Allowed

P.K.Rajan v. the Vadakara Muncipality

Kerala HC8 Dec 2011WP(C)/3991/2011

Case brief

AI extract

What is this about?

The court allowed a writ petition challenging the revocation of a building permit granted in 2010. Ruling that the respondent failed to issue a notice or provide an opportunity of personal hearing before cancelling the permit, the court quashed the cancellation order and directed authorities to follow natural justice if revocation is revisited.

What did the court decide?

The impugned order (Ext.P2) cancelling the building permit was quashed. The Secretary is directed to issue a proposal and afford the petitioner an opportunity of hearing before taking further steps fo

P.K.Rajan Vs the Vadakara Muncipality — Civil Procedure and Limitation | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

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THURSDAY, THE 8TH DAY OF DECEMBER 2011/17TH AGRAHAYANA 1933

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WP(C).No. 3991 of 2011 (Y)

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PETITIONER:

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P.K.RAJAN, S/O,KUNHIRAMAN, PANGATTU THAZHE KUNIYIL, NARAYANA NAGARAM, VADAKARA P.O, PIN 673 101, KOZHIKODE DISTRICT.

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BY ADV. SRI.JAMSHEED HAFIZ.

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RESPONDENT:

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THE VADAKARA MUNCIPALITY, REPRESENTED BY THE SECRETARY, VADAKARA P.O, PIN- 673 101, KOZHIKODE DISTRICT.

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BY ADV. SRI.M.SASINDRAN, S.C.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-12-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C).NO.3991/2011-Y:

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P.1: A TRUE COPY OF THE PERMIT ISSUED BY THE RESPONDENT DTD. 22/12/2010.

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EXT.P.2: A TRUE COPY OF THE ORDER DTD. 20/01/2011 BY THE R.1. CANCELLING THE PERMIT ALREADY GRANTED.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.A. TO JUDGE

Prv.

C.K.ABDUL REHIM,J. --------------------------------WP(C) No.3991 OF 2011

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Dated this the 8^th day of December, 2011

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J U D G M E N T

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Challenge in this writ petition is against Ext.P2, through which the Secretary of respondent Muncipality had revoked the permit issued in favour of the petitioner and other co-owners, for construction of a building in a property of 36 cents comprising in R.S No.247/6C2 of Vadakara Village, in Kozhikode District. In Ext.P2 it is stated that the building permit in question was granted without noticing the fact that the property in question along with other land is proposed for acquisition for establishment of a housing colony by the Municipality, under the scheme formulated in the 'Master plan' and that the property is included in the 'residential zone' under such scheme.

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The petitioner contented that building permit cannot be rejected on the ground that it is in violation of any town plan scheme, which envisages only a proposal for

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WP(C) No.3991 OF 2011 2

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acquisition . Learned Counsel for the petitioner had drawn my attention to the decisions of this court in Saidu P vs. State of Kerala and others ( 2010(3) KHC 974 ) wherein it was held that a mere proposal in the Town Planning Scheme which requires acquisition properties or its implementation cannot be a ground to reject the application for building permit.

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Before going into merits of the revocation of the permit, it is noticed that, the petitioner has got an effective remedy by way of appeal to challenge the decision before the Tribunal for Local Self Government institutions , as per the provisions contained in the Kerala Municipality Act. But learned counsel for the petitioner has drawn my attention to the provisions contained in Rule 16 of the Kerala Municipality Building Rules, 1999 The proviso of the Rule 16 mandates that before revocation of any building permit the owner of the permit shall be given sufficient opportunity to explain and such explanation shall be considered by the secretary. In the case at hand the contention is that before

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WP(C) No.3991 OF 2011 3

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issuing Ext.P2, the petitioner was not issued with any notice or he was not afforded with any opportunity to explain. Hence it appears that the availability of statutory remedy need not be considered as a bar for interference of this court, on the premise that the impugned proceedings is ex facia unsustainable in the eye of law.

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In the counter affidavit filed on behalf of the Muncipality, it is stated that the petitioner was informed about the mistakes crept in while issuing the building permit. Even if it is assumed that the petitioner had knowledge about any such mistake through information furnished, the same cannot be substituted as an opportunity afforded for providing explanation against revocation of the building permit. Therefore, I am of the view that Ext.P2 cannot withstand the scrutiny of sustainability on the basis of the mandatory requirements .

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Hence the writ petition is allowed and Ext.P2 is hereby quashed. The Secretary of the Muncipality will be at liberty to take fresh steps for revocation of the permit, if

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WP(C) No.3991 OF 2011

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sustainable under law, by issuing such proposal to the petitioner and after affording him an opportunity to submit explanations / objections, and after affording an opportunity of personal hearing.

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It is made clear that the petitioner will be at liberty to raise all contentions including the legal aspects raised before this court against proposal if any for revocation of the building permit is issued. However, if the petitioner issued with any notice proposing revocation of the permit he should restrain from proceeding with any construction, till such time a decision is taken by the secretary of the respondent Muncipality.

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C.K.ABDUL REHIM JUDGE

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smm

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WP(C) No.3991 OF 2011 5

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WP(C) No.3991 OF 2011 6

P.K.Rajan v. the Vadakara Muncipality

Case brief

What is this about?

What did the court decide?

P.K.Rajan v. the Vadakara Muncipality

Case brief

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