Nandanraj M. v. Kozhikode Municipal Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 4TH DAY OF AUGUST 2020 / 13TH SRAVANA, 1942** ## **WP(C).No.14928 OF 2020(M)** ## **PETITIONER:** **NANDANRAJ M., AGED 36, S/O.RAJAGOPAL M., GREENS, DOOR NO.5/96A, ' EAST WEST LANE, KACHERI VILLAGE, ERENHIPALAM, KOZHIKODE DISTRICT - 673006.** **BY ADVS.** **SRI.ARUN AJAY SHANKAR SRI.JIKKU SEBAN GEORGE SHRI.JAI DEEP SINGH K. SMT.DEEPTI SUSAN GEORGE** ## **RESPONDENTS:** - **1 THE KOZHIKODE MUNICIPAL CORPORATION, CALICUT BEACH, NEAR AKASHAVANI, KOZHIKODE DISTRICT, REPRESENTED BY ITS SECRETARY.** - **2 THE SECRETARY, KOZHIKODE MUNICIPAL CORPORATION CALICUT BEACH, NEAR AKASHAVANI, KOZHIKODE DISTRICT.** ## **SRI.G.SANTHOSH KUMAR, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. --------------------------------------W.P.(C) No. 14928 of 2020 --------------------------------------Dated this the 4[th] day of August, 2020 ## J U D G M E N T The case set up in this Writ Petition (civil) is as follows: _The petitioner herein is the absolute owners in possession of 2.0243 Ares of land comprised in Re-Survey No.54/48,54/4C,54/5 and 54/6 of Vengeri Village, Kozhikode Taluk in Kozhikode District. The property is located in a commercial cum residential neighborhood on Chulliyod road. The property was purchased by petitioner with the sole intention to build a home for his family in Kozhikode City. The petitioner herein had approached the 1[st] respondent by way of an application for building permit dated 26/2/2020 along with the building plan in order to construct a residential building in his property. However to the surprise of the petitioner, on 21/04/2020, the 2[nd] respondent herein issued Ext P5 order rejecting the petitioner's application. The petitioner herein was intimated through the Ext P5 order that the application for building permit was rejected due to the fact that property had been classified as falling under ecologically fragile zone as per the MASTERPLAN FOR KOZHIKODE URBAN_ W.P. © No. 14928 of 2020 ..3.. _AREA, PROPOSED LAND USE PLAN of 2035 (MASTERPLAN 2035) and that no improvements can be made on the said portion of land. It is humbly submitted that, the petitioner is of the belief that his property have been wrongly classified as one falling under the ecologically fragile zone. The petitioner's property falls on Chulliyod road under the area marked as "34" in Ext P6 map. It is clearly evident that the area marked as 34 also has properties under the non-ecologically fragile zone and the petitioner is of the belief that his property falls under the residential zone in area marked as 34 in Ext P6 and that he has been wrongly classified as one falling under the Ecologically Fragile Zone in area marked as 34 in Ext P6 map. It is submitted that even if the property is included in the master plan and is classified as an ecologically fragile zone, the responsibility is cast upon the corporation to either purchase the property from the owner as per Section 67 of the Kerala Town and Country Planning Act 2016, so that the nature of the land as classified under the MASTERPLAN is maintained as envisaged by the administration or if the respondent has no such intention then_ W.P. © No. 14928 of 2020 ..4.. _they may vary the master plan accordingly and allow construction by the owner of the property thus not handicapping the citizen with a property with no use to him as an asset. No such action has been taken by the respondent herein so as to relieve the petitioner. This Court in Surathmaja Vs. Thiruvananthapuram Corporation and Ors - 2020 (1) KHC 304, 2020(1)KLT283, has emphasized that, the administration cannot deny the right of a land owner perpetually under the guise of a master plan for development, either the authority has to purchase the property or allow the owner to improve the land. The action of the respondent is in contravention of the provisions of Kerala Town and Country Planning Act, 2016._ It is in the light of the abovesaid averments and contentions that the petitioner has filed the instant Writ Petition (Civil) with the following prayers: “ i. _To issue a writ of mandamus or any other appropriate writ, order or direction, directing the 2[nd] respondent herein to set aside Exhibit P5 order._ ii. _To issue a writ of mandamus or any other appropriate writ, order or direction, directing the 2[nd] respondent herein to reconsider the application for building permit submitted on 26/02/2020 which resulted in Ext P5 and pass fresh orders in the same within a time limit to be fixed by this Hon'ble Court;_ iii. _To issue a writ of mandamus or any other appropriate writ,_ W.P. © No. 14928 of 2020 ..5.. _order or direction, directing the 2[nd] respondent to grant building permit to the petitioner to construct his residential home in the above mentioned piece of land._ - iv. _Or in the contrary, to issue a writ of mandamus or any other appropriate writ, order or direction, directing the 2[nd] respondent to purchase the property of the petitioner if the property does fall under the Ecologically Fragile Zone as per the Masterplan 2035 for Kozhikode Corporation as per the provisions of Kerala Town and Country Planning Act, 2016._ - _v. Issue any other appropriate writ, order or direction, which this Hon'ble Court deem fit in the circumstances of the case.”