Partly allowed

Abdul Rahim v. Kozhikode Muinicipal Corporation

Kerala HC1 Jul 2022WP(C)/2209/2016

Case brief

AI extract

What is this about?

Petitioners sought to quash notices threatening permit cancellation due to a violation of an old Town Planning Scheme. The Court directed the petitioner to issue a notice under Section 67 of the Town and Country Planning Act, 2016, to allow the Corporation to acquire land for road widening. Pending that, occupancy was allowed as per the 1999 Rules.

What did the court decide?

Writ petition partly allowed. Directing petitioner to issue notice under Section 67 of the Town and Country Planning Act, 2016.

Abdul Rahim Vs Kozhikode Muinicipal Corporation — Land Acquisition | Kerala HC (2022)

¶1

W. P. (C) No. 2209 of 2016

¶2

-1-

¶3

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶4

PRESENT

¶5

THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

¶6

FRIDAY, THE 1^ST DAY OF JULY 2022 / 10TH ASHADHA, 1944

¶7

WP(C) NO. 2209 OF 2016

¶8

PETITIONER/S:

¶9

1 ABDUL RAHIM AGED 56 YEARS

¶10

S/O. VEERAN KOYA, 25/1275-B, KOZHAMPURATH HOUSE, KUANGARA PEEDIKA, G.A.COLLEGE P.O., KOZHIKODE673014.

¶11

2 SHAREEFA T. AGED 43 YEARS 25/1275-B, KOZHAMPURATH HOUSE, KUANGARA PEEDIKA, G.A.COLLEGE P.O., KOZHIKODE-673014.

¶12

BY ADV SRI.C.M.SURESH BABU

¶13

RESPONDENT/S:

¶14

1 KOZHIKODE MUINICIPAL CORPORATION REP. BY ITS SECRETARY, CORPORATION OFFICE, BEACH ROAD, KOZHIKODE, PIN-673032.

¶15

2 SECRETARY KOZHIKODE MUNICIPAL CORPORATION, CORPORTION OFFICE, BEACH ROAD, KOZHIKODE, PIN-673032.

¶16

BY ADV SRI.K.D.BABU,SC,KOZHIKODE CORPORATION

¶17

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶18

W. P. (C) No. 2209 of 2016

¶19

-2-

¶20

J U D G M E N T

¶21

This writ petition is filed by the petitioners seeking the following

¶22

reliefs:-

¶23

“(i) Issue a writ of certiorari calling for the records pertaining to Ext.P1 building permit;

¶24

(ii) Issue a writ of certiorari or any other appropriate writ, order or direction, quashing Exts. P-3 and P-4 notices issued by the respondent Corporation;

¶25

(iii) Issue a writ of mandamus or any other appropriate writ, direction or order directing the 2^nd respondent to approve the revised plan submitted by the petitioners and permit them to carry out the construction in accordance with the Kerala Municipal Building Rules, without imposing any restrictions provided in the old Town planning scheme.”

¶26

The grievances highlighted by the petitioners are as follows:-

¶27

The petitioners are the owners in possession of 16.80 cents of

¶28

land comprised in Re. Sy. No. 412 of Valayanad village within the limit of Kozhikode Corporation. In the month of January 2015, petitioners obtained a building permit for a two storied commercial building situated on the side of Francis - Pukkunnam road. When the

¶29

W. P. (C) No. 2209 of 2016

¶30

-3-

¶31

construction started, petitioners submitted a revised plan for a three storied building. Now the construction of the structure of two storied building has been completed.

¶32

While so, the Secretary, Kozhikode Municipal Corporation, 2^nd respondent has issued Ext. P3 notice requiring the petitioners to show cause as to why the permit shall not be cancelled on the ground that the construction violates Rule 3A of the Kerala Municipality Building Rules, 1999, since it violates the provisions in a Town Planning Scheme sanctioned in 1983. Though the said Scheme proposes a width of 18 meters to the road, its existing width is only 8 meters. No steps are so far taken by the respondents to acquire the necessary land to widen the road.

¶33

It is the contention of the petitioners that insistence by the Corporation to comply with the provisions in an obsolete Town Planning Scheme, without taking any steps to implement the same, infringe the right of the petitioners to enjoy their property and thereby violates Article 14 and Article 300 of the Constitution of India.

¶34

Evidently petitioners are aggrieved by Ext. P3 notice dated

¶35

18.09.2015 whereby the petitioners were notified that since the permit

¶36

W. P. (C) No. 2209 of 2016

¶37

-4-

¶38

granted to the petitioners is in violation of an existing scheme, the permit will have to be withdrawn by the Secretary of the Kozhikode Corporation. Later on the basis of a reply submitted by the petitioner, Ext. P4 order was passed dated 21.12.2015 stating that the representation submitted by the petitioner cannot be considered in view of the existing scheme.

¶39

Anyhow when the writ petition was admitted to the files of this Court, proceedings pertaining to Ext. P3 was stayed by this Court for a period of one month and later it was extended by a period of four months.

