Allowed

K.C.Arumughan v. Ottapalam Municipality

Kerala HC9 Jun 2016WP(C)/7808/2016

Case brief

AI extract

What is this about?

Petitioner sought building permission but Municipality rejected it citing a pending road widening acquisition plan. Single Judge held that pending acquisition cannot indefinitely fetter property rights. Petitioner may apply for permit; if acquisition happens within one year, improvements have no value; beyond one year, value is compensable.

What did the court decide?

Municipality directed to consider application without reference to pending road widening proposal; Ext.P9 set aside; Petitioner may construct building.

K.C.Arumughan Vs Ottapalam Municipality — Labour and Industrial Disputes | Kerala HC (2016)

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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.VINOD CHANDRAN

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THURSDAY, THE 9TH DAY OF JUNE 2016/19TH JYAISHTA, 1938

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WP(C).No. 7808 of 2016 (A)

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PETITIONER(S)/PETITIONER:

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K.C.ARUMUGHAN

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S/O.SHANKARAN CHETTIAR, KAKKATTUPARAMBIL HOUSE, THENNADY BAZAAR, OTTAPALAM P O, PALAKKAD DISTRICT

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BY ADVS.SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS SRI.A.V.NIDHIN

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RESPONDENT(S)/RESPONDENTS:

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1. OTTAPALAM MUNICIPALITY MUNICIPAL OFFICE, OTTAPALAM P O, PIN 679102, REP BY ITS SECRETARY

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2. THE SECRETARY OTTAPALAM MUNICIPALITY,MUNICIPAL OFFICE, OTTAPALAM P O, PIN 679102

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R1,R2 BY ADV. SRI.P.P.THAJUDEEN, SC, OTTAPALAM MUNICIPALITY

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 7808 of 2016 (A)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P1:-	TRUE COPY OF THE REGISTRY	SALE DEED NO 488/1993, OF THE OTTAPALAM SUB
EXT.P2:-	TRUE COPY OF THE SUB REGISTRY	RELEASE DEED NO 1900/1994, OF THE OTTAPALAM
EXT.P3:-	TRUE COPY OF THE BY LAND TRIBUNAL	PURCHASE CERTIFICATE DTD 8/12/2006 ISSUED
EXT.P4:-	TRUE COPY OF THE	JUDGMENT DTD 9/9/2015 IN WPC NO 15178/2015
EXT.P5:-	TRUE COPY OF THE BY VILLAGE OFFICE	POSSESSION CERTIFICATE DTD 16/1/2016 ISSUED R, OTTAPALAM
EXT.P6:-	TRUE COPY OF THE VILLAGE OFFICER,	LOCATION SKETCH DTD 16/1/2016 ISSUED BY OTTAPPALAM
EXT.P7:-	TRUE COPY OF THE OF APPLICATION	RECEIPT DTD 28/1/2016 EVIDENCING SUBMISSION
EXT.P8:-	TRUE COPY OF THE BUILDING	SITE PLAN AND SERVICE PLAN OF THE PROPOSED
EXT.P9:-	TRUE COPY OF THE RESPONDENT	ORDER DTD 12/2/2016 ISSUED BY THE 2ND
RESPONDENT ----------	(S)' EXHIBITS: -------------	NIL

// TRUE COPY //

P.A TO JUDGE

K. VINOD CHANDRAN, J.

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===================== W.P.(C) No.7808 of 2016 - A

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======================

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Dated this the 09^th day of June, 2016

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J U D G M E N T

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The petitioner is aggrieved with the fact that the petitioner is not permitted to build a small commercial building in the 2.85 cents of property owned by him in survey No.84/10 and 84/4 of Ottappalam-II Village, Ottappalam Taluk,

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Palakkad District.

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The petitioner had obtained the title of the said property by Exts.P1 to P3 documents and the extent as per the title deeds was 4.50 cents. Subsequently, land conservancy proceedings were initiated and eventually the petitioner was left with 2.85 cents of property, on which the proposed building permit was sought for, on the basis of the possession certificate at Ext.P5 and the location sketch at Ext.P6. The

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W.P.(C) No.7808 of 2016 - A

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acknowledgment of the Municipality is at Ext.P7 and the plan at Ext.P8. The petitioner's application was rejected by Ext.P9 on the ground that there is a Town Planning Scheme pending

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for acquisition of the land for the purpose of widening the road.

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The learned Counsel for the petitioner contends that no such interdiction can be made to the enjoyment of a citizen's property, indefinitely and the same is further reiterated by this Court in Havva v. Tiru Municipality [2015 (3) KLT 562] . The learned Counsel for the Municipality relies on a Division Bench decision of this Court reported in Kannur Municipality v. Nafeesa Yousf [2015 (3) KLT 407] . The learned Standing Counsel for the Municipality also submits that the proposal for widening the road is approved by the Council and pending before the Government.

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Nafeesa Yousf (supra) was in the circumstance,

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when a scheme was formulated under the Kerala Town and

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W.P.(C) No.7808 of 2016 - A

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Country Planning Ordinance, 2013 and initial approval had been granted by the Government, on which facts it was found that there can be restriction on the right of property owners to

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enjoy the property in violation of the terms of the scheme.

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Havva (supra) is more in point and the learned

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Single Judge had also considered the Division Bench decision and held so in paragraph 23:-

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23: So far as a property whether immovable or movable is concerned, it is a precious and proud possession of a citizen and he is entitled to enjoy the same by utilizing it in a manner suitable to him by respecting the authority propounded under law. According to me, such a right was conferred under the Constitution with the avowed object to deprecate inhuman attitude of the State or other authorities against interfering in the right of a citizen over his property without authority of law. Therefore such civil right of the property owners cannot be deprived by asserting futuristic public propose, without the same being acquired either by the State Government or the Municipality. Moreover, the owner of the property is entitled to enjoy the same during his life time and if the development of the property is deprived on the basis of alleged D.T.P. Scheme proposed either by the Government or by the Municipality and continuance of the same indefinitely, no person may be entitled to enjoy the property putting it to profitable use during his life time. Therefore, according to me, the Respondent Municipality cannot be allowed to take

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W.P.(C) No.7808 of 2016 - A

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such a stringent stand so as to fetter the right of the properties from developing their property in accordance with the Municipal Building Rules.

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In the present case, also though the Council has

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approved the proposal for widening the road, the same is pending before the Government and on such permission being granted, definitely, acquisition proceedings can be taken against the property. However, the same cannot interdict the petitioner from seeking for a permit to construct a building in the said property. The petitioner has filed an application for building permit, which has to be necessarily considered by the Municipality de hors the fact that a plan for widening of road is pending before the Government. It is also made clear that if any constructions are made and the acquisition is proceeded with, within a period of one year from today, then the petitioner would not be entitled to any value for the improvements made on the lands made by way of the construction effected. If the acquisition is after one year, the

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W.P.(C) No.7808 of 2016 - A

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petitioner would be entitled to value of improvements too. The Municipality is directed to consider the application without reference to the proposal for widening the road. Ext.P9 would stand set aside.

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The writ petition would stand disposed of, with the

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above reservation.

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Sd/K. VINOD CHANDRAN, JUDGE

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SB/09/06/2016

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// true copy //

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P.A to Judge.

K.C.Arumughan v. Ottapalam Municipality

Case brief

What is this about?

What did the court decide?

K.C.Arumughan v. Ottapalam Municipality

Case brief

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What did the court decide?

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