Sainaba K.K vs Kozhikode Municipal Corporation
2022 Latest Caselaw 8720 Ker

R. P. No. 548 of 2022
in W. A. No. 1143 of 2020
                                         -1-

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
          THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                         &
             THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
   THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
                              RP NO. 548 OF 2022
    AGAINST THE JUDGMENT IN WA 1143/2020 OF HIGH COURT OF
                                     KERALA
REVIEW PETITIONER/S:

             SAINABA K.K.
             AGED 53 YEARS
             D/O. MOIDU, RESIDING AT BISMILLATH MANZIL,
             KUNIYANGADU P.O., PURAMMERI VIA, VADAKARA, PIN-
             673 503
             BY ADVS.
             V.N.HARIDAS
             SAIFUDEEN T.S
             ANJANA CHANDRAN

RESPONDENT/S:

      1      KOZHIKODE MUNICIPAL CORPORATION
             REPRESENTED BY ITS SECRETARY , BEACH ROAD,
             KOZHIKODE-673 032
      2      THE SECRETARY,
             KOZHIKODE MUNICIPAL CORPORATION, BEACH ROAD,
             KOZHIKODE-673 032
      3      REGIONAL TOWN PLANNER,
             REGIONAL TOWN PLANNING OFFICE, CHAKKORATHUKULAM,
             KOZHIKODE-673 011
             BY ADVS.
             SRI. TEKCHAND, SR GP, SMT. BINDUMOL JOSEPH - SC

       THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
07.07.2022,       THE       COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 R. P. No. 548 of 2022
in W. A. No. 1143 of 2020
                                     -2-



                            JUDGMENT

Shaji P. Chaly, J.

This review petition is filed by the 1 st respondent / writ petitioner

in W. A. No. 1143 of 2020, seeking to review the judgment of this

Court dated 01.03.2021. In fact the writ appeal filed by the Kozhikode

Corporation and its Secretary was partly allowed by modifying the

judgment of the learned Single Judge to the effect that the property of

the review petitioner if not acquired, the building permit application of

the review petitioner, shall be considered taking into account the

provisions of Section 113 of the Kerala Town and Country Planning

Act, 2016 (hereinafter referred to as Act 2016) and the building rules

in force. It was also made clear that in all other respects, the judgment

of the learned Single Judge would remain intact.

2. In fact the writ petition was allowed by the learned Single

Judge taking note of Section 67 of the Town and Country Planning

Act, 2016 whereby the owner of a property is entitled to issue a

purchase notice to any Local Self Government Institution in order to

ascertain as to whether the Local Self Government Institution is

interested in acquiring the property earmarked for acquisition in town R. P. No. 548 of 2022 in W. A. No. 1143 of 2020

planning scheme. The learned Single Judge found that the property of

the review petitioner was required under the existing DTP Scheme for

widening a road.

3. However, taking note of the imperative conditions contained

under Section 67 of Act 2016, we have made a clear finding in the

judgment in the writ appeal that if and when a notice is issued in

contemplation of Section 67 of Act 2016, the Kozhikode Corporation

has to act in terms of the said provision.

4. According to the review petitioner, the Kozhikode Municipal

Corporation has again rejected the application as per Annexure A1

order attached to the review petition stating that under the DTP

Scheme existing, the road proposed to be widened passes through the

property of the review petitioner. In our view the said finding rendered

by the Secretary or the authorised officer of the corporation is against

the spirit of the provisions of Section 67 of Act 2016, because when a

purchase notice was issued, the corporation was duty bound to take

appropriate decision within the time frame prescribed thereunder in

regard to the property earmarked for acquisition.

5. Even though the review petitioner has filed W. P. (C) No. 1175 R. P. No. 548 of 2022 in W. A. No. 1143 of 2020

of 2022 challenging the said order before the writ court, it was

withdrawn stating that a review petition is proposed to be filed in the

instant appeal seeking clarification.

6. We have heard learned counsel for the review petitioner Sri. V.

N. Haridas, learned Senior Government Pleader Sri. V. Tekchand and

Smt. Bindumol Joseph, learned counsel appearing for the Kozhikode

Corporation and its Secretary and perused the pleadings and material

on record.

7. In our considered opinion, we have affirmed the judgment of

the learned Single Judge so far as the issue with respect to acquisition

of the earmarked property for the widening of the road is concerned. It

is also clearly specified that the writ petitioner is entitled as of right to

issue a purchase notice under Section 67 of Act 2016 and the authority

has to act in terms of Section 67 of the Act. However, interference was

made to the judgment of the learned Single Judge only in respect of the

direction issued by the learned Single Judge to consider the building

permit application irrespective of the other terms and conditions of the

Scheme prevailing.

8. Therefore, no doubt, the Secretary of the Corporation had no R. P. No. 548 of 2022 in W. A. No. 1143 of 2020

other option when a purchase notice was received, to take a decision in

the same, in accordance with the imperative provisions of Section 67

of Act 2016. However, irrespective of the directions and serving of the

purchase notice, the Secretary of the Corporation / the Superintending

Engineer has said that as per the Scheme, the proposed road passes

through the property of the review petitioner.

9. Without taking a decision under Section 67 to acquire land

earmarked for the widening of the road, the Secretary or the competent

authority of the Corporation cannot reject the application assigning the

reason that the property is required for widening of the road.

In that view of the matter, we dispose of the review petition

clarifying the directions contained in the judgment in the writ appeal as

above.

Sd/-

S. MANIKUMAR CHIEF JUSTICE

Sd/-

SHAJI P. CHALY JUDGE Eb ///TRUE COPY/// P. A. TO JUDGE R. P. No. 548 of 2022 in W. A. No. 1143 of 2020

APPENDIX OF RP 548/2022

PETITIONER ANNEXURES Annexure A1 A TRUE COPY OF THE REJECTION ORDER ISSUED BY THE 2ND RESPONDENT DATED 08.12.2021 ALONG WITH ENGLISH TRANSLATION.

Annexure A2 A TRUE COPY OF THE JUDGMENT DATED 15.06.2022 IN WPC 1175 OF 2022