IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 6TH JUNE 2011 / 16TH JYAISHTA 1933 WP(C).No. 952 of 2011(T) ----------------------------------- PETITIONER: ------------------- MUHAMMED.P, AGED 55 YEARS, S/O.MOIDEENKUTTY, PANDARATHODI HOUSE, MYTHRI NAGAR, MUNDUPARAMBA P.O., MALAPPURAM, PIN-676 505. BY ADVS. SRI.K.ABDUL JAWAD, SMT.S.GIFFARA. RESPONDENTS: ----------------------- 1. MALAPPURAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MALAPPURAM-676 001. 2. THE SECRETARY, MALAPPURAM MUNICIPALITY-676 001. R1 & R2 BY ADV. SRI.E.S.M.KABEER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.952/2011-T: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTICE DTD. UNDER SECTION 242 (1) OF THE KERALA MUNICIPALITY ACT ISSUED BY THE R.2. EXT.P.2: COPY OF THE APPLICATION FOR REGULARISATION OF THE BUILDING BEFORE THE R.2. DTD. 02/11/2010. EXT.P.3: COPY OF THE ORDER DTD. 09/12/2010 ISSUED BY THE R.2. TO THE PETITIONER. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. C.T.RAVIKUMAR, J. --------------------------------------- W.P(C)No.952 of 2011 ---------------------------------------- Dated 6th June, 2011 JUDGMENT The issue involved in this writ petition is covered in favour of the petitioner by the decision of the Hon'ble Apex Court in Raju S.Jethmalani v. State of Maharashtra reported in 2005(11) SCC 222 and also the decision of this Court in Padmini v. State of Kerala reported in 1999(3) KLT 465. 2. The petitioner has submitted an application before the second respondent for building permit for the construction of a residential building. However, no order was passed thereon. Thereupon, the petitioner moved the council of the first respondent. In paragraph 2 of the writ petition, it has been asserted that though he had moved the council, no decision was taken and intimated to him. The contention of the petitioner is that in the circumstances, he has commenced and completed the construction of the building. Thereupon, Ext.P1 notice was issued to the petitioner. As per Ext.P1 dated 21.8.2010, the respondents have assigned building number to the said residential building constructed by the petitioner as IX/VAC III and after allotting such a building number, it was assessed to property tax. WP(C).No.952/2011 2 3. Ext.P1 is a notice issued under section 242 of the Kerala Municipality Act (for short `the Act'). Section 242(1) empowers the respondents to levy tax in respect of a building unauthorisedly constructed. Sub section (2) thereunder would reveal that any action taken under section 242(1) of the Act would not preclude the Secretary from initiating action under section 406 of the Act and in such eventuality, the owner would not have any right to get any compensation due to such action taken by the Secretary. After the receipt of notice under section 242, evidently, under section 242(1) of the Act, the petitioner has submitted an application for regularisation of the unauthorised construction. It can only be taken as an action taken by the petitioner in anticipation of further action under section 242(2) of the Act. However, no notice has been served so far on the petitioner invoking the power under section 242(2) of the Act. At the same time, the application submitted by the petitioner for regularisation of the unauthorised construction was taken up for consideration and the same was rejected as per Ext.P3. As per Ext.P3, the said request of the petitioner for regularisation was rejected on the ground that under the DTP Scheme the area in which the construction was effected by the petitioner is proposed for acquisition. The contention of the petitioner is that, as so far no notice under section 4(1) of the Land Acquisition Act was published including the WP(C).No.952/2011 3 concerned property as an item for acquisition, there is no justification for rejecting his request as per Ext.P3 citing the said reason. The learned counsel for the petitioner contends that in the light of the decision of the Hon'ble Apex Court in Raju S. Jethmalani's case (supra) and the decision of this Court in Padmini's case (supra) the action on the part of the respondents in rejecting the application on the aforesaid ground is unsustainable. There is no contention for the respondents that a notification under section 4(1) of the Land Acquisition Act was issued including the property belonging to the petitioner as an item for acquisition. In fact, no notification under section 4(1) has so far been issued including the property in question or the area wherein the property situates. It is also pertinent to note that in the statement filed on behalf of the respondents the specific contentions of the petitioner that on his application for building permit the 2nd respondent had not passed any order and thereafter he moved the council of the first respondent and they too, did not take any decision and communicated, were not denied. However, I do not propose to consider those aspects as the challenge now raised is against Ext.P3. In view of the reasons mentioned above and in the light of the decision of the Hon'ble Apex Court in Raju S. Jethmalani's case (supra) and the decision of this Court in Padmini's case (supra) I am of the considered view that the reason assigned in WP(C).No.952/2011 4 Ext.P3 cannot be a reason for rejection of the application for regularisation. In short, Ext.P3 cannot be sustained in the aforesaid circumstances. Accordingly, it is set aside. Consequently, there will be a direction to the respondents to consider Ext.P2 application dated 2.11.2010 afresh, in accordance with law. This shall be done expeditiously, at any rate, within a period of one month from the date of receipt of a copy of this judgment. The writ petition is disposed of accordingly. Sd/- C.T.RAVIKUMAR Judge spc/TKS