IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 WP(C).No. 8539 of 2006(N) --------------------------------------- PETITIONER: --------------------- RADHAKRISHNAN, S/O.N.KRISHNA PANICKER, AGED 65 YEARS, SECRETARY, GOVIND SUITE OWNERS' ASSOCIATION, NORTH NADA, GURUVAYOOR-680 101. BY ADV. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK SRI.M.X.ANTONY LIJO RESPONDENTS: ------------------------ 1. GURUVAYOOR MUNICIPALITY, REP. BY THE SECRETARY,GURUVAYOOR. 2. O.P.UNNIKRISHNAN, MANAGING PARTNER, GOVIND SUITES, GURUVAYOOR. *ADDL.R3 & R4 ARE IMPLEADED: R3. MR. P.S. PRASANNAKUMAR, S/O. PALIKKAL SREENIVASAN, CHAVAKKAD TALUK, POOKODU AMSOM AND DESO, KOTTAPPADI P.O., PIN – 680 505 AND R4. MR. O.P. BABU, S/O. OZHUKIL PADINJARAPPATTU NARAYANIKUTTY AMMA, MALA P.O., PIN – 679 534. ARE IMPLEADED AS ADDL.RESPONDENT NO.3 AND R4 AS PER THE SUO - MOTO ORDER DTD. 3/10/07 IN WPC. R1 BY ADV. SRI.K.K.CHANDRAN PILLAI, SC SRI.R.SHYAM KUMAR R2 BY ADV. SRI.K.RAMAKUMAR SRI.R.JAYACHANDRAN SRI.A.SAMEER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.8539/2006 N APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAN APPROVED BY THE 1ST RESPONDENT. EXT.P2: COPY OF THE REPRESENTATION DTD. 28/08/2005 MADE BEFORE 1ST RESPONDENT BYTHE PETITIONER. EXT.P3: COPY OF THE NOTICE DTD. 31/08/2005 ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT. EXT.P4: COPY OF THE JUDGMENT DTD. 04/10/2005 IN WP(C) NO. 28213/2005 OF THIS HON'BLE COURT. EXT.P5: COPY OF THE JUDGMENT DTD. 28/11/2005 IN W.A.NO.2420/2005 OF THE DIVISION BENCH OF THIS HON'BLE COURT. EXT.P6: COPY OF THE ORDER DTD. 07/03/2006 OF THE 2ND RESPONDENT. EXT.P7: COPY OF THE ENCUMBRANCE CERTIFICATE DTD. 23/02/2006 OF THE SUB-REGISTRARS OFFICE, CHAVAKKAD. 1ST RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF NOTICE DTD. 22/11/2006 ISSUED BY THE MUNICIPALITY. EXT.R1(B): COPY OF NOTICE DTD. 22/11/2006 ISSUED BY THE MUNICIPALITY. /TRUE COPY/ P.A.TO JUDGE Kss PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.8539 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 16th January, 2008 JUDGMENT This Writ Petition has been filed by the petitioner alleging that the party respondents has constructed a building in violation of the Kerala Municipality Building Rules. The Municipality has filed a detailed counter affidavit and in paragraph 5 of the counter affidavit, it is stated as follows: “Ext.P6 is now assailed by the petitioner before this Hon'ble Court in the above Writ Petition. The petitioner also seeks for a direction to the Municipality to demolish the unauthorised constructions and alterations made by the 2nd respondent in the recreation space. It is respectfully submitted that the grievance made by the petitioner in the Writ Petition is correct. The builder has partitioned the recreation space and it is now further understood that he had sold the said space to P.S.Prasannan and O.P.Babu, as per document No.142/1/2006. They had applied the Municipality for transfer of the ownership of the building in their name. This was objected to by the petitioner and after considering the application the Municipality had rejected the said request since the said area is intended for recreation purpose and it is on that basis that the plan W.P.C.No.8539/06 - 2 - was approved and permission was granted for construction of the building. The petitioner complained that the persons in whose favour the request for transfer is made for are near relative of the builder/promoter of the flat. Since the grievances of the petitioner is found to be correct the Municipality has rejected the request made by the above persons. They were informed by notice dated 22.11.2006, which is produced herewith and the same is marked as EXHIBIT-R1 (a), that their request cannot be considered. Copy of Ext.R1(a) notice is also issued to Sri.Prasannan and Babu with copy to the 2nd respondent informing that their action is unauthorised and illegal and it will amount to violation of the provisions of the Kerala Municipality Building Rules. The Municipality has informed that action will be taken against them in this respect. True copy of the said notice dated 22.11.2006 issued to the above persons with copy to the 2nd respondent is also produced herewith and the same is marked as EXHIBIT-R1(b).” There is controversy at the Bar as to whether even if the allegations in Ext.R1(b) are correct, will or not there be rule violation. I do not propose to decide this controversy since Ext.R1(b) notice is issued by the Municipality. The party respondents are directed to file reply, if W.P.C.No.8539/06 - 3 - any, to Ext.R1(b) within one month from today. If reply is received from the party respondents within the stipulated time, the Municipality will hear the party respondents as well as the writ petitioner and finalise the proceedings initiated as per Ext.R1(b). Finalisation order shall be passed at the earliest and at any rate within one month of the party respondents filing reply to Ext.R1(b). If no reply is received from the party respondents, the Municipality will ensure that the area in question is utilised as recreation space itself. The Writ Petition is disposed of as above. No costs. srd PIUS C.KURIAKOSE, JUDGE