IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 WP(C).No. 35032 of 2009(Y) ---------------------------------- PETITIONER(S): ------------------- 1. MARY THOMAS, AGED 58 YEARS, W/O.THOMAS, 15/324, KULANGARA HOUSE, AYYANTHOLE, THRISSUR. 2. DAISON, AGED 32 YEARS, S/O.MARY THOMAS, 15/324, KULANGARA HOUSE, AYYANTHOLE, THRISSUR. BY ADVS. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT(S): -------------------- 1. SECRETARY, THRISSUR CORPORATION, CORPORATION OFFICE, THRISSUR. 2. TOWN PLANNING OFFICER, THRISSUR CORPORATION, CORPORATION OFFICE, THRISSUR. 3. I.K.SEKHARAN, ITHIKKAD HOUSE, LAW COLLEGE ROAD, AYYANTHOLE, THRISSUR. R1 & R2 BY ADV.SRI.K.B.MOHANDAS,SC,THRISSUR CORPORATIO R3 BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SVS/ ANTONY DOMINIC, J. ``````````````````````````````````````````````````````` W.P.(C) No. 35032 of 2009 Y ``````````````````````````````````````````````````````` Dated this the 28th day of October, 2010 J U D G M E N T According to the petitioners, 1st petitioner purchased a shop room, sometime in 1999, where her husband has been running a ration shop since then. It is submitted that, in 2009, by virtue of settlement deed executed by the 1st petitioner, the property now belongs to the 2nd petitioner. 2. According to the petitioners, third respondent owns a shopping complex, which is situated on the three sides of the petitioner's shop room. Petitioners allege that the third respondent made an attempt to purchase the building and that the petitioners were unwilling to part with the property. 3. It is stated that as a result of the above, the third respondent made a complaint to the first respondent alleging that, in 2008, the 1st petitioner made an unauthorised construction on the upper floor of the shop room. Thereupon, W.P.(C) No.35032/2009 : 2 : first respondent issued Ext.P2 notice to which the 1st petitioner submitted Ext.P3 reply, contending that the upper floor of the shop room was constructed in 1999, when that area was a part of Ayyanthole Panchayat. It is a case of the 1st petitioner that, at that time, the Kerala Municipality Building Rules were not applicable to the area and that building permit was not required to be obtained. It is also her case that, despite the above, she made the construction only after intimating the same to the Panchayat. 4. While the matter was thus pending, the 1st petitioner submitted Ext.P5 representation to the first respondent, reiterating the above contentions and requesting to drop further proceedings against her. On Ext.P3, first respondent made an endorsement, requiring the Building Inspector to conduct an enquiry into the case of the petitioner that the building was constructed when the area was under the jurisdiction of the Panchayat. The Building Inspector was also required to report the point of time when the construction W.P.(C) No.35032/2009 : 3 : was completed. It is the case of the petitioners that report in pursuance to Ext.P3 was not submitted. 5. Petitioners state that, even in spite of it, further notices were issued and replies were also submitted and that during the course of the hearing on one occasion, at the instance of the first respondent, the 1st petitioner was also made to submit an application for regularisation of the construction and that by Ext.P8, the second respondent required the 1st petitioner to make certain modifications for getting the construction regularised. At that stage, the third respondent filed a writ petition before this Court as W.P.(C) No.15595/2009, complaining that his objection against the proposal for regularisation of the building was not considered by the Municipal authorities. That writ petition was disposed of by Ext.P9 judgment, directing the first respondent to hear both parties and consider the application made by the 1st petitioner for regularisation of the construction. 6. Accordingly, the parties were heard and by W.P.(C) No.35032/2009 : 4 : Ext.P10, 1st petitioner was allowed 30 days time to make certain modifications. 1st petitioner's case is that within the time allowed by Ext.P10, she made modifications as suggested in Ext.P8. It is stated that, despite the above, 1st petitioner was issued Ext.P12 notice, by the second respondent, requiring her to cure the defects mentioned therein. Ext.P12 was followed by Ext.P13 notice of the second respondent asking the 1st petitioner to comply with Ext.P10 within ten days. Challenging the aforesaid proceedings, writ petition is filed. 7. Although petitioner seeks various reliefs in this writ petition, when the case was taken up for hearing, the only prayer which the counsel for the petitioners made was that, before any further action is taken on Exts.P12 and P13, the enquiry ordered by the first respondent in Ext.P5 should also be completed and the report which is to be submitted by the Building Inspector should also be considered as and when orders are passed. W.P.(C) No.35032/2009 : 5 : 8. Although the counsel for the third respondent contended that, 1st petitioner herself had made an application for regularisation of the building and that the request of the petitioner itself pre-supposes that the objectionable construction was made in violation of the provisions of the Building Rules. On this basis, it is argued that, if so, there is no necessity to enquire into the question whether the building in question was constructed prior to the implementation of the Building Rules. 9. Although it is the admitted fact that the 1st petitioner made an application for regularisation in paragraph 6 of the writ petition, she has offered her explanation about the background in which such an application happened to be made by her. According to the 1st petitioner, it was at the instance of the first respondent that such an application was made and that it was without realising the consequences that the request was made by her. These averments are not denied by the first respondent in the counter affidavit filed. W.P.(C) No.35032/2009 : 6 : 10. Irrespective of the correctness or otherwise of the assertion made by the 1st petitioner, if factually the building was constructed prior to the implementation of the Building Rules, there is no reason why the first petitioner should have been deprived of any benefit she is otherwise entitled to. In Ext.P5, considering the request made by the 1st petitioner, the first respondent has already called for a report and the report is yet to be submitted. In that view of the matter, I am inclined to think that the request of the petitioner is a reasonable one. 11. Therefore, I dispose of the writ petition, directing that the first respondent will ensure that the report as ordered by him in Ext.P5 is obtained from the Building Inspector. Once the report is obtained as above, the same will be made available to the second respondent, who has issued Exts.P12 and P13. Thereupon the second respondent will issue notice to the petitioners and the third respondent and take further action based on Exts.P12 and P13, duly adverting to the report thus submitted by the Building Inspector also. W.P.(C) No.35032/2009 : 7 : 12. Petitioner to produce a copy of this judgment before respondents 1 and 2 for compliance. 13. Needless to say the contentions on merits raised by both sides are left open. 14. It is clarified that once the report is obtained as above, it will be open to the parties to approach the first respondent seeking copies of the same as above. (ANTONY DOMINIC, JUDGE) aks