Kerala High Court
K.H.Abdul Majeed vs The Kalamassery Municipality on 19 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942
WP(C).No.23274 OF 2020(H)
PETITIONER/S:
1 K.H.ABDUL MAJEED,
AGED 54 YEARS,
SON OF LATE HASSAN,
ILLIKKAL HOUSE,
KAVUNGAPADATH,
VMB ROAD,
PATHADIPALAM,
KOCHI-682033.
2 K.H.ABDUL SALAM,
AGED 50 YEARS,
SON OF LATE HASSAN,
ILLIKKAL HOUSE,
KAVUNGAPADATH,
VMB ROAD,
PATHADIPALAM,
KOCHI-682033.
BY ADVS.
SRI.ANIL S.RAJ
SMT.K.N.RAJANI
SRI.RADHIKA RAJASEKHARAN P.
SMT.ANILA PETER
SRI.SAJEN THAMPAN
RESPONDENT/S:
1 THE KALAMASSERY MUNICIPALITY,
KALAMASSERY-682033
REPRESENTED BY ITS SECRETARY.
2 THE SECRETARY,
KALAMASSERY MUNICIPALITY,
KALAMASSERY-682033.
W.P.(C) No.23274 of 2020
2
3 A.K.NAZAR,
AGED 55 YEARS,
SON OF LATE KADAR PILLAI,
ANJIKKATH HOUSE, VMB ROAD,
PATHADIPALAM-682033.
4 THE TRIBUNAL FOR LOCAL SELF
GOVERNMENT INSTITUTIONS,
VANCHIYOOR,
THIRUVANANTHAPURAM-695033,
REPRESENTED BY IT'S SECRETARY.
R3 BY ADV. SRI.P.B.KRISHNAN
R3 BY ADV. SRI.P.B.SUBRAMANYAN
R3 BY ADV. SRI.SABU GEORGE
R3 BY ADV. SMT.B.ANUSREE
R3 BY ADV. SRI.MANU VYASAN PETER
BY SRI.M.K.ABOOBACKER, STANDING COUNSEL
BY SMT.G.RANJITA, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
19.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.23274 of 2020
3
W.P.(C) No.23274 of 2020
-----------------------------------------------
JUDGMENT
This writ petition relates to Appeal No.426 of 2020 pending
before the Tribunal for Local Self Government Institutions (the
Tribunal).
2. The facts relevant for disposal of the writ petition are
the following;
The petitioners obtained building permit B.A.No.755/2011
during 2012 from the first respondent Municipality for construction of
a building in a land stated to be owned and possessed by them
measuring 31.59 cents. The mother of the third respondent
challenged the building permit before the Tribunal in Appeal No.225 of
2011 on the ground mainly that the petitioners do not have title to the
land over which the building is proposed by them. The case set out by
the mother of the third respondent in the appeal was that the building
is proposed by the petitioners in a portion of her land also, which is
situated on the southern side of the land of the petitioners. It was
pointed out by the mother of the third respondent in the appeal that
she had already filed a suit for recovery of possession of her land from
the petitioners as O.S.No.293 of 2010 before the Sub Court,
W.P.(C) No.23274 of 2020
Ernakulam, and the said suit is pending. The Tribunal allowed Appeal
No.225 of 2011 and directed the second respondent to reconsider the
application for building permit submitted by the petitioners. The
petitioners challenged the decision of the Tribunal before this Court in
W.P.(C)No.21526 of 2013. Later, the mother of the third respondent
also filed a writ petition as W.P.(C)No.19911 of 2015 before this Court,
alleging that the petitioners have fraudulently obtained transfer of
registry in respect of lands which do not belong to them. In the
meanwhile, the third respondent instituted W.P.(C)No.19733 of 2014
seeking directions to the Director of Vigilance and Anti-Corruption
Bureau (VACB) to consider a complaint preferred by him concerning
the alleged illegalities committed by the revenue officials in the matter
of effecting mutation in respect of lands belonging to his mother in
favour of the petitioners. The aforesaid writ petitions were disposed of
by this Court as per Ext.P4 judgment. In Ext.P4 judgment, having
regard to the facts and circumstances of the case, this Court took the
view that it may not be appropriate to interdict the construction
proposed by the petitioners till the final disposal of O.S.No.293 of 2010
and consequently, permitted the petitioners to file a fresh application
for construction and directed the second respondent, the Secretary of
the Municipality to consider and pass appropriate orders on that
application. Though Ext.P4 judgment has been challenged by the third
respondent in W.A.Nos.246 of 2018, 2427 of 2017 and 1934 of 2017,
there was no interim order in the said matters. The petitioners, in the
circumstances, preferred an application for renewal of building permit,
W.P.(C) No.23274 of 2020
B.A.No.755 of 2011, and the second respondent renewed the said
building permit in the light of Ext.P4 judgment, as per Ext.P6 order
subject to a few conditions, including the condition that there shall not
