M.P.RAJAKRISHNAN v. THALASSERY MUNICIPALITY & ORS

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. N. Ravindran
Judgment Date: 2012-06-01
Court Decision / Holding: Writ petition allowed; Ext.P3 quashed; petitioner entitled to proceed with construction in accordance with the building permit and the approved plan.
Final Disposition: Writ petition allowed; Ext.P3 quashed; petitioner to proceed with construction as per permit and approved plan.

Parties to the Case

Appellants / Petitioners

M.P. Rajakrishnan

Respondents

Thalassery Municipality
District Collector, Kannur
State of Kerala
Project Director, JBIC Projects, Kerala Water Authority

Legal Representation & Advocates

Counsels for Petitioners

• Sri R. Surendan

Counsels for Respondents

• Sri I.V. Pramod
• Maya (Government Pleader)
• Sri Joseph John (SC, Kerala Water Authority)
• Sri Millu Dandapani

Case Synopsis & Summary

The petitioner, M.P. Rajakrishnan, owner of 6.48 acres in R.S. No. 36/2B at Talassery, Kannur, obtained Ext.P2 building permit (issued 7 April 2011) to construct a residential building on the land. After commencement of construction, Ext.P3, a show‑cause notice dated 25 April 2011, was issued by the Thalassery Municipality seeking to cancel the permit on the ground that the land is sought to be acquired for a water tank. The petitioner replied (Ext.P4, 14 May 2011) arguing that no notification under the Land Acquisition Act, 1894 (LA Act) had been issued and, consequently, there was no suppression of material facts. The second respondent stated that acquisition proceedings had begun but no Section 4(1) notification had been published; the District Collector indicated that a request to acquire had been received and registry actions were in preliminary stages. The court noted a consistent line of authority, including Padmini v. State of Kerala, that building permits cannot be refused merely because land may be acquired in the future unless a Section 4(1) notification exists. As of the date of hearing, no such notification had been issued. The judge quashed Ext.P3, allowed the writ petition, and held the petitioner is entitled to proceed with construction in accordance with the permit and approved plan.

Provisions of Law Cited

Kerala Municipality Act, section 393(1)(vii)Land Acquisition Act, 1894, section 4(1)

Legal Doctrines & Maxims

A building permit cannot be denied merely on the ground that the land is likely to be acquired in the future in the absence of a Section 4(1) notification under the LA Act; acquisition proceedings commence only upon such notification.
Acquisition proceedings commence upon notification under Section 4(1) LA Act.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argued that Ext.P3 is unsustainable as no notification under the Land Acquisition Act, 1894 Section 4(1) had been issued; there is no suppression of material facts, and denial of the permit cannot be based merely on prospective acquisition where the statutory prerequisite (Section 4(1) notification) is absent. The building permit was issued in accordance with law and approved plans, with no valid basis to cancel under the current facts. The petition cites Padmini v. State of Kerala to assert that future acquisition cannot defeat a valid permit prior to notification.

Contentions of Respondents

The respondents contended that the land is intended for acquisition for a water tank project; acquisition proceedings were initiated and a Section 4(1) notification would eventually be issued. The petitioner's knowledge of these plans and the Government’s direction to acquire could justify cancellation or modification of the permit once proper prerequisites are met.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Padmini v. State of Kerala	1999 (3) KLT 465	Positive	The court cites and follows Padmini to hold that denial of a building permit on the ground of future acquisition is not sustainable without a Section 4(1) notification.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **FRIDAY, THE 1ST DAY OF JUNE 2012/11TH JYAISHTA 1934** ## **WP(C).No. 26113 of 2011 (L)** **---------------------------** **PETITIONER(S) :** **---------------------** **M.P.RAJAKRISHNAN, AGED 57 YEARS, COOLIE, RESIDING AT SHANKAR NIVAS, NETTUR P.O., THALASSERY, KANNUR DISTRICT, PIN - 670 105.** **BY ADV. SRI.R.SURENDRAN** **RESPONDENT(S) :** **------------------------** **1. THALASSERY MUNICIPALITY, REPRESENTED BY THE SECRETARY, THALASSERY MUNICIPALITY, THALASSERY, PIN - 670 101.** **2. THE DISTRICT COLLECTOR, KANNUR, PIN - 670 001.** **3. STATE OF KERALA, REPRESENTED BY SECRETARY TO LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.** **4. THE PROJECT DIRECTOR, JBIC PROJECTS, KERALA WATER AUTHORITY, THANA, KANNUR, KANNUR DISTRICT, PIN - 670 001.** - **R1 BY ADV. SRI.I.V.PRAMOD R2 & R3 BY SMT.MAYA, GOVERNMENT PLEADER R4 BY ADV. SRI.JOSEPH JOHN, SC, KERALA WATER AUTHORITY BY ADV. SRI.MILLU DANDAPANI (NO MEMO)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AMV** ## **WP(C).No. 26113 of 2011 (L)** ## **APPENDIX** **PETITIONER(S) EXHIBITS :** |**P1.**|**:**|**COPY OF SALE DEED DATED 14.03.2011 REGISTERED AS**| |---|---|---| |||**DOCUMENT NO.701 OF 2011 OF SRO THALASSERY.**| |**P2.**|**:**|**COPY OF BUILDING PERMIT NO.ODP/E3/BA-1/11-12 ALONG WITH**| |||**THE APPROVED PLANS.**| |**P3.**|**:**|**COPY OF ORDER AND NOTICE DATED 25.04.2011 ISSUED BY THE**| |||**1ST RESPONDENT TO THE PETITIONER.**| |**P4.**|**:**|**COPY OF REPLY DATED 14.05.2011 ISSUED BY THE PETITIONER**| |||**TO THE 1ST RESPONDENT.**| |**P5.**|**:**|**COPY OF REPRESENTATION DATED 16.05.2011 FILED BY THE**| |||**PETITIONER BEFORE THE SECOND RESPONDENT AND THE**| |||**ENDORSEMENT MADE BY THE SECOND RESPONDENT.**| |**P6.**|**:**|**COPY OF HEARING NOTICE DATED 04.06.2011 ISSUED BY THE 1ST**| |||**RESPONDENT TO THE PETITIONER.**| |**P7.**|**:**|**COPY OF REQUISITION FOR ACQUISITION DATED NIL, FILED BY**| |||**THE FIRST RESPONDENT BEFORE THE SECOND RESPONDENT.**| **RESPONDENTS' EXHIBITS : NIL** ## **/TRUE COPY/** ## **P.A.TO JUDGE** **AMV** ## **P.N.RAVINDRAN, J.** ## **----------------------------------------W.P(C).No.26113 of 2011 ----------------------------------------Dated this the 1[st] day of June, 2012** ## **JUDGMENT** The petitioner is the owner of 6.48 Ares of land situate in R.S.No.36/2B of Talassery Village, Thalassery Taluk, Kannur district. He purchased the property as per Ext.P1 sale deed dated 14.3.2011. He thereafter applied for a building permit to put up a residential building in the said parcel of land. Ext.P2 building permit was thereupon issued on 7.4.2011. After the petitioner commenced construction of the building, the Secretary of the Thalassery Municipality issued Ext.P3 notice dated 25.4.2011 calling upon the petitioner to show cause why the building permit issued to him should not be cancelled. It was alleged that he had obtained the building permit by suppressing the material fact that the land in respect of which he applied for a building permit is land which is sought to be acquired for the purpose of putting up a water tank. By Ext.P3 notice the petitioner was also restrained from proceeding with the construction of the building. The petitioner thereupon submitted Ext.P4 reply dated 14.5.2011 **W.P(C).No.26113 of 2011** -:2:- wherein he inter alia contended that no notification under the Land Acquisition Act, 1894 has been issued to acquire his property and therefore it cannot be said that he had suppressed material information when he filed the application for building permit. After Ext.P4 reply was submitted, the Secretary, Thalassery Municipality issued Ext.P6 notice dated 4.6.2011 calling upon the petitioner to be present for a personal hearing at 11 a.m., on 14.6.2011. The petitioner appeared before the Secretary on that day and he was heard. This writ petition was filed on 29.9.2011 contending that though three months have passed thereafter, till date final orders have not been passed pursuant to Ext.P3 notice. It is contended that the land in respect of which the building permit was obtained has not so far been notified for acquisition and therefore Ext.P3 show cause notice is liable to be quashed. 