IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 29201 of 2007(B)
1. TUFAIL AHAMED,
... Petitioner
2. TASIF AHAMED,
3. AYISHA MALIKA,
4. MRS. SAFIYA AHAMED SAHIB,
5. BADEERUL SAMAN, S/O LATE A.S.SULAIKHA,
6. ZANEERNA A.A., D/O LATE A.S.SULAIKA,
7. A.S.BADARUNNEESSA, W/O.M.S.UMMER SAHIB,
8. A.S.RASHEEDA, W/O.S.A.MOHAMED HUSSAIN,
Vs
1. STATE OF KERALA- REPRESENTED BY THE
... Respondent
2. THE PALAKKAD MUNICIPALITY,
For Petitioner :SMT.M.A.ZOHRA
For Respondent :SRI.V.CHITAMBARESH
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :20/11/2007
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C) NO. 29201 of 2007
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Dated this the 20th day of November , 2007
JUDGMENT
Petitioners 1 to 4 ,7 & 8 were petitioners in W.P.(C) No.28945 of
2006 which was disposed of by me on 13.3.20078 by Ext.P1
judgment. Petitioners 5 and 6 are legal heirs of one smt.A.S.Sulekha,
who was the 5th petitioner in that Writ Petition. W.P.(C)
No.28945/2006 was filed by the petitioners therein seeking quashment
of Clause No.3 of Ext.P3 development certificate issued by the 2nd
respondent Palakkad Municipality in respect of 2.4 acres of land in
Survey Nos. 837, 840 and 841 of Palakkad Village. On the terms of
the above clause No.3, 94 cents of land belonging to the petitioners
and forming part of the above mentioned 2.4 acres is to be kept
reserved for the transportation purposes of the Municipality.
2. Under Ext.P1 judgment clause No.3 of Ext.P3 development
certificate was quahsed with effect from 31.3.2007. The request of
the petitioners in this writ petition is that a fresh development
certificate be issued deleting clause No.3 in Ext.P3 or in the alternative
issue development certificate in respect of 94 cents of land, which is
WPC No.29201/2007 2
seen reserved for transportation purposes as per Ext.P3. The
petitioners point out that Ext.P1 judgment has attained finality and
that the application for review of Ext.P1 and further application for
clarification of Ext.P1 were declined by this court. The petitioners
submit that as per Ext.P2 dated 14.6.2007, they submitted an
application for development certificate in terms of Ext.P1 judgment.
In spite of that application and two lawyer notices issued to the
Municipality, there has been no favourable response from the side of
the Municipality. On these averments, the petitioners pray for the
following reliefs;
“i). To issue a writ of mandamus or any other
appropriate writ, order or direction, directing the 2nd
respondent Municipality to issue Development
Certificate in respect of the 94 cents of land whose
reservation stands quashed with effect from
3`1.3.2007 as made clear by this Hon’ble Court vide
orders in I.A No.10349/2007 dated 24.8.2007 and
Ext.P`1 judgment dated 13.3.2007 and as applied for
by Ext.P2 within 2 weeks or such other appropriate
time fixed by this Hon’ble Court.
ii). Issue a writ of Mandamus or any other
appropriate writ, or direction, directing the 2nd
respondent Palakkad Municipality to issue development
certificate at the earliest possible, at the most within
2 weeks as the reservation is quashed with effect from
31.3.2007 and 6 months have already passed by;”
WPC No.29201/2007 3
3. The 2nd respondent Municipality has filed a counter affidavit.
It is contended that Ext.P3 development certificate was issued by the
Municipality in terms of the Municipality Act and the Municipality
Building Rules. Ext.P3 is even now in currency except for the
circumstance that clause NO.3 in Ext.P3 has been deleted. According
to the Municipality, there is no provision in the Act or the Rules for
issuing more than one development certificate. It is also contended
that one of the prayers in Ext.P1 was that the Municipality be directed
to issue another development certificate. This court did not grant that
prayer and there is no direction in Ext.P1 for issuance of another
development certificate in respect of the property which requires any
compliance by the Municipality. It is further contended that the
Municipality’s council has passed Ext.R2 (a) resolution by thumping
majority that the 94 cents of property belonging to the petitioners
along with the properties of others should be acquired for the purpose
of establishing a lorry stand and a bus stand. It is also pointed out
that though Ext.R2(a) resolution was challenged by another property
owner, the same was dismissed by this court as premature and Ext.R2
(b) judgment passed by this court in W.P.(C) No.26488/2007 is relied
on in this context.
4. To the above counter affidavit, the petitioners have filed a
WPC No.29201/2007 4
detailed reply affidavit. Ext.P3 form of development certificate is
produced along with this reply affidavit. It is pointed out that
development certificate is appended with commercial lay out plan, in
which also yellow lines were drawn over the reserved area
demarcating it under the caption “land for transportation”. The
petitioners submit that in compliance with the conditions other than
the condition No. 3 in Ext.P3 road was constructed and handed over to
the Municipality. Drainages were constructed. It is after all these
works are carried out and on inspection that the development
certificate marked as Ext.P6 in Ext.P1 was issued on 19.4.2006. A
copy of the commercial lay out containing reservation clause is also
produced as Ext.P5. It is pointed out that after Ext.P1 became final,
the petitioners submitted fresh plan for 94 cents of land with Ext.P2
application so as to have the same approved without the yellow over
line tampering and demarcated by words “land for transportation”.
The petitioners claim that it is clear from Exts.P4 and P5 that the work
has been completed as per the specifications. About two acres of land
has been utilised for internal roads drainages, transformer yard, bell
mouths, etc. These roads and drainages after construction have also
been surrendered to the Municipality by requisite surrender deeds
apart from 50 cents of land utilised for the construction of bye pass
WPC No.29201/2007 5
and handed over as required by the conditions imposed in Ext.P3. It is
pointed that it is after all these and awaiting for three months after
Ext.P1, that submitted Ext.P2 as envisaged in Rule 20(g) of the Kerala
Municipality Act 1999. The Municipality is bound to issue as per Rule
22 (2) and appendix – G, the development certificate for the
reserved area of 94 cents whose reservation stands quashed with
effect from 31.3.2007. In stead of that, the Municipality is trying to
mislead this court. The present request is for development certificate
relating to 94 cents in respect of which no development certificate has
been issued already. It is highlighted that the findings in Ext.P1 will
justify the above relief also. The reply affidavit goes on to refute the
contentions based on the proposed acquisition of land. It is not for the
Municipality to decide whether the land should be acquired for any
public purpose invoking the urgency clause. The Municipality can only
request the Government for acquisition. Referring to clause No. 2 of
Ext.R2(a), which provides that a sum of Rs.40 Lakhs has been
provided for in the budget of the Municipality for the year 2007-08,
it is contended that the said clause is utter falsehood. It is then
submitted that the area which is seen excluded under Ext.R2(a)
(0.1426 Hectares) includes 50 cents of land surrendered by the
petitioners freely for the purpose of Melamuri – T – B road town bus
WPC No.29201/2007 6
stand, bye-pass as per clause 2,4 and 5 of Ext.P3. As regards Ext.R2
(b), it is pointed out that the same does not pertain to the petitioners’
property. Ext.R2(b) does not in any event decide any issue.
5. I have heard the submissions of Smt. M.A.Sohara, the
learned counsel for the petitioners and those of Sri.V.Chithamberesh,
the learned Standing Counsel for the Municipality. The contentions
raised by the Municipality, in my opinion, are too technical for
receiving the acceptance by this court. Ext.P1 judgment has attained
finality. The Municipality cannot resist reliefs sought for on the reason
that the Municipality intends to acquire 94 cents of property not
covered by Ext.P3 certificate for transportation purposes. Till this
moment the notification under Section 4 (1) of the Land Acquisition
Act has not promulgated. The petitioners are entitled to have a
development certificate in respect of 94 cents of land in question in
the light of ext.P1 judgment and the order passed in I.A.
No.10349/2007.
The result is that the writ petition will stand allowed. The 2nd
respondent Municipality is directed to issue development certificate in
respect of 94 cents covered by Ext.P1 judgment as applied for by
Ext.P2 within three weeks of receiving a copy of this judgment to the
WPC No.29201/2007 7
petitioners. It is however made clear that the observations in Ext.P1
judgment as well as in the orders in I.A. No.10349 and 10350/2007
regarding the initiation of Land Acquisition Proceedings by the
Municipality will continue to operate.
PIUS C. KURIAKOSE,
JUDGE.
dpk