be any construction in the disputed land and that if it is found by the
court that any construction has been carried out in the land owned by
the mother of the third respondent later, the same is liable to be
removed. Ext.P6 renewed permit issued on 28.10.2017 was valid only
till 04.12.2018. On 30.11.2018, the petitioners preferred an application
for renewal of Ext.P6. By Ext.P13 order, the second respondent
renewed Ext.P6 permit for the period upto 04.12.2021. The third
respondent thereupon filed Ext.P18 appeal before the Tribunal
challenging Ext.P13 order. Along with Ext.P18 appeal, third
respondent preferred Ext.P19 application for appointment of an
Advocate Commissioner for conducting a local inspection. The
petitioners were issued Ext.P22 notice initially by the Tribunal in
Ext.P18 appeal calling upon them to appear before the Tribunal on
17.11.2020. It is stated by the petitioners that while the petitioners
were taking steps to appear before the Tribunal in Ext.P18 appeal in
terms of Ext.P22 notice, they received Ext.P23 notice from the
Advocate Commissioner appointed by the Tribunal in Ext.P19
application to conduct local inspection. It is stated by the petitioners
that it was only then they came to know that an Advocate
Commissioner has already been appointed ex parte by the Tribunal on
Ext.P19 application. In Ext.P23 notice, the Advocate Commissioner
informed the petitioners that he will be inspecting the site of the
W.P.(C) No.23274 of 2020
building on 02.11.2020. While so, the petitioners received another
notice from the Tribunal informing them that the hearing of the appeal
stands advanced to 02.11.2020, the date on which, the Advocate
Commissioner has informed them that he would be inspecting the site
of the building. Ext.P24 is the notice issued in this regard to the
petitioners by the Tribunal. The writ petition is filed in the aforesaid
background, seeking the following reliefs :
"i) issue a writ, order or direction in the nature of
Certiorari or any other appropriate writ, order or direction
quashing Ext. P22 and P24 notices issued to the petitioners.
ii) issue a writ, order or direction in the nature of
prohibition or any other appropriate writ, order or direction
against the 4th respondent considering Ext. P18 or any appeal
seeking to cancel B.A.755/2011.
Iii) issue a writ, order or direction in the nature of
prohibition or nay other appropriate writ, order or direction
against the 4th respondent in proceeding with Ext. P20.
iv) issue such other writ, order or direction that this
Honourable Court may deem fit in the facts and
circumstances of the case."
3. A counter affidavit has been filed by the third
respondent, and the petitioners have filed a reply to the said counter
affidavit.
4. Heard the learned counsel for the petitioners, the
learned Standing Counsel for respondents 1 and 2 as also the learned
counsel for the third respondent.
W.P.(C) No.23274 of 2020
5. The learned counsel for the petitioners contended
that Ext.P13 being a building permit issued pursuant to the direction
issued by this Court in Ext.P4 judgment, it was highly inappropriate for
the Tribunal to entertain an appeal against the same. It was also
contended by the learned counsel that Ext.P13 building permit is seen
challenged by the third respondent in Ext.P18 appeal on grounds
which are repelled by this Court in Ext.P4 judgment. It was further
contended by the learned counsel that the appeal against Ext.P13
building permit is hopelessly barred by limitation. It was argued by
the counsel that even otherwise, the third respondent is precluded
from challenging Ext.P13 building permit as he has not challenged
Ext.P6 building permit issued earlier on the same lines. It was further
contended by the learned counsel that the Tribunal does not have
power to issue a Commission for local inspection and even if such a
power is available to the Tribunal, an Advocate Commissioner ought
not have been appointed by the Tribunal in a matter like this without
notice to the petitioners, especially when the materials produced by
the third respondent in the appeal would reveal that an Advocate
Commissioner has been appointed by this Court in the appeal
preferred against the interim order passed in one of the writ petitions
disposed of in terms of Ext.P4 judgment and the report of the said
Advocate Commissioner was made available for perusal of the
Tribunal.
6. Per contra, the learned counsel for the third
respondent contended that the petitioners are not entitled to any of
W.P.(C) No.23274 of 2020
the reliefs claimed in the writ petition. It was pointed out by the
learned counsel that in terms of Ext.P4 judgment, while permitting the
petitioners to prefer a fresh application for building permit and
directing the second respondent to consider the same, this Court has
indicated the manner in which the application permitted to be filed
shall be considered by the Municipality, and the grievance of the third
respondent in the appeal pending before the Tribunal is that Ext.P13
building permit is one issued flouting the specific directions issued by
this Court in Ext.P4 judgment. It was pointed out by the learned
counsel that it is for substantiating the said contention of the third
respondent that he preferred Ext.P19 application for appointment of
an Advocate Commissioner for local inspection and there is nothing
illegal in the Tribunal allowing the said application ex parte.
7. I have considered the contentions raised by the
learned counsel for the parties on either side.
8. As noted, the petitioners seek to quash Exts.P22 and
P24 notices issued by the Tribunal. Ext.P22 is a notice issued by the
Tribunal calling upon the petitioners to appear before the Tribunal in
Ext.P18 appeal on 17.11.2020 and Ext.P24 is a notice issued by the
Tribunal informing the petitioners that the hearing on Ext.P18 appeal is
advanced to 2.11.2020. I do not find any justification at all for the
petitioners to challenge the said notices in a proceedings under Article
226 of the Constitution, whatever be the grounds. If Ext.P18 appeal is
not maintainable, or if the prayers in the said appeal are not
sustainable, the petitioners have to raise those contentions before the
W.P.(C) No.23274 of 2020
Tribunal and only the decision taken by the Tribunal on those
contentions can be challenged before this Court. On the very same
reasoning, according to me, the petitioners are not entitled to seek a
direction from this Court to the Tribunal to refrain from considering
Ext.P18 appeal also.
9. The remaining prayer in the writ petition is for a
direction to the Tribunal to refrain from proceeding with Ext.P19
application, wrongly mentioned in the prayer portion of the writ
petition as Ext.P20 application. As noted, Ext.P19 is an application
preferred by the third respondent in Ext.P18 appeal for appointment of
an Advocate Commissioner for local inspection. The contention of the
petitioners is that the Tribunal has no power to appoint an Advocate
Commissioner for local inspection. Alternatively, it is also contended
by the petitioners that even if the Tribunal has such powers, the
Tribunal was not justified in exercising that power without notice to the
petitioners, and the application for local inspection has been filed
mischievously for some purpose which is not divulged by the third
respondent. Having regard to the powers conferred on the Tribunal
under Section 271-S(3) of the Kerala Panchayat Raj Act, 1994, it is
doubtful as to whether the Tribunal is empowered to appoint an
Advocate Commissioner for local inspection. I am not deciding the said
question in this matter as the said question is one to be decided by
the Tribunal at the fist instance. Be that as it may, paragraph 42 of
Ext.P4 judgment indicates that the direction in Ext.P4 judgment to the
second respondent is to consider the application for building permit in
W.P.(C) No.23274 of 2020
the light of the report and sketch of the Advocate Commissioner
referred to in the said judgment which are the report and sketch of the
Advocate Commissioner appointed by this Court in the appeal against
the interim order passed in one of the writ petitions disposed of as per
Ext.P4 judgment. In other words, the correctness of the building
permit issued to the petitioners is to be examined in the light of the
report and sketch of the Advocate Commissioner referred to in Ext.P4
judgment. In a case of this nature, according to me, if there is a need
for a further local inspection, the same has to be explained by the
third respondent. The relevant paragraphs in the affidavit filed in
support of Ext.P19 application which was passed on to the court at the
time of admission of the writ petition by the counsel for the petitioners
read thus:
"The appeal is filed against Order No.T.P.6784/2020 dated
15/06/2020, BA.755/2011 issued on 05.12.2012 in favour of
respondents 2 and 3 and B.A.697/2019 issued on 24.12.2019 in
favour of respondents 4 by the Secretary, Kalamassery
Municipality. The aforesaid order and the building permits issued
by Respondent No.1 are illegal and unsustainable for the various
grounds raised in the Appeal. The brief facts of the case are
stated in the memorandum of Appeal and that may be read as
part of this Affidavit. I have got a meritorious case that there is
every chance in allowing the Appeal in my favour. However, on
the basis of the illegal permits issued by Respondent No.1,
Respondents 2 to 4 are proceeding with the illegal construction of
the buildings.
