IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 WP(C).No. 26792 of 2008(M) ----------------------------------------- PETITIONER(S): ------------------------ BASHAHIR RAHMAN, SINDURA, P.O.PALAYAD,DHARMADAM,THALASSERY, KANNUR DISTRICT. BY ADVS. MR.M.SASINDRAN, MR.TOJAN J. VATHIKULAM. RESPONDENT(S): ---------------------------- 1. THALASSERY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, THALASSERY,KANNUR DISTRICT. 2. THE SECRETARY, THALASSERY MUNICIPALITY THALASSERY,KANNUR DISTRICT. 3. THE TOWN PLANNING OFFICER THALASSERY MUNICIPALITY,THALASSERY,KANNUR DISTRICT. R2 BY ADV. MR.I.V.PRAMOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.26792/2008 M APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE BUILDING PLAN. P1(A): COPY F THE SITE PLAN. P2: COPY OF THE COMMUNICATION DTD. 20/06/2008. P3: COPY OF THE BUILDING PERMIT ALONG WITH THE SPECIFICATION ISSUED TO THE AFORESAID HAJIRA. P4: COPY OF THE RESOLUTION ADOPTED BY THE MUNICIPALITY. P5: COPY OF THE JUDGMENT IN WPC.NO.28206 OF 2008 DTD.3/11/2006. P6: COPY OF THE JUDGMENT IN W.A.NO.80 OF 2007 DTD. 23/01/2007. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.26792 OF 2008 ------------------------------------------- Dated this the 23rd day of June, 2009 JUDGMENT 1.The petitioner and his wife own an item of land within the jurisdiction of the first respondent Municipality. The petitioner applied for a building permit under the Kerala Municipality Building Rules. That was rejected on the ground that the proposed site is within 25 metres of a road widening proposal under the town development plan. The petitioner points out that the first respondent had granted a permit even to the predecessor-in-interest of the petitioner and the application of the petitioner was for renewal of that permit with variation. The plea pressed for consideration is that with no acquisition or any other action being taken for any statutory proceedings depriving the petitioner of property in terms of Article 300A of the Constitution, rejection of the application for permit on the grounds stated in the impugned Ext.P2 is unsustainable. In support, reference is made to the decision of this Court in Padmini v. State of Kerala [1993(3) KLT 465] WPC.26792/08 Page numbers and to Ext.P6 judgment in W.A.No.80/07, in which the first respondent was involved. In a similar case relating to the first respondent municipality refusing permit on account of a proposed widening of a road, this Court delivered Ext.P6 judgment. Following that, this writ petition is only to be allowed. 2.However, learned counsel for the first respondent pointed out that the petitioner has adequate remedy by way of appeal and hence, the extraordinary jurisdiction under Article 226 need not be exercised. He also showed me a judgment dated 26.11.2008 in W.P(C).868/08, wherein, the petitioner in that case was relegated to the statutory remedy. I may notice that the said judgment was issued on the same day when that matter came up for admission while this writ petition has been admitted on 4.9.2008 and that at this point of time, it may be unjust and unreasonable to refuse to interfere merely on account of availability of an adequate alternate remedy. WPC.26792/08 Page numbers For the aforesaid reasons, Ext.P2 is quashed and it is directed that the application of the petitioner for building permit will be considered and granted if it is otherwise in order, without reference to the grounds stated in Ext.P2 and on the petitioner rectifying the other minor deficiencies in the application as noted in Ext.P2. Let the needful be done within one month from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.24/6.