IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 25TH JANUARY 2010 / 5TH MAGHA 1931 WP(C).No. 28404 of 2009(U) -------------------------- PETITIONER(S): --------------- RIYAS C.H., S/O.ABOOBACKER HAJI, RESIDING AT BEVINJE, POST THEKKIL FERRI, KASARAGOD TALUK. BY ADV. SRI.P.K.MUHAMMED RESPONDENT(S): --------------- 1. KASARAGOD MUNICIPALITY, REP. BY THE SECRETARY, MUNICIPAL OFFICE, KASARAGOD. 2. THE TOWN PLANNER, DISTRICT URBAN/RURAL PLANNING OFFICE, KASARAGOD. 3. STATE OF KERALA, REP. BY THE SECRETARY FOR LOCAL SELF ADMINISTRATION, SECRETARIAT, THIRUVANANTHAPURAM. 4. T.H.SAIFUDEEN, S/O.LATE T.H.MUHAMMED KUNHI, FATHIMA MANZIL, AYYAMCODE, KALNAD, KASARAGOD. ADV. SRI.BECHU KURIAN THOMAS FOR R4 SMT.INDU SUSAN JACOB FOR R5 SRI.V.M.KURIAN FOR R1 GOVERNMENT PLEADER SRI.V.MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 28404 of 2009 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF THE REPORT OF THE 2ND RESPONDENT TO CHIEF TOWN PLANNER DATED 27.1.07 EXT.P2- PHOTOGRAPHS OF THE ILLEGAL CONSTRUCTION EXT.P3- TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER DATED 19.3.2008 EXT.P4- TRUE COPY OF THE NOTICE BY THE 1ST RESPONDENT DATED 2.1.09 EXT.P5- TRUE COPY OF THE PETITION I.A.318/09 IN W.P.(C).14679/08 FILED BY THE 4TH RESPONDENT DATED 6.5.09 EXT.P6- TRUE COPY OF THE JUDGMENT IN W.P.(C).14679/08 DATED 16.9.09 EXT.P7- TRUE COPY OF THE JUDGMENT IN W.P.(C).15682/09 DATED 8.6.09 EXT.P8- TRUE COPY OF THE PETITION DATED 17.9.09 (TRUE COPY) P.A TO JUDGE ANTONY DOMINIC, J ....................... W.P.(C).28404/2009 ....................... Dated this the 25th day of January, 2010 JUDGMENT 1. Heard the learned counsel for the petitioner, learned counsel for the 1st respondent and learned counsel appearing for the 4th respondent. 2. The prayer sought in this writ petition is to quash the proceedings of the 1st respondent accepting the revised plan submitted by the 4th respondent and numbering the shop rooms constructed by him. Petitioner also seeks a direction to the 4th respondent to demolish the construction made by the 4th respondent in R.S.82/1A at Kasargode 3. Petitioner and the 4th respondent are owners of adjacent properties. During 2003, 4th respondent's father had obtained a building permit and licence from the respondent Municipality, for the construction of a building which, according to the petitioner, was for ground floor and 1st floor. He started construction and soon thereafter expired. Alleging that the construction undertaken by the 4th respondent's father was illegal, petitioner W.P.(C).28404/09 2 approached this Court by filing W.P.(C).14679/2008. During the pendency of that writ petition, 4th respondent, the son of the deceased, made an application to the Municipality for Completion Certificate, transfer of building permit and extension of time specified in the building permit. These applications were rejected. 4. Thereupon, the 4th respondent moved an Interlocutory Application in W.P.(C).14679/2008 filed by the petitioner, requiring the Municipality to consider the applications made by him. That I.A was rejected and thereafter without impleading the petitioner herein, the 4th respondent filed a writ petition before this Court as W.P.(c).15682/09. That writ petition was disposed of by Ext.P7 judgment dated 8.6.2009 requiring consideration of Exts.P6 to P8 therein, which are the applications for transfer of building permit, extension of time specified in the building permit and for Completion Certificate. While so, according to the petitioner, misusing Ext.P7 judgment, the 4th respondent submitted a revised plan to the Municipality in order to legitimise the construction that he had already completed. It is seen that the matter was considered by the Committee constituted under W.P.(C).28404/09 3 Rule 85 of the Kerala Municipality Building Rules and Ext.R1(a) is the proceedings of the Committee. It is stated that based on Ext.R1(a), the building constructed was numbered. 5. It was still later that by Ext.P6 judgment, W.P.(C). 14679/2008 filed by the petitioner was disposed of. Paragraph 2 of the judgment, being relevant, is extracted hereunder. “With the aforesaid facts, it needs to be noted that the municipal authority has not concluded finally on the request of respondents 5 and 6 to regularise the construction and to issue completion certificate and number the building. Equally, the objection of the writ petitioner that there is further violation in the matter of enclosing the verandah is also to be considered. These are matters on which the municipal authority has to decide. Hence, this writ petition is ordered directing that the competent in the first respondent will hear the petitioner and respondents 5 and 6, consider the aforesaid issues and conclude by passing an order stating reasons since any person aggrieved by that decision could carry it for consideration of the Tribunal for LSGIs in terms of the provisions of W.P.