Nisar Valiya Uchummal vs Thalassery Municipality
2022 Latest Caselaw 6338 Ker

            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.
                    --------------------------------
                   W.P.(C).No.12172 of 2018
             ----------------------------------------------
            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

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

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

reconsidered by the Municipality during the

above period itself.

sd/-

P.V.KUNHIKRISHNAN JV JUDGE W.P.(C).No.12172/2018

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.