Mankarathodi Ahammed vs The Malappuram Municipality on 9 April, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 12305 of 2008(M)


1. MANKARATHODI AHAMMED, S/O.KUNHI KAMMU,
                      ...  Petitioner

                        Vs



1. THE MALAPPURAM MUNICIPALITY,
                       ...       Respondent

                For Petitioner  :SRI.M.P.MADHAVANKUTTY

                For Respondent  : No Appearance

The Hon'ble MR. Justice PIUS C.KURIAKOSE

 Dated :09/04/2008

 O R D E R
                           PIUS.C.KURIAKOSE, J.
                       - - - - - - - - - - - - - - - - - - - - -
                          W.P.(c).No. 12305 OF 2008
                   - - - - - - - - - - - - - - - - - - - - - - - - - -
                    Dated this the 9th day of April, 2008

                                 JUDGMENT

Grievance of the petitioner is that the application submitted by

him to the respondent Municipality for a permit for construction of a

building has been rejected by the Municipality on the reason that as per

the master plan, the plot is included in the industrial and residential

area and is intended to be acquired for widening the national high way

and hence building permit cannot be issued. Ext.P1 is the rejection

order. It is contended that though the master plan was approved as early

as in 1984, the same has not been implemented in the Municipality for

the past 24 years. The unimplemented master plan has become

oppressive from the point of view of owners of land within the

municipal area since they are not in a position to deal with their

properties in manners of their choice in view of the existence of a

master plan which will never be implemented.

2. The writ petition therefore has been filed by the petitioner

WPC.No.12305/08 2

seeking to quash Ext.P1 order by which the Municipality rejected the

petitioner’s application for building permit and also seeking a writ of

mandamus commanding the Municipality to issue building permit to

the petitioner.

3. When the writ petition came up for admission,

Sri.Babu.S.Nair has taken notice on behalf of the Municipality and I

have heard the submissions of Sri.M.P.Madhavankutty, counsel for the

petitioner and those of Sri.Babu.S.Nair.

4. Having considered the submissions, I am of the view that

the issue is covered by the judgment of this court in Padmini v. State

of Kerala (1999 (3)KLT 465), Francis v. Chalakkudy Municipality

( 1999(3) KLT 560) and also that of the Supreme Court in Raj

S.Jathmalani & others v. State of Maharashtra ( 2005(11)SCC

222). Several similar cases have been decided by me directing the local

authorities concerned to issue building permits after obtaining

undertakings from the parties concerned. I am inclined to grant the

same relief to the petitioner also.

5. In the result, Writ Petition will stand allowed to the

WPC.No.12305/08 3

following extent.

1) Ext.P1 is quashed.

2) The petitioner is directed to submit an affidavit before the

respondent Municipality undertaking in clear terms that in the event of

any notification under Section 4(1) of the Land Acquisition Act being

promulgated within a period of one year from today for the acquisition

of any portion of the plot upon which they are proposing to make

constructions, for any public purpose whatsoever, the petitioner will

demolish the constructions put up by them on the strength of the

building permit to be granted pursuant to this judgment without any

demur and without claiming any compensation whatsoever.

3) The affidavit as directed above shall be filed by the

petitioner within a period of three weeks of receiving a copy of this

judgment. Once the Municipality notices this affidavit, the

Municipality will reconsider the plan submitted by the petitioner for

approval and if it is seen that the plan is otherwise in order and

confirms to the statutory building Rules, the Municipality will approve

the plan without being influenced by the existence of the master plan

WPC.No.12305/08 4

and the proposal for acquisition.

It is made clear that even after the period of one year mentioned

above, it is always open to the respondent Municipality to acquire the

petitioner’s property for any genuine public purpose. But if the

acquisition is on the basis of a notification under Section 4(1) of the

Land Acquisition Act promulgated after one year from today, then the

petitioner will be entitled for compensation not only for the land, but

also for the building to be put up on the basis of the permit issued

pursuant to this judgment.

PIUS.C.KURIAKOSE
JUDGE

sv.

WPC.No.12305/08 5