IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35032 of 2009(Y)
1. MARY THOMAS, AGED 58 YEARS, W/O.THOMAS,
... Petitioner
2. DAISON, AGED 32 YEARS,
Vs
1. SECRETARY, THRISSUR CORPORATION,
... Respondent
2. TOWN PLANNING OFFICER,
3. I.K.SEKHARAN, ITHIKKAD HOUSE,
For Petitioner :SRI.P.SANTHOSH (PODUVAL)
For Respondent :SRI.K.B.MOHANDAS,SC,THRISSUR CORPORATIO
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :28/10/2010
O R D E R
ANTONY DOMINIC, J.
```````````````````````````````````````````````````````
W.P.(C) No. 35032 of 2009 Y
```````````````````````````````````````````````````````
Dated this the 28th day of October, 2010
J U D G M E N T
According to the petitioners, 1st petitioner
purchased a shop room, sometime in 1999, where her
husband has been running a ration shop since then. It is
submitted that, in 2009, by virtue of settlement deed executed
by the 1st petitioner, the property now belongs to the 2nd
petitioner.
2. According to the petitioners, third respondent owns
a shopping complex, which is situated on the three sides of
the petitioner’s shop room. Petitioners allege that the third
respondent made an attempt to purchase the building and
that the petitioners were unwilling to part with the property.
3. It is stated that as a result of the above, the third
respondent made a complaint to the first respondent alleging
that, in 2008, the 1st petitioner made an unauthorised
construction on the upper floor of the shop room. Thereupon,
W.P.(C) No.35032/2009
: 2 :
first respondent issued Ext.P2 notice to which the 1st petitioner
submitted Ext.P3 reply, contending that the upper floor of the
shop room was constructed in 1999, when that area was a
part of Ayyanthole Panchayat. It is a case of the 1st petitioner
that, at that time, the Kerala Municipality Building Rules were
not applicable to the area and that building permit was not
required to be obtained. It is also her case that, despite the
above, she made the construction only after intimating the
same to the Panchayat.
4. While the matter was thus pending, the 1st
petitioner submitted Ext.P5 representation to the first
respondent, reiterating the above contentions and requesting
to drop further proceedings against her. On Ext.P3, first
respondent made an endorsement, requiring the Building
Inspector to conduct an enquiry into the case of the petitioner
that the building was constructed when the area was under
the jurisdiction of the Panchayat. The Building Inspector was
also required to report the point of time when the construction
W.P.(C) No.35032/2009
: 3 :
was completed. It is the case of the petitioners that report in
pursuance to Ext.P3 was not submitted.
5. Petitioners state that, even in spite of it, further
notices were issued and replies were also submitted and that
during the course of the hearing on one occasion, at the
instance of the first respondent, the 1st petitioner was also
made to submit an application for regularisation of the
construction and that by Ext.P8, the second respondent
required the 1st petitioner to make certain modifications for
getting the construction regularised. At that stage, the third
respondent filed a writ petition before this Court as W.P.(C)
No.15595/2009, complaining that his objection against the
proposal for regularisation of the building was not considered
by the Municipal authorities. That writ petition was disposed
of by Ext.P9 judgment, directing the first respondent to hear
both parties and consider the application made by the 1st
petitioner for regularisation of the construction.
6. Accordingly, the parties were heard and by
W.P.(C) No.35032/2009
: 4 :
Ext.P10, 1st petitioner was allowed 30 days time to make
certain modifications. 1st petitioner’s case is that within the
time allowed by Ext.P10, she made modifications as
suggested in Ext.P8. It is stated that, despite the above, 1st
petitioner was issued Ext.P12 notice, by the second
respondent, requiring her to cure the defects mentioned
therein. Ext.P12 was followed by Ext.P13 notice of the
second respondent asking the 1st petitioner to comply with
Ext.P10 within ten days. Challenging the aforesaid
proceedings, writ petition is filed.
7. Although petitioner seeks various reliefs in this writ
petition, when the case was taken up for hearing, the only
prayer which the counsel for the petitioners made was that,
before any further action is taken on Exts.P12 and P13, the
enquiry ordered by the first respondent in Ext.P5 should also
be completed and the report which is to be submitted by the
Building Inspector should also be considered as and when
orders are passed.
W.P.(C) No.35032/2009
: 5 :
8. Although the counsel for the third respondent
contended that, 1st petitioner herself had made an application
for regularisation of the building and that the request of the
petitioner itself pre-supposes that the objectionable
construction was made in violation of the provisions of the
Building Rules. On this basis, it is argued that, if so, there is
no necessity to enquire into the question whether the building
in question was constructed prior to the implementation of the
Building Rules.
9. Although it is the admitted fact that the 1st petitioner
made an application for regularisation in paragraph 6 of the
writ petition, she has offered her explanation about the
background in which such an application happened to be
made by her. According to the 1st petitioner, it was at the
instance of the first respondent that such an application was
made and that it was without realising the consequences that
the request was made by her. These averments are not
denied by the first respondent in the counter affidavit filed.
W.P.(C) No.35032/2009
: 6 :
10. Irrespective of the correctness or otherwise of the
assertion made by the 1st petitioner, if factually the building
was constructed prior to the implementation of the Building
Rules, there is no reason why the first petitioner should have
been deprived of any benefit she is otherwise entitled to. In
Ext.P5, considering the request made by the 1st petitioner, the
first respondent has already called for a report and the report
is yet to be submitted. In that view of the matter, I am inclined
to think that the request of the petitioner is a reasonable one.
11. Therefore, I dispose of the writ petition, directing
that the first respondent will ensure that the report as ordered
by him in Ext.P5 is obtained from the Building Inspector.
Once the report is obtained as above, the same will be made
available to the second respondent, who has issued Exts.P12
and P13. Thereupon the second respondent will issue notice
to the petitioners and the third respondent and take further
action based on Exts.P12 and P13, duly adverting to the
report thus submitted by the Building Inspector also.
W.P.(C) No.35032/2009
: 7 :
12. Petitioner to produce a copy of this judgment
before respondents 1 and 2 for compliance.
13. Needless to say the contentions on merits raised
by both sides are left open.
14. It is clarified that once the report is obtained as
above, it will be open to the parties to approach the first
respondent seeking copies of the same as above.
(ANTONY DOMINIC, JUDGE)
aks