IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 WP(C).No. 36565 of 2009(M) -------------------------- PETITIONER(S): --------------- AMBALI RIYAS, S/O.MOIDEEN, 'SANTHI MANZIL', THALASSERY P.O., VADIKAKAM DESOM, KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.V.VENUGOPAL RESPONDENT(S): --------------- 1. THE THALASSERY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, THALASSERY, KANNUR DISTRICT. 2. THE SECRETARY, THALASSERY MUNICIPALITY, THALASSERY, KANNUR DISTRICT. 3. THE ASSISTANT ENGINEER (NORTH), THALASSERY MUNICIPALITY, THALASSERY, KANNUR DISTRICT. ADV. SRI.I.V.PRAMOD FOR R1 & 3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.36565/2009-M ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 2nd day of July, 2010 J U D G M E N T The petitioner is aggrieved by the rejection of the application for a building permit by the Municipality concerned. 2. The petitioner is the absolute owner and in possession of 6 cents of land comprised in Re-Survey No.263/3 of Tiruvangad Village of Thalassery Taluk. Exts.P1 and P1(a) are the copies of the building plan and the site plan which was rejected as per Ext.P2. It was stated therein that the proposed site for construction falls within a road proposal and, therefore, the permit cannot be granted. This is under challenge in the writ petition in the light of the decision in Padmini v. State of Kerala [1999 (3) KLT 465] and other similar Judgments rendered by this Court. The petitioner is also relying upon Exts.P4 and P5 Judgments in W.P.(C).No.28206/2008 and W.A.No.80/2007 concerning the very same Municipality. 3. Heard the learned counsel for the petitioner and the learned Standing Counsel for the Municipality. The question that was considered in Ext.P4 Judgment is whether in the absence of a notification under Section 4 of the Land Acquisition Act, the Municipality is entitled to W.P.(C). No.36565/2009 -:2:- reject the application for building permit on the plea that the land will be required for road widening. It was also held that the issue is covered by a Division Bench Judgment of this Court in Padmini' case [1999 (3) KLT 465]. The Municipality was directed to consider the application for building permit also. Ext.P5 is the Judgment of a Division Bench in the appeal filed by the Municipality and the Writ Appeal was dismissed. It was held by the Division Bench as follows:- “When property is to be acquired under the provisions of the Act of 1894, there is no embargo for acquiring the construction in the land, for which, of course, adequate compensation has to be paid. The applications of citizens seeking permission for construction in their own land cannot be refused in contemplation of acquisition proceedings.” 4. Herein also the circumstances are identical and the reason shown is that there is a proposal to construct a road. Proposal can be executed only after acquisition of land by payment of compensation to the land owners. 5. Therefore, I respectfully follow the directions issued in Exts.P4 and P5 Judgments. The writ petition is W.P.(C). No.36565/2009 -:3:- therefore, allowed. Ext.P2 is quashed. There will be a direction to the Municipality to consider the application for building permit on its merits and pass appropriate orders uninfluenced by any proposal to acquire land for road widening. The same shall be completed within a period of one month from the date of receipt of a copy of this Judgment. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms \\TRUE COPY// P.A TO JUDGE