Koduvally Municipality vs Khadeeja

A. J. Desai, C. J.

By way of the present appeal filed under Section 5 of the Kerala High Court Act, 1958, the original respondents have challenged the interim order dated 12.04.2023 in W. P. (C) No. 7069 of 2023 by which the learned Single Judge directed the present appellants to issue building permit in terms of Ext. P10 application for effecting construction in the petitioner’s property, without insisting on surrender of any more land.

By taking us through the prayers made in the writ petition, learned advocate appearing for the appellants would submit that the learned Single Judge ought not to have passed the interim order, which is in the form of a final order, granting the main prayer itself.

On the other hand, learned Advocate appearing for the original petitioner would submit that, as per the Kerala Municipality Act, 1994, deemed permission has to be granted in view of sub-section (2) of Section 392. He would further submit that it is an undisputed fact that the application submitted by the original petitioner was placed before the Municipal Council and for more than one month, the Council has not taken any decision as to whether the application should be approved or permission should be given, and therefore, the same has to be treated as deemed permission. He would also submit that no interference is required to be called for.

We have heard the learned Advocates for respective parties.

It is not in dispute that the application filed by the original petitioner for effecting constructions in the petitioner’s property was forwarded to the Council and was not decided for more than one month. As per sub-section (2) of Section 392 of the Kerala Municipality Act, 1994, if the Council does not, within one month from the date of receipt of such written request, determine whether such approval or permission should be given or not, such approval or permission shall be deemed to have been given. In view of the above, we do not find any reason to interfere with the order impugned.

Though the learned Advocate appearing for the appellants, relying on the decision of the Hon’ble Supreme Court in State of U. P. and Others v. Ram Sukhi Devi [2005 (9) SCC 733] and the decision of this Court in Centre for Indian Trade Union (CITU) and Others v. Intercontinental Traders and Others [2020 KHC 23], submits that the learned Single Judge ought not to have passed the interim order, which is in the form of a final order, granting the main relief itself, going through the above, we are of the opinion that it is a pure question of law, which is not applicable to the peculiar facts and circumstances of this case.

Writ appeal is accordingly dismissed.