For a fair adjudication of the subject matter in issue, a report by
an advocate commission with regard to the constructions being
carried out by the respondents is highly necessary. Therefore, it is
respectfully prayed that this Hon'ble Tribunal be pleased to
W.P.(C) No.23274 of 2020
depute an advocate commission for ascertaining the matters
listed along with the accompanying Application. Otherwise
irreparable injury will be caused to me."
As noted, in the affidavit, there is only a bald statement that a report
by an Advocate Commissioner with regard to the constructions that
are being carried on by the petitioners is necessary for the fair
adjudication of the issues in dispute between the parties. There is,
therefore, force in the contention raised by the petitioners that Ext.P19
application is not a bona fide one.
In the aforesaid circumstances, the writ petition is
disposed of setting aside the order appointing the Advocate
Commissioner in Ext.P19 application, and directing the Tribunal to
consider Ext.P19 application afresh, after affording the petitioners an
opportunity to raise objections against Ext.P19 application. Parties are
directed to appear before the Tribunal through counsel on 1.2.2021.
Sd/-
P.B.SURESH KUMAR, JUDGE
rkj
W.P.(C) No.23274 of 2020
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE REPORT OF THE ADVOCATE
COMMISSIONER IN WA NO.2647/2015 DATED
12/05/2016 (WITHOUT ANNEXURES).
EXHIBIT P2 TRUE COPY OF THE SKETCH DATED
15/04/2016 NUMBER 2 REFERRED TO BY THE
COMMISSIONER IN EXHIBIT P1.
EXHIBIT P3 TRUE COPY OF THE SKETCH NUMBER 3 DATED
15/04/2016 REFERRED TO BY THE
COMMISSIONER.
EXHIBIT P4 TRUE COPY OF THE COMMON JUDGMENT DATED
05/05/2017 IN WPC 21526/2013, WPC
19733/2014 AND WPC 19911/2015.
EXHIBIT P5 TRUE COPY OF THE PLAINT IN OS NO.
656/2008 (RENUMBERED AS O.S.NO.
293/2010)PREFERRED BY THE 3RD
RESPONDENT HEREIN BEFORE THE HON'BLE
SUB COURT, ERNAKULAM.
EXHIBIT P6 TRUE COPY OF THE ORDER OF THE 2ND
RESPONDENT IN BA 755/2011 DATED
28/10/2017 RENEWING THE PERMIT.
EXHIBIT P7 TRUE COPY OF THE LETTER DATED
05/01/2018 SUBMITTED BY THE PETITIONERS
TO THE 2ND RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE LOCATION PLAN REFERRED
TO IN EXHIBIT P7.
EXHIBIT P9 TRUE COPY OF THE RECEIPT DATED
08/01/2018 ISSUED BY THE 1ST RESPONDENT
ACKNOWLEDGING RECEIPT OF EXHIBIT P7.
EXHIBIT P10 TRUE COPY OF THE AFFIDAVIT DATED NIL OF
THE 2ND RESPONDENT.
EXHIBIT P11 TRUE COPY OF THE APPLICATION DATED
30/11/2018 SUBMITTED BY THE PETITIONERS
TO THE 2ND RESPONDENT.
W.P.(C) No.23274 of 2020
EXHIBIT P12 TRUE COPY OF THE RECEIPT DATED
30/11/2018 FOR EXHIBIT P11 ISSUED BY
THE 1ST RESPONDENT.
EXHIBIT P13 TRUE COPY OF THE ORDER OF THE 2ND
RESPONDENT RENEWING BA 755/2011 DATED
11/03/2020.
