Tenetowl LogoTenetowl
High Court of KeralaSingle JudgeWrit petition allowed; Ext.P2 quashed; liberty ...

P.K. Rajan v. Vadakara Municipality

Case / Petition Number:WP(C).No. 3991 of 2011 (Y)

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C.K. Abdul Rehim
Judgment Date
2011-12-08
Court Decision / Holding
Writ petition allowed; Ext.P2 quashed. The Municipality is at liberty to initiate fresh steps for revocation of the permit, subject to issuing a proposal with explanations/objections and providing a personal hearing. If the petitioner receives any notice proposing revocation, he should refrain from construction until a decision is taken. The petitioner may raise all contentions against any revocation proposal.
Final Disposition
Writ petition allowed; Ext.P2 quashed; liberty to the Municipality to revoke with due process on fresh notice and hearing.

Parties to the Case

Appellants / Petitioners

  • P.K. Rajan

Respondents

  • The Vadakara Municipality represented by the Secretary, Vadakara P.O., Kozhikode District

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri Jamsheed Hafiz

Counsels for Respondents

  • • Sri M. Sasindran, Senior Counsel

Case Synopsis & Summary

This writ petition challenges Ext.P2, by which the Secretary of Vadakara Municipality revoked a building permit issued in favour of P.K. Rajan and co-owners for construction on 36 cents of land in R.S. 247/6C2, Vadakara Village, Kozhikode District. The building permit had been granted despite the property being included in a master plan and proposed for acquisition for a housing colony, prompting the Municipality to revoke it. The petitioner contends that a Town Planning Scheme proposal cannot be a ground to reject a building permit, citing Saidu P. v. State of Kerala (2010(3) KHC 974), and asserts that he has effective remedy under the Kerala Municipality Act; he also relies on Rule 16 of the Kerala Municipality Building Rules, 1999, which requires the owner to be given a opportunity to explain before revocation. The Municipality counters that the permit contained mistakes in issuance and that revocation cannot require substitution of a formal opportunity to explain, arguing Ext.P2 is sustainable. The Court holds that Ext.P2 cannot withstand mandatory requirements and thus quashes it, allowing the Municipality to take fresh steps for revocation after issuing a notice and affording explanations/objections and a personal hearing. It clarifies that the petitioner may raise all contentions against any future revocation proposal and, if notice is issued, construction must halt until a decision is taken. The decision underscores due process in revocation of permits even where a scheme exists.

Provisions of Law Cited

Kerala Municipality ActKerala Municipality Building Rules, 1999Rule 16, Kerala Municipality Building Rules, 1999

Legal Doctrines & Maxims

  • ex facie unsustainable in the eye of law
  • A mere proposal in a Town Planning Scheme which requires acquisition cannot be a ground to reject a building permit

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that revocation cannot be grounded on a mere Town Planning Scheme proposal that envisages acquisition, citing Saidu P. v. State of Kerala (2010(3) KHC 974). He asserts a statutory remedy under the Kerala Municipality Act and relies on Rule 16 of the Kerala Municipality Building Rules, 1999, which requires notice and an opportunity to explain before revocation. No notice or opportunity was given before Ext.P2, rendering it procedurally defective. The petition asks for Ext.P2 to be quashed and for due process to be followed in any fresh revocation action.

