IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18238 of 2008(U)
1. POOVANPATTIL AREEKATTU ABDU RAHIMAN,
... Petitioner
Vs
1. THE MALAPPURAM MUNICIPALITY,
... Respondent
For Petitioner :SRI.M.P.MADHAVANKUTTY
For Respondent : No Appearance
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :18/06/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) 18238 & 18239 of 2008
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Dated: JUNE 18, 2008
JUDGMENT
In these cases, the challenge is against orders passed by
the respondent Municipality, rejecting the applications made by
the respective petitioners for building permit.
2. In W.P.(C) 18238 of 2008, the rejection order is Ext.P2
and the reason stated is the zoning regulations. According to
the petitioner, though the draft scheme has been published,
there has not been any progress and the petitioner is referring
to Ext.P4, a judgment rendered by this court in an identical
situation, following an earlier judgment of this court as well as
the Apex Court.
3. In so far as W.P.(C) 18239 of 2008 is concerned, the
order of rejection is Ext.P3 wherein it is stated that under the
master plan, the land has been shown as paddy field and hence
the application is against the Municipal Building Rules. Here
again, the petitioner raised identical contentions and is referring
to Ext.P4, a judgment rendered by this court in WP(C)
4962/2008, dealing with the claim raised by a similarly situated
W.P.(C) 18238 & 18239 of 2008
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person and that too against the respondent Municipality itself.
4. Having regard to the similarity of the facts with the
cases decided by this court in the aforesaid two judgments, I see
no reason to take a view different from the view taken by the
learned Judge who disposed of those cases.
5. Accordingly, these writ petitions will stand disposed of
as follows:-
In so far as the request made by the petitioner in W.P.(C)
18238 of 2008 is concerned, it is directed that the petitioner
shall submit an undertaking in the form of an affidavit before the
Municipality stating unambiguously that in the event of any
notifications under Sec.4(1) of the Act being promulgated for the
acquisition of any portion of the petitioner’s property for any
public purposes within a period of one year from the date of
filing of the affidavit, the petitioner will not claim any
compensation for the construction put up on the acquired
property on the strength of the permit to be granted to him
pursuant to this judgment. The Municipality upon noticing that
affidavit, will consider the application submitted by the
petitioner for approval and if the plan is seen otherwise in order,
W.P.(C) 18238 & 18239 of 2008
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the Municipality will pass orders and issue permit to the
petitioner. In other words, the existence of the proposal to
acquire the property for any public purpose as per the
Kunnummal Scheme or any other schemes shall not be a ground
for rejecting the plan. It is needless to mention that even after
the period of one year, it is always open to the Municiplaity to
acquire the petitioner’s property under the provisions of the
Land Acquisition Act, but under such a situation, the petitioner
will be entitled for adequate compensation under the Land
Acquisition Act for the building also.
6. In so far as the petitioners in W.P.(C) 18239 of 2008
are concerned, since they are relying on Exts.P1 and P2 orders
passed by the District Collector permitting conversion of the
land, and in view of the assertion that the land was converted
into garden land, I direct that the petitioners shall produce those
orders before the 1st respondent Municipality. On such
production of the orders, the 1st respondent shall verify and
ascertain as to whether the land mentioned in Exts.P1 and P2 is
the land which is mentioned by the petitioners in the application
submitted by them. If the land is found to be the same and that
W.P.(C) 18238 & 18239 of 2008
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it is a reclaimed land, revised orders consistent with Ext.P4
judgment will be passed by the 2nd respondent. It is also directed
that an undertaking similar to the one to be furnished by the
petitioner in W.P.(C) 18238 of 2008 shall be furnished by the
petitioners in W.P.(C) 18239 of 2008 also.
7. It is clarified that it is open to the Municipality to
always initiate proceedings for acquisition of the land.
Writ petitions are disposed of as above.
ANTONY DOMINIC
JUDGE
mt/-