IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 WP(C).No. 1138 of 2011(N) ------------------------------------- PETITIONER(S): ----------------------- P.K. ANWAR, FLAT NO.7C, PRIMA LAND MARKET, THRISSUR. BY ADV. SRI.P.K.SURESH KUMAR, SMT.M.SINDHU THANKAM. RESPONDENT(S): ------------------------- THRISSUR CORPORATION, REPRESENTED BY ITS SECRETARY, THRISSUR-01. BY ADV. MR.K.B. MOHANDAS, SC, THRISSUR CORPN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.1138 OF 2011 -------------------------------------------- Dated this the 17th of February, 2011 JUDGMENT The petitioner and his brother Sri.P.K Ayub are owners in possession of 241 cents of land comprised in Sy.No.154/2 of Cheeyaram village, Thrissur. They came to be in possession of the said property by virtue of sale deed Nos.64/2005, 2964/2005 and 5825/2005 of Thrissur Sub Registry. They have jointly submitted an application for building permit before the respondent. Earlier, the property covered by the said documents were proposed to be acquired at the instance of Thrissur Urban Development Authority (for short 'TUDA'). Later, the said acquisition proceedings were dropped on account of the failure on the part of the TUDA to deposit the amount needed for acquisition. Despite the lapse of of acquisition proceedings, the TUDA did not release the land in question and finally the said issue was settled as per Ext.P2 agreement. As per the terms of the settlement, out of the entire extent of 241 cents, 29.05 cents were surrendered for the purpose of construction of a road and another 10 cents of property were assigned to TUDA. It is based on the same that the W.P.(C) NO.1138/2011 2 petitioner submitted an application on 20.11.2009 along with fresh plan accompanied by another application seeking the benefit of Chapter XI of the Kerala Building Rules (for short 'the Rules) that applies to cases where there was surrender of land. Subsequently, Ext.P6 notice was issued to the petitioner. As per Ext.P6, the petitioner was required to submit a fresh plan in accordance with the amendment that came into force in the year 2010. In fact, it is evident from Ext.P6 that the question of entitlement or otherwise of the petitioner for the benefits under Chapter XI of the Rules was not considered while issuing Ext.P6. It is in the said circumstances that this Writ Petition has been filed. 2. Essentially, the contention of the petitioner is that the directions in Ext.P6 are absolutely unsustainable and even in the light of the amendment that came into force in the year 2010 referred to in Ext.P6, the petitioner and his brother are entitled to the benefits of Chapter XI of the Rules. However, that question was not properly considered while issuing Ext.P6. In short, on that sole ground, Ext.P6 is liable to be set aside, it is contended. 3. I have heard the learned counsel for the petitioner and also the learned standing counsel appearing for the respondent. 4. As already noticed hereinbefore, the specific contention of the W.P.(C) NO.1138/2011 3 petitioner is that his predecessors have surrendered a considerable extent of the property that formed part of the property covered by the documents referred above. In view of the factum of surrender of land, it is contended that the petitioner and his brother are entitled to be benefit of Chapter XI of the Rules and their application submitted on 20.11.2009 with fresh plan are liable to be considered favourably. If there is no dispute regarding the surrender of the property as alleged by the petitioner, necessarily, the entitlement of the petitioner to the benefits under Chapter XI of the Rules requires consideration. I do not think that this Court should go into the merits of the contentions raised in this Writ Petition at this stage since the said question was not actually considered by the statutory authority. Invariably, it is a question which requires consideration at the first instance by the statutory authority. Obviously, while issuing Ext.P6, the said aspect was not at all considered. I am of the view that on that sole ground, Ext.P6 calls for interference. Therefore, to enable the respondent for proper consideration of the application submitted by the petitioner and his brother on 20.11.2009 with fresh plan, Ext.P6 is set aside. Consequently, there will be a direction to the respondent to consider the application dated 20.11.2009 and the fresh plan submitted along with the same expeditiously, at any rate, within a period of one month from the date of W.P.(C) NO.1138/2011 4 receipt of a copy of this judgment. While considering the same, the claim of the petitioner for the benefit of Chapter XI of the Rules shall also be considered. This Writ Petition is disposed of, accordingly. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.1138/2011 5 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) NO.1138/2011 6