Joshy Antony vs The State Of Kerala
2021 Latest Caselaw 14796 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
     THURSDAY, THE 15TH DAY OF JULY 2021 / 24TH ASHADHA, 1943
                        WP(C) NO. 23135 OF 2015
PETITIONER/S:

          JOSHY ANTONY,
          AGED 49 YEARS,
          S/O.A.J.ANTONY, AQLUKKA HOUSE, MASTER AVENUE, AVENUE
          ROAD, THRISSUR-680 005.

          BY ADV SRI.G.SREEKUMAR (CHELUR)



RESPONDENT/S:

    1     THE STATE OF KERALA
          REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF
          GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT,
          THRIUVANANTHAPURAM-695 001.

    2     THE THRISSUR MUNCIPAL CORPORATION
          REPRESENTED BY THE SECRETARY, M.O.ROAD, THRISSUR-1.

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



OTHER PRESENT:

          R1- SRI.SURIN GEORGE IPE,SENIOR GOVERNMENT PLEADER

          R2 - SRI.SANTHOSH.P.PODUVAL,SC




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 23135 OF 2015
                                             2



                                       JUDGMENT

This writ petition is filed by the petitioner seeking the following

reliefs:-

"(i) Call for the records leading to Ext.P6 and may be pleased to quash the same.

(ii) To pass any such or further orders as the petitioner may seek and this Hon'ble Court deem fit to grant.

(iii) For the reasons stated in the original petition and the accompanying affidavit it is most humbly prayed that this Hon'ble Court may be pleased to issue an interim direction directing the respondents not to initiate any coercive action on the basis of Ext.P6, including any demolition pending consideration of the writ petition, in the interest of justice."

2. The subject issue relates a construction put up by the petitioner on

the terrace of a concrete building having ground + 1 floor. According to the

petitioner, petitioner has put up this structure on the terrace in order to

protect the building from damage being caused on account of percolation

of the water and therefore, the petitioner was not bound to have any permit

from the Thrissur Corporation and the Corporation is not entitled to collect

any tax from the petitioner, since it is shown as an unused area. Anyhow, WP(C) NO. 23135 OF 2015

the Secretary of the Corporation has issued Ext.P3 notice to the petitioner

under Section 406(1) of the Kerala Municipality Act, 1994, and after

receiving objection from the petitioner, has passed Ext.P6 final order,

affirming Ext.P3 provisional order and directed the petitioner to remove

the unauthorized construction. It is thus challenging Ext.P6 final order,

this writ petition is filed.

2. A detailed counter affidavit is filed by the 2 nd respondent,

contending as follows:

"4. It is respectfully submitted that the petitioner had been given permit to construct an additional floor after making necessary alterations on the top of his building with municipal door No.25/193 situated in Sy.No.1256/2P and 1256/3 in Thrissur village within the Corporation. On completion of the constructions, occupancy certificate was also issued to the petitioner. However, subsequently complaint was received that the petitioner had made some additional unauthorized constructions in huge scale upon the reconstructed building. On inspection made pursuant to the complaint it was found that the complaint regarding the unauthorized constructions made by the petitioner was true. The unauthorized constructions made by the petitioner was by putting up a sheet roof upon the building over an area of 108.67M². And this unauthorized construction was also found being used to accommodate the petitioner's office.

Whereupon the Corporation issued Ext.P3 notice. Ext.P4 WP(C) NO. 23135 OF 2015

reply was received from the petitioner, putting forward some lame and unsustainable excuses and arguments. Thereafter, on 5.3.15 a personal hearing was accorded to the petitioner, when the petitioner submitted that he has filed an application to regularize the unauthorized constructions and hence requested to defer action pursuant to Ext.P3 pending action in his regularization application. However it was revealed that the petitioner's application for regularization of the unauthorized construction was defective; and he had been asked to rectify the defects, in order to proceed in the matter. However, the petitioner did not care to rectify the irregularities and mistakes pointed out in his application for regularization, as directed by the authorities. In the circumstances the Corporation had no other option than to proceed further in the matter by issuing Ext.P6 final order.

5. It is respectfully submitted that Ext.P6 order is perfectly legal and the petitioner cannot be aggrieved on account of Ext.P6 order. If at all the petitioner is aggrieved for any reason whatsoever it is only on account of his own acts of commission and omission."

3. I have heard learned Counsel for the petitioner Sri. Sreekumar G.

(Chelur) and learned Standing Counsel for the Thrissur Municipal

Corporation Sri. Santhosh P.Poduval, and perused the pleadings and the

documents on record.

4. According to the petitioner, petitioner has secured a permit for the

construction of ground + 1 floor, and after the construction of the same, WP(C) NO. 23135 OF 2015

petitioner has put up a roof over the terrace with sheets, for which, no

permit is required. Anyhow, in the counter affidavit submitted by the

Corporation, it is clear that, petitioner has submitted an application

seeking regularization of the construction so put up, and the Secretary of

the Corporation has directed the petitioner to cure the defects in the

application so as to consider the same, in accordance with law. However,

the petitioner has approached this Court by filing this writ petition, and

that too, challenging Ext.P6 final order passed under Section 406(3) of the

Kerala Municipality Act, 1994. Needless to say, Ext.P6 is an appealable

order before the Tribunal for Local Self Government Institutions.

However, petitioner was not interested enough to pursue the appeal

remedy. It is also submitted by the learned Counsel for the petitioner that,

since no permit is required for the construction, Corporation has no

authority to issue notices under Section 406(1) of the Kerala Municipality

Act, 1994, and attain finality as is contained in Ext.P6 order. However, it is

clear from the counter affidavit filed by the Secretary of the Corporation

that the petitioner has submitted an application seeking regularization of

the construction put up, which thus means, petitioner has not secured any

permit from the Corporation for putting up the construction. In that view

of the matter, I think it is only appropriate that the petitioner is given WP(C) NO. 23135 OF 2015

the liberty to approach the Secretary of Thrissur Corporation by pursuing

the application submitted by the petitioner for regularization of the

construction.

5. Going by the provisional order Ext.P3 and the final order Ext.P6, I

am of the considered opinion that, they are surrounded by various factual

aspects and it is clearly mentioned in Ext.P3 as well as in Ext.P6 that the

petitioner has put up the roof and the area as a usable area, as per the

inspection conducted by the Corporation authorities. Even though, I am

not inclined to interfere with the final order passed by the Secretary of the

Corporation, I think it is only appropriate that the petitioner is granted the

liberty to pursue the regularization application. Therefore, the writ

petition is disposed of, declining the reliefs sought for, however, leaving

open the liberty of the petitioner to pursue the regularization application

submitted by the petitioner before the Secretary of the Corporation, as is

stated in the counter affidavit filed by the Secretary of the Corporation. I

make it clear that, if the petitioner produces the regularization application

after curing the defects, within three weeks from the date of receipt of a

copy of this judgment, it shall be considered by the Secretary of the

Corporation, in accordance with law, at the earliest and at any rate, within

one month from the date of receipt of the corrected regularization WP(C) NO. 23135 OF 2015

application, as is directed above. When this writ petition was admitted to

the files of this Court, an interim order was granted, which was made

absolute as per order dated 14.07.2016. Till such time the directions are

complied with, the interim order would continue to be in force.

The writ petition is disposed of accordingly.

Sd/-

SHAJI P.CHALY JUDGE

uu 19.07.2021 WP(C) NO. 23135 OF 2015

APPENDIX OF WP(C) 23135/2015

PETITIONER EXHIBITS

EXT.P1. A TRUE COPY OF THE LICENSE ISSUED TO THE PETITIONER DATED 8/7/2013 BY THE 2ND RESPONDENT

EXT.P2 A TRUE COPY OF THE OWNERSHIP CERTIFICATE ISSUED FOR THE BUILDING IN DIFFERENCE NUMBERS TO THE PERITIONER DATED 4/10/2014.

EXT.P3                  A TRUE COPY OF THE NOTICE ISSUED DATED
                        10/9/2014.

EXT.P4                  A TRUE COPY OF THE REPLY OF THE PETITIONER
                        DATED 23/9/2014.

EXT.P5                  A TRUE COPY OF THE ACKNOWLEDGEMENT CARD
                        CONCERNING EXT.P4 DATED 29/9/2014.

EXT.P6                  A TRUE COPY OF THE NOTICE ISSUED DATED
                        9/7/2015.