IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 4787 of 2008(T)
1. T.T.ABDUL SALAM, S/O.T.T.MUHAMMED,
... Petitioner
Vs
1. PERINTHALMANNA MUNICIPALITY,
... Respondent
For Petitioner :SRI.P.NARAYANAN
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :27/02/2008
O R D E R
PIUS C.KURIAKOSE, J.
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W.P.(C) No. 4787 of 2008
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Dated, this the 27th day of February, 2008
J U D G M E N T
The grievance of the petitioner is that by Ext.P4 order the
respondent-Municipality has rejected his application for building
permit on the ground that the petitioner’s plot is included in DTP
scheme No.2 and is earmarked for road widening. The Municipality
has filed a detailed counter affidavit producing Annexure R1(a)
notification dated 19/04/1995 issued by the Municipality under the
Madras Town Planning Act notifying the master plan. The counter
affidavit refers to Section 393(1) of the Kerala Municipality Act and
goes on to justify Ext.P4. It is claimed that the Council has already
taken a decision to implement the scheme and all steps for
acquisition of the land will be commenced within 12 months from
25/02/2008.
2. Heard Shri.P.Narayanan, learned counsel for the
petitioner and Shri.P.K.Vijaya Mohanan, learned standing counsel
for the Municipality.
3. Learned counsel would address arguments on the basis
of pleadings of the respective parties and would draw my attention
to the various documents placed on record. Having considered the
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rival submissions, I am of the view that the fact situation obtaining
in this case is comparable to that obtained in Ext.P5 case. The
claim of the Municipality in its counter affidavit is only that they will
within 12 months from 25/02/2008 initiate steps for acquiring the
property so as to implement the DTP scheme. Learned counsel for
the petitioner submits that if the Municipality comes out with a
notification under Section 4(1) of the Land Acquisition Act within the
aforesaid period, the petitioner is prepared to forego compensation
for the building, which will be constructed on the strength of the
permit. Under the above circumstances, I am inclined to dispose of
the writ petition issuing the following directions:
4. The petitioner is directed to undertake before the
Municipality by filing an affidavit on stamp paper of appropriate
value that in the event of the Municipality facilitating promulgation
of a notification under Section 4(1) of the Land Acquisition Act on or
before 29/09/2009 for acquisition of any portion of the petitioner’s
plot, the petitioner will not claim any compensation for the building
put up by him on the permit issued to him. Once the Municipality
notices the above affidavit, the Municipality will re-consider the plan
submitted by the petitioner and if the plan is otherwise in order, the
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plan will be approved. In other words, the existance of the proposal
for road widening as per the DTP scheme and the proposal for
acquiring property will not be a ground for rejecting the plan. The
Municipality will in any way pass orders on the plan in the light of
the above directions and observations within a period of one month
of petitioner filing the affidavit. It is made clear that even after the
one year period mentioned in this judgment, it is always open to
the Municipality to acquire the petitioner’s property for genuine
public purpose. But the acquisition is on the basis of Section 4(1)
notification issued after 29/09/2009, the Municipality will become
liable to pay adequate compensation not only for the land but also
for the building.
(PIUS C.KURIAKOSE, JUDGE)
jg