Kerala High Court
M.P.Mathew vs The Kothamangalam Municipality on 8 April, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943
WP(C).No.36191 OF 2016(Y)
PETITIONER:
M.P.MATHEW, AGED 76 YEARS, S/O.PAILY,
RESIDING AT MANGARATH HOUSE,
MALAYINKEEZHU, AYIRUR,
PINDIMANA PO, KOTHAMANGALAM 686 691
BY ADV. SRI.S.SHANAVAS KHAN
RESPONDENTS:
1 THE KOTHAMANGALAM MUNICIPALITY
REPRESENTED BY ITS SECRETARY,
KOTHAMANGALAM, PINCODE 686691
2 THE SECRETARY,
KOTHAMANGALAM MUNICIPALITY,
KOTHAMANGALAM,
PINCODE 686 691
3 PHILOMINA JOSE
AGED 40 YEARS, W/O.JOSE MATHEW,
RESIDING AT THEKKEKKARA RAMALLUR,
THEKKEKKARA, KOTHAMANGALAM, PINCODE 686 691
R1 BY SRI.PEEYUS A KOTTAM, SC, KOTHAMANGALAM
MUNICIPALITY
R3 BY ADV. SRI.M.P.RAMNATH
R3 BY ADV. SRI.P.RAJESH (KOTTAKKAL)
R3 BY ADV. SEI.M.VARGHESE VARGHESE
R3 BY ADV. SRI.K.J.SEBASTIAN
R3 BY ADV. SMT.S.SANDHYA
R3 BY ADV. SRI.BEPIN PAUL
R3 BY ADV. SRI.SHALU VARGHESE
R3 BY ADV. SRI.S.DEEPAK
R3 BY ADV. SRI.ANTONY THARIAN
R3 BY ADV. SHRI.ARJUN S.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08.04.2021, ALONG WITH WPC 5765/17, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C).No.36191 OF 2016 (Y)
WP(C).No.5765 OF 2017 (U)
:: 2 ::
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943
WP(C).No.5765 OF 2017
PETITIONERS:
1 DR.JOSE MATHEW THEKKEKKARA
AGED 63 YEARS, S/O. CHAKKUNNI MATHEW, THEKKEKKARA
HOUSE, RAMALLOOR KARA,KOTHAMANGALAM VILLAGE-686691
SETTLED AT 1026 CURRIE HILLS RD, RENO NV 89506 USA
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER AND
WIFE, PHILOMINA JOSE THEKKEKKARA
2 PHILOMINA JOSE THEKKAKKARA
AGED 62 YEARS, W/O. DR. JOSE THEKKEKKARA, RESIDING
AT THEKKEKKARA HOUSE, RAMALLOOR, THEKKEKKARA,
KOTHAMANGALAM, PINCODE 686 691, SETTLED AT 2016,
CURRIE HILLS RD, RENO NV 89506 USA
BY ADVS.
SRI.M.P.RAMNATH
SRI.BEPIN PAUL
SMT.S.SANDHYA
SRI.SHALU VARGHESE
SHRI.ARJUN S.
