IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 23RD MAY 2011 / 2ND JYAISHTA 1933 WP(C).No. 36421 of 2003(J) --------------------------------------- PETITIONER(S): ----------------------- LATHA JAYAPRAKASH, D/O.MUTHAN AMBI, “PRAKASH RAJ HOUSE”, PUTHIYAPPA, P.O. PUTHIYANGADI, KOZHIKODE DISTRICT. BY ADVS. SRI.T.SETHUMADHAVAN SRI. KODOTH PUSHPARAJAN SRI.K.JAYESH MOHANKUMAR RESPONDENT(S): -------------------------- 1. LOCAL ADMINISTRATION(M) DEPARTMENT, REPRESENTED BY THE SECRETARY, THIRUVANANTHAPURAM. 2. CALICUT CORPORATION, REPRESENTED BY THE SECRETARY, KOZHIKODE. 3. K.V.KUMARAN, KUZHIPPAVAYALIL HOUSE, EDAKKAD AMSOM, PUTHIYANGADI DESOM, KOZHIKODE DISTRICT. 4. K.V.AJITHKUMAR, S/O. KUMARAN, KUZHIPPAVAYALIL HOUSE, EDAKKAD AMSOM, PUTHIYANGADI DESOM, KOZHIKODE DISTRICT. R1 BY GOVERNMENT PLEADER SRI. K. REMESH R2 BY ADV. SRI.P.V.KUNHIKRISHNAN,SC,KOZHIKODE CORP SRI.K.D.BABU,SC,KOZHIKODE CORPORATION R3 & R4 BY SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE BY ADV. SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.36421/2003 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PERMIT DATED 10/5/2002 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. P2 COPY OF THE ORDER DATED 1/10/2002 ISSUED BY THE 1ST RESPONDENT. P3 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. P4 COPY OF THE REPORT DATED 26/2/2003 SUBMITTED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. P5 COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, PUTHIYANGADI WITH THE SURVEY PLAN DATED 31/12/2002. P6 COPY OF THE COMMUNICATION DATED 9/4/2003 ISSUED BY THE 2ND RESPONDENT. P7 COPY OF THE COMMUNICATION DATED 16/5/2003 FORWARDED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. P8 COPY OF THE ORDER DATED 14/7/2003 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.36421 OF 2003 -------------------------------------------- Dated this the 23rd day of May, 2011 JUDGMENT The petitioner who is the owner in absolute possession of an extent of 11.25 cents of property comprised in Re.Sy.No.43/2 of Puthiyangadi village filed this Writ Petition mainly seeking for issuance of a writ of mandamus commanding the second respondent to implement Ext.P8 order of the first respondent. The further prayer is for issuance of a writ of mandamus commanding the second respondent to grant permission to the petitioner for constructing a house in Re.Sy.No.43/7 of Puthiyangadi village. It is contended that the property of the petitioner mentioned in Ext.P1 actually comprised in Re.Sy.No.43/7 and not in Re.Sy.No.43/2 of the said village. However, a mistake had been crept in the sale deed with respect to the survey number. It is the case of the petitioner that subsequently, the survey number was corrected and the Village Officer has issued Ext.P5 possession certificate to the petitioner showing that the aforesaid extent of land is comprised in Re.Sy.No.43/7 of Puthiyangadi village. Thereafter, the petitioner applied to the second respondent for building permit to construct a house in the above mentioned property. W.P.(C) NO.36421/2003 2 Ext.P1 is the building permit granted to the petitioner. While construction was undergoing, the petitioner received Ext.P2 order of the first respondent requiring her to stop construction. It was stated therein that the petitioner had not obtained No Objection Certificate from the railway authorities and further that a civil case was also pending in respect of the property in question. Ultimately, the matter was taken up for consideration before the first respondent. On such consideration, the first respondent passed Ext.P8 order directing the second respondent to grant permission to the petitioner for constructing a house in the property in question subject to the satisfaction of the conditions specifically mentioned therein. The contention of the petitioner is that the injunction passed by the Municipal Court, Kozhikode in O.S.Nos.396/2002 and 760/2002 is in respect of the property comprised in Re.Sy.No.43/2 and not in respect of the property comprised in Re.Sy.No.43/7 of Puthiyangadi village. It is further contended that the injunction order passed in the said original suits would not stand in the way of making any construction in the property in question viz. Re.Sy.No.43/7 of Puthiyangadi village. The grievance of the petitioner is that despite the specific directions in Ext.P8, no action was taken by the second respondent to consider the application submitted by the petitioner for grant of permission and the petitioner is being disabled W.P.(C) NO.36421/2003 3 from proceeding with the construction. It is in the said circumstances that this Writ Petition has been filed. 2. A counter affidavit has been filed in this Writ Petition by the first respondent. Virtually, contentions have been taken to sustain and support Ext.P8 order. It is stated therein that the proposed construction is only 23 metres away from the railway boundary and the required distance is 30 metres. Taking note of such circumstances and alleging that permission was obtained by deliberate misrepresentation of facts, a show cause notice was issued to the petitioner as envisaged under Rule 16 of the Kerala Building Rules. Upon finding the reply submitted by the petitioner as unsatisfactory, the permission granted to the petitioner for construction of house in the property in question was cancelled on 11.7.2002 vide proceedings No.E9-37375/2002. It is also stated therein that the original suits viz., O.S.Nos.396 & 760 of 2002 pertaining to the property in question are pending before the Municipal Court, Kozhikode. It is contended on behalf of the first respondent that on account of the pendency of the said suits, the application of the petitioner could not be forwarded to the railways for No Objection Certificate. Later, the petitioner has produced the possession certificate showing that 11.25 cents of land is comprised in Re.Sy.No.43/7 of Puthiyangadi village. It was in W.P.(C) NO.36421/2003 4 the said circumstances that Ext.P8 order was passed by the first respondent directing the second respondent to grant permission to the petitioner for construction of building subject to the production of No Objection Certificate from the railways with a further condition that it should not go against the order in the aforesaid original suits. 3. Evidently, this Writ Petition has been filed mainly to redress the grievance regarding non-implementation of Ext.P8 order. Nothing is on record to show that subsequent to the passing of Ext.P8 order, the petitioner has obtained No Objection Certificate from the railway authorities. No document has been produced regarding the outcome of the original suits referred above. In the circumstances, this Court cannot issue any direction commanding the respondents to grant permission to the petitioner for constructing a house in Re.Sy.No.43/7 of Puthiyangadi village. However, it will be open to the petitioner to approach the second respondent for such permission subject to the production of No Objection Certificate from competent railway authorities and, of course, subject to the outcome of the above mentioned suits. Subject to the above observation, this Writ Petition is closed. (C.T. RAVIKUMAR, JUDGE) W.P.(C) NO.36421/2003 5 spc C.T. RAVIKUMAR, J. W.P.(C) NO.36421/2003 6 JUDGMENT September, 2010