Kerala High Court
Muhammed Musthafa K.V.M vs The Malappuram Municipality on 18 July, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 18TH DAY OF JULY 2025 / 27TH ASHADHA, 1947
WP(C) NO. 10675 OF 2024
PETITIONER/S:
MUHAMMED MUSTHAFA K.V.M,
AGED 61 YEARS, S/O. KOYAMU HAJI, MANNISSERI HOUSE,
34/246, PATTERKADAVU, HAJIYAR PALLI P.O, MALAPPURAM
DISTRICT, PIN - 676519
BY ADVS.
SRI.ABDUL JAWAD K.
SRI.ABDUL MAJEED.N
SMT.A.GRANCY JOSE
RESPONDENT/S:
1 THE MALAPPURAM MUNICIPALITY,
REPRESENTED BY ITS SECRETARY,OFFICE OF THE MALAPPURAM
MUNICIPALITY, MALAPPURAM P.O,MALAPPURAM, PIN - 676505
2 THE SECRETARY,
MALAPPURAM MUNICIPALITY,OFFICE OF THE MALAPPURAM
MUNICIPALITY,MALAPPURAM P.O,MALAPPURAM, PIN - 676505
BY ADV SHRI.K.I.ABDUL RASHEED, SC, MALAPPURAM
MUNICIPALITY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
26.03.2025, THE COURT ON 18.07.2025 DELIVERED THE FOLLOWING:
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WP(C) No.10675/2024 2
JUDGMENT
The petitioner and his wife named, Zubaida K.P., are the owners
in possession of 21.9 Ares of property comprised in Re-Survey
No.140/2-6 of Palakkad Village of Eranad Taluk of Malappuram
District. The property of the petitioners abuts a public road ie.
Malappuram-Vengara road which was included in the Master Plan
prepared by the 1st respondent-Municipality. As per the Master Plan,
there was a proposal to widen the road by 30 meters. The master plan
was sanctioned in the year, 2013. As per the said proposal, the
compulsory acquisition to the extent of 10 meters from the existing
road boundary towards the side of the property of the petitioners is
contemplated.
2. Even though the master plan was sanctioned in the year,
2013, no steps have been taken by the Municipality to acquire the
land or to review the master plan as contemplated under Section 50 of
the Kerala Town and Country Planning Act, 2016 (hereinafter
referred to as 'Town Planning Act'). As the petitioners intended to
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construct a commercial building on the said property, they submitted
an application for building permit before the 1 st respondent-
Municipality, leaving a space of 5 meters from the proposed widening
line of the road ie., leaving a total space of 15 meters from the existing
road margin. The Municipality considered the said application and
Ext.P2 building permit was granted. Exhibit P3 is the approved plan
of the said building.
3. On the basis of the said permit, the petitioner completed
the construction in terms of the building plan and permit, by keeping
sufficient distance from the proposed road widening line. After
completion of the construction, a completion plan was submitted
before the Municipality, for issuance of an occupancy certificate and
allotment of building number. However, the 2 nd respondent-Secretary
to the Municipality, rejected the said application by stating that, while
carry out the construction, the petitioner did not maintain 5 meters
distance from the widening line proposed in the master plan. Exhibit
P4 is the intimation issued by the Municipality in this regard.
According to the petitioner, even though the construction was strictly
carried out by the petitioner in tune with Ext.P2 building permit and
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Ext.P3 approved building plan, as per the Municipality's
measurement, there is a deficiency of 40 centimetres on the right side
single shutter of the building for a horizontal width of 2 meters.
According to the petitioner it could be a mistake in identifying the
widening line or the changes in the alignment of the proposed road
widening. Moreover, the deficiency is very marginal as well.
