IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27348 of 2009(K)
1. RANIMOL M.S., W/O.V.A.AJI,
... Petitioner
Vs
1. THE CORPORATION OF THIRUVANANTHAPURAM.
... Respondent
2. THE TOWN PLANNER,
3. STATE OF KERALA, REPRESENTED BY ITS
For Petitioner :SRI.ANIL THOMAS(T)
For Respondent :SRI.P.K.MANOJKUMAR
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :15/02/2010
O R D E R
ANTONY DOMINIC, J.
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W.P.(C.) No.27348 of 2009 (K)
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Dated, this the 15th day of February, 2010
J U D G M E N T
The issue raised in this writ petition is regarding the invalidity
of Ext.P7 notice issued by the respondent Corporation under Rule
16 of the Kerala Municipality Building Rules.
2. The petitioner submits that based on an application
made by her, she was granted Ext.P1 building permit enabling her
to construct a residential house in 7 cents of her land in Survey
Nos.94/6-2 and 96/3-1-1 of Thirumala village. According to the
petitioner, she completed construction and submitted completion
certificate on 29/12/2007 and also applied for assigning number to
the building in question. There was no response to the application
made and therefore, claiming that she was entitled to the benefit of
the deeming provision contained in Rule 22(3) of the Kerala
Municipality Building Rules, she occupied the building.
3. Subsequently, on 01/03/2008 she submitted an
application for allotting building number. However, she was later
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issued Ext.P2 notice dated 12/06/2008. In this notice, it was
alleged that the petitioner had cheated the Corporation and made it
issued the building permit in respect of an area earmarked as a
parking place and that therefore the permit was liable for
cancellation and the building was liable for demolition. Against
Ext.P2 she filed Ext.P4 appeal to the Tribunal for Local Self
Government Institutions. The appeal was numbered as Appeal
No.343/2008. By Ext.P5, the Tribunal disposed of the appeal
setting aside Ext.P2 and leaving it open to the Corporation to
initiate fresh action, if there is any reason for doing so.
4. Paragraph 10 of Ext.P5 order, being relevant, is
extracted below for reference.
“10. It is alleged in the impugned notice that the permit
was obtained by cheating the Corporation. But it is not made
clear how the obtaining of the permit becomes cheating or how
the Corporation was cheated in the impugned notice. In the
written statement filed by Respondent it is stated that the permit
was obtained by suppressing material factors. In the impugned
notice there is no clear statement of any specific grounds as
specified by Rule 16 of the Kerala Municipality Building Rules as
reason for revocation of the permit. There is no clear allegation of
any misrepresentation of fact or law committed by the Appellant
in the impugned notice. Hence the impugned notice is not
sustainable as a notice under the proviso to Rule 16 of the KeralaWP(C) No.27348/2009
-3-Municipality Building Rules as no specific grounds as stated in
Rule 16 of the Kerala Municipality Building Rules is specifically and
clearly alleged in the notice.”
5. Pursuant to Ext.P5, the petitioner submitted Ext.P6
representation to the Mayor requesting to number the building. At
that stage, she was issued Ext.P7 notice dated 18/07/2009. Ext.P7
notice is almost a verbatim of Ext.P2, except that the word ‘cheated’
in Ext.P2 has been substituted by the word ‘mislead’. By this notice
she has been asked to file her reply within 15 days. It is challenging
Ext.P7 notice, this writ petition has been filed.
6. The contention raised by the learned counsel for the
petitioner is mainly that she having acted upon Ext.P1 building
permit issued by the Corporation and completed construction, it is
not open to the Corporation to contend that Ext.P1 permit is invalid.
It is also contended that several buildings have been constructed in
the neighbourhood of the petitioner, the details of which are stated
to be contained in Ext.P9. According to the petitioner, all these
buildings have been numbered and therefore it is not open to the
Corporation to take a discriminatory stand in her case alone.
7. Yet another contention raised by the learned counsel for
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the petitioner is that Ext.P2 notice has been invalidated by the
Tribunal for the reasons stated in paragraph 10 of Ext.P5 order and
that since Ext.P7 notice is only a verbatim reproduction of Ext.P2,
the invalidity pointed out in paragraph 10 of Ext.P5 order applies to
Ext.P7 notice as well.
8. Counter affidavit has been filed by the respondent
Corporation. In the counter affidavit, it is stated that Ext.P7 is only
a notice and it is for the petitioner to show cause against the same.
It is stated that it is for the petitioner to file her reply and invite an
order, which again, according to them, is appealable to the Tribunal
for Local Self Government Institutions. It is also contended that the
petitioner obtained the building permit based on a one day permit
and that in terms of the agreement executed by the petitioner, if
there is infraction of the Building Rules, the Corporation is entitled
to take action against the petitioner. Yet another contention raised
by the respondent Corporation is that the buildings in the
neighborhood were all constructed either prior to the introduction
of the Town Planning Scheme or after obtaining necessary
concurrence from the Regional Town Planner or the Chief Town
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Planner.
9. True, as contended by the learned senior counsel for the
respondent Corporation, Ext.P7 is only a notice and it is for the
petitioner to file her reply. However, if as stated by the petitioner,
all buildings in the neighborhood have been numbered, prima facie,
there appears to be no reason for the Corporation to take a different
attitude in the case of the petitioner. It is also to be stated that, if
as contended, the entire area has become a residential one, the
proposal for parking area is unlikely to materialise in future.
Be that as it may, since Ext.P7 is only a notice, I direct that it
will be open to the petitioner to file her reply to Ext.P7 within four
weeks from today, in which event, the Corporation will consider
Ext.P7 in the light of the contentions raised and pass orders
thereon. In the meanwhile, interim order passed by this Court on
30/09/2009, which has been extended thereafter, will remain in
force.
This writ petition is disposed of as above.
(ANTONY DOMINIC, JUDGE)
jg