IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 WP(C).No. 34485 of 2009(E) -------------------------- PETITIONER(S): --------------- P.K.MOHAMMED, S/O.KUNHI BAVA, AGED 56 YEARS, PUTHIYA VEETTIL, MANNAM P.O., NORTH PARUR. BY ADV. SRI.I.DINESH MENON RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL ADMINISTRATION DEPARTMENT, SECRETARIAT, TRIVANDRUM 2. THE PARUR MUNICIPALITY, REPRESENTED BY ITS SECRETARY, N.PARUR. 3. THE CHAIRMAN, PARUR MUNICIPALITY, N.PARUR. ADV. SRI.T.A.SHAJI,SC,PARAVUR MUNICIPALITY MS.K.R.DEEPA, SR. GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------ WP(C) No.34485 of 2009 (E) -------------------------- Dated, this the 5th day of January, 2010 J U D G M E N T The petitioner is aggrieved by Ext.P4 notice dated 12/11/2009. By this order, the respondent Municipality has declined to number the commercial building constructed by the petitioner. 2. Facts of the case are that the petitioner is the owner of 13.65 cents of land in survey No.243/18-6 of Paravur Village in Paravur Municipality. He applied for a building permit. That was rejected by the Municipality on the ground that the property in question was proposed to be acquired. The order of rejection was challenged before this Court in WP(C) No.36662/2007. That writ petition was disposed of by Ext.P2 judgment taking note of the contentions of the Municipality and with the following directions:- “The petitioner is directed to file an affidavit before the 2nd respondent Municipality undertaking in very clear terms that in the event of any notification under Section 4(1) of the Land Acquisition Act being promulgated for acquisition of any portion of the petitioner's property, within a period of one year from today, the WP(C) No.34485/2009 -2- petitioner will not be entitled for any compensation for the building which he may put up on the strength of the building permit to be issued to him by the Municipality. The petitioner will file such affidavit within three weeks from today and upon receiving that affidavit, the Municipality will consider the plan submitted by the petitioner for approval and will approve the same if it is otherwise in order. In other words, existence of the proposal to build a shopping complex by the Municipality will not be a reason for rejecting the plan. It is made clear that even after the expiry of the above mentioned one year period, this judgment will not stand in the way of the Municipality acquiring the property of the petitioner for a genuine public purpose in which case the petitioner will be entitled for adequate compensation as admissible under the Land Acquisition Act. It is also made clear that this judgment will not stand in the way of the Municipality in challenging Ext.P4 in appropriate proceedings, if so advised.” 3. The petitioner complied with the directions in the judgment, and accordingly, building permit was issued. While, he was proceeding with the construction, he was issued Ext.P3 stop memo again stating that since the Government have permitted to acquire the property, the work should be stopped forthwith. Ext.P3 was challenged before this Court in WP(C) No.28004/2009, and in that writ petition Ext.P3 was stayed and that writ petition is stated to be pending. Construction continued and by now the petitioner completed two floors. Thereupon, he made an application for partial occupancy certificate and on which application, Ext.P4 order WP(C) No.34485/2009 -3- has been passed, declining his request on the ground that steps for issuing notification under Section 4(1) of the Land Acquisition Act have been initiated. It is challenging Ext.P4, this writ petition is filed. 4. The Municipality has filed a counter affidavit, explaining that steps have already been initiated for acquiring the land in question. From the facts pleaded by both sides, what is seen is that though the Municipality is in the process of initiating steps for acquiring the land belonging to the petitioner, as on date, even the notification contemplated under Section 4(1) of the Land Acquisition Act has not been issued. A reading of Ext.P2 judgment rendered by this Court in WP(C) No.36662/2007 shows that the petitioner was entitled to complete the construction and that even after completion of the construction, the right of the Municipality to initiate proceedings for acquisition of the land will not be prejudiced in any manner and sufficient safeguard in that behalf has been incorporated. It is on the strength of Ext.P2, the building permit was granted and by now the petitioner has completed the construction. Now that he has completed the construction, he is also entitled to enjoy the building as well. When occupancy WP(C) No.34485/2009 -4- certificate is applied for, there is absolutely no justification for the Municipality to have turned down the request of the petitioner again on the ground of the proposed acquisition. For these reasons, I am unable to uphold Ext.P4 and the said order will stand set aside. This writ petition is disposed of directing the Municipality to issue occupancy certificate applied for by the petitioner. It is made clear that occupancy certificate so issued will not stand in the way of the Municipality if they ultimately decide to acquire the property belonging to the petitioner. The writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg