999, since it violates the provisions in a Town

Planning Scheme sanctioned in 1983. Though the said Scheme

proposes a width of 18 meters to the road, its existing width is only 8

meters. No steps are so far taken by the respondents to acquire the

necessary land to widen the road.

5. It is the contention of the petitioners that insistence by the

Corporation to comply with the provisions in an obsolete Town

Planning Scheme, without taking any steps to implement the same,

infringe the right of the petitioners to enjoy their property and thereby

violates Article 14 and Article 300 of the Constitution of India.

6. Evidently petitioners are aggrieved by Ext. P3 notice dated

18.09.2015 whereby the petitioners were notified that since the permit W. P. (C) No. 2209 of 2016

granted to the petitioners is in violation of an existing scheme, the

permit will have to be withdrawn by the Secretary of the Kozhikode

Corporation. Later on the basis of a reply submitted by the petitioner,

Ext. P4 order was passed dated 21.12.2015 stating that the

representation submitted by the petitioner cannot be considered in

view of the existing scheme.

7. Anyhow when the writ petition was admitted to the files of

this Court, proceedings pertaining to Ext. P3 was stayed by this Court

for a period of one month and later it was extended by a period of four

months.

8. So also when the matter came up before the Court on

31.03.2016, again an interim order was passed directing the Secretary

of the Corporation to number the building and issue occupancy

certificate, if the construction is completed in accordance with the

Kerala Municipality Building Rules, 1999, notwithstanding the

violation, if any, under the Master Plan.

9. A statement is filed by the Kozhikode Municipal Corporation

refuting the allegations and claims and demands raised by the

petitioners, but reiterating the stand adopted in Exts. P3 and P4 notices W. P. (C) No. 2209 of 2016

and thus stating that the permit sought for by the petitioners come

under the Scheme existing for the area and therefore as per Rule 3A of

the Kerala Municipality Building Rules, the Scheme has precedence

over the Kerala Municipality Building Rules, 1999.

10. I have heard learned counsel for the petitioners Sri. C. M.

Suresh Babu and Sri. K. D. Babu appearing for the Kozhikode

Municipal Corporation and perused the pleadings and material on

record.

11. On an appreciation of Exts. P3 and P4, a notice and a

communication respectively issued by the Secretary of the

Corporation, it is quite clear and evident that what is intended by the

Corporation is that if the permit is allowed to be continued, it would

interfere with the scheme of the Corporation to widen the existing road

passing near to the property of the petitioner by utilising the property

in question belonging to the petitioner.

12. Which thus means, an acquisition is required in order to

widen the road and if that is the situation, the property required for

widening of the road can only be seen as an earmarked property for

acquisition in contemplation of the provisions of the Kerala Town and W. P. (C) No. 2209 of 2016

Country Planning Act, 2016.

13. Section 67 of the Kerala Town and Country Planning Act,

2016 is a clear provision enabling a landlord to request the Corporation

to acquire the land, if it is interested to widen the road, and the

Corporation has to take a timely action, in accordance with the time

period prescribed under the said provision.

14. In my considered opinion, the case projected by the

petitioners would fall under Section 67 of Act 2016. But at the same

time I bear in mind that even though consequent to the introduction of

Act 2016, all the erstwhile town planning acts have been repealed, by

virtue of Section 113 of the Act 2016, all the existing schemes are

protected till such time a new Master Plan or a new Scheme is

introduced by the Corporation. Whatever that be Section 67 assumes

importance in view of the rights conferred on the land owners.

15. In that view of the matter and taking into account the

developments that have taken place during the pendency of the writ

petition, it is appropriate that the writ petition is disposed of with

suitable directions.

W. P. (C) No. 2209 of 2016

16. The interim order granted by this Court to issue occupancy

certificate and provide building number would remain in force

provisionally. The petitioner is given the liberty to issue a notice under

Section 67 of act 2016 within a month and the Corporation would be

at liberty to take appropriate action, in accordance with law.

However I make it clear that if the action as contemplated in

Section 67 is not taken by the Secretary of the Corporation, within the

time limit prescribed, the numbering of the building and the issuance

of the occupancy certificate would stand regularized, if the

construction is carried out by the petitioner, in accordance with the

provisions of Kerala Municipality Act, 1994 and the Kerala

Municipality Building Rules, 1999.

In the result, writ petition is partly allowed, however subject to

the observations and directions contained above.

Sd/-

SHAJI P. CHALY JUDGE

Eb ///TRUE COPY/// P. A. TO JUDGE W. P. (C) No. 2209 of 2016

PPENDIX OF WP(C) 2209/2016

PETITIONER EXHIBITS EXHIBIT P1- TRUE COPY OF THE PERMIT DATED 31-01-2015 ISSUED TO THE PETITIONERS.

EXHIBIT P2- TRUE COPY OF THE REQUEST DATED 06-11-2015 SUBMITTED BY THE PETITIONERS.

EXHIBIT P3- TRUE COPY OF THE NOTICE NO. 84690/15 DATED 18-

09-2015 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P4- TRUE COPY OF THE NOTICE NO. 115309/15 DATED 21-12-2015 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P5- TRUE COPY OF THE EXPLANATION DATED 22-12-2015 SUBMITTED BY THE PETITIONERS.