(C).28404/09 4 the Kerala Municipality Act, 1994. Before parting, it also needs to be recorded that the learned counsel for respondents 5 and 6 stated that certain directions were obtained in a different writ petition. It is stated that the said writ petition is without notice to the petitioner. Whatever that be, the municipality has to consider the objections of the petitioner and issue appropriate decision in accordance with law.” 6. From the reading of the aforesaid paragraph of the judgment, it is obvious that after taking note of the grievance raised before this Court, this Court directed the Municipality to decide the matter after hearing all parties concerned. Such a direction was issued despite taking note of Ext.P7 judgment rendered earlier. It is while the matter stood thus, this writ petition is filed before this Court with the reliefs mentioned above. 7. A counter affidavit has been filed by the Municipality and the 4th respondent. The endeavour of the 4th respondent is to W.P.(C).28404/09 5 satisfy this Court that the construction undertaken was well in compliance with the conditions in the building permit and the licence. Municipality in its counter affidavit has stated that after the building permit was issued, there were allegations against the 2nd respondent that there is violation of the provisions of the Municipality Building Rules. It is stated that thereupon the action was initiated. However, objections raised by the 2nd respondent was found to be unsustainable. It is stated that in the meanwhile, the 4th respondent submitted a revised plan which was taken note of by the Special Committee and the Special Committee noticed the requirement of maintaining 1.5 metres setback as against 90 cms originally provided. It is stated that this defect has been cured by the 4th respondent and that other modifications suggested by the Municipality were also complied with by the 4th respondent. Insofar as the further action pursuant to Ext.P6 judgment is concerned, it has been stated thus in the counter affidavit. “This respondent was not aware of Ext.P6 judgment as the same was passed on 16.9.09, long after Ext.P7 judgment and after the Special Committee granted approval. However this W.P.(C).28404/09 6 respondent has issued notice dated 21.10.09 to the parties in terms of the directions in Ext.P6 judgment for conducting hearing on 30.10.09. The petitioner his counsel and the 4th respondent appeared for hearing on 30.10.09. Due to pendency of the writ petition, no further action is taken.” 8. Therefore, it is evident that the proceedings pursuant to Ext.P6 are pending consideration of the Municipality and it is at that stage the writ petition is filed. 9. In my view, this writ petition is premature. The reason is that in Ext.P6 judgment, after taking note of all the objections raised by the petitioner the Municipality was directed to issue notice to both the petitioner and the 4th respondent and to consider the grievance raised by the petitioner. It was also clarified that once final orders are passed, it will be open to the parties to pursue their statutory remedies. Therefore, as at present, what is required to be done is that the Municipality shall carry out the directions of this Court in Ext.P6 judgment in the manner as directed therein. W.P.(C).28404/09 7 10. In view of the above, I direct the Municipality to issue notice to the petitioner and the 4th respondent and decide the matter as directed in Ext.P6 judgment. This shall be done by the Municipality as expeditiously as possible, at any rate, within six weeks of production of a copy of this judgment. 11. It is made clear that for the disposal of the writ petition, it was not necessary for this Court to reach conclusions on the disputed issues that are raised by the parties. Therefore, it is clarified that all contentions of the petitioner and the 4th respondent, including the allegation made by the petitioner that the 4th respondent has trespassed into the area initially surrendered by him, are left open to be urged and adjudicated by the Municipality. Writ petition is disposed of as above. ANTONY DOMINIC, Judge mrcs