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ANNAMMA JACOB, W/O.LATE K.P. JACOB versus THE SECRETARY, KUNNAMKULAM

High Court of Kerala

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ANNAMMA JACOB, W/O.LATE K.P. JACOB v. THE SECRETARY, KUNNAMKULAM - WP(C) No. 6349 of 2007(E) [2007] RD-KL 4593 (5 March 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 6349 of 2007(E)

1. ANNAMMA JACOB, W/O.LATE K.P. JACOB,
... Petitioner

Vs

1. THE SECRETARY, KUNNAMKULAM
... Respondent

2. THE DISTRICT TOWN PLANNER,

For Petitioner :SRI.K.J.VINCENT

For Respondent :SRI.K.HARILAL

The Hon'ble MR. Justice PIUS C.KURIAKOSE

Dated :05/03/2007

O R D E R

PIUS C.KURIAKOSE, J.

W.P.(C)NO. 6349 of 2007 Dated this 5th day of March, 2007

JUDGMENT

Sri.Grashious Kuriakose, the learned Standing Counsel takes notice for the first respondent Municipality. Heard the counsel for the petitioner as well as Sri.Grashious Kuriakose. The petitioner impugns Exts.P3 to P5 by which the petitioner's application for construction of commercial building in the area of the first respondent Municipality was rejected by the Municipality on the ground that the plot comes within the new bus stand area as per the DTP scheme and that there is a proposal for road widening. Sri.K.J.Vincent, the learned counsel for the petitioner submits that so far, the DTP scheme has not been notified. He further submits that no notification under Section 4(1) of the Land Acquisition Act has been promulgated so far by the Municipality for acquisition of any portion of the Petitioner's property. WPC No.6349/2007 2

2. Having Considered the rival submissions, I am of the view that the issue is covered by a judgment of the Supreme Court in S.Jethamalani and others v. State of Maharashtra and others (2005) 11 Supreme Court 222) and by a judgment of the Divison Bench of this court in Padmini v. State of Kerala (1999 (3) KLT 465). Having regard to the principles laid down in those decisions, which apply more strongly in this case in view of the conceded position that the DTP scheme has not been approved and notified so far, this writ petition will stand disposed of in the following terms: Ext.P3 is quashed. The petitioner will file an affidavit before the first respondent undertaking to demolish the building to be constructed by him on the strength of the permit to be issued without claiming any compensation at all for the building in case a Notification under Section 4 (1) of the Land Acquisition Act is promulgated for acquisition of any portion of the property of the petitioner within one and half years of the issuance of permit. Once such an affidavit is received, the 2nd respondent will issue no objection certificate if necessary, and the first WPC No.6349/2007 3 respondent will issue the permit applied provided the plan is otherwise in order. In other words existence of the DTP scheme and the proposal to acquire the property for road widening will not be a ground for rejection of the application for building permit. Fresh orders on the permit application will be passed by the concerned respondent within three weeks of receiving a copy of this judgment. It is made clear that even after the expiry of one and half years covered by the affidavit, it will be open to the respondents to acquire the petitioner's property including the building for any genuine public purpose, but under such an event they will be liable to pay adequate compensation to the petitioner under the Land Acquisition Act. PIUS C.KURIAKOSE Judge dpk


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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