Allowed

Mohammed Althaf v. Thalassery Municipality

Kerala HC19 Sept 2014WP(C)/20399/2014

Case brief

AI extract

What is this about?

Writ petition challenging rejection of residential building construction permit. Court set aside rejection order citing unimplemented Town Planning Scheme. Directed respondent to consider application afresh after inspection within one month.

What did the court decide?

Ext.P2 set aside; respondent directed to consider application afresh after land inspection and pass orders within one month.

Mohammed Althaf Vs Thalassery Municipality — Land Acquisition | Kerala HC (2014)

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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 K.SURENDRA MOHAN

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FRIDAY, THE 19TH DAY OF SEPTEMBER 2014/28TH BHADRA, 1936

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WP(C).No. 20399 of 2014 (Y)

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PETITIONER(S):

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MOHAMMED ALTHAF AGED 33 YEARS S/O.C.P. HASSAN, FATHIMAS, K.T.P MUKKU CHIRAKKARA P.O, THALASSERY, KANNUR - 670 104.

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BY ADV. SRI.P.K.MOHAMED JAMEEL

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RESPONDENT(S):

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1. THALASSERY MUNICIPALITY THALASSERY P.O., KANNUR - 670 101 REPRESENTED BY ITS SECRETARY.

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2. THE SECRETARY THALASSERY MUNICIPALITY, THALASSERY P.O. KANNUR - 670 101.

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3. THE ASSISTANT ENGINEER LOCAL SELF GOVERNMENT DEPARTMENT THALASSERY MUNICIPALITY (SOUTH SECTION) THALASSERY P.O., KANNUR - 670 101.

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4. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM - 695 001.

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R BY GOVERNMENT PLEADER SRI G GOPAKUMAR R BY SRI.I.V.PRAMOD, SC, THALASSERY MUNICIPALITY

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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kkj

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WP(C).No. 20399 of 2014 (Y)

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APPENDIX

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PETITIONER'S EXHIBITS

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EXHIBIT-P1- TRUE COPY OF THE SALE DEED BEARING NO. 2133/2013 OF SRO THALASSERY DATED 25/11/2013.

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EXHIBIT-P2- TRUE COPY OF THE COMMUNICATION DATED 21/07/2014 ISSUED BY THE 3RD RESPONDENT.

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EXHIBIT-P3- TRUE COPY OF THE JUDGMENT IN W.P(C) 25284/2011.

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RESPONDENT(S)' EXHIBITS

NIL

// TRUE COPY //

PA TO JUDGE

K.SURENDRA MOHAN, J.

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W.P.(C) No.20399 of 2014-Y

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Dated this the 19^th day of September, 2014

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J U D G M E N T

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The petitioner has filed this Writ Petition challenging Ext.P2 proceedings of the second respondent rejecting his application for the construction of a residential building in his property. His application has been rejected on the ground that as per the Development Plan for Tellicherry Town Part Variation,2007 applicable to the Municipality, the petitioner's property is situate in an area which is demarcated as agricultural zone. Therefore, no permission could be granted to construct a residential building over the same.

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According to the learned counsel for the petitioner, the ground on which Ext.P2 has been issued is unsustainable. It is contended that, there has been no land acquisition proceedings initiated pursuant to the Development Plan that is said to be applicable to the

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-:2:-

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W.P.(C) No.20399/2014

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Municipality and that the same has not been implemented.

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In the light of the law laid down by the Apex Court, rejection of the petitioner's request on the said ground is therefore unsustainable. For the above reason, he seeks the issue of appropriate orders setting aside Ext.P2.

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Advocate I.V.Pramod appears for respondents 1 and 2. The Government Pleader appears for respondents 3 and 4. It is not in dispute that though the Development Plan has been in existence for quite some time, no proceedings for acquisition of the land have been initiated in implementation of the said scheme.

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Having considered the contentions of the contesting parties, it has to be held that Ext.P2 is unsustainable in view of the dictum laid down by the Apex Court in Raju S.Jethmalani and others v. State of Maharashtra and others [(2005) 11 SCC 222]. The petitioner cannot be prevented from putting his property to any use on the ground that there is a Town Planning

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-:3:-

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W.P.(C) No.20399/2014

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Scheme in existence that has not been implemented. For the above reason, Ext.P2 is set aside.

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This Writ Petition is accordingly disposed of directing the second respondent to consider the application submitted by the petitioner afresh, after conducting an inspection of the petitioner's land to verify the present condition thereof and thereafter, to pass appropriate orders on the application in accordance with law. Appropriate orders as indicated above shall be passed, as expeditiously as possible and at any rate within a period of one month of the date of receipt of a copy of this judgment.

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Sd/- K.SURENDRA MOHAN, JUDGE

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kkj

Mohammed Althaf v. Thalassery Municipality

Case brief

What is this about?

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Mohammed Althaf v. Thalassery Municipality

Case brief

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