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High Court of KeralaWP(C)/21930/2015allowed

Puthiyedath Nirmala v. The Secretary, Thalassery Municipality

2015-07-28Honourable Mr. Justice A.V.Ramakrishna Pillai5 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI TUESDAY, THE 28TH DAY OF JULY 2015/6TH SRAVANA, 1937 WP(C).No. 21930 of 2015 (M) ---------------------------- PETITIONER:

----------- PUTHIYEDATH NIRMALA, D/O. KRISHNAN NAIR,AGED 54 YEARS, RESIDING AT KRISHNA VILASAM, P.O KAVUMBHAGOM, THALASSERY 670 110, THALASSERY TALUK, KANNUR DISTRICT.

BY ADV. SRI.R.SURENDRAN RESPONDENT(S):

------------

1. THE SECRETARY, THALASSERY MUNICIPALITY, THALASSERY P.O, KANNUR DISTRICT 670 101

2. THE THALASSERY MUNICIPALITY REPRESENTED BY THE SECRETARY, THALASSERY MUNICIPALITY, THALASSERY KANNUR DISTRICT 670 101

3. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVRNMENT LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM 695 001.

R1 BY GOVERNMENT PLEADER SRI.K.K.SAIDALAVI R1 & R2 BY SRI.I.V.PRAMOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-07-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No. 21930 of 2015 (M) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ----------------------- EXHIBIT P1 TRUE COPY OF BASIC TAX RECEIPT DATED 13-06-2014,IN RESPECT OF THE PROPERTY OWNED AND POSSESSED BY THE PETITIONER EXHIBIT P2 TRUE COPY OF REJECTED PLANS WITH THE ENDORSEMENT "REJECTED",MADE BY THE SECOND RESPONDENT EXHIBIT P3 TRUE COPY OF ORDER DATED 03-07-2015 REJECTING THE APPLCIATION FOR APPROVAL OF BUILDING SITE AND GRANT OF BUILDING CONSTRUCTION PERMIT ISSUED BY THE SECOND RESPONDENT EXHIBIT P4 TRUE COPY OF JUDGMENT DATED 29-06-2015 IN WP(C) 15372 OF 2015 RESPONDENT(S)' EXHIBITS: NIL ----------------------- /TRUE COPY/ P.A. TO JUDGE sas

A.V.RAMAKRISHNA PILLAI, J.

= = = = = = = = = = = = = = = = = W.P(C) No.21930 of 2015 = = = = = = = = = = = = = = = = = = Dated this the 28th day of July, 2015

JUDGMENT

Ext.P3 by which petitioner's application for building permit was rejected is under challenge.

2. The petitioner is the owner in possession of 5.06 ares of land in R.S No.21/4A2 of respondent Municipality as per Ext.P1. On 26.6.2015 the petitioner applied before the first respondent for site approval and grant of building permit for construction of a house in her property. However, on 3.7.2015, the application was rejected by the second respondent as per Ext.P3 for the reason that as per the Development Plan of 2007, the property is included in the Public and Semi Public Zone.

3. The petitioner alleges that as per Section 390 of the Municipalities Act, Ext.P3 could be passed only by the Secretary and not by the Executive Engineer. Therefore, the impugned order is

WP(C)21930/15 -:2:- without any authority. It is with this background, the petitioners have approached this Court.

4. I have heard the learned counsel for the petitioner and the learned standing counsel for the respondent Municipality.

5. It was pointed out by the learned counsel for the petitioner that the proposal in Ext.P3 has so far remained as a mere proposal and it has not been implemented. In this Connection, the learned counsel invited my attention to a Division Bench decision of this Court in Padmini v. State of Kerala [1999 (3) KLT 465] wherein it was held that no building permit can be refused to any person because there is a proposal to acquire the land in future. Here, the learned counsel for petitioner submitted that in this case nothing has been done by the respondent municipality to materialise the said proposal for the last several years and there is not even a budget approval for the project. According to him, there is not a preliminary notification for acquisition of land for any public purpose

WP(C)21930/15 -:3:-

6. Reliance was also placed to the decision on the Apex Court in Raju S. Jethmalani v. State of Maharastra [(2005) 11 SCC 222] wherein it was held that refusing to grant permits relying on obsolete DTP schemes is a clear violation of the provisions of the Constitution.

7. Viewed in that profile, this Court is of the view that the petitioner is entitled to get the reliefs prayed for. Therefore, the writ petition is allowed. Ext.P3 is quashed and the respondent Municipality is directed to reconsider petitioner's application for building permit de hors Ext.P3 within a period of one month from the date of receipt of a copy of this judgment. Sd/- A.V.RAMAKRISHNA PILLAI JUDGE krj