Anwar Hussain vs Faziludeen
2021 Latest Caselaw 18555 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
            THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
   WEDNESDAY, THE 8TH DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943
                          RP NO. 559 OF 2021
  AGAINST THE ORDER/JUDGMENT IN WP(C) 611/2019 OF HIGH COURT OF
                           KERALA, ERNAKULAM
REVIEW PETITIONERS:

    1       ANWAR HUSSAIN, AGED 59 YEARS, S/O. AHAMMED HUSSAIN,
            KAIKKARA MANSION, TP NAGAR, 148, BEACH ROAD,
            THAMARAKULAM, KOLLAM EAST VILLAGE, KOLLAM DISTRICT-
            691001.
    2       BEENA RANI, AGED 52 YEARS, W/O. ANWAR HUSSAIN, RESIDING
            AT KAIKKARA MANSION, TP NAGAR, 149, BEACH ROAD,
            THAMARAKULAM, KOLLAM EAST VILLAGE, KOLLAM DISTRICT-
            691001.
            BY ADV J.S.AJITHKUMAR


RESPONDENTS:

    1       FAZILUDEEN, AGED 55 YEARS, S/O. ABDUL MAJEED, RESIDING
            AT FARHANA MANSIL, NAVAYIKKULAM, PARAKUNNU P.O.,
            CHIRAYINKIL TALUK, THIRUVANANTHAPURAM DISTRICT-695 603.
    2       SHABANATH, AGED 47 YEARS, W/O. FAZILUDEEN, RESIDING AT
            -DO-
    3       THE SECRETARY, KOLLAM CORPORATION, KOLLAM P.O., PIN-691
            001.
    4       THE ASSISTANT EXECUTIVE ENGINEER,
            KOLLAM CORPORATION, KOLLAM-691 001.
     THIS   REVIEW    PETITION   HAVING    COME   UP   FOR   ADMISSION   ON
08.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RP NO. 559 OF 2021
                                    2


                               ORDER

The subject matter of the writ petition was the

construction undertaken by the private respondents

herein without obtaining a development permit. They

obtained a building permit. The construction involves a

depth of more than 1.5 mts. The issuance of permit was

challenged before the Tribunal. The Tribunal found that

the construction involves excavation to a depth of more

than 1.5 mts. Therefore, it was found that the building

permit issued without the development permit is illegal.

Accordingly, it was set aside.

2. This Court affirmed the findings and facts of the

Tribunal and found that the development permit is the

pre requisite to obtain the building permit. The following

directions were given by this Court:

"(I) The impugned order in W.P (C) No.611/2019, RP NO. 559 OF 2021

cancelling the building permit is set aside. (II) The petitioners are restrained form undertaking the construction without obtaining the development permit and complying the decision of the Technical Expert Committee.

(III) The Secretary of the Kollam Corporation is directed to refer the complaint of Anwar Hussain to the Technical Expert Committee under Rule 11 A (8) of the Rules within a period of three weeks. (IV) Anwar Hussain is at liberty to raise all his grievances before the Technical Expert Committee. (V) The Technical Expert Committee, shall take a decision within a further period of three weeks. The Technical Expert Committee, shall give an opportunity of hearing to both parties before taking a decision."

3. However, in paragraph 10, this Court observed

as follows:

"Having considered the dispute in the perspective of the facts and circumstance as above, I am of the view that without setting aside the building permit, the grievance of Anwar Hussain cannot be redressed."

4. The observation in paragraph 10, in fact, run

counter to the direction number one. This has resulted in RP NO. 559 OF 2021

certain amount of confusion. According to the learned

counsel for the review petitioner, who was the first

respondent in the writ petition, this Court, in fact, had

affirmed the setting aside of the building permit by the

Tribunal. Therefore, renewal of the building permit by

the Corporation is illegal.

In fact, going by the judgment, what was intended

by this Court is only to put the building permit under

animated suspension till consideration of the issue related

to the issuance of the development permit. Once a

building permit is issued, the development permit is

restored to its original position. The construction can be

undertaken in accordance with the building permit.

What was intended by this Court is that without setting

aside the building permit, the grievance of Anwar

Hussain can be redressed in the manner indicated RP NO. 559 OF 2021

therein. The word "not" suffixing "can" brought out a

negative intention overriding all the directions in the

judgment. That only requires a clarification.

Subsequently to the issue of development permit or

renewal of building permit, it is open for the review

petitioner to challenge it in an appropriate manner.

There is no other ground is made out to review the

judgment. Clarifying the judgment as above, the review

petition is disposed of.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

PR RP NO. 559 OF 2021

APPENDIX OF RP 559/2021

PETITIONER ANNEXURE Annexure AI COPY OF THE EXTRACT OF THE BUILDING TAX ASSESSMENT REGISTER OF KOLLAM CORPORATION. Annexure AII COPY OF THE COMMUNICATION DATED 27/07/2021 SERVED TO THE 1STREVIEW PETITIONERS ON 01/08/2021.

Annexure AIII COPY OF THE REPORT OF THE TECHNICAL EXPERT COMPANY DATED 08/01/2018.

Annexure AIV COPY OF THE REPORT OF THE TECHNICAL EXPERT COMPANY DATED 07/01/2021.