K. Nagappan Nair v. State of Kerala and Nedumangadu Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **MONDAY, THE 27TH DAY OF JANUARY 2020 / 7TH MAGHA, 1941** ## **WP(C).No.23974 OF 2017(V)** ## **PETITIONER/S:** **K.NAGAPPAN NAIR AGED 51 YEARS,S/O KUTTAPPAN NAIR,'AAYILYAM',KAIRALI SCHOOL JN.,MUKKOLAKKAL,KARIPPOOR VILLAGE,NEDUMANGADU.P.O,THIRUVANANTHAPURAM.** **BY ADVS. SMT.M.SANTHI (K/868/2011) SRI.G.RANJU MOHAN** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT,LOCAL SELF GOVERNMENT,SECRETARIAT,TRIVANDRUM-695001.** **2 MUNCIPAL SECRETARY NEDUMANGADU MUNICIPALITY,TRIVANDRUM-695541.** **R1-2 BY ADV. SRI.P.RAMAKRISHNAN** ## **OTHER PRESENT:** ## **GP PAUL ABRAHAM VAKKANAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.23974 OF 2017(V)** **2** ## **JUDGMENT** ## **Dated this the 27th day of January 2020** The petitioner has approached this Court challenging the decision of the 2[nd] respondent, Secretary Municipality, Nedumangadu, Ext.P2, whereby the application for building permit submitted by the petitioner has been rejected. The petitioner and his wife claim to be the owners in possession of 01.80 ares of property in Sy.No.601/21 of Nedumangadu SRO, which is situated in Nedumangadu village. With an intention to construct a commercial cum residential building submitted an application to the 2[nd] respondent on 14[th] September 2010 in respect of an area of 271 square metre. On consideration of the aforementioned request, the 2[nd] respondent granted the permit, bearing No.E2/12339/10 for a period of three years ie., from 1.12.2010 to 30.11.2013 vide Ext.P1. However, owing to the financial constrains, the petitioner could not raise the construction and submitted an application for extension of the permit, which were resisted on 22.8.2016, Ext.P2 on the ground that the area is meant for road widening owing to the DTP scheme in existence and **WP(C).No.23974 OF 2017(V)** **3** would be in violation of the Kerala Municipality Building Rules 2015. 2. The learned counsel appearing on behalf of the petitioner submits that no change had been effected after granting of the permit nor any date of scheme is reflected from the impugned order and the schemes cannot be kept pending for infinite period. The Kerala Town and Country Planning Act, 2016 came into force with effect from 23[rd] of September 2013 and the 'amenities' provided under **'** Definition 2(b)' include roads, open spaces, parks, recreational grounds, play grounds, water supply, supply of cooking gas, power supply, street lighting, sewerage, drainage, public facilities and other utilities, services and conveniences and 'building' means any structure, for whatsoever purpose and of whatsoever material constructed and every part thereof whether used for human habitation or not and includes foundations, plinth, walls, floors, etc. On commencement of the aforementioned Act, Travancore Town and Country Planning Act 1120, Madras Town Planning Act 1920 and Kerala Town and Country Planning ordinance 2016 stood repealed with the certain saving clauses. Similarly **WP(C).No.23974 OF 2017(V) 4** situated persons, who were refused permit, had approached this Court vide various writ petitions and the aforementioned writ petitions were jointly decided by the decision dated 14[th] February, 2019 by taking a lead case of W.P.(C) No.22180 of 2017. While considering the stand of the State, this Court issued directions to the authority to consider the application of the petitioners, clarify whether the schemes already promulgated are kept in tact or not or to be implemented, or the land meant, for road, is to be acquired and if not, any decision thereon may be taken. She submits that the present writ petition also be disposed of, in terms of the similar directions. 3. Per contra learned Government Pleader submits that the reason assigned was owing to the change in circumstances, as the earlier permission granted was in 2010, whereas the Kerala Municipality Building Rules earlier came into force in 1999 and amended in 2019 but does not dispute the directions contained in the order. However, he also brought to the notice of this Court, the judgment of the Division Bench in **Regional Town Planner v. Muhammed Rasheed (2019 (3) KLT 433),** wherein a Writ Appeal **WP(C).No.23974 OF 2017(V) 5** preferred by the Regional Town Planner against the judgment of the single judge, the directions to consider the application for building permit without adherence to the scheme was set aside. The entire purpose of promulgation of the scheme was to keep the residential, industrial, commercial and areas for parks, roads in public interest. 4. The reasoning assigned in the impugned order was in the context of existence of the scheme and violation of the building by-laws. I am in agreement of the argument of the learned Government Pleader that the area earmarked for the scheme referred to above including the roads, are for the public interest but I cannot remain unmindful that it cannot be kept in abeyance for infinite period. On consideration of the similar grievances, this Court was disposed of the matter vide judgment dated 14[th] February 2019. The same is extracted here under: 5. As I have pointed out earlier, the Act came into force on and with effect from 23.09.2013. Therefore, already the two years period have elapsed even after the introduction of the Act. The Schemes in force are of the year 1976, 1977, 1978 etc. After elapse of two years, if any applicant is issuing a notice, the local body will have to take a decision within sixty days, as is provided under sub-section (2) of Sec.67 of Act, 2016. These writ petitions are pending before **WP(C).No.23974 OF 2017(V)** **6** this Court for the past two to three years, and therefore, I think it is only appropriate that the writ petitions are disposed of with appropriate directions. 6. The local bodies are granted sixty days time to decide as to whether they are proceeding with acquisition of the properties in question in contemplation of Sec.67(1) of Act, 2016, if no decision is taken, then the building permit applications submitted by the petitioners shall be re-considered in accordance with law, at the earliest possible time, and at any rate, within 30 days from the expiry of sixty days period provided above. 7. So far as W.P.(C) No.34384 of 2017 is concerned, the same is in respect of rejection of regularization application submitted by the petitioners, evident from Exts.P8 and P10, on the ground that, the property is required for widening of an existing road. Therefore, the directions contained above will apply to the said case also, and if no decision is taken, the regularization application submitted by the petitioners therein shall be reconsidered in accordance with law, as directed above.” In view of this, I also of the view that the present writ petition can be disposed of with a direction to the Municipality ie., the local body to consider the application of the petitioner, by causing a public notice as to whether the schemes already promulgated are to be implemented in the letter and spirit or otherwise; meaning thereby, whether any plan for expansion is on the anvil or is there any contemplated acquisition for widening of the road. If no **WP(C).No.23974 OF 2017(V) 7** decision is taken within a period of three months, the application of the petitioner already submitted shall be reconsidered in accordance with law, at the earliest possible time, within 30 days thereafter. However, the direction shall not preclude, concerned Local Body/Municipality to afford opportunity of hearing to the petitioner, if necessary. The writ petition stands disposed of. ## **Sd/-** **AMIT RAWAL** sab **JUDGE** **WP(C).No.23974 OF 2017(V)** **8** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXT.P1 THE TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE 2ND RESPONDENT HEREIN DATED 01/12/2010 EXT.P2 TRUE COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DATED 22.08.2016.**