Allowed

Dr.M.K.Muhammed Iqbal v. Palakkad Municipality

Kerala HC2 Dec 2019WP(C)/14002/2019

Case brief

AI extract

What is this about?

Writ petition challenging building permit rejection on hazardous zone grounds. Court quashed order, allowing purchase notice right under Sec. 67 Kerala Town and Country Planning Act to reconsider application de hors Master Plan.

What did the court decide?

Ext.P5 quashed; liberty granted to petitioner to issue purchase notice under Section 67; if rejected/ignored, Secretary to reconsider building permit application de hors Master Plan.

Dr.M.K.Muhammed Iqbal Vs Palakkad Municipality — Municipal and Town Planning | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

¶4

MONDAY, THE 02ND DAY OF DECEMBER 2019 / 11TH AGRAHAYANA, 1941

¶5

WP(C).No.14002 OF 2019(A)

¶6

PETITIONER:

¶7

DR.M.K.MUHAMMED IQBAL AGED 69 YEARS S/O. KADHERSHA, T.B. ROAD, 11/1179, PALAKKAD DISTRICT - 678 014

¶8

BY ADVS. SRI.BABU KARUKAPADATH SRI.K.M.FAISAL (KALAMASSERY) SMT.ARYA RAGHUNATH SMT.M.A.VAHEEDA BABU SRI.P.U.VINODKUMAR SRI.AVINASH P.RAVEENDRAN

¶9

RESPONDENTS:

¶10

1 PALAKKAD MUNICIPALITY

¶11

PALAKKAD - 678 001, REPRESENTED BY ITS SECRETARY

¶12

2 THE SECRETARY PALAKKAD MUNICIPALITY, PALAKKAD - 678 001

¶13

3 THE DISTRICT TOWN PLANNER PALAKKAD - KODUVAYUR - MEENAKSHIPURAM HWY, SANTHI NAGAR, SULTANPET, PALAKKAD, KERALA - 678 001

¶14

4 THE CHIEF TOWN PLANNER NANTHANCODU, THIRUVANANTHAPURAM, KERALA - 695 003

¶15

R1-2 BY ADV. SRI.T.C.SURESH MENON R1-2 BY ADV. SHRI.BINOY VASUDEVAN, SC, PALAKKAD MUNICIPALITY

¶16

R3-4 BY GOVERNMENT PLEADER

¶17

OTHER PRESENT:

¶18

G.P. SMT. POOJA SURENDRAN

¶19

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶20

WP(C).No.14002 OF 2019 2

¶21

JUDGMENT

¶22

(Dated this the 2nd day of December 2019)

¶23

The petitioner impugns Ext.P5 order issued by

¶24

the Secretary of Palakkad Municipality, as per which, her application for building permit has been rejected holding that the area in question is

¶25

included within a 'hazardous zone' under the Master Plan and became his property is sought to be acquired as a “Buffer Area”. He alleges that the Master Plan has not been operated by the

¶26

Municipality for the last more than four decades; and that, as is clear from Ext.P5 photographs, the whole area is full of residential and commercial buildings, thus rendering Ext.P5 to be untenable. He, therefore, prays that Ext.P5 be quashed and that the Municipality be directed to consider his application afresh in terms of law, de hors the Master Plan.

¶27

Sri.Binoy Vasudevan-learned Standing

¶28

Counsel appearing for the Municipality submits

¶29

WP(C).No.14002 OF 2019 3

¶30

that this Writ Petition is not maintainable since

¶31

the petitioner has an efficacious alternative

¶32

remedy of preferring an appeal against Ext.P5 before the Tribunal for Local Self Government Institutions. He, thereafter, says that the

¶33

petitioner's application for construction of a commercial building was rejected since the area is included in 'hazardous zone' as per the Master Plan and that unless the Master Plan is properly varied, he cannot be allowed to make any

¶34

construction.

¶35

Counsel for the Municipality on the afore lines, it is without doubt, it being evident from the

¶36

pleadings on record particularly Ext.P4 site plan-

¶37

that the area in question has been fully

¶38

developed, both with commercial and residential buildings and I cannot, therefore, understand how

¶39

the Municipality even now maintains that the area

¶40

is a 'hazardous zone'. There is nothing on record to show that why this area has been reserved as a

¶41

WP(C).No.14002 OF 2019 4

¶42

'hazardous zone' in the Master Plan of the year

¶43

1985 and even if it be so, it is obvious that by

¶44

efflux of time, the area has now become no more hazardous and therefore, capable of construction and other development.

