K.Mahamood Haji vs The Secretary, Kozhikode ...
2022 Latest Caselaw 9267 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
               THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
     WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
                         WP(C) NO. 20686 OF 2022
PETITIONER:

              K.MAHAMOOD HAJI,
              AGED 68 YEARS
              S/O KUNJUTHARUVAI HAJI, KEDANJOTH HOUSE,
              KUNNUMMAKARA P.O., KOZHIKODE DISTRICT, PIN - 670 004.

              BY ADV C.M.SURESH BABU


RESPONDENTS:

     1        THE SECRETARY, KOZHIKODE MUNICIPAL CORPORATION,
              BEACH P.O., KOZHIKODE DISTRICT, PIN-673032.

     2        THE SUPERINTENDING ENGINEER,
              KOZHIKODE MUNICIPAL CORPORATION, BEACH P.O.,
              KOZHIKODE DISTRICT, PIN-673032.

              BY ADVS.
              BINDUMOL JOSEPH-SC
              SRIVIDYA K


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
10.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 20686 OF 2022
                                        2


                                  JUDGMENT

This writ petition is filed with the following prayers:

(I) Issue a writ of certiorari calling for the records leading to Ext.P3 and Ext.P4 and quash the same;

(ii) Issue a writ of mandamus or any other appropriate writ, order directing the respondents to reconsider the matter afresh on merits after rendering an opportunity of hearing to the petitioner, in the light of Rule 16 of KMBR.

(iii) Issue a writ of mandamus or any other appropriate writ, order directing the respondents not to adopt coercive steps to demolish the construction;

(iv) To declare that the petitioner is entitled for regularization;

The main challenge in this writ petition is against Exts.P3 and

P4. Ext.P3 is proceedings issued by the Superintending Engineer,

Kozhikode Municipal Corporation. Ext.P4 is the provisional order

passed by the Secretary of the Corporation invoking the powers

under Section 406(1) and (2) of the Kerala Municipality Act.

Admittedly, Ext.P4 is only a provisional order. The corporation has

to pass a final order after giving an opportunity of hearing to the

petitioner. It is submitted that after Ext.P4 an objection is already WP(C) NO. 20686 OF 2022

submitted before the 1st respondent. If that is the case, the 1 st

respondent can be directed to consider the objection and pass

appropriate final orders after giving an opportunity of hearing to the

petitioner. Till then, the interim order already passed can be

continued. Learned Standing Counsel for the 1 st respondent

submitted that the petitioner is continuing with the work based on

the interim order. I make it clear that the petitioner will maintain

status quo as on today. Therefore, this writ petition is disposed of

with the following directions:

1. The 1st respondent is directed to pass the consequential

order based on Ext.P4 provisional order after giving an

opportunity of hearing to the petitioner as expeditiously as

possible at any rate within two weeks from the date of

receipt of copy of this judgment.

2. The status quo as on today will be maintained by the

petitioner till final orders passed by the Corporation.

Sd/-

P.V.KUNHIKRISHNAN JUDGE nak WP(C) NO. 20686 OF 2022

APPENDIX OF WP(C) 20686/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE RECEIPT DATED 20/05/2021 ISSUED BY THE 1ST RESPONDENT.

Exhibit P2 TRUE COPY OF THE PERMIT ISSUED BY THE 2ND RESPONDENT ON BEHALF OF THE 1ST RESPONDENT DATED 21/05/2021.

Exhibit P3 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 20/06/2022.

Exhibit P4 TRUE PROVISIONAL ORDER ALONG WITH NOTICE DATED 23/06/2021 ISSUED BY THE 1ST RESPONDENT AS PER SECTION 406(2) OF THE KERALA MUNICIPALITIES ACT.