_ 2. Heard Sri.Arun Ajay Shankar, learned counsel appearing for the petitioner and Sri.G.Santhosh Kumar, learned Standing Counsel for the Kozhikode Municipal Corporation appearing for the respondents. 3. The petitioner has raised various contentions on the merits of the matter including those based on the dictums laid down by this Court in the decisions as in _**Surathmaja v. Thiruvananthapuram Corporation and Ors [2020 (1)**_ _**KLT 283].**_ Apart from that, the counsel for the petitioner would point out that the impugned rejection order as per Ext.P-5 dated 21.4.2020 has been rendered by the 2[nd] respondent Secretary of Kozhikode Municipal Corporation without prior notice or without affording prior reasonable opportunity of being heard to the W.P. © No. 14928 of 2020 ..6.. petitioner. It is thus pointed out that since such an adverse order in the nature of Ext.P-5 rejecting the plea for grant of building permit should be rendered only after affording opportunity of being heard to the affected party, and therefore the impugned order is liable for interdiction on that sole ground . 4. After hearing both sides this Court is of the view and that too without getting into the merits of the controversy in any manner that, the impugned Ext.P-5 rejection order is liable for interdiction on the sole ground of blatant violation of elementary principles of natural justice and fairness inasmuch as such an adverse order has been passed without hearing the affected party. Moreover a reading of Ext.P-5 order would disclose that none of the vital contentions raised by the petitioner has not even remotely considered therein. In that view of the matter it is ordered that the matter would require serious reconsideration at the hands of the 2[nd] respondent afresh. For effectuating such a remit it is ordered that the impugned Ext.P-5 rejection order will stand set aside and quashed and consequently the application of the petitioner for grant of building permit as referred to in Exts.P-4 & P-5 will stand W.P. © No. 14928 of 2020 **==> picture [18 x 9] intentionally omitted <==** remitted to the 2[nd] respondent Secretary of Municipal Corporation for consideration and decision afresh. 5. The 2[nd] respondent will afford reasonable opportunity of being heard to the petitioner through authorized representative/counsel if any, and should consider the various contentions of the petitioner including the wrong classification of subject property in the ecologically fragile zone, as well as the other contentions including the one based on the dictum laid down by this Court in the decisions as in _**Surathmaja v. Thiruvananthapuram Corporation and Ors [2020 (1) KLT 283]**_ and pass orders afresh on the said application for grant of building permit, without much delay preferably within a period of one month from the date of production of a certified copy of this judgment. 6. The petitioner will produce a certified copy of this judgment along with copy of memorandum of this WP© along with his written submission and with a copy of the reported decision in _**Surathmaja v. Thiruvananthapuram Corporation and Ors [2020 (1) KLT 283]**_ , to the W.P. © No. 14928 of 2020 **==> picture [20 x 9] intentionally omitted <==** 2[nd] respondent Secretary of Municipal Corporation for necessary information and further action. With these observations and directions, the above writ Petition (civil) will stand finally disposed of. Sd/ ALEXANDER THOMAS, JUDGE MMG W.P. © No. 14928 of 2020 ..9.. ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE POSSESSION CERTIFICATE DATED 18/02/2020.** **EXHIBIT P2** **A TRUE COPY OF THE GOOGLE MAP EXTRACT OF THE AREA.** **EXHIBIT P3** **A TRUE COPY OF THE TAX RECEIPT DATED 26/06/2019.** **EXHIBIT P4 A TRUE COPY OF THE BUILDING PLAN.** **EXHIBIT P5** **A TRUE COPY OF THE REJECTION ORDER DATED 21/04/2020 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P6** **A TRUE COPY OF THE LAND USE MAP PUBLISHED BY THE 1ST RESPONDENT HEREIN ON THEIR WEBSITE AND THE EXTRACTED RELEVANT PORTION OF THE MAP.**