Contentions of Respondents

The Municipality argues that the building permit was issued with mistakes and that revocation is permissible when proper procedure and notice precede the decision. It maintains Ext.P2 is sustainable and that the petitioner’s remedy under the Town Planning framework does not bar removal of an erroneous permit. It emphasizes that the proposition in Saidu P. is not binding in this case and that the rule-based hearing prior to revocation must be satisfied in any fresh action.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Saidu P vs. State of Kerala and others2010(3) KHC 974Mentioned OnlyCited to illustrate the proposition that mere Town Planning Scheme proposals cannot automatically reject a building permit; the judgment itself ultimately rests on due-process requirements under Rule 16 and the Kerala Municipality Act, rather than on the cited decision.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against P.K. Rajan v. Vadakara Municipality and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **THURSDAY, THE 8TH DAY OF DECEMBER 2011/17TH AGRAHAYANA 1933** ## **WP(C).No. 3991 of 2011 (Y)** **--------------------------------------** **PETITIONER:** **-------------------** **P.K.RAJAN, S/O,KUNHIRAMAN, PANGATTU THAZHE KUNIYIL, NARAYANA NAGARAM, VADAKARA P.O, PIN 673 101, KOZHIKODE DISTRICT.** **BY ADV. SRI.JAMSHEED HAFIZ.** **RESPONDENT:** **----------------------** **THE VADAKARA MUNCIPALITY, REPRESENTED BY THE SECRETARY, VADAKARA P.O, PIN- 673 101, KOZHIKODE DISTRICT.** **BY ADV. SRI.M.SASINDRAN, S.C.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-12-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C).NO.3991/2011-Y:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXT.P.1: A TRUE COPY OF THE PERMIT ISSUED BY THE RESPONDENT DTD. 22/12/2010.** **EXT.P.2: A TRUE COPY OF THE ORDER DTD. 20/01/2011 BY THE R.1. CANCELLING THE PERMIT ALREADY GRANTED.** ## **RESPONDENT'S EXHIBITS:NIL.** ## **//TRUE COPY//** **P.A. TO JUDGE** **Prv.** ## **C.K.ABDUL REHIM,J.** --------------------------------WP(C) No.3991 OF 2011 --------------------------------Dated this the 8[th] day of December, 2011 ## **J U D G M E N T** Challenge in this writ petition is against Ext.P2, through which the Secretary of respondent Muncipality had revoked the permit issued in favour of the petitioner and other co-owners, for construction of a building in a property of 36 cents comprising in R.S No.247/6C2 of Vadakara Village, in Kozhikode District. In Ext.P2 it is stated that the building permit in question was granted without noticing the fact that the property in question along with other land is proposed for acquisition for establishment of a housing colony by the Municipality, under the scheme formulated in the 'Master plan' and that the property is included in the 'residential zone' under such scheme. 2. The petitioner contented that building permit cannot be rejected on the ground that it is in violation of any town plan scheme, which envisages only a proposal for WP(C) No.3991 OF 2011 2 acquisition . Learned Counsel for the petitioner had drawn my attention to the decisions of this court in **Saidu P vs. State of Kerala and others ( 2010(3) KHC 974** ) wherein it was held that a mere proposal in the Town Planning Scheme which requires acquisition properties or its implementation cannot be a ground to reject the application for building permit. Before going into merits of the revocation of the permit, it is noticed that, the petitioner has got an effective remedy by way of appeal to challenge the decision before the Tribunal for Local Self Government institutions , as per the provisions contained in the Kerala Municipality Act. But learned counsel for the petitioner has drawn my attention to the provisions contained in Rule 16 of the Kerala Municipality Building Rules, 1999 The proviso of the Rule 16 mandates that before revocation of any building permit the owner of the permit shall be given sufficient opportunity to explain and such explanation shall be considered by the secretary. In the case at hand the contention is that before WP(C) No.3991 OF 2011 3 issuing Ext.P2, the petitioner was not issued with any notice or he was not afforded with any opportunity to explain. Hence it appears that the availability of statutory remedy need not be considered as a bar for interference of this court, on the premise that the impugned proceedings is ex facia unsustainable in the eye of law. 3. In the counter affidavit filed on behalf of the Muncipality, it is stated that the petitioner was informed about the mistakes crept in while issuing the building permit. Even if it is assumed that the petitioner had knowledge about any such mistake through information furnished, the same cannot be substituted as an opportunity afforded for providing explanation against revocation of the building permit. Therefore, I am of the view that Ext.P2 cannot withstand the scrutiny of sustainability on the basis of the mandatory requirements . 4. Hence the writ petition is allowed and Ext.P2 is hereby quashed. The Secretary of the Muncipality will be at liberty to take fresh steps for revocation of the permit, if 4 WP(C) No.3991 OF 2011 sustainable under law, by issuing such proposal to the petitioner and after affording him an opportunity to submit explanations / objections, and after affording an opportunity of personal hearing. 5. It is made clear that the petitioner will be at liberty to raise all contentions including the legal aspects raised before this court against proposal if any for revocation of the building permit is issued. However, if the petitioner issued with any notice proposing revocation of the permit he should restrain from proceeding with any construction, till such time a decision is taken by the secretary of the respondent Muncipality. **smm** **C.K.ABDUL REHIM JUDGE** WP(C) No.3991 OF 2011 5 WP(C) No.3991 OF 2011 6