SRI.K.J.SEBASTIAN
SRI.P.RAJESH (KOTTAKKAL)
SEI.M.VARGHESE VARGHESE
SRI.S.DEEPAK
SRI.ANTONY THARIAN
RESPONDENTS:
KOTHAMANGALAM MUNICIPALITY
RERPESENTED BY ITS SECRETARY,
KOTHAMANGALAM, PINCODE 686 691
BY SRI.PEEYUS A KOTTAM, SC, KOTHAMANGALAM
MUNICIPALITY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08.04.2021, ALONG WITH WP(C).36191/2016(Y), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.36191 OF 2016 (Y)
WP(C).No.5765 OF 2017 (U)
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JUDGMENT
Dated this the 8th day of April 2021
The captioned writ petitions are materially connected in respect of an
unauthorized construction carried out in a building owned by the petitioner
in W.P.(C)No.5765/17 and the consequential action initiated by the
Secretary of the Kothamangalam Municipality to remove the unauthorized
construction. Petitioner in W.P.(C)No.36191/2016 is the tenant of the
building, in which unauthorized construction is carried out. According to
the petitioner/tenant, the action of the Municipality directing the tenant to
remove the unauthorized construction is a collusive affair by and between
the Secretary of the Municipality and the owner of the building. On a
reading of Ext.P5, dated 16.8.2016 and Ext.P11 dated 24.10.2016 it is quiet
clear and evident that prior to the said proceedings, there was a proceeding
initiated by the Municipality against the owner of the building under
Section 406 of the Kerala Municipality Act, 1994 in regard to the
unauthorized and illegal construction. The construction apparently seems
to be replacement of the roof of the building in question. Learned counsel
for the petitioner has pointed out that Ext.P4 consent certificate dated
17.9.2014 issued by the Municipality permits the owner of the building to
WP(C).No.36191 OF 2016 (Y)
WP(C).No.5765 OF 2017 (U)
:: 4 ::
replace the roof. Therefore, according to the tenant, there is no illegality in
the construction carried out. However, the contention advanced by the
landlords in their writ petition is that the landlords are mostly in the
United States of America and they are not served with any notice under
Section 406 of Act 1994 or the consequent notices. But it is stated that the
tenant has received the notices on their behalf and has approached this
court producing the said notice and there is no collusion by and between
the landlords and the Municipal authorities.
2. The landlords have filed a counter affidavit in W.P.
(C)No.36191/2016 mostly reiterating the contentions raised in the writ
petition filed by the landlords.
3. I have heard Shri.S.Shanavas Khan for the tenant in W.P.
(C)No.36191/2016 and Sri.A.T.Anil Kumar for the landlords in W.P.
(C)No.5765/2017 and Sri.Peeyus A. Kottam, the Standing Counsel for the
Kothamangalam Municipality and perused the pleadings and materials on
record.
4. The discussion of facts made above would make it clear that there
is a dispute in respect of the changing of the roof of the building in
question. According to the tenant, the roof was changed on the basis of the
WP(C).No.36191 OF 2016 (Y)
WP(C).No.5765 OF 2017 (U)
:: 5 ::
consent certificate issued by the Secretary of the Municipality to one of the
landlords namely, Philomena Jose, which is admitted by the landlords.
However, it is submitted that no notice in respect to the unauthorized
construction is received by the landlords. Therefore, the sum and substance
of the contention put forth by the landlords is that they are also not aware
of any proceeding under Section 406 of the Kerala Municipality Act, 1994.
Anyhow, that is not a subject matter of challenge or consideration in this
writ petition. In this writ petition, Exts.P5 and P11 notices are apparently
consequential notices to the proceedings under Section 406(3) of Act, 1994
issued by the Secretary of the Municipality. The learned counsel appearing
for the landlords submitted that the landlords would be satisfied if the
landlords are given an opportunity to make appropriate representation
before the Secretary of the Municipality, pursuant to Exts.P5 and P11
notices.
In that view of the matter and since nothing is clear from Exts.P5 and
P11 as to whether the landlords of the building were heard, it is only
appropriate that an opportunity is given to the landlords as is sought for.
In that view of the matter, the writ petitions are disposed of granting
liberty to the landlords to file suitable objection to Exts.P5 and P11 notices
WP(C).No.36191 OF 2016 (Y)
WP(C).No.5765 OF 2017 (U)
:: 6 ::
within 30 days from the date of receipt of a copy of this judgment and if any
such objections/representation is received by the Secretary of the
Municipality, the same shall be disposed of within one month thereafter,
after providing an opportunity of hearing to the landlords. Thereafter the
parties would be guided by the said decision.
