IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 WP(C).No. 35221 of 2009(W) -------------------------- PETITIONER(S): --------------- ABDUL KADER,S/O.MR.P.MOIDUTTY, PARAPPURATHU HOUSE,P.O,PONNYAKURUSSI, PERINTHALMANNA,MALAPPURAM DISTRICT. BY ADV. SRI.C.A.MAJEED SRI.K.H.ASIF RESPONDENT(S): --------------- 1. STATE OF KERALA,REP;BY SECRETARY TO GOVERNMENT,LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT,THIRUVANANTHPURAM. 2. PEPRINTHALMANNA MUNICIPALITY REP:BY IT'S SECRETARY,PERINTHALMANNA,MALAPPURAM DISTRICT. 3. DISTRICT COLLECTOR,CIVIL STATION, MALAPPURAM. 4. REVENUE DIVISIONAL OFFICER,R.D.O.OFFICE, PERINTHALMANNA,MALAPPURAM DISTRICT. 5. TAHSILDAR,TALUK OFFICE,PERINTHALMANNA, MALAPPURAM DISTRICT. 6. ASST:EXECUTIVE ENGINEER,(THE PROJECT DIRECTOR),NATIONAL HIGHWAY,PERINTHALMANNA, MALAPPURAM DISTRICT. 7. MOHAMMED MUSTHAFA,S/O.MOHAMMED MUSALIYAR THARAYIL HOUSE,MAKKARAPARAMBU.P.O,PERINTHALMANNA, MALAPPURAM DISTRICT-676 507. 8. MOHAMMED RAFEEQUE,S/O.MR.SAIDALAVI, KALIPARAMBIL HOUSE, PERINTHALMANNA.P.O, MALAPPURAM DISTRICT-679322. ADV. SRI.M.P.ASHOK KUMAR FOR R7 SRI.S.A.ABDUL SALEEM FOR R8 SMT.SMITHA GEORGE FOR R8 SRI.P.K.VIJAYAMOHANAN FOR R2 MR.THOMAS ANTONY, SC FOR NHAI MS.K.R.DEEPA, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.35221 of 2009 (W) --------------------------------- Dated, this the 3rd day of March, 2010 J U D G M E N T The 7th respondent owns 2.9 cents of land in Survey No.60/7 of Perinthalmanna Vilalge. For constructing a building with ground and first floors, the 7th respondent made an application to the respondent Municipality for a building permit. Ext.R2(c) & (d) are the sketch and site plan of the plot in question. The Municipality conducted enquiries and issued Ext.R7(a) building permit. On that basis, he started constructions. 2. According to the petitioner, the construction is in violation of Rules 33 & 34 of the Kerala Municipality Building Rules. Although, the petitioner's allegation is that the 7th respondent has trespassed into puramboke land abutting the National Highway, according to the petitioner, the National Highway Authorities themselves have taken action in the matter, and therefore, this issue is not addressed before this Court. 3. In so far as the allegation that the construction WP(C) No.35221/2009 -2- undertaken by the 7th respondent and the building permit issued to the 7th respondent are in violation of Rules 33 & 34 of the Kerala Municipality Building Rules is concerned, as already stated, the extent of the plot in question is only 2.9 cents. This is a small plot as contemplated in Chapter VIII of the Municipality Building Rules, which makes special provisions for constructions in such small plots. Faced with this situation, the learned counsel for the petitioner contends that there is violation of Rules 62 (3) and 63 of the Rules. However, it is noticed that this allegation of violation of these Rules is not raised either in the writ petition or before the Municipality, and therefore, even the Municipality did not have an occasion to deal with such allegations. In such a situation, and in the absence of pleadings supporting this contention, this Court will not be justified in directing the Municipality to cancel the permit as sought for in the writ petition. Therefore, the writ petition is disposed of leaving it open to the petitioner to take up with the Municipality his complaint that the 7th respondent has undertaken construction in violation of the provisions contained in Chapter VIII of the Municipality Building WP(C) No.35221/2009 -3- Rules, in which event the Municipality will take appropriate action in the matter. This writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg