Fousiya.A.P vs Thalipparamba Municipality
2021 Latest Caselaw 14412 Ker

                     IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                      PRESENT
                     THE HONOURABLE MR. JUSTICE SATHISH NINAN
         TUESDAY, THE 13TH DAY OF JULY 2021 / 22ND ASHADHA, 1943
                             WP(C) NO. 28568 OF 2020
PETITIONER:

              FOUSIYA.A.P,
              AGED 47 YEARS
              W/O.LATE MOHAMMED ALI.K.E, A.P.HOUSE, NEAR VILLAGE OFFICE,
              P.O.MATTOOL, KANNUR-670302.

              BY ADV K.RAJESH SUKUMARAN



RESPONDENTS:

     1        THALIPPARAMBA MUNICIPALITY,
              THALIPPARAMBA, KANNUR-670141, REP. BY ITS SECRETARY.

     2        SECRETARY,
              THALIPPARAMBA MUNICIPALITY, THALIPPARAMBA, KANNUR-670141.

     3        NIZAR ABDUL RAHMAN,
              AGED 52 YEARS
              S/O.ABDUL RAHMAN, NABRAS SUPERMARKET, MARMAR ARCADE,
              P.O.THALIPPARAMBA, KANNUR-670141.

              BY ADVS.
              SRI.K.N.ABHILASH
              SRI.ABDUL RAOOF PALLIPATH
              SRI.SUNIL NAIR PALAKKAT
              SRI.K.R.AVINASH (KUNNATH), SC, THALIPPARAMBA MUNICIPALITY,
              KANNUR




     THIS     WRIT    PETITION   (CIVIL)   HAVING   COME   UP   FOR   ADMISSION   ON
13.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                   SATHISH NINAN, J.
          ==================
              W. P. (C) No.28568 of 2020
          ==================
          Dated this the 13th day of July, 2021

                           JUDGMENT

Petitioner is the co-owner of a building

bearing No.TMC XXIX-730 to 741(A) which is a shopping complex under the name "Marmar Arcade".

The building has been let out to tenants. The third

respondent who is a tenant of the ground floor of

the building has encroached into and reduced the

car parking area, the fire exit and a portion of

the terrace and converted it as godown. Ext.P2

notice was issued by the Secretary of the

Municipality to the owners, requiring restoration

of the safety measures and production of fire NOC.

The owners are being faulted for the illegal

actions of conversion. As a co-owner of the

building, the petitioner is interested in seeing

that the illegal encroachment and change of user

made by the third respondent is abated. Though the

Municipality is vested with the power and has

issued Ext.P12 notice requiring removal of such W. P. (C) No.28568 of 2020

conversions and obstructions, no action pursuant

thereto has been taken. It is thereupon that the

petitioner has approached this Court.

2. Heard learned counsel for the parties and

perused the pleadings.

3. Though the third respondent would contend

that the petitioner is only one among the co-owners

and that the others have not joined in the writ

petition, even going by the averments in the writ

petition, the petitioner has filed the writ

petition only in her capacity as a co-owner and not

in derogation of the title of the other co-owners.

The allegation of the petitioner is regarding

illegal occupancy/conversion of the parking area,

fire exit and portion of the terrace as godown,

which is not permissible under law. Therefore, the

objection raised, that the petitioner is only a co-

owner and is not competent to maintain the writ

petition is without substance.

4. Though the third respondent would contend

that the parking area, fire exit and the terrace

portion are also the subject matter of lease in his W. P. (C) No.28568 of 2020

favour, there is no material to substantiate the

same. Even assuming that the same have been let

out, those areas could not be used for any other

purpose, but for which it has been earmarked in the

building permit and for which occupancy was issued.

Therefore, the said contention also is

unacceptable. The construction/encroachments made

by the third respondent over the parking area, fire

exit and terrace portion are liable to be removed.

5. The third respondent has filed an affidavit

dated 07.07.2021 wherein he has sought for eight

months time to remove the constructions-

encroachments in question.

6. After hearing the learned counsel on either

sides, I am of the opinion that a period of three

months could be granted to the third respondent to

clear off the parking area and the terrace portion

of the building. As regards the obstructions in the

fire exit, the same is liable to be cleared

forthwith.

