IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 18TH FEBRUARY 2008 / 29TH MAGHA 1929 WP(C).No. 37213 of 2007(E) -------------------------- PETITIONER: ------------ SMT.CHEVIDEKUNNEL ALEEMA, D/O.ABDUL RAHMAN KUTTY, CHEVIDEKUNNEL HOUSE, KODOOR-676 504. BY ADV. SRI.M.K.CHANDRA MOHANDAS SRI.LEEJOY MATHEW.V. RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE MALAPPURAM MUNICIPALITY REPRESENTED BY THE SECRETARY, MALAPPURAM MUNICIPALITY, MALAPPURAM. 3. THE SECRETARY, MALAPPURAM MUNICIPALITY, MALAPPURAM. 4. THE CHIEF TOWN PLANNER, OFFICE OF THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM. 5. THE DISTRICT TOWN PLANNER, MALAPPURAM ( R5 IS IMPLEADED SUO MOTU AS PER ORDER DATED 2.1.2008) BY ADV. SRI.BABU S. NAIR GOVERNMENT PLEADER SRI.K.J.MUHAMMED ANZAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. ---------------------------------- W.P.(C) NO. 37213 of 2007 ---------------------------------- Dated this the 18th day of February , 2008 JUDGMENT The grievance of the petitioner is that the Municipality rejected applications submitted by her for construction of a commercial building on the ground that as per the proposed existing master plan notified under the Town Planning Act, there is a proposal to widen the Kozhikode - Palakkad road by 25 meters and in view of that proposal , the petitioner has to leave a set back of 11.5 meters from the margin of the road, which is inclusive of 5 meters building line and 6.5. meters proposed widening line. 2. The additional 5th respondent has filed a detailed counter affidavit endorsing the stand of the Municipality. I have heard the submissions of Sri.Leejoy Mathew, the learned counsel for the petitioner, Sri.Babu S.Nair, the learned standing counsel for the Municipality and Sri.K.J.Muhammed Anjar, the learned Government Pleader. 3. My attention was drawn by Sri.Leejoy Mathew to sub rule (1) of Rule 25 of the Kerala Municipality Building Rules and to the WPC No. 37213/2007 2 judgment of this court in Padmini v. State of Kerala (1999 (3) KLT 465) and also to the judgment of the Supreme Court in the decision in Raj S.Jetmalani & others v. State of Mmaharashtra & others (2005 (11) SCC 222). He also drew my attention to Ext.P1 plan and submitted that as against the set back building line of 4.5 meters statutorily required, the petitioner has left out building line of 5 meters. According to him, concrete steps have not been taken so far for acquiring any portion of the property of the petitioner or that of anybody else by the side of the Kozhikode Palakkad road for widening the road so that the width proposed as per District Town Planning scheme will be achieved. The master plan was notified in 1981 and the same , at this distance of time, has become oppressive from the point of view of persons who own the property from the side of the road in as much as they are being prevented from utilizing the property in manners of their choice subject to existing rules. 4. Though the submissions of Sri.Leejo were resisted by the learned counsel for the Municipality, I am of the view that the issue is covered by the judgment of this court in Padmini's case (supra). Concededly till this time not even a notification under Section 4 (1) of the Land Acquisition Act was promulgated by the Government for acquisition of properties so as to achieve the extra width proposed as WPC No. 37213/2007 3 per the master plan. 5. Under the above circumstances, I am inclined to grant relief to the petitioner to the extent relief has been given in cases raising more or less similar grounds. Accordingly, this Writ Petition will stand disposed of issuing the following directions: i). The petitioner is directed to file an affidavit before the 3rd respondent in which she will undertake that if a notification under Section 4 (1) of the land Acquisition Act is promulgated within one year from today for the acquisition of any portion of her property for the purpose of widening the Kozhikode Palakkkad State Highway so that the same will have the width as proposed by the master plan, the petitioner will not claim any compensation for any portion of the building which will be constructed on the strength of the permit. ii). Once such an affidavit is filed, the Municipality will reconsider the petitioner's plan and if the plan is otherwise in order approval will be granted and permit will be issued. In other words, existence of the proposal to widen the road as per the master plan will not be a ground for rejecting the plan. iii). It is, however, made clear that even after one year period, it will be open to the 3rd respondent to acquire the petitioner's property for any genuine public purpose including road widening. But WPC No. 37213/2007 4 under such a contingency, the petitioner will be entitled for adequate compensation as per the Land Acquisition Act not only for the land but also for the building. iv). Fresh orders, as directed above, will be passed at the earliest and at any rate within one month of the petitioner producing a copy of this judgment and filing the affidavit. PIUS C. KURIAKOSE, JUDGE. dpk