K. Vidyadhar Shenoy v. The Secretary, Thalassery Municipality, Thalassery; The Thalassery Municipality represented by the Secretary

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 11TH DAY OF JUNE 2014/21ST JYAISHTA, 1936 WP(C).No. 14120 of 2014 (L) ---------------------------- PETITIONER(S): ----------------- K.VIDYADHAR SHENOY, AGED 52 YEARS S/O. LATE K. RAMA SHENOY, BUSINESSMAN, RESIDING AT 'RAM' THIRUVANGAD, THALASSERY-670103, THALASSERY TALUK KANNUR DISTRICT. BY ADV. SRI.R.SURENDRAN RESPONDENT(S): ------------------- 1. THE SECRETARY THALASSERY MUNCIPALITY, THALASSERY.P.O. KANNUR DISTRICT-670101. 2. THE THALASSERY MUNICIPALITY REPRESENTED BY THE SECRETARY, THALASSRY MUNICIPALITY THALASSERY, KANNUR DISTRICT-670101. R1 & 2 BY ADV. SRI.I.V.PRAMOD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 14120 of 2014 (L) ---------------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS: ----------------------------- - P1. TRUE COPY OF THE WILL EXECUTED BY K. RAMA SHENOY ON 12-2-2008 & REGISTERED AS DOCUMENT NO.21 OF 2008 OF SRO THALASSERY. - P2. TRUE COPY OF THE BASIC TAX RECEIPT DATED 17-4-2013 IN RESPECT OF THE PROPERTY OWNED AND POSSESSED BY THE PETITIONER. - P3. TRUE COPY OF THE REJECTED PLANS WITH THE ENDORSEMENT 'REJECTED' MADE BY THE SECOND RESPONDENT. - P4. TRUE COPY OF THE ORDER DATED 17-5-2014 REJECTING THE APPLICATION FOR APPROVAL OF BUILDING SITE AND GRANT OF BUILDING CONSTRUCTION PERMIT ISSUED BY THE SECOND RESPONDENT. - P5. TRUE COPY OF THE JUDGMENT DATED 31-1-2013 IN WPC NO. 1610 OF 2013. - P6. TRUE COPY OF THE JUDGMENT DATED 18-12-12 IN WPC NO. 28445 OF 2012 ON THE FILE OF THIS HONOURABLE COURT. ## RESPONDENT(S)' EXHIBITS: ------------------------------- //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== W.P.(C). No.14120 OF 2014 ==========================** Dated this the 11[th] day of June, 2014 ## **JUDGMENT** The petitioner who is the owner in possession of 1.56 cents of land comprised in T.S.No.312 of Block 8 of Ward 16 of Thiruvangad amsom desom in Thalassery Municipality filed this writ petition on being aggrieved by the rejection of his application for building permit as per Ext.P4. It is stated therein that the western side of the property in question lies within the area covered by the scheme 'Development for Tellicherry Town Part Variation, 2007 and in that area, there is a proposal to widen the road to an extent of 20 metres. It is also stated therein that leaving such a width would cause shortfall in the requisite set back of 3 metres on the front side and therefore, his application for building permit could not be considered. The contention of the petitioner is that existence of a proposal for road widening could not be assigned as a reason for rejecting an application for building permit **W.P.(C).14120/14** 2 in the light of the decision of this Court in **Padmini v. State of kerala [1999 (3) KLT 465].** 2 **.** I have heard the learned counsel for the petitioner and the learned standing counsel appearing for respondents. The learned standing counsel submitted that there is a proposal to acquire the land in terms of a scheme mentioned above and therefore, in view of the reasons assigned in Ext.P4, the request of the petitioner for grant of building permit could not be granted. It is further submitted that the petitioner may be directed to implead the Government as a party to this writ petition, in view of the existence of such a proposal. 3. The impugned order would reveal that the application of the petitioner for building permit was rejected based on a proposal to widen the road to make the width 20 metres in the area that lies on the western side covered by the scheme Development for Tellicherry Town Part Variation, 2007. It is also stated therein that providing a set **W.P.(C).14120/14** 3 back of 3 metres on the front side would not be possible in case of leaving the said required width. There can be no doubt with regard to the position that the question of providing set back on any side owing to the existence of a road has to be considered with reference to the actual state of affairs of the road and not with reference to a proposal to widen the road in question. A mere proposal cannot be a reason for holding shortfall in the set back. Even if an approved scheme is there, the question to be decided is whether for effectuating the scheme any acquisition proceedings have been already initiated and in other words, whether the land in question is under acquisition proceedings. In case no such acquisition proceedings have been initiated, the application for building permit could not be rejected assigning such a reason as has been stated in Ext.P4 in the light of the decision of the Hon'ble Apex Court in **Raju S.Jethmalani v. State of Maharashtra [2005(11) SCC 222]** and **Padmini's** case (supra) **.** The decision in **Padmini** 's case was rendered taking into account all such aspects and also the decision in **Raju S.Jethmalani's** case (supra). Going by the **W.P.(C).14120/14** 4 decision in **Padmini's** case (supra), even if there is such a proposal for road widening, in the absence of existing land acquisition proceedings to effectuate such a proposal, the mere proposal could not be assigned as a reason to deny, rather, deprive the right available to a person to enjoy his property. If, at a later point of time, any requirement to acquire the said property arises, certainly, it will be open to the respondents to take recourse to acquisition proceedings, in accordance with law. At any rate, that cannot be a reason for rejecting an application for building permit and any such rejection merely based on such a proposal would violate the provisions under Article 300-A of the Constitution of India, as well. In the said circumstances, in the light of the decision of this Court in **Padmini's** case (supra) and Ext.P5 judgment I am of the view that Ext.P4 to the extent it rejected the application on the aforesaid ground cannot be sustained. In the result, Ext.P4 to the extent it rejected the application submitted by the petitioner on the aforesaid grounds is set aside. There will be a consequential direction to the first respondent to consider the **W.P.(C).14120/14** 5 application submitted by the petitioner for building permit in the aforesaid property afresh taking into account the observations in this judgment and also in the decision in **Padmini's** case (supra) and pass appropriate orders thereon, in accordance with law. Such a consideration shall be made expeditiously, at any rate, within a period of one month from the date of receipt of a copy of this judgment. The writ petition is disposed of accordingly. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **spc/** **W.P.(C).14120/14** 6 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **W.P.(C).14120/14** 7