2. The learned standing counsel appearing for the first respondent has filed a statement dated nil, wherein it is stated that there is a proposal to construct a water tank with a capacity of 12,00,000 litres as part of a water supply scheme in the petitioner's lands, that the Government have granted permission to the Municipality to acquire the land, that the District Collector has already been addressed to initiate proceedings to acquire the land, that the predecessors-in-interest of the petitioner were ## **W.P(C).No.26113 of 2011** -:3:- aware of the fact that the land is going to be acquired, that it was with such knowledge that he purchased the land, but he did not divulge these facts to the Municipality and therefore, the permit is liable to be cancelled. 3. The second respondent has filed a statement dated 16.2.2012 wherein it is stated that a request for acquisition was received by the second respondent on 2..12.2011, that it was returned to the Secretary, Thalassery Municipality to rectify the defects and it was re-submitted on 5.5.2011 after rectifying the defects. It is also stated that the acquisition proceedings is only at the preliminary stage. 4. When this writ petition came up for hearing on 30.5.2012 Sri.John Joseph, learned standing counsel appearing for the Kerala Water Authority, submitted that a notification under section 4(1) of the Land Acquisition Act, 1894 has been issued. In view of that submission the writ petition was adjourned to this day in order to enable the learned standing counsel for the Kerala Water Authority to make available a copy of the said notification. When the writ petition came up for further hearing today, Sri.John Joseph, learned standing counsel appearing for the Kerala Water Authority, submitted that till date a notification under section 4(1) of the Land Acquisition Act, 1894 has not been issued. The ## **W.P(C).No.26113 of 2011** -:4:- learned Government Pleader was also not in a position to state otherwise. It is evident from the materials on record that even as on today a notification under section 4(1) of the Land Acquisition Act, 1894 has not been issued. 5. It has been consistently held in a series of decisions of this Court, including the decision of the Division Bench in _**Padmini v. State of Kerala,**_ 1999 (3) KLT 465 that refusal of a building permit on the ground that the land in which the building is proposed to be constructed is likely to be acquired in future, is not a reason to deny the building permit. It was held that a building permit can be refused under section 393 (1)(vii) of the Kerala Municipality Act only if the land is under acquisition proceedings. In the instant case even a notification under section 4(1) of the Land Acquisition Act, 1894 had not been issued on the date on which Ext.P2 building permit was issued or on the date on which Ext.P3 show cause notice is issued. Even as on today, the notification under section 4(1) has not been issued. The proceedings for acquisition of land can be said to have commenced only on a notification under section 4(1) of the Land Acquisition Act, 1894. That having not been done, I am of the opinion that Ext.P3 show cause notice cannot be sustained. Even otherwise, as contended by the respondents, if the land is ## **W.P(C).No.26113 of 2011** -:5:- proposed to be acquired, the Municipality should be deemed to be aware of the proposal to acquire the land. The petitioner cannot therefore be held responsible for having given wrong information when he applied for the building permit, especially since a notification under section 4(1) of the Land Acquisition Act, 1894 had not been issued. I am therefore, of the considered opinion that Ext.P3 show cause notice and the proceedings taken to cancel Ext.P2 permit on the grounds stated therein cannot be sustained. I accordingly allow the writ petition and quash Ext.P3. Consequently, the petitioner will be entitled to proceed with the construction of the building in accordance with the building permit and the approved plan. **P.N.RAVINDRAN, Judge.** **ahg.** **P.N.RAVINDRAN, J. --------------------------W.P(C).No.26113 of 2011 ----------------------------** ## **JUDGMENT** **1[st] June, 2012**