Kerala High Court
Kunhimoideen vs Manjeri Municipality
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
TUESDAY, THE 29TH DAY OF MAY 2012/8TH JYAISHTA 1934
WP(C).No. 31546 of 2011 (P)
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PETITIONER(S):
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1. KUNHIMOIDEEN, S/O. HYDROSE,
VARANGOTTU HOUSE, MULLAMPARA, MANJERI.P.O.
MALAPPURAM DISTRICT.
2. HUSSAIN, S/O.SAIDALAVI,
VARANGOTTU HOUSE, MULLAMPARA, MANJERI.P.O.
MALAPPURAM DISTRICT.
BY ADV. SRI.P.VENUGOPAL (1086/92)
RESPONDENT(S):
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1. MANJERI MUNICIPALITY,
MANJERI, MALAPPURAM DISTRICT
REPRESENTED BY ITS SECRETARY-676 121.
2. SECRETARY,
MANJERI MUNICIPALITY, MANJERI
MALAPPURAM DISTRICT-676 121.
3. STATE OF KERALA,
REPRESENTED BY THE DISTRICT COLLECTOR
MALAPPURAM-676 001.
R1 & R2 BY ADV. SRI. K.SHIBILI NAHA
R3 BY SPL. GOVERNMENT PLEADER SRI. P. JAYASANKAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DCS
WP(C).No. 31546 of 2011 (P)
APPENDIX
PETITIONER(S) EXHIBITS :-
EXHIBIT P1: COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE
OFFICER, MANJERI IN FAVOUR OF THE PETITIONER
EXHIBIT P2: COPY OF THE SITE PLAN SHOWING THE LOCATION OF THE
PROPERTY OF THE PETITIONER
EXHIBIT P3: COPY OF THE NOTICE/ORDER VIDE NO:B.A/506/11-12 DATED 16-11-
2011 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONERS
RESPONDENTS' EXHIBITS :- NIL
/TRUE COPY/
P.A. TO JUDGE
DCS
C.K. ABDUL REHIM, J.
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W.P.(c) No. 31546 OF 2011-P
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DATED THIS THE 29th DAY OF MAY, 2012
J U D G M E N T
Application submitted by the petitioners seeking building permit for construction of a commercial building was rejected by the 2nd respondent through Ext.P3 assigning the reason that if the construction is permitted that will cause obstruction to a proposed 7 meter wide Road included in the Master Plan as per the DTP scheme.
2. Petitioners contended that there are number of commercial and other buildings in existence in the area in question, for the construction of which building permits were already been granted by respondents 1 and 2. It is further contended that the alleged DTP scheme has not been implemented and no proposal or proceedings has been initiated for acquisition of land for the purpose of implementation of such a scheme, since last so many years.
3. In the counter affidavit of the 1st respondent it is admitted that there are commercial buildings already W.P.(c) No.31546/2011 -2- constructed in the area, which were put of several years prior to notification of the DTP scheme, which was approved by the Government as early as on 19-06-1990 and published in accordance with Section 14 (3) of the Madras Town Planning Act, 1920. It is further admitted that no proceedings for acquisition of any land was initiated so far, for construction of the road in question.
4. Heard Sri. K. Shibili Naha, learned standing counsel appearing for respondents 1 and 2 and Sri. P. Jayasankar, learned special Government Pleader. While considering the issue I take note of the decision of the Hon'ble Supreme Court in Raju S. Jethmalani V. State of Maharashtra ((2005) 11 SCC 222), wherein it is held that the absolute rights vested on the owner of any property, which is a right protected under Article 14 of the Constitution of India, cannot be deprived of merely on the basis of any proposal under the Town Planning Scheme or under any other Developmental scheme formulated by the Government or by the local authority, unless such scheme is notified and effective steps for acquisition of land is W.P.(c) No.31546/2011 -3- initiated. In Padmini V. State of Kerala (1999 (3) KLT
465) this court held that mere inclusion of the property in the zonal classification is not a ground to deny building permit.
5. In Shivaprasad V. State of Kerala (2011 (1) KLT 690, a learned Judge of this Court observed that various provisions of the Madras Town Planning Act, 1920 are inconsistent with the Kerala Municipality Act, 1994 and they are inconsistent with Part-IXA of the Constitution, and it became unworkable in the light of the conflicting provisions in which case the Municipality Act, 1994 will prevail. After elaborate reference to various provisions of the Constitution of India under Part IXA, this court held that the Madras Town Planning Act, 1920 cannot survive in the light of the Kerala Municipality Act, 1994, enacted on the basis of Part IXA of the Constitution.
6. Even though Sri. Jayasankar, learned special Government Pleader, had pointed out that the decision in Sivaprasad's case (cited supra) is under challenge in writ appeal and the operation of the said judgment has been W.P.(c) No.31546/2011 -4- stayed, I take note of the fact that the legal dictum remains unsettled. Even though the said decision has no binding precedent, I am of the view that the principles laid therein can be followed, especially in view of the dictum contained in Abdu Rehiman V. District Collector, Malappuram (2009 (4) KLT 485.
7. On the facts of the case at hand, it is pertinent to note that it is not stated in Ext.P3 that no permission can be granted in an area which is classified as 'Mixed zone'. In view of the discussion made herein above, I do not think that the denial on the basis of a DTP scheme alleged to have been notified during the year 1990 under the Madras Town Planning Act, 1920 can survive at present. Further, in view of the non-implementation of the scheme and inaction on the part of respondents in taking any steps for acquisition of land for establishing the road in question, the reason mentioned in Ext.P3 based on the proposed for construction of a new road, cannot be sustained.
8. Therefore, I am of the opinion that the reason for rejection mentioned in Ext.P3 are totally unsustainable. W.P.(c) No.31546/2011 -5- Hence the writ petition is allowed and Ext.P3 is hereby quashed. The 2nd respondent is directed to re-consider the application submitted by the petitioners and to issue building permit, if the petitioners are otherwise eligible and if the application is otherwise in order. A decision in this regard shall be taken at the earliest possible, at any rate within a period of one month from the date of receipt of a copy of this judgment.
Sd/-
C.K. ABDUL REHIM, JUDGE.
AMG True copy P.A to Judge