IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 7TH FEBRUARY 2008 / 18TH MAGHA 1929 WP(C).No. 2044 of 2008(R) ------------------------- PETITIONER: ------------ ABDUL RAHMAN, S/O. KUNHIMON HAJI, BLAHAYIL HOUSE, NARIYAMPULLY, PUNNAYOOR, THRISSUR DISTRICT. BY ADV. SRI.ISSAC M.PERUMPILLIL RESPONDENTS: ------------- 1. THE KUNNAMKULAM MUNICIPALITY, REP. BY ITS SECRETARY, KUNNAMKULAM, THRISSUR DISTRICT. 2. THE SECRETARY, THE KUNNAMKULAM MUNICIPALITY, MUNICIPAL OFFICE, KUNNAMKULAM. 3. THE DISTRICT TOWN PLANNER, DISTRICT URBAN & RURAL DEVELOPMENT OFFICE, DISTRICT PLANNING UNIT, THRISSUR. R1-R2 BY ADV. SRI.GRASHIOUS KURIAKOSE R3 BY GOVT. PLEADER MR.K.J.MOHAMMED ANZAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.2044 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 7th February, 2008 JUDGMENT The petitioner, a resident of the first respondent-Municipality challenges in this Writ Petition under Article 226 of the Constitution Exts.P1 and P5 by which the Municipality rejects or refuses to consider the petitioner's application for construction of a commercial building on his properties in R.S.Nos.51/66, 51,67, 51/69, 51/72, 51/73 & 51/74 of Kunnamkulam village. The petitioner alleges that the Municipality has shown hostile discrimination towards him in as much as a lady by name Annamma Jacob who owns properties very near to the petitioner has been issued with a permit notwithstanding the existence of the so-called proposal to acquire the property for the purpose of construction of the bye-pass road and proposal to promulgate a notification of a D.T.P.Scheme in relation to the area in question. 2. A counter affidavit has been filed by the 1st respondent- Municipality wherein it is contended that the property in respect of which the building permit is applied for the petitioner is situated at a place where the Municipality proposes to construct a bye-pass road connecting the new bus stand. This proposed road, it is contended, is W.P.C.No.2044/08 - 2 - very much essential for the development of the town and for easing the increasing vehicular traffic in the town. It is also contended in the counter affidavit that steps are underway for getting the area notified under the Town Planning Act. 3. I have heard the submissions of Mr.Isaac M.Perumpillil, learned counsel for the petitioner and those of Mr.Grashious Kuriakose, learned Standing Counsel for the Municipality. 4. Mr.Isaac M.Perumpillil would draw my attention to Ext.P3 judgment of this court pursuant to which Smt.Annamma Jacob, the petitioner's neighbour was issued with a building permit by the Municipality. Learned counsel submitted that there is no reason for declining the justice given to Smt.Annamma Jacob to the petitioner. Learned counsel also drew my attention to the various judgments including those of the Supreme Court in Raju S.Jethmalani v. State of Maharashtra [(2005) 11 S.C.C. 222] and the Division Bench of this court in Padmini v. State of Kerala (1999(3) KLT 465). 5. Learned Standing Counsel for the Municipality would oppose the submissions on the basis of the contentions raised by the Municipality in its counter affidavit. 6. Having considered the rival submissions, I am of the view W.P.C.No.2044/08 - 3 - that the fact situation which obtains in this case is very much similar to the one which obtains in Ext.P3 judgment. It is not disputed before me that the properties of Smt.Annamma Jacob and that of the petitioner are lying nearby. Under these circumstances, I direct the Municipality to receive an affidavit from the petitioner undertaking to demolish the building to be constructed by him on the strength of the permit to be issued without claiming any compensation at all for the building in case a notification under Section 4(1) of the Land Acquisition Act is promulgated for acquisition of any portion of the petitioner's property within one year from today. Once such an affidavit is received, the 2nd respondent will reconsider the question of granting approval to the plan submitted by the petitioner and issuing building permit to the petitioner without being influenced by the proposal to acquire the property for the construction of the by-pass road or the steps which are stated to be underway for promulgation of a D.T.P.Scheme under the Town Planning Act. If the plan is otherwise in order, the same will be approved by the Municipality. Fresh orders on the permit application submitted by the petitioner will be passed by the 2nd respondent within three weeks of the petitioner filing affidavit in response to this judgment. It is however made clear W.P.C.No.2044/08 - 4 - that even after the expiry of the period of one year mentioned in this judgment, it will always be open to the respondents to acquire the petitioner's property including the building constructed on the strength of the permit for any genuine public purposes subject to the condition that under such an eventuality the respondents will be liable to pay adequate compensation to the petitioner under the Land Acquisition Act. The Writ Petition is allowed as above. srd PIUS C.KURIAKOSE, JUDGE