M. Ahmed Juned v Malappuram Municipality and The Secretary, Malappuram Municipality

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN FRIDAY, THE 1[ST] DAY OF MARCH 2024 / 11TH PHALGUNA, 1945 WP(C) NO. 3541 OF 2024 ``` ## **`PETITIONER:`** ``` M. AHMED JUNED AGED 23 YEARS S/O. JUNED YAKUBBHAI MOTIWALA, RANDER CAUSWAY ROAD 29-A/B USMANI PARK SOCIETY, BEHIND SHABNAM PARK, SURAT CITY, RANDER P.O, RANDER VILLAGE, ADAJAN TALUK, SURAT DISTRICT, GUJARAT - 395 009 (REPRESENTED BY POWER OF ATTORNEY HOLDER ANCHUKANDAN MUHAMMED KOYA, AGED 53 YEARS, S/O. KUNHAVARAN, ANCHUKANDAN HOUSE, VENGARA VILLAGE, VALIYORA AMSOM, KURUKA DESOM, THIRURANGADY TALUK P.O, VENGARA, MALAPPURAM DISTRICT - 676 304.) PIN – 395 009. ``` ``` BY ADVS. ABDUL JAWAD K. A.GRANCY JOSE ``` ## **`RESPONDENTS:`** - **`1 THE MALAPPURAM MUNICIPALITY REPRESENTED BY ITS SECRETARY, OFFICE OF THE MALAPPURAM MUNICIPALITY, MALAPPURAM P.O, MALAPPURAM, PIN – 676 505.`** - **`2 THE SECRETARY, MALAPPURAM MUNICIPALITY OFFICE OF THE MALAPPURAM MUNICIPALITY, MALAPPURAM P.O, MALAPPURAM, PIN – 676 505.`** ``` SR.GP. - SMT.K.AMMINIKUTTY SRI. K.I ABDUL RASHEED ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.3541 OF 2024 ``` ``` 2 ``` ## **`JUDGMENT`** ## The petitioner has filed this writ petition for ## the following reliefs:- “i) To call for the records leading to Ext.P1 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 building permit de hors the reason stated as defect No.2 in Ext.P1 order and to grant building permit in accordance with law within a time frame fixed by this Hon’ble Court.” 2. The petitioner is the owner in possession of an extent of 8.38 Ares of land comprised in Sy. Nos.69/1/1 and 69/1/2 of Panakkad Village, Ernad Taluk, Malappuram District. The petitioner submitted an application for building permit before the 2[nd] respondent, the Secretary of the 1[st] respondent Municipality. Thereupon, the 2[nd] ``` WP(C).No.3541 OF 2024 ``` ``` 3 ``` respondent issued Ext.P1 communication rejecting the application noting two defects. According to the petitioner, the first one is a curable defect. The second defect pointed out is that the petitioner has not complied with the road widening proposal in the master plan. 3. The petitioner submits that the master plan referred to in Ext.P1 has not materialised so far and has become obsolete. The petitioner has therefore, submitted Ext.P2 application before the 1[st] respondent under Section 67 (1) of the Kerala Town and Country Planning Act, 2016 (for short, 'the Act') requiring to purchase the interest in land. The has endorsed its on Municipality acceptance 04.08.2023. The petitioner submits that the statutory period of sixty days as mandated under Section 67 (2) of the Act is over and the 1[st] respondent has not taken any decision to acquire ``` WP(C).No.3541 OF 2024 ``` ``` 4 ``` the land within the said period. Accordingly, the petitioner contends that he is entitled to be issued with building permit. 4. Heard the learned counsel for the petitioner and the learned Standing Counsel for the Municipality. 5. Though the petitioner has submitted Ext.P2 purchase notice, admittedly, no orders have been passed thereon and the property has not been decided to be acquired. Therefore, the legal consequences contemplated under Section 67(2) of the Act have to follow. A Division Bench of this Court, in **District Town Planner, Malappuram and Others v. Vinod and Others** [2019 (3) KHC 673], considering the scope of Section 67 of the Act has held as follows:- “10. The provisions of Section 67 of the Act, 2016 are intended to balance the conflicting rights of the State and the private individual. While the State has the right to reserve lands ``` WP(C).No.3541 OF 2024 ``` ``` 5 ``` for development proposals in public interest, the said right cannot be exercised in a manner designed to frustrate the Constitutional rights of the private individual under Article 300A, to deal with his property in the manner he chooses. A balance is therefore struck by directing the State to take affirmative action for implementing the proposal within a specified time - frame, failing which, the private individual is to be given the unfettered freedom to use his land for other permissible purposes.” 6. Another Division Bench of this Court, in **Town Planner, District Town Planning Officer v. Joseph Jacob** [2023 KHC 145 : 2023 (2) KLT 35], has held that once a purchase notice is issued and the authority failed to act within the time as stipulated under the statute, the right is crystallised on the land owner to use the land for any purpose in accordance with law and he is not bound by the approved master plan or the DTP Scheme. The Court observed as follows:- “10. The proviso to Section 67 of the Act stipulates the local authority to act upon the applications for building permits etc. in ``` WP(C).No.3541 OF 2024 ``` ``` 6 ``` consultation with the Chief Town Planner. This is only to ensure that Chief Town Planner is put on notice in regard, not acquiring the land which was proposed to be acquired in the Master Plan or DTP Scheme. That itself is not an embargo for the local authority in acting upon the building permit application in accordance with law. 11. It is also to be noted that the consultation referred to in proviso to Section 67 of the Act cannot be treated as concurrence of Chief Town Planner for granting development permit. The embargo on the land would stand automatically released from the approved Master Plan or the DTP Scheme after the lapse of period mentioned in the purchase notice. 12. In such circumstances, we are of the view that the rest of the matters are only a formality to be completed for the purpose of the record of the administration of the public authorities.” 7. In the light of the said binding precedents, the application of the petitioner for building permit has to be considered in accordance with law as the respondents have failed to act upon the purchase notice sent by the petitioner within the stipulated period. Accordingly, Ext.P1 is set aside and there ``` WP(C).No.3541 OF 2024 ``` ``` 7 ``` will be a direction to the 2[nd] respondent to process the application submitted by the petitioner for building permit and pass orders in accordance with law, within a period of one month from the date of receipt of a copy of this judgment, without reference to defect No.2 in Ext.P1. The writ petition is disposed of with the above direction. Sd/- ## **`MURALI PURUSHOTHAMAN`** ``` JUDGE ``` SPR ``` WP(C).No.3541 OF 2024 ``` ``` 8 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1A TRUE COPY OF THE ORDER NO.B.A 1/2023-24 DATED 13/06/2023 ISSUED BY THE 2ND RESPONDENT. ``` ``` EXHIBIT P2A TRUE COPY OF THE PURCHASE NOTICE DATED 03/08/2023 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT MUNICIPALITY. EXHIBIT P3A TRUE COPY OF JUDGMENT DATED 27/07/2023 IN A SIMILAR CASE IN W.P.(C).16439/2023. ``` ``` RESPONDENTS EXHIBITS: NIL. ```