Sharhaana Medar Manzil vs The Palakkad Municipality
2023 Latest Caselaw 1430 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
           THE HONOURABLE MR.JUSTICE N.NAGARESH
 FRIDAY, THE 20TH DAY OF JANUARY 2023 / 30TH POUSHA, 1944
                  WP(C) NO. 33696 OF 2022
PETITIONER:
          SHARHAANA MEDAR MANZIL
          AGED 20 YEARS,
          D/O. HASSAN MOHAMMED,
          MEDAR MANZIL , 25/33,
          RESIDING AT MEDAR MNZIL,
          WEST YAKKARA, NURANI,
          PALAKKAD TALUK, PALAKKAD DISTRICT,
          REPRESENTED BY POWER OF ATTORNEY HOLDER S
          HAFEER AHAMMED U,
          S/O. USMAN ALI,
          AGED 45 YEARS, BUSINESS,
          RESIDING AT 36/785(12),
          "MARVEL" DESHARATHA NAGAR,
          OLAVAKKODE P.O,
          PALAKKAD DISTRICT., PIN - 678002

         BY ADVS.
         JACOB SEBASTIAN
         K.V.WINSTON
         ANU JACOB


RESPONDENTS:
    1     THE PALAKKAD MUNICIPALITY
          REPRESENTED BY ITS SECRETARY,
          MUNICIPAL OFFICE,
          PALAKKAD DISTRICT., PIN - 678001
    2     THE SECRETARY
          PALAKKAD MUNICIPALITY,
          MUNICIPAL OFFICE,
          PALAKKAD DISTRICT., PIN - 678001
    3     THE DISTRICT TOWN PLANNING OFFICER
          PALAKKAD DISTRICT TOWN PLANNING OFFICE,
          PALAKKAD, CIVIL STATION,
          PALAKKAD DISTRICT., PIN - 678001
    4     THE STATE OF KERALA
          REPRESENTED BY ITS SECRETARY,
          DEPARTMENT OF LOCAL SELF GOVERNMENT,
          SECRETARIAT,
          THIRUVANANTHAPURAM DISTRICT., PIN - 695001

          BY SMT.BINOY VASUDEVAN, SC FOR R1 & R2.
          BY SMT.K.G.SAROJINI, GOVERNMENT PLEADER.
     THIS WRIT PETITION (CIVIL) HAVING COME UP         FOR
ADMISSION ON 20.01.2023, THE COURT ON THE SAME         DAY
DELIVERED THE FOLLOWING:
 W.P(C) No.33696 of 2022          2




                          JUDGMENT

Dated this the 20th day of January, 2023

The petitioner submitted an application for Building Permit

for construction of a commercial building. The application was

rejected as per Ext.P3 communication stating that the building

proposed to be constructed is in an area to be reserved for

paddy field and area to be acquired for roads under the

Ayyapuram-Ramanathapuram DTP Scheme.

2. Certain other defects were also pointed out in Ext.P3.

As one of the grounds for rejection of application for Building

Permit was based on a published DTP Scheme, the petitioner

submitted Ext.P9 Purchase Notice invoking Section 67 of the

Kerala Town and Country Planning Act, 2016.

3. The petitioner states that the Municipality has not

taken any decision on the purchase notice within the stipulated

statutory period of 60 days. Therefore, the petitioner is entitled

to get his Building Permit Application process in accordance with

the Kerala Municipal Building Rules read with the Kerala Town

and Country Planning Act.

4. A Counter Affidavit has been filed on behalf of the

Municipality. The respondents submitted that there are a

number of Building Rules violations in the plan submitted by the

petitioner including violation of Rules 29(4)(iii), 29(5) and 29(7).

NOC from the Fire Department has also not been submitted. It

has been stated in the Counter Affidavit that no decision has

been taken on the Purchase Notice sent by the petitioner.

5. I have heard the learned counsel for the petitioner

and the learned Standing Counsel representing the

respondents.

6. The petitioner's Building Permit application has been

primarily rejected in view of the provisions contained in the

detailed Town Planning Scheme. It is evident that the area is

set apart to be acquired for roads. In that view of the matter, the

petitioner has right to issue Purchase Notice. As the

respondents have not taken any decision on the Purchase

Notice within a period of 60 days as prescribed under Section

67, the respondents are bound to initiate variation proceedings

and process the Building Permit application of the petitioner in

accordance with law.

In view of the above, the writ petition is disposed of

directing the 1st respondent-Municipality to process the Building

Permit application of the petitioner as per the provisions of the

Kerala Municipal Building Rules and the Kerala Town and

Country Planning Act, 2016. The Building Permit will be issued

to the petitioner if the petitioner satisfies all other statutory

requirements. The counsel for the petitioner submits that the

petitioner has received NOC from the Fire Department and the

petitioner will be filing a revised plan. The respondents shall

take final decision in the matter within a period of two months.

Sd/-

N. NAGARESH JUDGE sss

APPENDIX OF WP(C) 33696/2022

PETITIONER'S EXHIBITS

Exhibit-P1 A TRUE COPY OF THE POSSESSION CERTIFICATE NO.64867703 DATED 06.05.2022 RELATING TO THE PROPERTY.

Exhibit-P2 A TRUE COPY OF THE REGISTERED SALE DEED NO.819/2022 OF SRO OLAVAKKODE DATED 30.03.2022.

Exhibit-P3 A TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 22.06.2022 REJECTING THE APPLICATION OF THE PETITIONER.

Exhibit-P4            A TRUE COPY OF THE KLU ORDER OBTAINED BY
                      C.K   BALAKRISHNAN,    DATED  28.10.1997
                      RELATING TO THE PROPERTY.
Exhibit-P5            A TRUE COPY OF THE KLU ORDER OBTAINED BY

C.K CHANDRAN DATED 20.11.1997 RELATING TO THE PROPERTY.

Exhibit-P6 A TRUE COPY OF THE REGISTERED SALE DEED NO.1553/1998 OF SRO OLAVAKKODE DATED 10.07.1998.

Exhibit-P7 A TRUE COPY OF THE REGISTERED SALE DEED NO.1554/1998 OF SRO OLAVAKKODE DATED 10.07.1998.

Exhibit-P8 A TRUE COPY OF THE G.O.(MS.) NO.210/09/LSGD DATED 11.11.2009.

Exhibit-P9 A TRUE COPY OF THE PURCHASE NOTICE DATED 10.08.2022 ISSUED BY THE PETITIONER ALONG WITH RECEIPT DATED 11.08.2022. Exhibit -P10 A TRUE COPY OF THE RTI APPLICATION DATED 01.12.2022 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT.

Exhibit -P11 A TRUE COPY OF THE COMMUNICATION DATED 16.12.2022 ISSUED TO THE PETITIONER BY THE FIRST RESPONDENT.