Kerala High Court
Ajikumar vs Nedumangad Municipality on 2 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
WP(C) NO. 22216 OF 2021
PETITIONER:
AJIKUMAR
AGED 48 YEARS
S/O. BHARGAVAN, KOTTAIKKAL HOUSE, ULIYOOR, PAZHAKKUTTY P.O,
NEDUMANGAD TALUK, THIRUVANANTHAPURAM - 695561.
BY ADVS.
THIYYANNOOR RAMAKRISHNAN
ARUN KUMAR.P
AMBIKA RADHAKRISHNAN
RESPONDENTS:
1 NEDUMANGAD MUNICIPALITY
REPRESENTED BY ITS SECRETARY, NEDUMANGAD P.O,
THIRUVANANTHAPURAM - 695541.
2 SECRETARY,
NEDUMANGAD MUNICIPALITY, NEDUMANGAD P.O,
THIRUVANANTHAPURAM - 6955441.
3 ASSISTANT ENGINEER.
NEDUMANGAD MUNICIPALITY, NEDUMANGAD P.O,
THIRUVANANTHAPURAM - 695541.
4 THAHASILDAR (LR)
TALUK OFFICE, NEDUMANGAD, NEDUMANGAD P.O,
THIRUVANANTHAPURAM - 695541.
BY ADV P.RAMAKRISHNAN
OTHER PRESENT:
SMT. SURYA BINOY- SR. G.P
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.11.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 22216 OF 2021
2
JUDGMENT
The petitioner says that he is the absolute owner, in
uninterrupted possession, of 11.5 cents of property comprised of in
Sy.No.1615/2-5 (Re.Sy.No.871/12) of Karipoor Village in Nedumangad
and that he preferred an application before the 2 nd respondent -
Secretary of the Nedumangad Municipality for a building permit for
construction of a compound wall around his property. He says that this
application was made because, the existing walls on the western and
southern side of his property is in a dilapidated condition and is likely
to collapse, thus likely to cause great danger not only to himself, but
also to the neighbouring properties.
2. The petitioner says that, however, the 2 nd respondent -
Secretary, without considering his application on its merits, transpires
to have referred it to the 3 rd respondent - Assistant Engineer of the
Municipality, who thereafter issued Ext.P5 notice to him saying that
unless the property is surveyed by the Taluk Surveyor, his application
for building permit cannot be considered.
3. The petitioner says that he, thereupon, approached the
jurisdictional Taluk Tahsildar, who has now issued Ext.P6 asking him
to obtain consent letter from all the neighbours, which he says is an
WP(C) NO. 22216 OF 2021
impossibility on account of certain civil disputes earlier between the
parties. He points out to Ext.P1 judgment in substantiation, asserting
that he has won the case and that his neighbours have been
permanently restrained from trespassing into his property. He
therefore, prays that Ext.P6 be set aside and 4 th respondent - Tahsildar
be directed to conduct a survey without insisting on him to obtain
consent letter from his neighbours.
4. As an alternative submission, the petitioner says that since
resurvey of the property by the Taluk Surveyor is unnecessary for
consideration of his application for building permit, the 2 nd respondent
- Secretary may be directed to consider the same on its merits, after
measuring the property, if so required, based on his title documents.
5. I have heard Sri.P.Arun Kumar, learned counsel for the
petitioner; Sri.R.B.Rajeesh, learned Standing Counsel for respondents
1 to 3 and Smt.Surya Binoy, learned Senior Government Pleader
appearing for the official respondent.
6. The learned Senior Government Pleader - Smt.Surya Binoy,
submitted that since a resurvey of the area has not been yet
undertaken as per the Kerala Survey and Boundaries Act, the
petitioner's request for survey of his property can be only done with
the consent of his neighbours. She submitted that it is, therefore, that
WP(C) NO. 22216 OF 2021
the 4th respondent has issued Ext.P6 and thus, prayed that the same be
not interdicted.
7. The learned Standing Counsel for the Nedumangad
Municipality - Sri.R.B.Rajeesh, submitted that since the retaining walls
on the sides of the petitioner's property have to be now reconstructed,
which may have some effect on the neighbouring properties, the 3 rd
respondent - Assistant Engineer, thought it better that the entire
property be surveyed by the Taluk Surveyor, so that the precise
boundaries can be fixed, leading to the issuance of a building permit in
favour of the petitioner. He also, therefore, prayed that this writ
petition be not entertained by this Court.
