Panchayat:Repo18/Law Manual Page0331

fact the buildings have been constructed illegally or in violation of the Rules, then the plaintiffs will be justified in seeking the temporary injunction against the issuance of the aforementioned certificates and allotment of number in respect of those buildings. The Court below by refusing to go into this question has abdicated its function as the Civil Court. (Paras 13 & 14) - Bernad Mani @ Roy and Others V. James and Others – 2012 (1) KHC 377 (DB).

An application for building permit was denied citing town planning and proposal for land acquisition. In this case it was held that there is nothing in the Land Acquisition Act or any other law which prohibits the owner of a piece of land which is the subject matter of Section 4 of the Land Acquisition Act from enjoying the property in any manner not prohibited by law including construction of a building thereupon if it is otherwise permitted under law.- Kalpetta Municipality v. M. Mohandas and Others - 2011 (4) KHC 844 (DB). [Nasar v. Malappuram Municipality, 2009 (3) KHC 35 [2009 (3) KLT 92: 2009 (2) KLJ 584 : ILR 2009 (3) Ker. 520; (Para 4) – Referred to].

Section 391 of the Kerala Municipality Act (for short 'KMA') mandates that within thirty days after the receipt of the application under Section 387 for permission to execute any work, the Secretary shall by written order either grant or refuse to grant such permission on any of the grounds mentioned in Section 393 and intimate the fact to the applicant in writing provided that the said period of thirty days shall not begin to run until the site has been approved under Section 390. The development permit was issued after much delay in violation of the Rules and thus the Secretary failed to issue development permit and building permit within the statutory period. If the application for permit was kept pending beyond the statutory period and during the said pendency. If the amended Rules came into force, the question to be decided in this case is whether in such applications un-amended Rules or amended Rules is applicable. Here it was held that the applicant is entitled to building permit in accordance with un-amended building rules, if the secretary has failed to act on the application within the prescribed period. – Great India Estates Pvt. Ltd. v. State of Kerala and Others - 2011 (4) KHC 580: 2011 (4) KLT 884. [M/s. Asset Home (P) Ltd. and Another v. State of Kerala and Another, 2011 (2) KHC 559 : JILR 2011 (2) Ker. 211: 2011 (2) KLT 1 : 2011 (2) KLJ 473; (Para 5); Meethian Kunju M.M. and Others v. State of Kerala and Others, 2011 (2) KHC 415 : ILR 2011 (2) Ker. 342 : 2011 (2) KLT 185: 2011 (2) K J 533; (Para 5); Wireless T.T. Info Services Ltd. v. S.I. of Police 2011 (2) KHC 536 : 2011(2) KLT 820; (Para 8) - Referred to] Editor's Note : In this case one important question remains unanswered. Why not the secretary be held liable for the dereliction of his duty and the State be compensated for the laches on his part or why not disciplinary action be taken against him. In this case the petitioner fetched a favourable order just because the secretary did not do anything on the application for permit.

In Delta Telecom India Pvt. Ltd. v. Sub Inspector of Police, Elathur and Others, the contention of respondents 4 to 6 is to the effect that Building Permit is unsustainable since the same was granted without site approval as required under the provisions of the Kerala Municipality Building Rules. In fact, the respondents 4 to 6 or anybody else have not taken any steps to challenge the Building Permit. Nobody has approached the competent Appellate Authority in this regard. Therefore we are not in a position to evaluate the contention in this regard. Further there is no material placed before us to arrive at any conclusion that the Building Permit was granted without approval of the site. However it will be left open to the respondents to challenge the Building Permit, before appropriate Appellate Authority, if permissible under law. (Para 7) - Delta Telecom India Pvt. Ltd. v. Sub Inspector of Police, Elathur and Others - 2011(4) (KHC) 575 DB: 2011 (4) KLT 689. [Essar Telecom Infrastructure Pvt Ltd. v. C.I. of Police, 2010 (2) KHC 445. 2010 (2) KLT 762 : ILR 2010 (2) Ker. 592; (Paras 2, 8); Essar Telecom Infrastructure Pvt Ltd. v. State of Kerala, 2011 (2) KHC 171: 2011 (2) KLT 516: 2011 (2) KLJ 335; Para 2 - Referred to).

When there are many commercial buildings adjacent to the land in question, the Secretary can conduct an inspection of the site to find out whether the buildings constructed in and around land and nearby area consists mostly of commercial buildings than residential, then Secretary can allow commercial construction subject to approval of building plan. If in an area earmarked as a residential zone large number of constructions for commercial purposes were permitted whether under orders issued by the Government or not, then the only sensible thing for the Corporation to do is to take a realistic approach by not regarding the area any longer as a residential zone and request the Government to make suitable change in the Master Plan to make it in conformity with ground reality.- Gopalakrishnan T. V. v. State of Kerala and Others – 2011 (3) KHC 162 (DB): 2011 (3) KLT 317 : ILR 2011 (3) Ker. 493.

Since a gumpty shop rests on the laterite stones placed on land is not easily removable, it was held that it would attract the expression "hut' which as per Section 2(1) is a building - Vayalilakath Abdul Nazar v. 'Paruthithodi Mammad Koya – 2011 (2) KHC 677 (DB): 2011.(2) KLT 914: ILR 2011 (2) Ker. 769 : 2011 (3) KLJ 4.

An application for building permit was submitted before the Municipality. The Building Rules was

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