IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 2044 of 2008(R)
1. ABDUL RAHMAN, S/O. KUNHIMON HAJI,
... Petitioner
Vs
1. THE KUNNAMKULAM MUNICIPALITY,
... Respondent
2. THE SECRETARY,
3. THE DISTRICT TOWN PLANNER,
For Petitioner :SRI.ISSAC M.PERUMPILLIL
For Respondent :SRI.GRASHIOUS KURIAKOSE
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :07/02/2008
O R D E R
PIUS C. KURIAKOSE,J.
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W.P.(C) No.2044 of 2008
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Dated: 7th February, 2008
JUDGMENT
The petitioner, a resident of the first respondent-Municipality
challenges in this Writ Petition under Article 226 of the Constitution
Exts.P1 and P5 by which the Municipality rejects or refuses to
consider the petitioner’s application for construction of a commercial
building on his properties in R.S.Nos.51/66, 51,67, 51/69, 51/72,
51/73 & 51/74 of Kunnamkulam village. The petitioner alleges that
the Municipality has shown hostile discrimination towards him in as
much as a lady by name Annamma Jacob who owns properties very
near to the petitioner has been issued with a permit notwithstanding
the existence of the so-called proposal to acquire the property for the
purpose of construction of the bye-pass road and proposal to
promulgate a notification of a D.T.P.Scheme in relation to the area in
question.
2. A counter affidavit has been filed by the 1st respondent-
Municipality wherein it is contended that the property in respect of
which the building permit is applied for the petitioner is situated at a
place where the Municipality proposes to construct a bye-pass road
connecting the new bus stand. This proposed road, it is contended, is
W.P.C.No.2044/08 – 2 –
very much essential for the development of the town and for easing
the increasing vehicular traffic in the town. It is also contended in the
counter affidavit that steps are underway for getting the area notified
under the Town Planning Act.
3. I have heard the submissions of Mr.Isaac M.Perumpillil,
learned counsel for the petitioner and those of Mr.Grashious
Kuriakose, learned Standing Counsel for the Municipality.
4. Mr.Isaac M.Perumpillil would draw my attention to Ext.P3
judgment of this court pursuant to which Smt.Annamma Jacob, the
petitioner’s neighbour was issued with a building permit by the
Municipality. Learned counsel submitted that there is no reason for
declining the justice given to Smt.Annamma Jacob to the petitioner.
Learned counsel also drew my attention to the various judgments
including those of the Supreme Court in Raju S.Jethmalani v. State
of Maharashtra [(2005) 11 S.C.C. 222] and the Division Bench of
this court in Padmini v. State of Kerala (1999(3) KLT 465).
5. Learned Standing Counsel for the Municipality would oppose
the submissions on the basis of the contentions raised by the
Municipality in its counter affidavit.
6. Having considered the rival submissions, I am of the view
W.P.C.No.2044/08 – 3 –
that the fact situation which obtains in this case is very much similar
to the one which obtains in Ext.P3 judgment. It is not disputed before
me that the properties of Smt.Annamma Jacob and that of the
petitioner are lying nearby. Under these circumstances, I direct the
Municipality to receive an affidavit from the petitioner undertaking to
demolish the building to be constructed by him on the strength of the
permit to be issued without claiming any compensation at all for the
building in case a notification under Section 4(1) of the Land
Acquisition Act is promulgated for acquisition of any portion of the
petitioner’s property within one year from today. Once such an
affidavit is received, the 2nd respondent will reconsider the question of
granting approval to the plan submitted by the petitioner and issuing
building permit to the petitioner without being influenced by the
proposal to acquire the property for the construction of the by-pass
road or the steps which are stated to be underway for promulgation
of a D.T.P.Scheme under the Town Planning Act. If the plan is
otherwise in order, the same will be approved by the Municipality.
Fresh orders on the permit application submitted by the petitioner will
be passed by the 2nd respondent within three weeks of the petitioner
filing affidavit in response to this judgment. It is however made clear
W.P.C.No.2044/08 – 4 –
that even after the expiry of the period of one year mentioned in this
judgment, it will always be open to the respondents to acquire the
petitioner’s property including the building constructed on the
strength of the permit for any genuine public purposes subject to the
condition that under such an eventuality the respondents will be
liable to pay adequate compensation to the petitioner under the Land
Acquisition Act.
The Writ Petition is allowed as above.
srd PIUS C.KURIAKOSE, JUDGE