Abdul Kareem v. Malappuram Municipality and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR THURSDAY, THE 13TH DAY OF MARCH 2014/22ND PHALGUNA, 1935 WP(C).No. 30327 of 2013 (M) ---------------------------- PETITIONER(S): ------------------ ABDUL KAREEM, S/O.KUNHALAN, THARAYIL HOUSE, KOOTTILANGADI P.O. MALAPPURAM DISTRICT. BY ADV. SRI.SAJU J.VALLYARA RESPONDENT(S): ------------------- 1. THE MALAPPURAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MALAPPURAM PIN - 676 505. 2. THE SECRETARY, MALAPPURAM MUNICIPALITY, MALAPPURAM, PIN - 676 505. - *3. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT DEPARTMENT THIRUVANANTHAPURAM -695 001. - *4. THE TOWN PLANNING OFFICER MALAPPURAM DISTRICT, PIN -676 505. *(ADDL. R3 & R4 ARE IMPLEADED AS PER ORDER DATED 17/12/2013 IN IA NO. 16953/2013.) R1,2 BY SRI.ESM.KABEER R3,R4 BY GOVERNMENT PLEADER SMT.SHERIN C.K THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 30327 of 2013 (M) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS : ------------------------------------- EXHIBIT P1. PHOTOCOPY OF THE INTIMATION DATED 16.11.2013 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. RESPONDENT(S)' EXHIBITS:NIL ----------------------------------- //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== W.P.(C). No.30327 OF 2013 ==========================** Dated this the 13[th] day of March, 2014 ## **JUDGMENT** The subsisting grievance regarding the rejection of an application for building permit constrained the petitioner who is the owner in possession of 6.45 cents of land comprised in re-survey No.646/7 of Malappuram village to approach this Court by filing the captioned writ petition. The application for building permit submitted by the petitioner to effect construction thereon was rejected as per Ext.P1. Obviously, as per Ext.P1, the said application was rejected on the ground that there is a proposal to widen the Malappuram-Manjeri road under the master plan. Accordingly, the petitioner was directed to submit a revised plan showing the width of the said road as 30 metres in tune with the said master plan. 2. I have heard the learned counsel for the petitioner, the learned standing counsel appearing for the respondents and the **W.P.(C).30327/13** 2 learned Government Pleader. The issue whether a municipality could reject an application for building permit for construction of building on the ground that the land in question is proposed to be acquired under the master plan came up for consideration before this Court in **Padmini v. State of Kerala [1999 (3) KLT 465]** . After considering the relevant provisions, this Court held that a municipality could not reject an application for building permit merely because of a proposal to acquire land under a master plan. Obviously, if at a later point of time, acquisition of the property concerned has become necessary, certainly it would be open to the authorities to acquire the land, in accordance with law. In **Corporation of Thrissur v. Kunjilakutty [2014(1) KLT 188]** , it was held by a Division Bench that rejection of application for building permit on the premise that the land in question falls within the area earmarked as paddy field under a master plan is bad relying on **Padmini** 's case (supra) and the decision of the Hon'ble Supreme Court in **Raju S. Jethmalani v.** **W.P.(C).30327/13** 3 **State of Maharashtra [2005(11) SCC 222]** . Essentially, the sum and substance of the decisions referred (supra) is that a land owner cannot be deprived of property right otherwise than in accordance with law. Merely because there was a proposal to acquire the land under the master plan and if no acquisition proceedings have been effected to effectuate the same it cannot be a reason to compel the land owner to retain or maintain the land as it is. I have no hesitation to hold that such compulsion would tantamount to deprivation of the property right and therefore, would violate Article 300A of the Constitution of India. In view of the decisions referred (supra) and the settled position of law, Ext.P1 order whereby the application for building permit submitted by the petitioner is liable to interfered with. In the result, this writ petition is allowed. Ext.P1 is set aside. There will be a further direction to the second respondent to restore the application submitted by the petitioner for building permit and to consider the same afresh and pass appropriate orders with reference to the **W.P.(C).30327/13** 4 decisions referred (supra). This shall be done expeditiously at any rate within a period of six weeks from the date of receipt of a copy of this judgment. **Sd/C.T. RAVIKUMAR (JUDGE)** **spc/** **W.P.(C).30327/13** 5 ## **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **W.P.(C).30327/13** 6