M/S.Vision Motors Private ... vs The Thrissur Municipal ...
2021 Latest Caselaw 17327 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
        THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
 WEDNESDAY, THE 25TH DAY OF AUGUST 2021 / 3RD BHADRA, 1943
                      WP(C) NO. 31472 OF 2017
PETITIONER/S:

            M/S.VISION MOTORS PRIVATE LIMITED,
            N.H.BYEPASS, MANNUTHY,THRISSUR- 680
            655REPRESENTED BY ITS HEAD (HR &
            ADMINISTRATION)PRASAD.S

            BY ADVS.
            SRI.A.A.ZIYAD RAHMAN
            SRI.LAL K.JOSEPH



RESPONDENT/S:

    1       THE THRISSUR MUNICIPAL CORPORATION
            REPRESENTD BY ITS SECRETARY,THRISSUR-677 801

    2       THE SECRETARY
            THRISSUR MUNICIPAL CORPORATION, THRISSUR-677 801

    3       THE HEALTH OFFICER
            THRISSUR MUNICIPAL CORPORATION,THRISSUR-677 801

            BY ADV SRI. SANTHOSH P.PODUVAL, SC, THRISSUR
            CORPORATION



OTHER PRESENT:

            SNR. GP. SRI.JUSTIN JACOB


    THIS     WRIT     PETITION    (CIVIL)     HAVING    COME    UP    FOR
ADMISSION    ON     25.08.2021,    THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) NO. 31472 OF 2017
                                -2-




                          JUDGMENT

The petitioner, a dealer of vehicles manufactured by

Honda Cars India Ltd., is conducting a vehicle showroom as

well as a workshop in building bearing No.VI/627/2 within the

respondent-Corporation. The petitioner submits that due to

space constraints they were forced to make some additional

constructions, which according to the Corporation was

unauthorised. A notice, Ext.P1 under Section 406 of the

Kerala Municipality Act was issued, which was challenged by

the petitioner before the Tribunal for Local Self-Government

Institution, Thiruvananthapuram. The Tribunal by Ext.P2

judgment dismissed the appeal, but allowed the petitioner to

apply for regularization of the said structures after making

necessary changes to bring the construction in conformity with

law. The Secretary of the Corporation was directed to dispose

of the said application seeking regularisation within a period of

30 days after its submission. Till a decision was taken, the

implementation of the notice under Section 406 of the Act was WP(C) NO. 31472 OF 2017

also kept in abeyance.

2. The petitioner submits that he has made an application,

Ext.P3, seeking for regularisation as early as on 9.1.2017. The

Corporation informed the petitioner vide letter dated

21.03.2017 that since the unauthorised constructions are not

regularised, the application for D & O licence submitted by the

petitioner cannot be considered. The petitioner, thereafter by

letter dated 31.07.2017, intimated the Secretary of the

Corporation that the temporary sheets made for weather

shades are removed and this letter is acknowledged by the

Corporation on 01.08.2017.

3. The Corporation, later by a notice dated 22.08.2017,

required the petitioner to remit a fee of Rs.20,000/-, possibly

to process the regularization application. The petitioner had

also applied for D & O licence for the year 2017-2019, which is

evidenced by Ext.P7. The challenge in the writ petition is to

Ext.P10 notice 27.09.2017 issued under Sections 447(1) and

532(1) of the Kerala Municipality Act on the premise that the

business is run without the requisite licence. This Hon'ble WP(C) NO. 31472 OF 2017

Court, while admitting the writ petition, granted an interim

order on 3.10.2017 staying the operation of Ext.P10 and the

said order continues to be in force. The Corporation has filed a

counter affidavit pointing out seven defects, which are

extracted below:

"2. The Senior Town Planner upon inspection certain violations in the building numbered VI/627(2) were noted as given below:

i. The backside and other sides were covered using sheet.

ii. Even though the permit is issued for storage occupancy, the building is used as show room, auto mobile workshop and service station. iii. No permission from the Town Planning Department for usage of plot and layout of the building was obtained as per Rule 59(1).

iv. There are violations with respect to coverage and F.A.R. as per Rule 31.

v. There is no parking space as per Rule 34. vi. There is no rain water storage arrangement as per Rule 109(B).

vii. The minimum distance from the road to the side of the building as per Rule 25(1) is not maintained. Even though a notice was issued to cure the defects, the violations mentioned as 6 and 7 were not cured."

WP(C) NO. 31472 OF 2017

4. It is also submitted by the Corporation that a notice

was issued to cure the defects but violations mentioned as

serial Nos.vi and vii were not cured. The petitioner has also

filed I.A.No.14382 of 2018 pointing out that the alleged

unauthorised constructions are removed and stating further

that the landlord of the building has submitted an application

for regularization before the Corporation on 6.07.2018. The

said application dated 24.07.2018 is produced as Ext.P11. The

learned Standing Counsel for the Corporation submits that they

are prepared to conduct an inspection and to hear the

petitioner and will take an appropriate decision, taking into

account the facts mentioned above. It is seen that the

petitioner has not given a reply to Ext.P10 so far. The

petitioner may file a reply to Ext.P10 as also about the

subsequent events. The Corporation has to take a decision on

the issue of regularisation as well as grant of D & O licence

after affording a reasonable opportunity of hearing to the

petitioner. The respondent-Corporation will also intimate the WP(C) NO. 31472 OF 2017

petitioner about the subsisting defects and grant an

opportunity to the petitioner to cure the same. This exercise

shall be done within a period of one month from the date of

receipt of a copy of this judgment. No coercive action shall be

taken against the petitioner pursuant to Ext.P10 till such a

decision is taken and communicated to the petitioner.

This writ petition is disposed of as above.

Sd/-

MOHAMMED NIAS C.P.

Judge STK WP(C) NO. 31472 OF 2017

APPENDIX OF WP(C) 31472/2017

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE NOTICE DATED 9.10.2014.

EXHIBIT P2 TRUE COPY OF THE ORDER DATED 26.11.2016 IN APPEAL NO.1125/2014.

EXHIBIT P3 TRUE COPY OF THE ACKNOWLEDGMENT DATED 9.1.2017

EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED 21.3.2017 ISSUED BY THE 3RD RESPONDENT

EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 31.7.2017.

EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 22.8.2017 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE APPLICATION DATED NIL SUBMITTED BY THE PETITIONER.

EXHIBIT P8 TRUE COPY OF THE RECEIPT DATED 5.4.2017 EVIDENCING THE COLLECTION OF PROPERTY TAX.

EXHIBIT P9 TRUE COPY OF THE RECEIPTS (2NOS) EVIDENCING THE PAYMENT OF PROFESSION TAX IN RESPECT OF THE EMPLOYEES AND THE INSTITUTION.

EXHIBIT P10 TRUE COPY OF THE NOTICE BEARING NO.

OLK3-3771/2017 DATED 27.9.2017.