4. The petitioner further contends that, even though the master
plan was sanctioned in the year, 2013, which contains the proposal to
acquire the land, no steps have been taken by the Municipality or any
other authority to acquire the land, despite the fact that Section 50 of
the Town Planning Act contemplates for review of the master plan on
completion of 10 years. Apart from the above, the petitioner
submitted Ext.P6 purchase notice to the Municipality under Section
67 of the Town Planning Act requiring the Municipality to acquire the
land within the statutory period contemplated under Section 67(1) of
the Act. Exhibit P7 is the acknowledgement evidencing the
submission of Ext.P6, which was on 4.3.2024. However, there was no
response from the Municipality to pass a resolution as contemplated
under Section 67(2) of the Town Planning Act. This writ petition is
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submitted by the petitioner in such circumstances, seeking the
following reliefs:
(i) To call for the records leading to Ext.P4 and to quash the
same by issuing a writ of certiorari;
(ii) To issue a writ of mandamus or any other appropriate writ
or order or direction commanding the 2 nd respondent to
reconsider the application for the occupancy certificate and
pass orders thereon de horse the reason stated in Ext.P4 order
and to grant occupancy in accordance with law within a time
frame fixed by this Hon'ble Court;
(iii) To issue a writ of mandamus or any other appropriate writ
or order or direction declaring that the petitioner has
substantially complied with the road widening proposal of the
Master Plan and that he is entitled to get occupancy certificate
based on Ext.P5 completion plan;
(iv) To issue a writ of mandamus or any other appropriate writ
or order or direction commanding the 2 nd respondent to grant
occupancy certificate by accepting an undertaking from the
petitioner that he would demolish that part of building where a
deficiency of 40 centimetres was occurred in case the road
widening proposal of the Master Plan gets implemented and
any difficulty arises on account of the same;
(v) To dispense with production of the translation of documents
in vernacular language;
And
(vi) Issue any such other writ, order or direction as this Hon'ble
Court deem fit in the interest of justice.
5. A statement was filed on behalf of the respondents, wherein,
it is averred that, the master plan is in existence for the Municipality
with a proposal to widen Malappuram-Vengara road for 30 meters
and from the widening point, a distance of 5 meter has to be left to the
building. In the case of the petitioner, the construction carried out
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was not by maintaining 5 meter distance. Therefore, the petitioner is
not entitled to get occupancy certificate for the said building. Later an
additional statement was submitted as directed by this Court on
02.09.2024. In the said additional statement, the respondents
acknowledged the receipt of Ext.P6 purchase notice on 4.3.2024
under Section 67 of the Act and it was also averred that the same is
now pending consideration of the Municipal Council.
6. I have heard Sri. Abdul Jawad K., the learned counsel for the
petitioners and Sri. K.I.Abdul Rasheed, the learned Counsel for the
respondents.
7. The contention raised by the learned counsel for the
petitioner is that, in the light of Section 67 of the Town Planning Act,
it was obligatory on the part of the respondents to act upon Ext.P6
purchase notice, within a period of two months from the date of
receipt of the same, by passing a resolution as to whether they intend
to acquire the land. In this case, admittedly, Ext.P6 purchase notice
was received by the Municipality on 4.3.2024 and more than a year is
elapsed since then, but yet, no resolution as contemplated under
section 67(2) has been passed. Therefore, the petitioner has
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got an indefeasible right to get the completion plan considered, and to
get the occupancy certificate. The learned counsel for the petitioner
also places reliance upon the decisions rendered by this Court in
Pradeep Kumar v. Maradu Municipality [2022(2) KLT 523]
and Abdul Hakeem N.T. v. Manjeri Municipality and
Another [2018 (2) KHC 67). On the other hand, the learned
Standing Counsel opposed the aforesaid contentions by reiterating
the contentions raised in the statement.
8. On examining the statutory stipulations, it is evident that,
Section 67 creates a burden upon the Municipality to take a decision
on the purchase notice as to whether the property is to be acquired or
not, within a period of two months from the date of such notice. It is
also an admitted fact that, the notice in the case was received by the
Municipality on 4.3.2024. To consider implications of Section 67, it is
necessary to examine the stipulations contained therein. The said
provision reads as follows:
"67. Obligation to acquire land in certain cases.--
(1) Where any land is designated for compulsory
acquisition in a Master Plan or Detailed Town Planning
Scheme sanctioned under this Act and no acquisition
proceedings are initiated for such land under the Land
Acquisition Act in force in the State within a period of two
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years from the date of coming into operation of the Plan,
the owner or person affected may serve on the Municipal
Corporation, Municipal Council, Town Panchayat or
Village Panchayat concerned, within such time and in
such manner, as may be prescribed, a notice (hereinafter
referred to as "the purchase notice") requiring the
Municipal Corporation, Municipal Council, Town
Panchayat or Village Panchayat concerned to purchase
the interest in the land in accordance with the provisions
of this Act;
(2) On receipt of any purchase notice under sub-section
(1), as soon as possible, but not later than sixty days from
the date of receipt of the purchase notice, the Municipal
Corporation, Municipal Council, Town Panchayat or
Village Panchayat, as the case may be, through a
resolution decide to acquire the land, where the land is
designated for compulsory acquisition for the purpose of
the Municipal Corporation, Municipal Council, Town
Panchayat or Village Panchayat.
