IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 WP(C).No. 23124 of 2009(I) -------------------------- PETITIONER(S): --------------- 1. UMMATHOOR RAZAK, UMMATHOOR HOUSE, MALAPPURAM, MALAPPURAM DISTRICT. 2. MANKARATHODI RAZIYA, W/O.RAZAK, UMMATHOOR HOUSE, MALAPPURAM, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): --------------- THE MALAPPURAM MUNICIPALITY REPRESENTED BY ITS SECRETARY, MALAPPURAM, MALAPPURAM DISTRICT. BY ADV.N.ABDUL MAJEED, S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.23124 OF 2009 ------------------------------------------- Dated this the 20th day of August, 2009 JUDGMENT This writ petition is filed challenging the decision of the Malappuram Municipality rejecting building permit on the ground that a distance of 35 metres will not be available from the centre of the adjoining highway to the periphery of the structure sought to be constructed or the compound wall as the case may be. The writ petitioner cannot be deprived on any ground referable to the availability or otherwise of a DTP scheme in view of the applicability of decisions reported in Raj S.Jathmalani & Others v. State of Maharashtra [2005(11) SCC 222], in Padmini v. State of Kerala [1999(3) KLT 465] and in Nazar P.K. v. Malappuram Municipality [2009(3) KLT 35]. The plea, therefore, is on the basis of the law laid down in Peer Muhammed v. Chirakkandam Grama Panchayat [2008(3) KLT 300]. The contention therefore, is that without any notification under Section 18(2) of the Highway Protection Act, WPC.23124/09 Page numbers 1999, a set back of 35 meters from the centre of the highway cannot be insisted upon. That is not an issue that could be answered by the Municipality. It necessarily has to be answered with reference to the PWD. Therefore, by the force of this judgment, the impugned order will stand quashed and the respondent is directed to immediately obtain written reply from the Assistant Ex. Engineer, PWD as to whether the letter relied on at Sl.No.2 in Ext.P1 was issued on the basis of any notification under Section 18(2) of the Highway Protection Act, 1999. If it is not so, the application of the petitioner for building permit, if it is otherwise in order, will be considered and orders issued. Let this happen within a period of four months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.22/8.