Accordingly the writ petition is disposed of

with the following directions:- W. P. (C) No.28568 of 2020

(1) Third respondent shall remove/clear off the

obstructions/encroachments over the fire

exit/staircase of the building forthwith.

(2) The obstructions/encroachments/constructions in

the car parking area and the terrace portion of

the building shall be cleared off on or before

15.10.2021.

(3) In the event of the third respondent

failing to comply with direction No.1 above

within one week from today, the third

respondent shall not be entitled for relief

No.2 granted above and the second

respondent shall cause the obstructions

referred to above removed without further

delay.

(4) If after complying with direction No.1

above, the third respondent refuses to

comply with direction No.2, the second

respondent shall, on expiry of the period

mentioned therein, cause the same to be

enforced.

(5) In the event of the Municipality being W. P. (C) No.28568 of 2020

required to take action for clearing off

the conversions noted above, needless to

say that, the Municipality shall be

entitled to realise the costs thereof from

the third respondent.

The writ petition is disposed of as above.

Sd/-

SATHISH NINAN JUDGE

kns/-

//True Copy// P.S. to Judge APPENDIX OF WP(C) 28568/2020

PETITIONER ANNEXURE

EXHIBIT P1 COPY OF THE LETTER DATED 01.12.2017 SENT TO THE 3RD RESPONDENT.

Exhibit P2 COPY OF THE NOTICE DATED 18.03.2019 ISSUED BY THE 2ND RESPONDENT TO ONE OF THE CO-OWNERS.

Exhibit P3 COPY OF THE REPLY LETTER DATED 21.07.2020 GIVEN TO THE 2ND RESPONDENT.

Exhibit P4 COPY OF THE NOTICE DATED 19.08.2020 ISSUED BY THE 2ND RESPONDENT.

Exhibit P5 COPY OF THE LETTER DATED 17.09.2020 GIVEN TO THE DY.SP THALIPPARAMBA TO PROVIDE POLICE PROTECTION.

Exhibit P6 COPY OF THE COMPLAINT DATED 18.09.2020 GIVEN TO DISTRICT POLICE CHIEF, KANNUR.

Exhibit P7 COPY OF COMPLAINT DATED 26.09.2020 GIVEN TO THE MINISTER FOR LOCAL SELF GOVERNMENT.

Exhibit P8 COPY OF LAWYER NOTICE DATED 29.09.2020 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT.

Exhibit P9 COPY OF THE RENT DEED DATED 25/07/2014 EXECUTED BY THE 3RD RESPONDENT IN FAVOUR OF THE LANDLORDS OF THE BUILDING.

Exhibit P10 PHOTOGRAPH SHOWING THE ILLEGAL OCCUPATION BY THE 3RD RESPONDENT IN THE CAR PARKING AREA.

Exhibit P11 PHOTOGRAPH SHOWING THE ILLEGAL OCCUPATION BY THE 3RD RESPONDENT IN THE TERRACE PORTION.

Exhibit P12 PHOTOGRAPH SHOWING THE ILLEGAL OCCUPATION BY THE 3RD RESPONDENT IN THE FAIR STAIR EXIT.

Exhibit P13 COPY OF THE COMPLAINT DATED 26.10.2019 GIVEN TO THE 2ND RESPONDENT.

Exhibit P14 COPY OF THE NOTICE DATED 15.11.2019 ISSUED BY THE 2ND RESPONDENT.

APPENDIX/WP(C) 28568/2020

Exhibit P15 COPY OF THE REPLY LETTER DATED 30.11.2019 GIVEN TO THE 2ND RESPONDENT.

Exhibit P16 COPY OF THE LETTER SENT TO THE 3RD RESPONDENT.

Exhibit P17 COPY OF THE COMPLAINT DATED 30.11.2019 GIVEN TO THE SUB INSPECTOR OF POLICE, THALIPPARAMBA.

Exhibit P18 COPY OF THE COMPLAINT DATED 08.02.2020 GIVEN TO THE SUB INSPECTOR OF POLICE, THALIPPARAMBA.

Exhibit P19 COPY OF THE COMPLAINT DATED 06.03.2020 GIVEN TO THE DISTRICT POLICE CHIEF, KANNUR.

Exhibit P20 COPY OF THE NOTICE DATED 19.06.2020 ISSUED BY THE 2ND RESPONDENT.

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