Disposed

K.P.Madhavan Nair v. State of Kerala

Kerala HC6 Nov 2019WP(C)/7543/2018

Case brief

AI extract

What is this about?

Writ petition challenging rejection of building permit on grounds of reserved park land. Court granted liberty to apply under Section 67 of Kerala Town and Country Planning Act, 2016. Municipality directed to reconsider permit if Section 67 application fails or remains pending.

What did the court decide?

Liberty granted to file application under Section 67; direction to Municipality to reconsider permit application de hors Scheme if refused or not decided timely.

K.P.Madhavan Nair Vs State of Kerala — 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 06TH DAY OF NOVEMBER 2019 / 15TH KARTHIKA, 1941

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WP(C).No.7543 OF 2018(P)

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PETITIONER:

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K.P.MADHAVAN NAIR, AGED 74 YEARS, S/O. LATE N.KRISHNA PILLAI, SITHARA, TC/1735, GOKUL NAGAR, AMBALAMUKKU, KOWDIAR POST, THIRUVANANTHAPURAM DISTRICT-695003.

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BY ADVS.SRI.RAM MOHAN.G. SRI.AJIT G.ANJARLEKAR SRI.GOVIND PADMANAABHAN SRI.G.P.SHINOD

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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2 THE MUNICIPALITY OF NEDUMANGAD REPRESENTED BY ITS SECRETARY, MUNICIPALITY OF NEDUMANGAD, MUNICIPALITY BUILDING, NEDUMANGAD POST, THIRUVANANTHAPURAM-695541.

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3 THE SECRETARY, MUNICIPALITY OF NEDUMANGAD, MUNICIPALITY BUILDING, NEDUMANGAD POST, THIRUVANANTHAPURAM-695541.

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4 OFFICE OF THE CHIEF TOWN PLANNER, SWARAJ BHAVAN, 2ND FLOOR, NANTHANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM-695003.

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5 REGIONAL TOWN PLANNER, 1ST FLOOR, UPPER ZONE HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM695001.

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R2 & R3 BY ADV. P.RAMAKRISHNAN R1, R4 & R5 BY GOVT.PLEADER SMT.AMMINIKUTTY

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WPC 7543/18

JUDGMENT

Dated this the 6th day of November 2019

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The petitioner has approached this Court impugning Exhibit P7

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order, as per which, his application for building permit to make construction in a property of less than three cents has been rejected, on the ground that the area is earmarked for 'area to be reserved or acquired for park and open space' in accordance with the District Town Planning Scheme. He asserts that the Scheme in question has not been implemented at all by Nedumangad Municipality for the last several years and that there exists large number of residential houses in the said area. He, therefore, prays that Exhibit P7 be set aside.

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In response, the learned Standing Counsel for the Municipality submits that as long as the Scheme exists, the petitioner cannot make any construction, but concedes that large number of residential houses are there in the area. He says that if this Court is so inclined, the Municipality will re-consider the petitioner's application and that this Court may not make any affirmative declaration regarding the entitlement of the petitioner to any relief but leave it to the competent authority to take a decision on it.

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When I consider the afore submissions, 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,

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WPC 7543/18

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Malappuram and Others v. Vinod and Others (2019 (3) KHC 673) and Regional Town Planner and Another v. Muhammed Rasheed and Others (2019 (3) KHC 987), wherein it has been declared that in such cases, the owner of the properties has a right to make an application 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 permit will have to be considered de hors the stipulations in the Scheme/ Master Plan. I am sure that the petitioner herein also deserves such opportunity.

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Resultantly, I order this writ petition, granting liberty to the petitioner to move an application before the competent Authority of Nedumangad 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 have to consider the application within the statutory period and issue appropriate orders in terms of law.

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I make it clear that if the Municipality refuses the application or does not issue orders within the statutory period, then the Secretary will be obligated to reconsider the petitioner's application for building permit, de hors the stipulations in the Town Planning Scheme, as

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WPC 7543/18

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

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Sd/Devan Ramachandran, Judge

tkv

WPC 7543/18

APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1	A TRUE NEDUMAN	COPY OF SALE GAD SRO.	DEED NO. 2289/1987 OF
EXHIBIT P2	A TRUE DATED 2016-17	COPY OF THE 15.04.2016 PE .	PROPERTY TAX RECEIPT RTAINING TO THE YEAR
EXHIBIT P3	A TRU CERTIFI VILLAGE	E PHOTOCOPY CATE DATED 17 OFFICER, NEDU	OF THE POSSESSION .03.2016 ISSUED BY THE MANGAD.
EXHIBIT P4	A TRUE ISSUED	PHOTOCOPY OF BY THE VILLAGE	THE BASIC TAX REGISTER OFFICER, NEDUMANGAD.
EXHIBIT P5	A TRUE	COPY OF THE L	OCATION PLAN SUBMITTED
	BY TH RESPOND	E PETITIONE ENT.	R BEFORE THE 2ND
EXHIBIT P6	A TRUE 15.04.2	PHOTOCOPY O 016 ISSUED BY	F THE RECEIPT DATED THE 2ND RESPONDENT.
EXHIBIT P7	A TRUE 04.08.2	PHOTOCOPY 017 ISSUED BY	OF THE ORDER DATED THE 3RD RESPONDENT.

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/TRUE COPY/

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P.S. TO JUDGE

K.P.Madhavan Nair v. State of Kerala

Case brief

What is this about?

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K.P.Madhavan Nair v. State of Kerala

Case brief

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