Dismissed

State of Kerala v. Nasar

Kerala HC29 Mar 2021WA/510/2021

Case brief

AI extract

What is this about?

Two judges of the Kerala High Court dismissed a writ appeal seeking condonation of an 866-day delay in filing an appeal against a Single Judge's judgment that granted a building permit. The Court held that the explanation for the delay was unsatisfactory and noted the command in the impugned order did not direct the appellants.

What did the court decide?

Dismissed the C.M. Application No.1 of 2021 and the Writ Appeal WA.No.510 of 2021.

State of Kerala Vs Nasar — Constitutional and Fundamental Rights | Kerala HC (2021)

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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 C.T.RAVIKUMAR

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THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN

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MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943

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WA.No.510 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 7272/2018(H) OF HIGH COURT OF KERALA

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APPELLANT/RESPONDENTS 1 AND 4 IN WPC:

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1 STATE OF KERALA

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REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 THE DISTRICT TOWN PLANNER, OFFICE OF THE TOWN PLANNER, CIVIL STATION, MALAPPURAM-676 505.

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BY ADV. RENIL ANTO KANDANKULATHY, GOVERNMENT PLEADER

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RESPONDENT/PETITIONER & RESPONDENTS 2 AND 3 IN WPC:

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1 NASAR, AGED 45 YEARS S/O ABDULLA, MAMBRATHODI HOUSE, ARIPRA, MALAPPURAM-679 321.

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2 THE MALAPPURAM MUNICIPALITY,

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REPRESENTED BY ITS SECRETARY, MALAPPURAM-676 505.

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3 THE SECRETARY, MALAPPURAM MUNICIPALITY, MALAPPURAM-676 505.

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R1 BY ADV.ABDUL JAWAD R2 & 3 BY ADV.ESM KABEER, SC FOR MUNICIPALITY

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WA.No.510 OF 2021 ..2..

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JUDGMENT

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Dated this the 29th day of March 2021

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Ravikumar,J.

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C.M.Application No.1 of 2021

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This is an application seeking condonation of delay of 866 days in filing the appeal against the judgment dated 14.09.2018 in W.P.(C) No.7272/2018. The applicants were respondents 1 and 4 in the writ petition, which was filed by the 1^st respondent herein, who is the owner of 9.19 ares of property, comprised in Sy.No.582/17-12 of Malappuram Village, Eranad Taluk. He applied for building permit, and the same was rejected as per Ext.P2 dated 18.01.2018, assigning the reason of pendency of the scheme containing a proposal for road-widening, launched by the Municipality, in accordance with the Town and Country

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WA.No.510 OF 2021 ..3..

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Planning Act, 2016 (Kerala). It is also stated that the land in question is required for road widening. It is aggrieved by Ext.P2 order that the said writ petition was filed. The judgment in question was pronounced on 14.09.2018 and as noticed above, this appeal is filed with a delay of 866 days.

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Heard the learned Government Pleader for the appellants, the learned counsel appearing for the 1^st respondent, as also the learned Standing Counsel for the Malappuram Municipality.

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The C.M.Application itself would reveal that the delay is more than 2 years to be precise, it is 866 days. It cannot be said that the delay is not inordinate or not a long delay. When that be so, necessarily, a liberal approach cannot be adopted in view of the decision v. reported in Esha Battacharjee Managing Committee, Raghunathpur – Nafar Academy and Others [2013(12) SCC 649] . The question is whether

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WA.No.510 OF 2021 ..4..

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the delay of 866 days has been satisfactorily explained in the affidavit by the prospective appellants. We have carefully scanned the affidavit accompanying the petition. However, we could not find any satisfactory explanation for the delay of 866 days. True that, in the affidavit it is stated about the discussions effected with the Town Planner and the Chief Town Planner. We are at a loss to understand as to how the applicant in the C.M.Application justifies a delay of 866 days as days taken for the purpose of effecting consultation with the Town Planner and the Chief Town Planner, in a matter like this. The delay cannot said to be an administrative delay.

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When, what is stated above alone is assigned as the reason for the delay, we have no hesitation to hold that no satisfactory explanation whatsoever has been given for the delay of 866 days in the affidavit. That apart, we have perused the judgment, which is sought

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WA.No.510 OF 2021 ..5..

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to be appealed, passed by the learned Single Judge. It was rendered, relying on a decision of this Court in Abdul Hakeem v. Manjeri Municipality [2018(1) KLT 1026] . After considering the contentions, in the light of Abdul Hakeem's case (supra), the writ petition was disposed of on the following lines:-

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xxx

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In my considered view, petitioner is also entitled to get similar treatment in accordance with the proposition of law laid down by this court in 'Abdul Hakkem's case' (supra). Therefore, the writ petition is allowed, and there will be a direction to the petitioner as well as the Municipality to comply with the proposition of law laid down by this court in 'Abdul Hakkem's case' (supra) and in accordance with law, unmindful of the recitals contained in Ext.P2.

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A bare perusal of paragraph 3 extracted above

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would reveal that no direction whatsoever was given to

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the applicants in the C.M.Application, viz; the

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WA.No.510 OF 2021 ..6..

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prospective appellants. The Municipality, to whom such a direction was issued by this Court as per the judgment has not now come with an appeal. The direction to the Municipality was only to comply with the proposition of law laid down in Abdul Hakeem's case' (supra) and in accordance with law unmindful of the recitals contained in Ext.P2. We have put a pointed question to the learned Government Pleader as to whether any appeal has been preferred against the decision in Abdul Hakeem's case (supra). Admittedly, no appeal was preferred against the said decision by any of the parties to the said writ petition which culminated in the said decision. We do not know under the said circumstances, how the applicants could feel aggrieved by the direction in the judgment sought to be appealed. In the light of the situation obtained as above, we do not find any reason to condone the delay especially considering the absolute absence of any

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WA.No.510 OF 2021 ..7..

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satisfactory explanation for the long delay of 866 days. Consequently, the C.M.Applicaton stands dismissed. W.A.No.510 of 2021

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In the light of the dismissal of C.M.Application No.1/20201, the writ appeal stands dismissed.

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Sd/C.T.RAVIKUMAR JUDGE

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SB/30/03/2021

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Sd/MURALI PURUSHOTHAMAN JUDGE

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//true copy //

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P.A To Judge

State of Kerala v. Nasar

Case brief

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State of Kerala v. Nasar

Case brief

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