(3) Where the land is designated for compulsory
acquisition for the purpose of any Government
Department or Quasi-government Agency, the Municipal
Corporation, Municipal Council, Town Panchayat or
Village Panchayat shall forward such notice to the
Government.
(4) In case the Municipal Corporation, Municipal Council,
Town Panchayat or Village Panchayat concerned decides
not to acquire the land, it shall initiate variation of the
plan suitably in accordance with this Act.
(5) In case the land acquisition could not be effected
within a period of two years from the date of resolution to
acquire the land, the Municipal Corporation, Municipal
Council, Town Panchayat or Village Panchayat
concerned shall initiate variation of the plan suitably in
accordance with this Act.
(6) On receipt of a purchase notice under sub-section (3),
the Government shall in consultation with the
Government Department or Quasi-government Agency
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concerned, not later than six months from the date of
receipt of the purchase notice, confirm the purchase
notice. In any other case, Government may require the
Municipal Corporation, Municipal Council, Town
Panchayat or Village Panchayat concerned to vary the
plan suitably in accordance with this Act:
Provided that in case the land acquisition could not be
effected within a period of two years from the date of
confirmation of the purchase notice, the Municipal
Corporation, Municipal Council, Town Panchayat or
Village Panchayat concerned shall initiate variation of
the plan suitably in accordance with this Act under
intimation to the Government.
(7) If no order has been passed by the Government within
a period of six months from the date of receipt of the
purchase notice, the Municipal Corporation, Municipal
Council, Town Panchayat or Village Panchayat
concerned shall, suo moto initiate variation of the plan
suitably in accordance with this Act:
Provided that where variation proceedings of the Plan
are initiated under this section, the Secretary of the
Municipal Corporation, Municipal Council, Town
Panchayat or Village Panchayat concerned shall, in
consultation with the Chief Town Planner, take suitable
decision on any application for land development permit
received under section 64."
From the above, it is evident that, sub section (1) of Section 67
imposes a burden on the Municipality to acquire the land where the
master plan contemplates for compulsory acquisition, within two
years from the date of coming into operation of the plan. In case no
such acquisition takes place, it shall be open for the owner of the
property to submit a purchase notice, requiring the Municipality to
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purchase the interest in the land, in accordance with the provisions of
the Act. In this case, master plan was sanctioned in the year, 2013 and
despite expiry of about 12 years, no steps have been taken by the
Municipality to acquire the land. It is also an undisputed fact that,
the master plan, which is the subject matter in this writ petition,
contemplates for compulsory acquisition. In the light of the above,
the owner of the land, the petitioner herein, acquired a right to
demand before the Municipality, to take necessary steps to acquire
the property by issuing a statutory notice as referred to above. The
petitioner exercised the said right by issuing Ext.P6 notice, as early as
on 4.3.2024. Moreover, despite the fact that, there was a statutory
obligation on the part of the Municipality to act upon Ext.P6 purchase
notice within a period of two months, admittedly no steps have been
taken on the same and the said purchase notice is even now pending
consideration before the Municipal Council.
9. The consequence of inaction on the part of the
Municipality on a statutory purchase notice under section 67(1) of the
Act, despite the expiry of the statutory period, was considered by this
Court in Abdul Hakeem's case (supra). In the said decision, after
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elaborately considering the statutory stipulations contained in the
Town Planning Act, this Court categorically observed that, if the
Municipality does not pass a resolution, either to acquire the land or
not to acquire the land, the owner of the land will be entitled to the
building permit sought by him immediately after 60 days, if he is
otherwise entitled to the same. It was also observed that, in case, a
resolution is not passed by the local body a presumption can be drawn
that the local authority does not intend to acquire the land .
10. In Pradeep Kumar's case (supra), a Division Bench of
this Court considered the said question and by referring to the
stipulations contained in Sections 67 and 50, reiterated the obligation
of the Municipality to act upon the purchase notice under Section
67(1), by keeping the timeline contemplated under the said provision.
The observations in Pradeep Kumar's case (supra) were made
taking into account the possible infringement of the Constitutional
right of the owner of the property contemplated under Article 300A of
Constitution of India, which specifically provides that no person shall
be deprived of his property save by authority of law. The observations
in Pradeep Kumar's case (supra) were made after referring to
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various other decisions rendered by this Court including the District
Town Planner, Malappuram and Others v. Vinod and
Others [2019(3)KLT 154] and District Town Planner,
Thrissur v. Joby M.C. [2020(6) KLT 600] where the legal
proposition as mentioned above was reiterated.
11. Thus the Municipality is under an obligation to strictly
follow the timeline contemplated under section 67 in the matter of
acting upon the master plan and also to take appropriate decision by
passing a resolution on the purchase notice, within the statutory
period from the date of receipt of such notice. As observed in Abdul
Hakeem's case (supra), when the Municipality fails to take any
action on purchase notice and sitting over the same without passing
any resolution, it infringes the right of the petitioner to utilize the said
property for his beneficial purposes, which in turn, would be against
the spirit of Article 300A of the Constitution of India.
12. In this case, it is evident from the statement and additional
statement submitted by the respondents that, the only discrepancy
alleged is that, a small portion of the building of the petitioner falls
within the distance of 5 meters from the widening line of the road as
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proposed in the Master Plan. The projection alleged is very marginal
ie., 40 centimetres alone and such projection is only at the horizontal
distance of 2 meters alone. It is also evident from the statement that,
apart from this violation, no other violations could be detected. Since
the projection is very marginal, it could be a case of mistake in taking
the measurement while carrying out the construction and therefore
the possibility of a wilful violation is highly improbable. Therefore,
the said fact, coupled with the inaction on the part of the Municipality
to comply with the timeline contemplated under section 67 of the Act
would lead to a definite conclusion that the petitioner is entitled to the
relief sought for in this writ petition. It is also to be noted in this
regard that, in addition to Sections 67, Section 50 of the Town
Planning Act contemplate a further obligation to review or revise the
master plan within 10 years. As the master plan in this case was
sanctioned in the year, 2013, the said statutory period is also expired
and no action has been taken by the Municipality. Therefore, on that
reason also the petitioner is entitled to a relief sought for. The
inaction on the part of the Municipality cannot deprive the petitioner
to utilize his property for beneficial purposes, as the petitioner has
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the Constitutional right to utilize the said property, which cannot be
interfered with, save by authority of law.
In such circumstances, this Writ Petition is disposed of quashing
Ext.P4, with a direction to the respondents to re-consider the
completion plan submitted by the petitioner, to grant occupancy
certificate and allot building permit if the petitioner is otherwise
eligible for the same. It is clarified that, the fact that petitioner's
construction projects into the proposed widening line as per the
master plan cannot be a ground to reject the application. Appropriate
orders in this regard shall be passed by the respondents, within a
period of one month from the date of receipt of copy of this judgment.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE.
pkk
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APPENDIX OF WP(C) 10675/2024
PETITIONER EXHIBITS
EXHIBIT - P1 A TRUE COPY OF THE TITLE DEED OF THE
PETITIONER DATED 15/09/1995
EXHIBIT - P2 A TRUE COPY OF THE BUILDING PERMIT DATED
23/09/2021 ISSUED BY THE 2ND RESPONDENT
EXHIBIT - P3 A TRUE COPY OF THE RELEVANT PARTS OF THE
BUILDING PLAN SUBMITTED BY THE PETITIONER
EXHIBIT - P4 A TRUE COPY OF THE COMMUNICATION DATED
16/02/2024 ISSUED TO THE PETITIONER BY THE
2ND RESPONDENT
EXHIBIT - P5 A TRUE COPY OF THE COMPLETION PLAN
SUBMITTED BY THE PETITIONER AT THE
INSTRUCTION OF THE MUNICIPALITY
EXHIBIT - P6 A TRUE COPY OF THE PURCHASE NOTICE DATED
29/02/2024 SUBMITTED BY THE PETITIONER ON
04/03/2024 BEFORE THE 2ND RESPONDENT
EXHIBIT - P7 A TRUE COPY OF THE RECEIPT DATED 04/03/2024
OF THE MUNICIPALITY
