IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 WP(C).No. 12903 of 2009(G) -------------------------- PETITIONER(S): --------------- 1. SAJEER.S., SREEVILASOM, VADAKKEVILA P.O., VADAKKEVILA, KOLLAM. 2. SAIBUNIZA, NATIONAL NAGAR 113, VAYALILTHOPPU, HOUSE NO.X/349, NEW NO.X/1029, POLAYATHODU, KOLLAM-21. BY ADV. SRI.S.ARUN RAJ RESPONDENT(S): --------------- 1. THE SECRETARY, MUNICIPAL CORPORATION OF KOLLAM, KOLLAM. 2. THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 3. SENIOR TOWN PLANNER OFFICER (VIGILANCE), SECRETARIATE, THIRUVANANTHAPURAM. 4. FAROOK KOYA THANGAL, PROPRIETOR, SAHARA CATERING, PUNNAMUDIYIL, ULIYAKOVIL CHERRY, KOLLAM EAST VILLAGE, ULIYAKOVIL P.O., KOLLAM. R1 BY SHRI M.K. CHANDRAMOHAN DAS R2 & R3 BY G.P. SMT. K.R. DEEPA R4 BY ADV. SHRI ALEX N. MATHEW THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/06/2010, ALONG WITH WPC NO. 5332 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 12903/2009-G &5332/2010-N - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of June, 2010. JUDGMENT These two writ petitions are filed by the same petitioners, against the respondents herein. In W.P.(C) No.12903/2009 the petitioners are seeking for a direction to the first respondent to consider and pass appropriate orders on Ext.P2 representation after conducting a detailed inspection and for a direction not to grant licence to the 4th respondent to conduct a hotel in building No.X/346. 2. Mainly it is contended that the 4th respondent who is the adjacent owner of the property of the petitioners and who owns an old building with tiled roof, consisting of two shop rooms bearing No.X/346, was indulging in illegal constructions and the petitioners have brought it to the notice of the Corporation. It is pointed out that the petitioners had also moved the Senior Town Planning Officer (Vigilance) in the matter. 3. W.P.(C) No.5332/2010 is concerned with the challenge against the building permit issued by the Corporation in favour of the 4th respondent. Therein also various contentions have been raised with regard to the absence of the required clearance from the National Highway authorities wpc 12903/2009 & 5332/2010 2 and also from the property owners of other sides of the proposed building. According to the petitioners, as per the approved master plan, a building should be 7.5 meters away from the existing National Highway 47 road. Various details have been pointed out therein, in support of the plea that the 4th respondent is making illegal constructions and that too, with the support of the officials of the Corporation. 4. In W.P.(C) No.12903/2009, a counter affidavit has been filed by the first respondent Corporation, wherein they have stated that as the construction in the back side of the tiled roof did not conform to the Kerala Municipality Building Rules, the same was directed to be demolished. It is submitted by the learned Standing Counsel for the Corporation that subsequently the unauthorised constructions have been demolished. Therefore, as far as W.P.(C) No.12903/2009, the main relief sought for is not relevant at this point of time. 5. Learned counsel for the petitioners submitted that he is sticking on to relief No.(B) wherein he has sought for a direction to the Corporation not to grant licence to the 4th respondent to conduct the hotel in the building in question. The said issue is left open. 6. In W.P.(C) No.5332/2010, on behalf of the Corporation, a wpc 12903/2009 & 5332/2010 3 statement and a counter affidavit have been filed and the contesting respondent has also filed a counter affidavit in the matter. The stand taken by the Corporation, as evident from the counter affidavit, is that the building permit has been issued properly in accordance with the building rules and in spite of repeated inspections, they could not find out any violation so far. Therefore, it is pointed out that the petitioners are not entitled for any relief in the writ petition. 7. In the counter affidavit filed by the 4th respondent it is mentioned that the petitioners have already filed three suits, viz. O.S. Nos.906/2009, 939/2009 and 971/2009 before the Munsiff's Court, Kollam. It is pointed out that identical reliefs have been sought for in the civil suits also. It is therefore submitted that in the light of the fact that the petitioners have already availed of the remedy to approach the civil court, the writ petition is not maintainable. My attention is invited to the prayers made in Ext.R4(b) plaint, wherein the second prayer is for a mandatory injunction directing the defendant to demolish the illegal construction of shop building made in the property of the defendant. 8. In that view of the matter, it is up to the petitioners to prosecute the civil suits. Therefore, I am not considering any of the matters on merits wpc 12903/2009 & 5332/2010 4 in the writ petitions, as otherwise it will prejudice the contentions of the parties in the civil suits. Learned counsel for the petitioners then submitted that the remedy of the petitioners to seek reliefs against the Corporation may be left open, since the corporation is not a party in the civil suits. It is open to the petitioners to approach the Ombudsman for Local Self Government Institutions or any other Forum, if that is permissible under law. The writ petitions are disposed of accordingly. No costs. (T.R. Ramachandran Nair, Judge.) kav/