PUTHALATH BALAKRISHNAN Vs. THALASSERY MUNICIPALITY

JUDGEMENT

(1.) This writ petition is filed by the petitioner seeking to quash Ext.P6 order passed by the 3rd respondent dated 02.11.2017, declining building permit to the petitioner on the ground that the property in question is proposed in the Development Plan for Tellicherry Town Part Variation for construction of a road. Brief material facts for the disposal of the writ petition are as follows:

(2.) Petitioner is the owner in possession and enjoyment of 2.98 Ares of land comprised in R.S.No.61/6 of Thiruvangad Village, within the limits of the 1 st respondent Municipality. In order to construct a shop and office building in the property specified above, petitioner submitted Ext.P5 plan before the Municipality along with an application to issue building permit. However, the application was rejected by the 3rd respondent, as per Ext.P6 communication dated 02.11.2017, on the ground of the proposed Development Plan. According to the petitioner, the rejection of the building permit is an inroad into the right of the petitioner vested under Article 300A of the Constitution of India, and is therefore, illegal, arbitrary and unsustainable in law. It is also pointed out that, there is no proposal for acquisition of petitioner's property for the purpose of the Tellicherry Town Part Variation, 2007. That apart, it is submitted that, this Court had under similar circumstances issued direction to the Municipality to re-consider such applications, if the Municipality has no intention to acquire the property. It is further pointed out that, there is no Scheme launched consequent to the introduction of the Kerala Town and Country Planning Act, 2016 [for brevity, 'the Act, 2016']. The proposal for Development Plan specified above is introduced on the basis of a Scheme existing from the year 1983, and since the Municipality is not having sufficient funds to acquire the property in accordance with the Development Plan, unless and until the building permit application is granted, petitioner will be put to irreparable loss and injuries.

(3.) A statement is filed for and on behalf of respondents 1 to 3, stating that, the property of the petitioner situates near to the road for which a proposal for 20 metres widening is pending as per part variation plan for Development of Thalassery. Petitioner did not provide sufficient vacant space in the front-yard for the road widening and development. It is the bounden duty of the petitioner to provide sufficient space for road widening and minimum three metres from the proposed road. As per the above plan, the road widening starts from Manjodi junction to the end of Municipal limits at Kodiyeri. The master plan is revised by the Government with the advice of Town Planning Department and all the procedures for making a master plan was followed by the Municipality without fail and there is no challenge to that effect. Therefore, according to the said respondents, the writ petition has no legal sustenance to be entertained under Article 226 of the Constitution of India, and is liable to be dismissed.