8. In reply, Sri.P.Arun Kumar, submitted that the stand of the
2nd and 3rd respondents, in saying that the entire properties in the area
will have to be resurveyed by the competent Taluk Surveyor, is
unnecessary and illegal because all which the petitioner wants is to
reconstruct the retaining walls, which is presently in existence, but
which is now crumbling. He added that when he had earlier
approached the Civil Court, to obtain Ext.P1 judgment, an Advocate
Commissioner had been deputed by the said Court, who had filed
Ext.P3 report, showing the boundaries of his property. He thus argued
that if this report had been adverted to by the 2 nd respondent, in
WP(C) NO. 22216 OF 2021
conjunction with his title document, no survey would have been found
necessary. He then submitted that, unless urgent steps are taken to
reconstruct the walls on the southern and western sides, his house
itself will be in danger and that this can also cause irreparable
prejudice to the neighbours.
9. I must say that, I find substantial force in the afore
submissions of Sri.P.Arun Kumar, learned counsel for the petitioner,
because his client has only approached the 2 nd respondent with an
application for building permit to construct compound wall on his
western and southern boundaries. Normally, a resurvey of the entire
area by the Taluk Surveyor would not be necessary for this purpose
and I fail to understand why 2 nd and 3rd respondents have insisted on
such course being adopted.
10. In usual circumstances, an application for building permit
ought to have been considered based on the documents of the title
petitioner, without reference to any other property or document; and
this is more so because the petitioner has already obtained Ext.P1
judgment from a competent Civil Court against some of his
neighbours.
11. In the afore circumstances, I am certain that the matter will
have to be reconsidered by the 2 nd respondent - Secretary of the
WP(C) NO. 22216 OF 2021
Municipality based on law and the applicable building Rules, thus
deciding whether the petitioner's request can be acceded to by
conducting a measurement of his property, based on his title
documents and Ext.P1 judgment.
Resultanly, I order this writ petition and direct the 2 nd
respondent to reconsider the application of the petitioner
appropriately in terms of the applicable building Rules and after
assessing whether the same can be acceded to by measurement of his
property based on his title documents, Ext.P1 judgment and Ext.P3
Commission Report.
The afore exercise shall be completed by the 2nd respondent,
after affording an opportunity of being heard to the petitioner and of
producing necessary documents in his favour; thus culminating in an
appropriate order on his application for building permit, as
expeditiously as is possible but not later than six weeks from the date
of receipt of a copy of this judgment.
SD/-
DEVAN RAMACHANDRAN
JUDGE
rp
WP(C) NO. 22216 OF 2021
APPENDIX OF WP(C) 22216/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE JUDGMENT DATED 06.06.2017 IN OS
NO. 171/2013 OF THE PRINCIPAL MUNSIFF COURT,
NEDUMANGAD.
Exhibit P2 TRUE COPY OF THE COMMISSION REPORT APPENDED THERETO
IN OS NO. 171/2013 OF THE PRINCIPAL MUNSIFF COURT,
NEDUMANGAD,
Exhibit P3 TRUE COPY OF THE SURVEY PLAN APPENDED THERETO IN OS
NO. 171/2013 OF THE PRINCIPAL MUNSIFF COURT,
NEDUMANGAD,
Exhibit P4 PHOTOGRAPHS (3 NUMBERS), SHOWING THE WESTERN AND
SOUTHERN BOUNDARY OF THE PETITIONER'S PROPERTY.
Exhibit P5 TRUE COPY OF THE INTIMATION DATED 30.07.2021
BEARING NO. TP2/C1/6769/21 BY THE 2ND RESPONDENT
THROUGH THE 3RD RESPONDENT TO THE PETITIONER.
Exhibit P6 TRUE COPY OF THE INTIMATION OF THE 4TH RESPONDENT
BEARING NO. G3-8357/21 TO THE PETITIONER.
Exhibit P7 TRUE COPY OF THE RECEIPT ISSUED BY THE SUB TREASURY
OFFICE DATED 24.08.2021 UNDER THE CAPTIONED ACCOUNT
- 00290080099 TOWARDS PAYMENT OF SURVEY CHARGES BY
THE PETITIONER.