EXHIBIT P14 TRUE COPY OF THE REVISED PERMIT NO. BA
697/2019 DATED 28/05/2020 SIGNED BY THE
ASSISTANT EXECUTIVE ENGINEER OF THE 1ST
RESPONDENT AND ISSUED TO THE SAID SRI.
MUHAMMADALI ON 29/05/2020.
EXHIBIT P15 TRUE COPY OF WPC 9861/2020 DATED
09/05/2020 (AND FILED ON 11/05/2020)
WITHOUT EXHIBITS.
EXHIBIT P16 TRUE COPY OF THE JUDGMENT OF THIS
HON'BLE COURT DATED 12/05/2020 IN WPC
9861/2020.
EXHIBIT P17 TRUE COPY OF THE ORDER NO. TP 6784/2020
DATED 15/06/2020 OF THE 2ND RESPONDENT.
EXHIBIT P18 TRUE COPY OF THE APPEAL NUMBER 426/2020
(WITHOUT DOCUMENTS) FILED BY THE 3RD
RESPONDENT BEFORE THE 4TH RESPONDENT.
EXHIBIT P19 TRUE COPY OF THE PETITION NUMBERED AS
IA NO.792/2020 IN APPEAL NO.426/2020
FILED BY THE 3RD RESPONDENT BEFORE THE
4TH RESPONDENT.
EXHIBIT P20 TRUE COPY OF THE PETITION NUMBER IA
791/2020 IN APPEAL NO.426/2020 FILED BY
THE 3RD RESPONDENT BEFORE THE 4TH
RESPONDENT.
EXHIBIT P21 TRUE COPY OF THE INTERIM ORDER DATED
08/10/2020 IN IA NO.791/2020 IN APPEAL
NO.426/2020 PASSED BY THE 4TH
RESPONDENT AND RECEIVED BY THE
PETITIONERS.
EXHIBIT P22 TRUE COPY OF THE NOTICE ISSUED BY THE
4TH RESPONDENT TO THE 2ND PETITIONER.
W.P.(C) No.23274 of 2020
EXHIBIT P23 TRUE COPY THE NOTICE DATED 20/10/2020
ISSUED BY SRI. SREELAL S., ADVOCATE
COMMISSIONER IN IA NO.792/2020 IN
APPEAL NO.426/2020.
EXHIBIT P24 TRUE COPY OF THE NOTICE DATED
23/10/2020 ISSUED BY THE 4TH RESPONDENT
AND RECEIVED BY THE PETITIONERS ON
27/10/2020.
EXHIBIT P25 TRUE COPY OF THE PROCEEDINGS OF 1ST
RESPONDENT DATED 10.5.2010.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R3(a) TRUE PHOTOCOPY OF THE PLANS SUBMITTED
BY PETITIONER NO.1 ALONG WITH THE
APPLICATION FOR BA NO 755/2011
EXHIBIT R3(b) TRUE COPY OF THE REPLY DATED 19.11.2014
ISSUED BY THE PUBLIC INFORMATION
OFFICER OF RESPONDENT NO.1 MUNICIPALITY
EXHIBIT R3(c) TRUE PHOTOCOPY OF THE REPORT OF THE
ADVOCATE COMMISSIONER IN WA NO. 2647 OF
2015 DATED 12.5.2016
EXHIBIT R3(d) TRUE PHOTOCOPY OF THE APPLICATION DATED
10.11.2020 FILED BEFORE RESPONDENT NO.1
ALONG WITH ITS RECEIPT
EXHIBIT R3(e) TRUE PHOTOCOPY OF THE REPLY DATED
29.2.2020 ISSUED BY THE PUBLIC
INFORMATION OFFICER OF RESPONDENT NO.1
MUNICIPALITY
EXHIBIT R3(f) TRUE PHOTOCOPY OF THE COMPLAINT, DATED
01.06.2020, SUBMITTED BY RESPONDENT
NO.3 ALONG WITH ITS RECEIPT
EXHIBIT R3(g) TRUE PHOTOCOPY OF THE REPLY DATED
14.08.2020 ISSUED BY RESPONDENT NO.1
EXHIBIT R3(h) ORIGINAL OF THE FILE REGARDING BA NO.
697/2019 OBTAINED FROM RESPONDENT NO.1
MUNICIPALITY UNDER THE RIGHT TO
INFORMATION ACT, 2005
