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Musthafa v. the Palakkad Municipality

Kerala HC21 Feb 2023WP(C)/2357/2023

Case brief

AI extract

What is this about?

Writ petition filed by a property owner seeking a building permit, seeking quashing of a rejection order and declaration of entitlement to construct. The court directed the respondent to consider the application after the statutory acquisition period ended without acquisition steps.

What did the court decide?

Directed the 2nd respondent to consider and pass orders on the petitioner's application for building permit within one month in accordance with the Kerala Municipality Building Rules.

Musthafa Vs the Palakkad Municipality — Municipal and Town Planning | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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TUESDAY, THE 21^ST DAY OF FEBRUARY 2023 / 2ND PHALGUNA, 1944

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WP(C) NO. 2357 OF 2023

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PETITIONER:

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MUSTHAFA AGED 53 YEARS S/O. MUHAMMED, MUMTAJ VEEDU, 4/751, POOCHIRA, PUTHUPARIYARAM, PALAKKAD DISTRICT., PIN - 678731

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BY ADVS. JACOB SEBASTIAN K.V.WINSTON ANU JACOB DIVYA R. NAIR

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RESPONDENTS:

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1 THE PALAKKAD MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, PALAKKAD DISTRICT., PIN - 678001

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2 THE SECRETARY PALAKKAD MUNICIPALITY, MUNICIPAL OFFICE, PALAKKAD DISTRICT., PIN - 678001

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3 THE DISTRICT TOWN PLANNING OFFICER PALAKKAD DISTRICT TOWN PLANNING OFFICE PALAKKAD, CIVIL STATION, PALAKKAD DISTRICT., PIN - 678001

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4 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM DISTRICT., PIN - 695001

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BY ADV ADVOCATE GENERAL OFFICE KERALA

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Adv.Binoy Vasudevan -SC Adv.Appu P.S GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 2357 OF 2023

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JUDGMENT

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Dated this the 21^st day of February, 2023

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This writ petition is filed seeking the following reliefs:-

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I. Issue a writ in the nature of mandamus directing the 2^nd respondent to issue a building permit to the petitioner as applied for:

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II. Call for the Detailed Town Planning Scheme of the first respondent and quash it in so far as it relates to the property of the petitioners by the issue of a writ of certiorari;

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III. Declare that the petitioner is entitled to make constructions in the plot without waiting for future acquisition.

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IV. Call for the records leading to issue of Exhibit P2 and quash it by issuing a writ of certiorari or other appropriate writ or order.

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Heard the learned counsel for the petitioner, the learned Government Pleader as well as the learned Standing Counsel appearing for the respondents 1 and 2.

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It is submitted that the petitioner is the owner in possession of 6 cents of property in Resurvey Block No.33, Re Survey No.76 of Palakkad 3 Village, Palakkad Taluk and Palakkad District. It is submitted that he had submitted an application for building permit

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WP(C) NO. 2357 OF 2023

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for construction of a commercial building. However, on the ground that the property has been earmarked as 'land to be acquired for commercial use' as part of the Kalvakkulam DTP Scheme, the petitioner was informed by Ext.P2 that the application cannot be considered. The petitioner submitted Ext.P3 statutory notice under Section 67 of the Kerala Town and Country Planning Act, receipt of which is acknowledged on 17/11/2022. It is submitted that thereafter, within the statutory period of 60 days, no steps have been taken by the Municipality for acquiring the property in question and therefore the petitioner is entitled for consideration of his application for building permit in accordance with the Building Rules.

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A counter affidavit has been placed on record by the respondents 1 and 2 stating that Ext.P2 was an appealable order. It is submitted that the petitioner had preferred an application for construction of a three storied commercial building having a total plinth area of 356.87 M² in old Sy no 2563/1 in Block No.82 in Ward No.5 of Palakkd 3 Village. It is submitted that since the Detailed Town Planning Scheme applicable for the Palakkad

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WP(C) NO. 2357 OF 2023

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Municipality shows the property as 'land to be acquired for commercial use' and since there is a proposal for widening of the road, the petitioner was informed of these factors by Ext.P2. It is further submitted that the petitioner had submitted Ext.P3 notice under Section 67(1) of the Kerala Town and Country Planning Act and when the notice was received, the clarification was sought from the District Town Planner as to the exact proposal for widening of the road and since no reply was received from the District Town Planner, no further action could be taken in this regard.

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Having considered the contentions advanced, I am of the

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opinion that since the procedure prescribed in Section 67(1) of the Kerala Town and Country Planning Act, 2016 has been carried out by the petitioner and since the statutory period of 60 days has also elapsed, in case the respondent Municipality was desirous of proceeding with the acquisition as provided in the Detailed Town Planning Scheme, steps should have been taken in accordance with law. In view of the fact that no reply has admittedly been sent to the petitioner and no steps for acquisition are being taken by

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WP(C) NO. 2357 OF 2023

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the Municipality, I am of the opinion that the petitioner is entitled to a consideration of the application without reference to the objection raised that the DTP Scheme does not permit the consideration of the application.

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In the above view of the matter, this writ petition is ordered directing the 2^nd respondent to take up, consider and pass orders on the application submitted by the petitioner for building permit strictly in accordance with the provisions of the Kerala Municipality Building Rules, 2019. Appropriate steps shall be taken within a period of one month from the date of receipt of a copy of this judgment.

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This writ petition is ordered accordingly.

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Sd/-

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ANU SIVARAMAN JUDGE

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ska

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WP(C) NO. 2357 OF 2023

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APPENDIX OF WP(C) 2357/2023

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PETITIONER EXHIBITS

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Exhibit-P1 A TRUE COPY OF THE POSSESSION CERTIFICATE NO.67726954 DATED 31.08.2022 RELATING TO THE PROPERTY. Exhibit-P2 A TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 12.10.2022 REJECTING THE APPLICATION OF THE PETITIONER. Exhibit-P3 A TRUE COPY OF THE PURCHASE NOTICE DATED 17.11.2022 ISSUED BY THE PETITIONER ALONG WITH RECEIPT DATED 17.11.2022. Exhibit-P4 A TRUE COPY OF THE G.O.(MS.) NO.210/09/LSGD DATED 11.11.2009.

Musthafa v. the Palakkad Municipality

Case brief

What is this about?

What did the court decide?

Musthafa v. the Palakkad Municipality

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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