Kerala High Court
Ashraf T.M vs The Secretary, Trikkakkara ... on 14 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 14TH DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943
WP(C) NO. 5028 OF 2013
PETITIONER/S:
ASHRAF T.M.
AGED 55 YEARS
THAIKKOOTTATHIL HOUSE, MASJID ROAD, NGO QUARTERS,
VAZHAKKALA, KOCHI-682 021, ERNAKULAM DISTRICT.
BY ADVS.
SRI.C.ANILKUMAR (KALLESSERIL)
SRI.C.Y.VINOD KUMAR
RESPONDENT/S:
1 THE SECRETARY, TRIKKAKKARA MUNCIPALITY,
THRIKKAKARA MUNICIPALITY, KAKKANAD, COCHIN-682 030.
2 THE SUB INSPECTOR OF POLICE,
THRIKKAKARA POLICE STATION, COCHIN-682 030.
3 KUNJUMUHAMMED
KALAPURAKKAL HOUSE, MASJID ROAD, THRIKKAKARA.P.O.,
COCHIN-682 021.
R1 BY ADV SRI.S.JAMAL, SC, THRIKKAKARA MUNICIPALITY
R2 BY SRI. K.P. HARISH, SR. GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 5028/2013 :2:
Dated this the 14th day of September, 2021.
JUDGMENT
This writ petition is filed by the petitioner, who is a resident
within the limits of Thrikkakkara Municipality, Kochi, seeking the
following reliefs:
1. Issue a writ of mandamus or any other appropriate writ,
order or direction directing the first respondent to take
immediate and necessary steps for demolishing the
unauthorised construction made by the 3 rd respondent under the
cover of Exts.P1 to P3.
2. Issue a writ of mandamus or any other appropriate writ,
order or direction directing the 2nd respondent to take necessary
action against the 3rd respondent for violation of the
Government Orders with regard to Ext. P2 building permit
issued by the first respondent.
2. According to the petitioner, the third respondent has secured
a building permit, evident from Ext. P1 and the plan submitted by the
third respondent was approved, evident from Exts.P2 and P3. The
grievance of the petitioner is that the construction of the residential
building has been made very close to the boundary wall of the
petitioner without keeping the distance prescribed by law. As per Ext.
P3 site plan, the proposed construction should be done at a distance of
1 meter from the eastern boundary wall of the third respondent. In
spite of the obstructions raised by the petitioner, the third respondent
was going ahead with the construction of the building, which
persuaded the petitioner to submit a complaint before the Secretary of
the Thrikkakkara Municipality--first respondent on 10.10.2012 for
stopping the construction work and also to demolish the unauthorised
construction made by the third respondent.
3. In fact, the first respondent has issued Ext. P4 stop memo,
which was received by the third respondent on 18.10.2012. However,
after stopping the construction work for some time, he again started
unauthorised construction. It was in the said background that the
petitioner has approached this Court seeking appropriate reliefs as are
extracted above.
4. I have heard the learned Senior Government Pleader Sri. K.
P. Harish and Sri. S. Jamal, learned Standing Counsel appearing for the
first respondent Municipality, and perused the pleadings and materials
on record.
5. In fact, it is clear and evident from the documents produced
by the petitioner that construction was being carried out by the third
respondent after securing a permit and approved plan from the
Secretary of the Thrikkakara Municipality.
6. Accordingly, this writ petition is disposed of directing that if
there is any illegality in the construction carried out, the Secretary of
the Municipality is at liberty to issue a stop memo and conduct a due
enquiry. That apart, when the builder submits an application for
occupancy certificate, the Secretary is at liberty to analyse as to
whether constructions were carried out in accordance with the
provisions of the Kerala Municipality Act, 1994, the approved plan and
permit and the Kerala Municipality Building Rules, 1999.
7. Going by the pleadings put forth by the petitioner, it is quite
clear and evident that the contentions are depending on various factual
circumstances, which can only be concluded by a fact finding body.
Even though the petitioner had a case that the application was not
considered by the Secretary of the Municipality, the Municipality has, in
fact, issued a stop memo as early as on 30.11.2012. Further, at this
distance of time, one cannot believe that anything survives to be
considered in this petition and any matter is pending before the
Secretary of the Municipality for adjudication. Therefore, if at all
anything pending, it is for the Secretary of the Municipality to take
appropriate action in accordance with law.
With the above observations and directions, this writ petition is
disposed of.
sd/-
SHAJI P. CHALY,
JUDGE.
Rv
APPENDIX OF WP(C) 5028/2013
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT
DATED 11.7.2012 SUBMITTED BY THE 3RD RESPONDENT
BEFORE THE 1ST RESPONDENT.
Exhibit P2 TRUE COPY OF THE BUILDING PERMIT NO BA/653/12
DATED 25.7.2012 ISSUED BY THE 1ST RESPONDENT TO
THE 3RD RESPONDENT
Exhibit P3 TRUE COPY OF THE SITE PLAN APPROVED BY THE 1ST
RESPONDENT FOR CONSTRUCTION OF BUILDING BY THE
3RD RESPONDENT
Exhibit P4 TRUE COPY OF THE STOP MEMO DATED 18.10.2012
ISSUED TO THE 3RD RESPONDENT BY THE 1ST
RESPONDENT
Exhibit P5 TRUE COPY OF THE PETITION SUBMITTED BY THE
PETITIONER BEFORE THE 1ST RESPONDENT ON
3.11.2012
Exhibit P6 TRUE COPY OF THE RECEIPT DATED 30.11.2012 ISSUED
BY THE 2ND RESPONDENT TO THE PETITIONER
Exhibit P7 TRUE COPY OF THE LETTER NO TPI /3309 DATED
25.2.2013 ISSUED BY THE PUBLIC INFORMATION
OFFICER UNDER THE 1ST RESPONDENT
Exhibit P8 TRUE COPY OF THE PROCEEDINGS NO TPI/19005/12
DATED 4.3.2013 ISSUED BY THE 1ST RESPONDENT
UNDER SECTION 406(1) AND (3) OF THE KERALA
MUNICIPALITIES ACT.
RESPONDENTS' EXHIBITS: NIL
/True Copy/
PS To Judge.
rv
