Ambili Gopakumar vs Changanacherry Municipality
2021 Latest Caselaw 19278 Ker

                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. 5427 OF 2013
PETITIONER/S:

          AMBILI GOPAKUMAR,
          AGED 38 YEARS,
          W/O.GOPAKUMAR, SARAYOOVARAM VEEDU, PUZHAVATHU,
          CHANGANACHERRY TALUK, KOTTAYAM DIST.

          BY ADV SRI.RAJ MOHAN R.PILLAI



RESPONDENT/S:

    1     CHANGANACHERRY MUNICIPALITY,
          MUNICIPAL OFFICE, CHANGANACHERRY, REPRESENTED BY ITS
          SECRETARY-686101.

    2     R.SUBRAMONI
          AGED 55 YEARS
          S/O.RAMAN, PRAKASH BHAVAN, CHANGANACHERRY VILLAGE,
          CHANGANACHERRY TALUK-686101.

          BY ADV SRI.M.P.ASHOK KUMAR




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 5427 OF 2013
                                           -2-



                                   JUDGMENT

This writ petition is filed by the petitioner seeking the following reliefs:-

"i) Call for the records leading to Exhibits P2 and P3 and quash the same by issuing a writ of certiorari;

ii) issue a writ of mandamus or any other appropriate writ, order or direction directing the 1 st respondent not to proceed any further prusuant to Exhibits P2 and P3, till the disposal of Exhibit P1 suit before the Munsiff's Court, Changanacherry, in the interest of justice;

iii) grant such other reliefs as this Hon'ble Court may deem fit in the facts and circumstances of the case."

2. Petitioner is the owner of property having an extent of 4.04 Ares

comprised in Re.Sy.No.38/6 in Block No.191 of Ward No.25 of

Changanacherry Municipality. Petitioner obtained a building permit and

approved plan and completed the construction of the building. Occupancy

certificate and number was secured. However, petitioner was served with

Ext.P2 notice directing the petitioner to construct a drainage, since the

petitioner has carried out the construction apparently on a paddy field and

failing which, appropriate action would be taken to withdraw the building

number and cancel the occupancy certificate. Along with Ext.P2, evidently,

Ext.P3 notice dated 18.01.2013 is issued by the Secretary of the Municipality WP(C) NO. 5427 OF 2013

under Section 406(1) (2) of the Kerala Municipality Act, 1994. It is in the

above backdrop, petitioner has approached this Court seeking to quash Exts.

P2 and P3.

3. I have perused the pleadings and the materials on record.

4. Even though notice is served on the Municipality as well as the party

respondents, there is no appearance. Going through the pleadings and

documents produced, it is categoric and clear that the construction of the

building is completed and the petitioner has secured occupancy certificate

and the building number. Evidently, Ext.P3 dated 18.01.2013 is a notice

issued under Section 406 (1) (2) of the Act, 1994, directing the petitioner to

remove the unauthorised construction carried out in a paddy field. A notice

issued under Section 406 (1)(2) is only a notice enabling the petitioner to

approach statutory authorities, file objection and contest the proceedings.

Ext.P3 could never be said to be a concluded proceeding, since the Secretary

of the Municipality, as per Section 406(1)(2) of the Act, 1994, after receiving

objection from the petitioner, has to finalize the same and pass orders under

Section 406(3) of the Act, 1994. Therefore, petitioner has got effective

statutory remedy available under the Act, 1994. In my view, the challenge

made against Ext.P3 is a premature one. However, the matter was pending

before this Court from the year 2013 without securing any interim orders. WP(C) NO. 5427 OF 2013

Therefore, at this distance of time, one cannot believe that anything would be

surviving for consideration even before the statutory authorities.

5. Therefore, the writ petition is disposed of, leaving open the liberty of

the petitioner to file suitable objection to Ext.P3, if not already done, and the

Secretary of the Municipality shall attain finality to the same, at the earliest

and at any rate, within a month from the date of receipt of the objection from

the petitioner. However, I make it clear that, if already the proceedings have

attained finality, it shall not be reopened under any circumstances.

The writ petition is disposed of accordingly.

Sd/-

SHAJI P.CHALY JUDGE

uu 14.09.2021 WP(C) NO. 5427 OF 2013

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PLAINT AS O.S.NO.20 OF 2013 BEFORE THE MUNSIFF'S COURT, CHANGANACHERRY.

EXHIBIT P2 TRUE COPY OF THE NOTICE DATED 18.01.2013

EXHIBIT P3 TRUE COPY OF THE ORDER NO.BA/67/11-12 DATED 18.01.2013

EXHIBIT P4 TRUE COPY OF OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 25.01.2013

EXHIBIT P5 TRUE COPY OF THE OBJECTION DATED 25.1.2013