Disposed

M.Nassar v. the Secretary

Kerala HC27 Nov 2019WP(C)/12028/2019

Case brief

AI extract

What is this about?

The Kerala High Court granted liberty to the petitioner to serve a purchase notice under Section 67 of the Town and Country Planning Act to acquire road width. If the Municipality refuses or fails to respond within the statutory period, the building permit must be considered without Master Plan setback constraints.

What did the court decide?

Granted liberty to serve a purchase notice under Section 67; provided that if the Municipality refuses or fails to respond, the building permit application must be considered de hors the Master Plan.

M.Nassar Vs the Secretary — Municipal and Town Planning | Kerala HC (2019)

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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 DEVAN RAMACHANDRAN

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WEDNESDAY, THE 27TH DAY OF NOVEMBER 2019 / 6TH AGRAHAYANA, 1941

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WP(C).No.12028 OF 2019(C)

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PETITIONER:

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M.NASSAR, AGED 48 YEARS, S/O.MARIYUMMA, BUSINESSMAN, RESIDING AT CHATHOTH HOUSE, MANNAYAD, NETTUR P.O., PIN- 670105, THALASSERY, KANNUR DISTRICT.

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BY ADVS. SRI.R.SURENDRAN KUM.S.MAYUKHA

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RESPONDENTS:

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1 THE SECRETARY, THALASSERY MUNICIPALITY, THALASSERY, KANNUR DISTRICT-670101.

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2 THE THALASSERY MUNICIPALITY, REPRESENTED BY THE SECRETARY, THALASSERY MUNICIPALITY, THALASSERY, KANNUR DISTRICT- 670101.

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3 THE ASSISTANT ENGINEER, LOCAL SELF GOVERNMENT DEPARTMENT, KODIYERI SECTION, THALASSERY MUNICIPALITY, THALASSERY- 670101.

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4 THE CHIEF TOWN PLANNER, OFFICE OF THE CHIEF TOWN PLANNER, NANTHANCODU SWARAJ BHAVAN, NANTHANCODU, THIRUVANANTHAPURAM- 695003.

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5 THE DISTRICT TOWN PLANNER, DISTRICT TOWN PLANNING OFFICE, THANA P.O., KANNUR- 670012.

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6 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695001.

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BY ADV. SRI.RAJASEKHARAN NAIR, SR.GOVERNMENT PLEADER SRI.I.V. PRAMODE, SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.12028 OF 2019

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JUDGMENT

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The petitioner has approached this Court

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impugning Ext.P3, as per which, his application for building permit, for making a construction in

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his property of 2.23 Ares has been rejected,

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saying that the petitioner has not left sufficient setback required for the purpose of

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widening the road in front of it, as per the

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provisions of the Master Plan applicable to the respondent - Municipality. He asserts that the Master Plan in question for the Thalassery Town

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has not been operated at all by the said Municipality for the last several decades and that none of the constructions made in the said

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locality have left the setback now required of

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them. He, therefore, prays that Ext.P3 be set aside.

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2.In response, the learned Standing

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Counsel for Thalassery Municipality submits that

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WP(C).No.12028 OF 2019

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as long as the Master Plan provides for widening

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the road in question, the petitioner will be obligated to leave sufficient setback for this purpose and thus asserts that Ext.P3 has been issued without fault. He, therefore, prays that this Writ Petition be dismissed.

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3.When I consider the afore submissions,

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it is ineluctable that the issues like this have already gained the attention of this Court and that judgments have been delivered in District Town Planner, Malappuram and Others v. Vinod and Others [2019(3)KHC 673] and Regional Town Planner

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and Another v. Muhammed Rasheed and Others [2019(3)KHC 987], wherein it has been declared that in such cases, the owner of the property have a right to issue a purchase notice to the Municipality under Section 67 of the Kerala Town and Country Planning Act,2016 and that if the Municipality, thereafter, do not accede to the same, then the owner's application for building

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WP(C).No.12028 OF 2019

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permit will have to be considered de hors the stipulations in the Master Plan. I am sure that the petitioner herein also deserves such opportunity in this Writ Petition.

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Resultantly , I order this writ petition,

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granting liberty to the petitioner to move an apposite purchase notice before the Thalassery Municipality under Section 67 of the Kerala Town and Country Planning Act,2016; and if this is done within a period of two weeks from the date of receipt of a copy of this judgment, the competent Authority of the Municipality will consider the same within the statutory period and issue appropriate orders in terms of law.

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I make it clear that if the Municipality

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refuses the purchase notce or does not issue

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orders within the statutory period, then the

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Secretary will be obligated thereafter to

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reconsider the petitioner's application for building permit, de hors the stipulations of the

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WP(C).No.12028 OF 2019

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Master Plan, as expeditiously as is possible, but not later than one month after the statutory period for disposal of the purchase notice of the petitioner, under Section 67 of the Kerala Town and Country Planning Act,2016, expires.

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This writ petition is thus ordered.

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Sd/-

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DEVAN RAMACHANDRAN

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JUDGE

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WP(C).No.12028 OF 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF PARTITION DEED DATED 15.02.2017 REGISTERED AS DOCUMENT NO.230 OF 2017 OF SRO THALASSERY.

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EXHIBIT P2 TRUE COPY OF TAX RECEIPT DATED 02.02.2018, IN RESPECT OF THE PROPERTY OWNED AND POSSESSED BY THE PETITIONER. EXHIBIT P3 TRUE COPY OF REJECTION ORDER DATED 07.05.2018 BEARING NUMBER BA/799/17-18 ISSUED BY THE THIRD RESPONDENT. EXHIBIT P4 TRUE COPY OF NOTICE DATED 26.01.2019 ISSUED BY THE PETITIONER TO THE SECOND RESPONDENT UNDER SECTION 67 OF KERALA TOWN AND COUNTRY PLANNING ACT, 2016. EXHIBIT P5 TRUE COPY OF RECEIPT NO.2203 DATED 28.01.2019 ISSUED BY THE SECOND RESPONDENT. EXHIBIT P6 TRUE COPY OF REPLY DATED 02.03.2019 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER. EXHIBIT P7 TRUE COPY OF JUDGMENT DATED 05.07.2017 IN WP(c)NO.18553 OF 2016.

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//TRUE COPY// PA TO JUDGE

M.Nassar v. the Secretary

Case brief

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M.Nassar v. the Secretary

Case brief

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