¶45

I am persuaded to the afore opinion also

¶46

because, even though the area has been shown as a 'hazardous zone', no provision has been brought to my notice interdicting construction of any nature, except that it may be to protect the lives and safety of the owners of the properties. However,

¶47

since, as I have already indicated above, this

¶48

area does not appear to be 'hazardous' any more on account of the large number of buildings already constructed therein, I am certain that the reasons stated in Ext.P5 cannot find my favour.

¶49

That said, as regards the statement in Ext.P5 that the area has been reserved in the Master Plan for being converted as a “Buffer Area” is concerned, it is now well established through the judgments of this Court in District Town

¶50

WP(C).No.14002 OF 2019 5

¶51

Planner, Malappuram and Others v. Vinod and others [2019 (3) KHC 673] and Regional Town Planner &

¶52

Another v. Muhammed Rasheed & others [2019 (3) KHC 9891]; that in such cases, the owner of a property obtains the right to issue a purchase notice to the Municipality in terms of Section 67 of the Kerala Town and Country Planning Act, 2016 and that, if the said notice is refused by the Municipality, then he obtains the right to have this application for Building Permit considered de hors the Master Plan/DTP Scheme.

¶53

In the afore circumstances and since the

¶54

pleadings filed on behalf of the Municipality do not explain how the area still remains as a “hazardous zone”, I allow this writ petition and

¶55

set aside Ext.P5; and consequentially leave liberty to the petitioner to issue a purchase notice to the Municipality under Section 67 of the Kerala Town and Country Planning Act; and if this is done within a period of 15 days from the date of receipt of a copy of this judgment, same shall

¶56

WP(C).No.14002 OF 2019 6

¶57

be considered by the competent Authority of the Municipality within the statutory period and the resultant order communicated to the petitioner without any further delay.

¶58

If, for any reason, the purchase notice is rejected or is not answered within the statutory period, then the Secretary of the Municipality

¶59

will be obligated to reconsider the petitioner's application for Building Permit, within a period of one month after the statutory period for consideration of the purchase notice under Section 67 of the Kerala Town and Country Planning Act expires.

¶60

Needles to say, the afore consideration shall be made by the Secretary de hors the contents of Ext.P5 and without construing the area in question to be under the “hazardous zone”.

¶61

Sd/-

¶62

DEVAN RAMACHANDRAN

¶63

JUDGE

¶64

AJM

¶65

WP(C).No.14002 OF 2019 7

¶66

APPENDIX

¶67

PETITIONER'S/S EXHIBITS:

¶68

EXHIBIT P1	A TRUE COPY OF THE 19/12/2014 BY WHICH PURCHASED THE PROPE	SALE DEED DATED THE PETITIONER RTY
EXHIBIT P2	A TRUE COPY OF THE DATED 5/2/16 ISSUED YAKKARA VILLAGE	POSSESSION CERTIFICATE BY THE VILLAGE OFFICER,
EXHIBIT P3	A TRUE COPY OF THE PERMIT DATED 05/05/ PETITIONER BEFORE T MUNICIPALITY, FOR C RESIDENTIAL BUILDIN COVERED BY EXHIBIT	APPLICATION FOR BUILDING 2018 SUBMITTED BY THE HE 1ST RESPONDENT ONSTRUCTION OF A G IN THE PROPERTY P1.
EXHIBIT P4	A TRUE COPY OF THE BUILDING PLAN / SIT PETITIONER ALONG WI APPLICATION, BEFORE MUNICIPALITY	RELEVANT PORTION OF THE E PLAN SUBMITTED BY THE TH EXHIBIT P3 THE 1ST RESPONDENT
EXHIBIT P5	A TRUE COPY OF THE OF THE 2ND RESPONDE APPLICATION FOR BUI	ORDER DATED 05/06/2018 NT, REJECTING EXHIBIT P3 LDING PERMIT

¶69

RESPONDENT'S/S EXHIBITS: NIL

¶70

AJM //TRUE COPY// CA TO JUDGE

Dr.M.K.Muhammed Iqbal v. Palakkad Municipality

Case brief

What is this about?

What did the court decide?

Dr.M.K.Muhammed Iqbal v. Palakkad Municipality

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M.K.Gopi Vs the State of Kerala

Sunny P.K. Vs State of Kerala

Ambrose.K.T Vs Environmental Engineer

C.T.Harilal Vs the Sreekrishnapuram Gramapanchayat

Ponnakkambat Premalatha Vs State of Kerala

Benny Mathew Vs Village Officer, Mulanthuruthy Village