IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 WP(C).No. 7473 of 2006(M) --------------------------------------- PETITIONER(S): ---------------------- THE PALAKKAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, PALAKKAD. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.SREEKANTH.K.R SRI.JIBU P THOMAS SRI.SUNIL J.CHAKKALACKAL RESPONDENT(S): ------------------------- 1. THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT, INSTITUTIONS, THIRUVANANTHAPURAM. 2. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO LOCAL SELF GOVERNMENT INSTITUTIONS, SECRETARIAT, THIRUVANANTHAPURAM 3. THE DISTRICT COLLECTOR, PALAKKAD. 4. C.T.IGNATIOUS, RESIDING AT CHUNGATH HOUSE, 12/17, COIMBATORE ROAD, SULTANPET, PALAKKAD. R2 & R3 BY GOVT. PLEADER SMT.SMITHASUKUMAR R4 BY . SRI.K.RAMAKUMAR, SENIOR ADVOCATE R4 BY ADV. SRI.T.RAMPRASAD UNNI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/06/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.7473/2006 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE LETTER DTD. 11.8.1996. P2:- COPY OF THE JUDGMENT DT. 25.4.1997. P3:- COPY OF THE ORDER DTD. 5.7.1997. P4:- COPY OF THE RESOLUTION DATED 2.9.1997. P5:- COPY OF THE LETTER DT. 29.11.1997. P6:- COPY OF THE LETTER DTD. 9.1.2004. P7:- COPY OF THE COMPLAINT DT. 15.11.2004. P8:- COPY OF THE OBJECTION DTD. 26.7.2005. P9:- COPY OF THE ORDER DTD. 16.11.2005. P10:- COPY OF THE COMMUNICATION ADDRESSED BY THE MUNICIPALITY TO THE TAHSILDAR, PALAKKAD DT. 10.1.2008. P11:- COPY OF THE RESOLUTION NO.2297 OF THE MUNICIPAL COUNCIL DTD. 17.1.2008. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss ANTONY DOMINIC, J. ``````````````````````````````````````````````````````````` W.P.(C) No. 7473 of 2006 M ``````````````````````````````````````````````````````````` Dated this the 7th day of June, 2011 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ The Palakkad Municipality has approached this Court, challenging Ext.P9 order passed by the first respondent. Briefly stated facts of the case are that, according to the Municipality, a Detailed Town Planning Scheme under the Madras Town Planning Act for Kalavakulam area of the Palakkad Municipality was sanctioned by the Government by G.O.(MS) 33/88/LAD dated 09.03.1988(wrongly typed as 09.03.1998 in the writ petition). As per the said Scheme, a 12 metre wide ring road is to be laid through the property of the fourth respondent situated in Survey No.3006/IC2A2D2, Ward No.II, Block No.70, which is stated to be having an extent of 11 cents. 2. The fourth respondent applied for a building permit for constructing a residential building in the said plot, W.P.(C) No.7473/20006 : 2 : which was rejected by the then Palakkad Development Authority vide its resolution No.975 dated 28.07.1996. Going by the pleadings, the fourth respondent pursued the matter before the District Collector and the Government unsuccessfully. Finally, the fourth respondent appears to have filed Ext.P7 complaint before the first respondent. The then Development Authority was in the meanwhile abolished and the Municipality was established in its place. The Municipality filed Ext.P8 objection. It requires to be mentioned that in the said objection, the Municipality did not raise any contention that the first respondent does not have jurisdiction to entertain the complaint. The first respondent considered the matter and passed Ext.P9 order dated 16.11.2005. In the said order, the first respondent concluded that since the finalisation of the Scheme, despite the lapse of almost 20 years, no action whatsoever was taken by the Municipality and that there was no justification for depriving the owners of properties of their right to enjoy such properties. W.P.(C) No.7473/20006 : 3 : On this basis, the first respondent passed the following order:- “ (i) The Palakkad Municipality and the State Government are directed to take necessary steps to issue the permit to the petitioner for construction of a house in his plot. (ii) Before issuing the permit, the Municipal authorities should obtain an unconditional undertaking from the petitioner to the effect that as and when the scheme is implemented, the petitioner is prepared to vacate the site, provided he is paid due compensation under the Kerala Land Acquisition Act. (iii) On the above condition, Palakkad Municipality is directed to issue the permit within 3 months from the date of receipt of this order.” 3. It is challenging Ext.P9 order of the first respondent, the writ petition is filed. 4. I heard the learned counsel appearing for the petitioner and the counsel appearing for the fourth W.P.(C) No.7473/20006 : 4 : respondent. 5. According to the counsel for the petitioner, having regard to the pendency of the scheme, authorities were justified in rejecting the permit application made by the fourth respondent. It was contended that, at any rate, even if permit is ordered to be granted, once the land is acquired, the Municipality cannot be compelled to pay compensation for structures constructed in the land in view of the provisions contained in Madras Town Planning Act. 6. I am unable to accept the contentions. As already noticed, the scheme was sanctioned as early as on 09.03.1988. The Municipality has no case either before the first respondent or in the pleadings in the writ petition or during the course of the submissions made before this Court, that any action in pursuance to the sanctioned scheme has been taken by it. On the other hand, it was submitted that due to financial constraints, the Municipality could not take any action in the matter. W.P.(C) No.7473/20006 : 5 : 7. In such circumstances, having regard to the law laid down by this Court in the judgments reported in Padmini Vs. State of Kerala [1999 (3) KLT 465], Nazar Vs. Malappuram Municipality [2009 (3) KLT 92] and Secretary to Government Vs. Nazar [2010 (1) KLT 286], there is absolutely no reason to decline building permit to the fourth respondent. As far as the issue of payment of compensation is concerned, there again, for the aforesaid reason itself, I see no reason to accept the prayer. Therefore, the writ petition will stand dismissed. The Municipality will issue building permit to the fourth respondent, subject to the conditions specified in Ext.P9 order. Sd/- (ANTONY DOMINIC, JUDGE) aks/07.06 // True Copy // P.A. To Judge