SD/-
SHAJI P. CHALY
JUDGE
jes
WP(C).No.36191 OF 2016 (Y)
WP(C).No.5765 OF 2017 (U)
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APPENDIX OF WP(C) 36191/2016
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE RENT DEED EXECUTED BETWEEN THE PETITIONER AND 3RD
RESPONDENT DATED 01.05.2008
EXHIBIT P2 TRUE COPY OF THE CERTIFICATE OF REGISTRATION (FORM NO.4) OF KERALA
VALUE ADDED TAX RULES 2005 DATED 26.09.2008 ISSUED BY THE COMMERCIAL
TAX OFFICER KOTHAMANGALAM HAVING TIN NO. 32151545829
EXHIBIT P3 TRUE COPY OF THE RECEIPT ISSUED BY THE DEPARTMENT OF COMMERCIAL
TAXES UNDER THE KERALA VALUE ADDED TAX RULES 2005 TO THE PETITIONER
EXHIBIT P4 TRUE COPY OF THE PERMISSION ISSUED BY THE 2ND RESPONDENT DATED
17.09.2014 TO THE 3RD RESPONDENT
EXHIBIT P5 TRUE COPY OF THE NOTICE HEARING NO. H1(PW2-9466/15) DATED 16.08.2016
ISSUED TO THE 3RD RESPONDENT BY THE SECOND RESPONDENT
EXHIBIT P6 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED
18.08.2016 TO THE KOTHAMANGALAM MUNICIPALITY
EXHIBIT P7 TRUE COPY OF THE RECEIPT OF INWARD NO. 13570 DATED 18.08.2016 ISSUED TO
THE PETITIONER BY THE KOTHAMANGALAM, MUNICIPALITY
EXHIBIT P8 TRUE COPY OF THE LICENCE NO. KHCH -119/2016-2017 DATED 09.05.2016
ISSUED IN THE NAME OF THE 3RD RESPONDENT FOR THE PERIOD FROM
01.04.2016 TO 31.03.2017 ISSUED BY THE KOTHAMANGALAM MUNICIPALITY
EXHIBIT P9 TRUE COPY OF THE CERTIFICATE ISSUED BY THE ASSISTANT ENGINEER,
ELECTRICITY BOARD TO THE EFFECT THAT ELECTRICITY CONNECTION BEARING
CONSUMER NO. 1156014007610 UNDER ELECTRICAL SECTION NO.2
KOTHAMANGALAM WAS GIVEN ON 10.04.1970
EXHIBIT P10 TRUE COPY OF THE ELECTRICITY BILL ISSUED TO THE CONSUMER NO.
1156014007610 FOR THE MONTH OF AUGUST DATED 17.08.2016
EXHIBIT P11 TRUE COPY OF THE NOTICE DATED 24.10.2016 ADDRESSED TO THE 3RD
RESPONDENT
APPENDIX OF WP(C) 5765/2017
PETITIONER'S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE TAX RECEIPT SHOWING THE
PAYMENT OF BUILDING TAX FOR THE BUILDING ISSUED BY
THE KOTHAMANGALAM MUNICIPALITY
EXHIBIT P2 TRUE COPY OF PERMISSION ISSUED BY THE RESPONDENT
MUNICIPALITY NO PW2 8117/14 DATED 17-09-2014 TO THE
2ND RESPONDENT
EXHIBIT P3 TRUE COPY OF LICENSE NO KHCH-119/2016-2017 DATED
09-05-2016 IN BUILDING NO II/63 FOR THE PERIOD FROM
01-04-2016 TO 31-03-2017 ISSUED BY KOTHAMANGALAM
MUNICIPALITY TO PETITIONER
EXHIBIT P4 THE TRUE COPY OF THE NOTICE BEARING NO.PW-2-
8114/2014 DATED 24.10.2016 ISSUED BY THE
MUNICIPALITY ADDRESSED TO THE PETITIONER.
EXHIBIT P5 THE TRUE COPY OF THE INTIMATION LETTER DATED 16-08-
2016 BEARING NO H-1 (PW-2-9466/2015 ISSUED TO THE
2ND PETITIONER
// TRUE COPY //
P.S. TO JUDGE
