Kerala High Court
Mr. V.C. Joy vs Perumbavoor Municipality on 25 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 25TH DAY OF NOVEMBER 2021/4TH AGRAHAYANA, 1943
WP(C) NO. 26505 OF 2021
PETITIONER:
MR. V.C. JOY
AGED 60 YEARS, S/O.LATE CHAKKUNNI,
VETTICKANAKUDY HOUSE,
PERUMBAVOOR P.O., KARATTUPALLIKKARA,
PERUMBAVOOR, ERNAKULAM DISTRICT,
KERALA - 683 542.
BY ADVS.
SRI.SANTHOSH MATHEW
SRI.ARUN THOMAS
SRI.JENNIS STEPHEN
SMT.KARTHIKA MARIA
SMT.JAISY ELZA JOE
SRI.ABI BENNY AREECKAL
SRI.P.P.BIJU
RESPONDENTS:
1 PERUMBAVOOR MUNICIPALITY
MUNICIPAL OFFICE,PERUMBAVOOR,
ERNAKULAM DISTRICT,
KERALA - 683 542
REPRESENTED BY ITS SECRETARY.
2 THE SECRETARY
MUNICIPAL OFFICE, PERUMBAVOOR,
ERNAKULAM DISTRICT, KERALA - 683 542.
SRI.K.T.THOMAS, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 25.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.26505/21 -:2:-
BECHU KURIAN THOMAS, J.
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W.P.(C) No.26505 of 2021
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Dated this the 25th day of November, 2021
JUDGMENT
Petitioner is the owner of a four storied building in
Perumbavoor. It is alleged that petitioner's brother had purchased
the land and constructed the ground floor initially and later, in 1986,
constructed two more floors over the existing structure. Thereafter,
permission to construct one more floor was obtained by the brother
of the petitioner in 1988.
2. While so, the building was transferred to the petitioner along
with the right to construct the top floor, after retaining a portion of the
ground floor. Petitioner completed the third floor of the building after
obtaining a building permit and it was numbered as building No.548.
3. In 2016, Municipality issued a notice alleging that the
building is unauthorised. In the meantime, Municipality cancelled the
transfer of registry of the building in favour of the petitioner, alleging
the entire construction to be unauthorised and issued a provisional
order and a demand notice.
4. Petitioner is aggrieved by Ext.P12 demand notice dated
13.10.2020, Ext.P13 order dated 04.11.2020 cancelling the transfer of
registry and Ext.P14 notice dated 10.11.2021 along with the provisional
order.
5. The orders impugned in this writ petition are either provisional
orders or those in which alternative statutory remedies are available. No
circumstances exist to warrant a consideration under Article 226 of the
Constitution of India.
6. As far as Ext.P12 and Ext.P13 orders are concerned, they are
appealable and the petitioner has to be relegated to pursue his appellate
remedies. It is pointed out by Sri.Santhosh Mathew, the learned counsel
for the petitioner, that, in view of the directions of the Supreme Court in In
Re: Cognizance for Extension of Limitation [(2021 (5) KHC 508 (SC)],
the period of limitation is still available to the petitioner.
7. As relating to Ext.P14 provisional order is concerned, it is a
notice issued under section 406(2) of the Kerala Municipality Act, 1994.
My attention is invited to Ext.P15 response submitted by the petitioner to
Ext.P14. Therefore the said reply can be assumed to be pending
consideration before the second respondent.
8. In view of the above, the writ petition is disposed of directing the
second respondent to finalise the provisional order in Ext.P14 by referring
to Ext.P15 as well as the Government orders that govern the
circumstances like Ext.P1 and Ext.P3. As far as Ext.P13 and Ext.P14 are
concerned, petitioner has an alternative remedy in the form of an appeal
and the same will have to be pursued.
9. Needless to mention, while finalizing Ext.P14, the petitioner shall
be granted an opportunity of hearing and the orders passed thereon shall
be communicated to the petitioner. Even though learned counsel
expresses his apprehension that the respondents will initiate coercive
action against the petitioner in the meantime, I am of the view that the
statue mandates that such actions cannot be initiated until finalisation of
Ext.P14.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
APPENDIX OF WP(C) 26505/2021
PETITIONER'S/S' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE GOVERNMENT ORDER VIDE
NO.G.O.(RT)NO.532/86/LAD DATED 14/2/1986.
EXHIBIT P2 TRUE COPY OF THE FRONT PAGE OF THE
PROPERTY TAX PASS BOOKS OF BUILDING NUMBER
258, 258A AND 258B.
EXHIBIT P3 TRUE COPY OF THE GOVERNMENT ORDER VIDE
NO.GO.(RT) NO.3247/88/LAD DATED 27/9/1988.
EXHIBIT P4 TRUE COPY OF THE BUILDING PERMIT DATED
08/08/1989 ISSUED BY THE PERUMBAVOOR
MUNICIPALITY IN FAVOUR OF
SRI.V.C.VARGHESE.
EXHIBIT P5 TRUE COPY OF THE APPROVED BUILDING PLAN
DATED 8/8/1989.
EXHIBIT P6 TRUE COPY OF THE RELEVANT PAGES ASSESSMENT
REGISTER MAINTAINED WITH THE RESPONDENT
MUNICIPALITY OBTAINED UNDER RTI.
EXHIBIT P7 TRUE COPY OF THE NOTICE/ORDER ISSUED BY
THE RESPONDENT MUNICIPALITY DATED
25/1/2016 TO THE PETITIONER.
EXHIBIT P8 TRUE COPY OF THE RELEVANT PAGE OF NOTE
DATED 22/04/2016 MAINTAINED WITH THE
RESPONDENT MUNICIPALITY OBTAINED UNDER
RTI.
EXHIBIT P9 TRUE COPY OF THE REPLY RECEIVED FROM THE
MUNICIPALITY DATED 28/2/2020 BY THE
PETITIONER UNDER RTI ACT.
EXHIBIT P10 TRUE COPY OF THE TAX ASSESSMENT OF THE
GROUND FLOOR MADE BY THE RESPONDENT
MUNICIPALITY.
EXHIBIT P10(a) TRUE COPY OF THE TAX ASSESSMENT OF THE
FIRST FLOOR MADE BY THE RESPONDENT
MUNICIPALITY.
EXHIBIT P10(b) TRUE COPY OF THE TAX ASSESSMENT OF THE
SECOND FLOOR MADE BY THE RESPONDENT
MUNICIPALITY.
EXHIBIT P11 TRUE COPY OF THE TAX RECEIPT DT.
06/04/2018, EVIDENCING A SUM OF
RS.23,961/- WAS PAID TILL 2018-19 FOR
GROUND FLOOR (NEW NO.20/842 OLD
NO.15/546).
EXHIBIT P11(a) TRUE COPY OF THE TAX RECEIPT
DT.06/04/2018, EVIDENCING A SUM OF
RS.26,542/- WAS PAID FOR THE 1ST FLOOR
(NEW NO.20/841 OLD NO.15/547).
EXHIBIT P11(b) TRUE COPY OF THE TAX RECEIPT
DT.06/04/2018, EVIDENCING A SUM OF
RS.25,555/- WAS PAID FOR THE 2ND FLOOR
(NEW NO.20/841 OLD NO.15/547).
EXHIBIT P12 TRUE COPY OF THE DEMAND NOTICE DATED
13.10.2020 ISSUED BY THE RESPONDENT
MUNICIPLAITY TO THE PETITIONER
EXHIBIT P13 TRUE COPY OF THE CANCELLATION ORDER DATED
04.11.2020 ISSUED BY THE 1ST RESPONDENT
WITH RESPECT TO THE PETITIONER'S BUILDING
EXHIBIT P14 TRUE COPY OF THE NOTICE U/S.406(1) OF THE
KERALA MUNICIPLAITY ACT DATED 10.11.2021
BY THE RESPONDENT MUNICIPALITY TO THE
PETITIONER
EXHIBIT P15 TRUE COPY OF THE REPLY LETTER DATED
16.11.2021 SENT BY THE PETITIONER TO
EXT.P14 NOTICE
EXHIBIT P16 TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT
ISSUED BY THE RESPONDENT MUNICIPLAITY
DATED 19.11.2021 EVIDENCING THE RECEIPT OF
EXT.P15