¶40

So also when the matter came up before the Court on 31.03.2016, again an interim order was passed directing the Secretary of the Corporation to number the building and issue occupancy certificate, if the construction is completed in accordance with the Kerala Municipality Building Rules, 1999, notwithstanding the violation, if any, under the Master Plan.

¶41

A statement is filed by the Kozhikode Municipal Corporation refuting the allegations and claims and demands raised by the petitioners, but reiterating the stand adopted in Exts. P3 and P4 notices

¶42

W. P. (C) No. 2209 of 2016

¶43

-5-

¶44

and thus stating that the permit sought for by the petitioners come under the Scheme existing for the area and therefore as per Rule 3A of the Kerala Municipality Building Rules, the Scheme has precedence over the Kerala Municipality Building Rules, 1999.

¶45

I have heard learned counsel for the petitioners Sri. C. M. Suresh Babu and Sri. K. D. Babu appearing for the Kozhikode Municipal Corporation and perused the pleadings and material on record.

¶46

On an appreciation of Exts. P3 and P4, a notice and a communication respectively issued by the Secretary of the Corporation, it is quite clear and evident that what is intended by the Corporation is that if the permit is allowed to be continued, it would interfere with the scheme of the Corporation to widen the existing road passing near to the property of the petitioner by utilising the property in question belonging to the petitioner.

¶47

Which thus means, an acquisition is required in order to widen the road and if that is the situation, the property required for widening of the road can only be seen as an earmarked property for acquisition in contemplation of the provisions of the Kerala Town and

¶48

W. P. (C) No. 2209 of 2016

¶49

-6-

¶50

Country Planning Act, 2016.

¶51

Section 67 of the Kerala Town and Country Planning Act, 2016 is a clear provision enabling a landlord to request the Corporation to acquire the land, if it is interested to widen the road, and the Corporation has to take a timely action, in accordance with the time period prescribed under the said provision.

¶52

In my considered opinion, the case projected by the petitioners would fall under Section 67 of Act 2016. But at the same time I bear in mind that even though consequent to the introduction of Act 2016, all the erstwhile town planning acts have been repealed, by virtue of Section 113 of the Act 2016, all the existing schemes are protected till such time a new Master Plan or a new Scheme is introduced by the Corporation. Whatever that be Section 67 assumes importance in view of the rights conferred on the land owners.

¶53

In that view of the matter and taking into account the developments that have taken place during the pendency of the writ petition, it is appropriate that the writ petition is disposed of with suitable directions.

¶54

W. P. (C) No. 2209 of 2016

¶55

-7-

¶56

The interim order granted by this Court to issue occupancy certificate and provide building number would remain in force provisionally. The petitioner is given the liberty to issue a notice under Section 67 of act 2016 within a month and the Corporation would be at liberty to take appropriate action, in accordance with law.

¶57

However I make it clear that if the action as contemplated in Section 67 is not taken by the Secretary of the Corporation, within the time limit prescribed, the numbering of the building and the issuance of the occupancy certificate would stand regularized, if the construction is carried out by the petitioner, in accordance with the provisions of Kerala Municipality Act, 1994 and the Kerala Municipality Building Rules, 1999.

¶58

In the result, writ petition is partly allowed, however subject to the observations and directions contained above.

¶59

Sd/-

¶60

SHAJI P. CHALY JUDGE

¶61

¶62

///TRUE COPY/// P. A. TO JUDGE

¶63

W. P. (C) No. 2209 of 2016

¶64

-8-

¶65

PPENDIX OF WP(C) 2209/2016

¶66

PETITIONER EXHIBITS

¶67

EXHIBIT P1- TRUE COPY OF THE PERMIT DATED 31-01-2015 ISSUED TO THE PETITIONERS.

¶68

EXHIBIT P2- TRUE COPY OF THE REQUEST DATED 06-11-2015 SUBMITTED BY THE PETITIONERS.

¶69

EXHIBIT P3- TRUE COPY OF THE NOTICE NO. 84690/15 DATED 1809-2015 ISSUED BY THE 2ND RESPONDENT.

¶70

EXHIBIT P4- TRUE COPY OF THE NOTICE NO. 115309/15 DATED 21-12-2015 ISSUED BY THE 2ND RESPONDENT.

¶71

EXHIBIT P5- TRUE COPY OF THE EXPLANATION DATED 22-12-2015 SUBMITTED BY THE PETITIONERS.

Abdul Rahim v. Kozhikode Muinicipal Corporation

Case brief

What is this about?

What did the court decide?

Abdul Rahim v. Kozhikode Muinicipal Corporation

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

Zavier Vs the State of Kerala

Kunnampalli Unnikrishnan Vs the State of Kerala

Elsy Joseph Vs Laiju

Augusty Vs the State of Kerala

Laina Shiju Vs Elamkunnapuzha Grama Panchayath

Rajendra Prasad Vs Kulasekharapuram Grama Panchayat