IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 WP(C).No. 27348 of 2009(K) -------------------------- PETITIONER(S): --------------- RANIMOL M.S., W/O.V.A.AJI, 'SAVITRIKA', VRA 67-B, VETTAMUKKU, THIRUMALA P.O., TRIVANDRUM DISTRICT. BY ADV. SRI.ANIL THOMAS(T) SMT.K.V.RESHMI RESPONDENT(S): --------------- 1. THE CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. THE TOWN PLANNER, CORPORATION OF THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM. ADV. SRI.P.K.MANOJKUMAR FOR R1,2 MR.N.NANDAKUMARA MENON, SC MS.K.R.DEEPA, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.27348 of 2009 (K) --------------------------------- Dated, this the 15th day of February, 2010 J U D G M E N T The issue raised in this writ petition is regarding the invalidity of Ext.P7 notice issued by the respondent Corporation under Rule 16 of the Kerala Municipality Building Rules. 2. The petitioner submits that based on an application made by her, she was granted Ext.P1 building permit enabling her to construct a residential house in 7 cents of her land in Survey Nos.94/6-2 and 96/3-1-1 of Thirumala village. According to the petitioner, she completed construction and submitted completion certificate on 29/12/2007 and also applied for assigning number to the building in question. There was no response to the application made and therefore, claiming that she was entitled to the benefit of the deeming provision contained in Rule 22(3) of the Kerala Municipality Building Rules, she occupied the building. 3. Subsequently, on 01/03/2008 she submitted an application for allotting building number. However, she was later WP(C) No.27348/2009 -2- issued Ext.P2 notice dated 12/06/2008. In this notice, it was alleged that the petitioner had cheated the Corporation and made it issued the building permit in respect of an area earmarked as a parking place and that therefore the permit was liable for cancellation and the building was liable for demolition. Against Ext.P2 she filed Ext.P4 appeal to the Tribunal for Local Self Government Institutions. The appeal was numbered as Appeal No.343/2008. By Ext.P5, the Tribunal disposed of the appeal setting aside Ext.P2 and leaving it open to the Corporation to initiate fresh action, if there is any reason for doing so. 4. Paragraph 10 of Ext.P5 order, being relevant, is extracted below for reference. “10. It is alleged in the impugned notice that the permit was obtained by cheating the Corporation. But it is not made clear how the obtaining of the permit becomes cheating or how the Corporation was cheated in the impugned notice. In the written statement filed by Respondent it is stated that the permit was obtained by suppressing material factors. In the impugned notice there is no clear statement of any specific grounds as specified by Rule 16 of the Kerala Municipality Building Rules as reason for revocation of the permit. There is no clear allegation of any misrepresentation of fact or law committed by the Appellant in the impugned notice. Hence the impugned notice is not sustainable as a notice under the proviso to Rule 16 of the Kerala WP(C) No.27348/2009 -3- Municipality Building Rules as no specific grounds as stated in Rule 16 of the Kerala Municipality Building Rules is specifically and clearly alleged in the notice.” 5. Pursuant to Ext.P5, the petitioner submitted Ext.P6 representation to the Mayor requesting to number the building. At that stage, she was issued Ext.P7 notice dated 18/07/2009. Ext.P7 notice is almost a verbatim of Ext.P2, except that the word 'cheated' in Ext.P2 has been substituted by the word 'mislead'. By this notice she has been asked to file her reply within 15 days. It is challenging Ext.P7 notice, this writ petition has been filed. 6. The contention raised by the learned counsel for the petitioner is mainly that she having acted upon Ext.P1 building permit issued by the Corporation and completed construction, it is not open to the Corporation to contend that Ext.P1 permit is invalid. It is also contended that several buildings have been constructed in the neighbourhood of the petitioner, the details of which are stated to be contained in Ext.P9. According to the petitioner, all these buildings have been numbered and therefore it is not open to the Corporation to take a discriminatory stand in her case alone. 7. Yet another contention raised by the learned counsel for WP(C) No.27348/2009 -4- the petitioner is that Ext.P2 notice has been invalidated by the Tribunal for the reasons stated in paragraph 10 of Ext.P5 order and that since Ext.P7 notice is only a verbatim reproduction of Ext.P2, the invalidity pointed out in paragraph 10 of Ext.P5 order applies to Ext.P7 notice as well. 8. Counter affidavit has been filed by the respondent Corporation. In the counter affidavit, it is stated that Ext.P7 is only a notice and it is for the petitioner to show cause against the same. It is stated that it is for the petitioner to file her reply and invite an order, which again, according to them, is appealable to the Tribunal for Local Self Government Institutions. It is also contended that the petitioner obtained the building permit based on a one day permit and that in terms of the agreement executed by the petitioner, if there is infraction of the Building Rules, the Corporation is entitled to take action against the petitioner. Yet another contention raised by the respondent Corporation is that the buildings in the neighborhood were all constructed either prior to the introduction of the Town Planning Scheme or after obtaining necessary concurrence from the Regional Town Planner or the Chief Town WP(C) No.27348/2009 -5- Planner. 9. True, as contended by the learned senior counsel for the respondent Corporation, Ext.P7 is only a notice and it is for the petitioner to file her reply. However, if as stated by the petitioner, all buildings in the neighborhood have been numbered, prima facie, there appears to be no reason for the Corporation to take a different attitude in the case of the petitioner. It is also to be stated that, if as contended, the entire area has become a residential one, the proposal for parking area is unlikely to materialise in future. Be that as it may, since Ext.P7 is only a notice, I direct that it will be open to the petitioner to file her reply to Ext.P7 within four weeks from today, in which event, the Corporation will consider Ext.P7 in the light of the contentions raised and pass orders thereon. In the meanwhile, interim order passed by this Court on 30/09/2009, which has been extended thereafter, will remain in force. This writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg