P. Ramachandran vs Palakkad Municipality
2021 Latest Caselaw 23315 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
     THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943
                          WP(C) NO. 24097 OF 2013
PETITIONER:

             P. RAMACHANDRAN
             S/O. C. PAZHANIAPPAN, RESIDING AT LAKSHMI ILLAM,
             VARITHODU, OLAVAKKODE, PALAKKAD-678002.
             BY ADVS.
             SRI.SANTHEEP ANKARATH
             SRI.SUMODH MADHAVAN NAIR


RESPONDENTS:

       1     PALAKKAD MUNICIPALITY
             REPRESENTED BY ITS SECRETARY, PALAKKAD-678001.
       2     SAROJINI
             W/O. SETHUMADHAVAN, 'KRISHNAKRIPA', VARITHODU,
             OALAVAKKODE, PALAKKAD-678002.
             BY ADVS.
             SRI.P.S.APPU
             SRI.K.S.MADHUSOODANAN
             SRI.K.S.MADHUSOODANAN
             SRI.K.S.MIZVER
             SRI.P.K.RAKESH KUMAR
             SRI.T.C.SURESH MENON
             SRI.THOMAS CHAZHUKKARAN
             SRI.M.M.VINOD KUMAR
             SHRI.BINOY VASUDEVAN, SC, PALAKKAD MUNICIPALITY




       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.24097/2013                        2




                                        JUDGMENT

Dated this the 25th day of November, 2021

The writ petition is filed by the petitioner basically challenging the alleged

illegal construction carried out by the 2 nd respondent viz., Sarojini, Olavakkode,

Palakakd District. Apparently from the documents produced by the petitioner, it is

clear that the Secretary of the Palakkad Municipality, has initiated action against

the 2nd respondent for alleged illegal constructions carried out apparently under

section 406(1) & (2) of the Kerala Municipality Act, 1994. It is clear from Exhibit

P2 order passed by the Secretary that it is an order passed under section 406(3)

of Act, 1994, after providing an opportunity of hearing to the 2 nd respondent.

According to the petitioner, the said order has become final, however, in spite of

all earnest efforts made by the petitioner, the Secretary of the Municipality, is not

implementing the said order. It is thus seeking directions to the Secretary of the

Municipality/Municipality, this writ petition is filed.

2. A counter affidavit and an additional counter affidavit are filed by the 2 nd

respondent basically contending that the building was constructed after securing

necessary permit from the Secretary of the Municipality and the building was

numbered also. Anyhow, one thing is clear there is some confusion with respect to

the building number allotted to the 2nd respondent. This I say because when a

notice was issued to the 2nd respondent, the 2nd respondent has approached this

Court by filing W.P.(C) No.26383/2013 and a learned Single Judge of this Court has

rendered a judgment dated 29th October, 2013, which reads thus:

"This writ petition is filed challenging Ext.P5 proceedings by which portions of the petitioner's building have been directed to be demolished. According to the counsel for the petitioner, the building number mentioned in Ext.P5 does not relate to the petitioner's property. The petitioner's building number is 50/459. Therefore, Ext.P5 cannot affect the petitioner's building in any manner. Nor can it justify the demolition of any portion of the petitioner's building. The petitioner apprehends that on the basis of Ext.P4, her building would be demolished. It is quite clear that no demolition of the petitioner's building is permissible, if the petitioner's building number is 50/459. This is made clear. Apart from the above, I do not find it necessary to issue any other orders in this writ petition.

This writ petition is therefore, disposed of clarifying that Ext.P5 has no application to the petitioner's building, if the petitioner's building number is 50/459."

3. That apart, by virtue of the provisions contained under section 406 of the

Kerala Municipality Act, 1994, the Kerala Municipality Building Rules, 1999 and

the Kerala Municipality Building Rules, 2019, the Secretary of the Municipality is

vested with ample powers to regularise any unauthorised construction, if the

construction carried out is in accordance with the provisions of Kerala

Municipality Act, 1994 and the Kerala Municipality Building Rules, 1999 or the

Rules, 2019.

4. Going by the provisions of Act, 1994 and the Rules, 1999 or 2019, it is

categoric and clear that after every construction carried out, the builder has to

submit a completion certificate in order to secure occupancy certificate from the

Secretary of the Municipality. Even at that stage of the proceedings, the

Secretary is vested with ample powers in order to identify as to whether the

constructions are in accordance with the Rules. The Secretary is also vested with

power to issue necessary directions so as to make the constructions in

accordance with the Rules.

5. Taking into account the aforesaid aspects and hearing Sri.Santheep

Ankarath, learned counsel for petitioner, Sri.Binoy Vasudevan, learned Standing

Counsel appearing for the Palakkad Municipality, I am of the considered opinion

that the writ petition can be disposed of with appropriate directions.

6. The writ petition was pending before this Court from the year 2013 without

securing any interim orders. Due to the efflux of time, many developments might

have taken place. Even assuming that the construction carried out by the 2nd

respondent is unauthorised and building number was granted, it is

only appropriate that the Secretary of the Municipality is directed to issue notice

to the 2nd respondent as well as the petitioner and find out as to whether there

is any unauthorised construction and if so, whether the 2 nd respondent has

submitted any application seeking regularisation of the unauthorised

construction.

The writ petition is disposed of directing the Secretary of the Municipality to

finalise the proceedings within two months from the date of receipt of a copy of

this judgment, after issuing notice of hearing to the petitioner as well as the 2 nd

respondent.

Sd/-

SHAJI P. CHALY, smv JUDGE

APPENDIX OF WP(C) 24097/2013

PETITIONER EXHIBITS P1. TRUE COPY OF THE COMPLAINT DATED 9-4-2010 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

P2. TRUE COPY OF THE ORDER DATED 28-12-2011 ISSUED BY THE 1ST RESPONDENT P3. TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT DATED 15-6-2013.

P4. TRUE COPY OF THE REPLY DATED 11-7-2013 ISSUED TO EXT.P3.

R2(a) PHOTOCOPY OF THE SALE DEED NO.2238/93 SUB REGISTRAR OFFICE, OLAVAKODE R2(b) PHOTOCOPY OF THE PLAINT IN O.S.433/12 DATED 14.8.2012 R2(c) PHOTOCOPY OF THE WRITTEN STATEMENT IN O.S.433/12 DATED 8.10.12 R2(d) PHOTOCOPY OF THE BUILDING PLAN R2(e) PHOTOCOPY OF THE RECEIPTE DATED 13.12.10 13.12.10

R2(f) PHOTOCOPY OF THE RECEIPTE DATED 3.10.13 R2(g) PHOTOCOPY OF THE JUDGMENT IN W.P.(c) NO.26383/13 DATED 29.10.13 R2(h) PHOTOCOPY OF THE JUDGMENT IN O.S.433/12 BEFORE THE MUNSIFF (PRINCIPAL) PALAKKAD DATED 3.10.2014