Raju Kanari vs The Feroke Municipality
2023 Latest Caselaw 1218 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
 WEDNESDAY, THE 18TH DAY OF JANUARY 2023 / 28TH POUSHA, 1944
                      WP(C) NO. 10565 OF 2022
PETITIONER:

          RAJU KANARI
          AGED 77 YEARS
          S/O. IMBICHEKKAN, THURALI HOUSE,
          PERUMUGHAM POST, FEROKE,
          KOZHIKODE , PIN - 673631.

          BY ADVS.
          K.M.FIROZ
          M.SHAJNA


RESPONDENT:

          THE FEROKE MUNICIPALITY,
          FEROKE POST, KOZHIKODE,
          REPRESENTED BY ITS SECRETARY
          PIN - 673631.

          BY SRI.P.A.MOHAMMED SHAH, SC.


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 18.01.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                      2



WP(C) No. 10565 of 2022




                             JUDGMENT

Dated this the 18th day of January, 2023

The petitioner owns land in Re-Survey No.478/49 in Feroke

Village of Kozhikode District. The property is situated within the

territorial limits of the respondent-Municipality.

2. The grievance of the petitioner is that the petitioner's

application for a Building Permit for construction of an additional

floor on an existing commercial building has been rejected by the

respondent as per Ext.P2. The reason given in Ext.P2 is that there

is a proposal for widening the Perumugham-Pullikadavu Road and

consequently, open space will not be available for the construction

of the building.

3. The petitioner would submit that the respondent has not

so far taken any steps for acquiring the land for the proposed road

WP(C) No. 10565 of 2022

widening. Therefore, the petitioner submitted Ext.P3 Purchase

Notice to the respondent invoking the provisions of Section 67 of

the Kerala Town and Country Planning Act, 2016. Ext.P3

Purchase Notice was sent on 08.07.2022. In spite of the statutory

period, the respondent has not taken any decision on Ext.P3.

Therefore, the petitioner is entitled to get the Building Permit as

prayed for.

4. Standing Counsel entered appearance on behalf of the

Respondent-Municipality and resisted the writ petition. The

Standing Counsel submitted that there is a proposal for road

widening of Perumugham-Pullikadavu Road. Sufficient open

space will not be available for construction of the building, if the

building plan submitted by the petitioner is considered in view of

the proposed road widening. In the said circumstances, Ext.P2

order was passed.

WP(C) No. 10565 of 2022

5. I have heard the learned Counsel for the petitioner and

the learned Standing Counsel for the respondent.

6. The application for a Building Permit of the petitioner for

construction of an additional floor, is not being considered on the

ground that there is a proposal for road widening. The petitioner

states that the construction is on an existing building and in view

of the increase in the height of the building, sufficient set back will

not be available in view of the proposed road widening.

7. I find that the petitioner has sent Ext.P3 Purchase

Notice invoking the provisions of Section 67 of the Kerala Town

and Country Planning Act, 2016. The Municipality has not taken a

decision on the Purchase Notice within 60 days, as required under

the Kerala Town and Country Planning Act. In that view of the

matter, going by the provisions contained in the act, the

respondent has to initiate variation proceedings in respect of the

WP(C) No. 10565 of 2022

master plan/Detailed Town Planning Scheme and the petitioner's

Building Permit application should be processed accordingly.

In the circumstances, the writ petition is disposed of directing

the respondent to process the Building Permit application

submitted by the petitioner, taking into account Ext.P3 Purchase

Notice and expiry of 60 days period. A decision in this regard shall

be taken within a period of two months in accordance with the

provisions of the Kerala Town and Country Planning Act, 2016.

Sd/-

N. NAGARESH JUDGE ams

WP(C) No. 10565 of 2022

APPENDIX OF WP(C) 10565/2022

PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF SPECIFICATION REPORT IN RESPECT OF RS NO 478 / 49 OF FEROKE VILLAGE IN FEROKE MUNICIPAL CORPORATION SUBMITTED BEFORE FEROKE MUNICIPALITY BY PETITIONER.

Exhibit P2 TRUE COPY OF COMMUNICATION NO.

FE2/15091/354/21-22 DATED 25.02.2022 ISSUED BY FEROKE MUNICIPALITY TO THE PETITIONER Exhibit P3 TRUE COPY OF PURCHASE NOTICE DATED 08.07.2022 SUBMITTED BY PETITIONER BEFORE THE SECRETARY, FEROKE MUNICIPALITY.

Exhibit P4 TRUE COPY OF POSTAL RECEIPT AND ACKNOWLEDGMENT CARD EVIDENCING DISPATCH AND DELIVERY OF EXHIBIT P3