IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 1524 of 2006()
1. M.P.SAHITHA, D/O.MOHAMMED,
... Petitioner
Vs
1. SECRETARY TO GOVERNMENT,
... Respondent
2. DIRECTOR OF MUNICIPAL ADMINISTRATION,
3. KUTHUPARAMBU MUNICIPALITY,
4. THE CHAIRMAN, KUTHUPARAMBU MUNICIPALITY,
5. THE SECRETARY,
For Petitioner :SRI.P.K.ASHOKAN
For Respondent :SRI.P.V.SURENDRANATH
The Hon'ble the Chief Justice MR.V.K.BALI
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :23/11/2006
O R D E R
V.K.Bali,C.J. &
S.Siri Jagan,J.
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W.A.No.1524 of 2006
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Dated, this the 23rd day of November, 2006
JUDGMENT
V.K.Bali,C.J. (Oral)
M.P.Sahitha, the petitioner herein, filed a petition
under Article 226 with a prayer to declare that the restriction that
there shall not be any construction within 150 metres of the
Kuthuparambu Municipal trenching ground is illegal and
unauthorised. The petitioner also prayed that the orders Exhibits
P1, P3 and P5 be quashed and respondents 4 and 5 be directed
to issue building permit to the petitioner pursuant to her
application dated 5.2.1998. The reliefs as indicated above are
sought to be propped up on the pleadings that the petitioner is
the owner and in possession of 70 cents of land in R.S.No.31/1A,
2A and 4B of Kuthuparambu Village. The land is situated in Ward
No.3 of Kuthuparambu Municipality. The petitioner and her
husband do not have a homestead to live and, therefore, they
decided to construct a residential house in the land aforesaid. As
a preliminary step for constructing a residential house, the
W.A.No.1524 of 2006 – 2 –
petitioner obtained permit No.240/89-90 dated 15.11.1989 from
the 1st respondent-Municipality, when it was a Panchayat, and
constructed a compound wall. The petitioner had also dug a well
spending a considerable amount, mainly for the purpose of
constructing a house. A motor was also installed in the well after
getting electricity connection. The property was improved by
planting coconut seedlings and other trees. Meanwhile, petitioner
filed an application dated 5.2.1998 for a permit for construction
of residential house in the property aforesaid, but the same was
rejected by the Municipal Council by proceedings dated 5.3.1998
on the ground that the Municipal Council had adopted a
resolution in 1996 that no permission would be granted for the
construction of any building within 150 metres of the Municipal
trenching ground. The property of the petitioner is situated within
150 metres away from the trenching ground. It is about 120
metres away from the said ground. Aggrieved, the petitioner filed
an appeal before the Chairman, Kuthuparambu Municipality, the
4th respondent herein, but the same was rejected by the Council
through order dated 5.1.1999. Still aggrieved, petitioner carried a
revision dated 6.2.1999 before the Secretary to Government,
W.A.No.1524 of 2006 – 3 –
Department of Local Administration, the 1st respondent, which
was also dismissed vide order Exhibit P5 dated 25.9.1999. These
orders were challenged with a prayer to set aside the same by
the issue of a writ in the nature of certiorari.
2. Pursuant to notice, respondent-Municipality filed a
counter affidavit, wherein the basic facts as mentioned in the
petition have been admitted. All that has been pleaded in
opposing the cause of the petitioner is that the decision so as not
to permit any activity within 150 metres from the Municipal
trenching ground has been taken in view of sub-section (2) of
Section 331 of the Kerala Municipality Act, 1994. The learned
Single Judge before whom the matter came up for final disposal,
dismissed the Original Petition by a short order, which is re-
produced below:-
“Petitioner approached this Court aggrieved by
the refusal on the part of the Municipality to grant
building permit. It is seen that the petitioner had
pursued the matter before the Government. As per the
impugned Ext.P5 order Government found that the
Municipality has rightly refused to grant the permit
because the land was required for expansion of the
W.A.No.1524 of 2006 – 4 –
trenching yard. Learned counsel for the Municipality
submits that the Municipality had passed a resolution
as early as in 1991 not to issue any building permit
within 150 metres of the trenching yard. In case there
is a change in the factual position, it will be open to
the petitioner to approach the Municipality with a fresh
application.
The Writ Petition is disposed of as above”.
3. Learned counsel representing the appellant
vehemently contends that even though it is stated in the
impugned Exhibit P5 order of the Government that the land may
be required for expansion of the trenching yard and, therefore,
the petitioner cannot be permitted to build a house on the said
land, but by adopting such a course an established owner of the
property cannot be deprived permanently to enjoy the benefits
thereof. In such a situation, the Government may acquire or may
at least pay compensation of the land to the petitioner and by
utilising the amount received as compensation, she can purchase
an alternate land to construct a housestead so essential for life.
Learned counsel for the respondent-Municipality states that it is
the pleaded case of the respondent-Municipality that the land
W.A.No.1524 of 2006 – 5 –
would be acquired. This aspect of the matter has, however, been
not mentioned by the learned Single Judge in the impugned order
dated 20th October, 2005. Learned counsel for the
respondent-Municipality states that he would seek instructions as
to the time during which the land subject matter of dispute or
other land may be acquired. When the matter came up for
hearing on the last date, the Court had put a specific question to
the learned counsel on this very issue and yet he stated that he
has not received instructions. It is significant to mention that the
Municipality has passed a resolution as early as in 1996 not to
issue building permit within 150 metres of the trenching ground
and it would be conscious even at that stage itself that by the
decision aforesaid all owners of land within 150 metre radius
would be deprived of its benefit. It is at that stage itself the
Municipality ought to have taken a decision to acquire the land.
Be that as it may, it is not in dispute that the land cannot be put
to any building use as per the decision of the Municipal Council
taken in 1996, and, therefore, it has to be acquired. That was
why this Court directed to ascertain how much more time the
Municipal Corporation would take to acquire the land. In the facts
W.A.No.1524 of 2006 – 6 –
and circumstances of the case, we are of the view that a time of
six months from today at the most can be granted to the
Municipal Corporation to start acquisition proceedings, which, so
started shall be taken to its logical ends, as expeditiously as
possible.
Disposed of accordingly.
V.K.Bali
Chief Justice
S.Siri Jagan
Judge
vku/-