A.T.Muhammed Unni vs The Chavakkad Municipality
2023 Latest Caselaw 2136 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
  THURSDAY, THE 9TH DAY OF FEBRUARY 2023 / 20TH MAGHA, 1944
                   WP(C) NO. 5887 OF 2021
PETITIONERS:

    1     A.T.MUHAMMED UNNI,
          AGED 80 YEARS
          S/O. ABDUL RAHIMAN, THEKKUMPURATH HOUSE, PALAYUR,
          CHAVAKKAD P.O., THRISSUR DISTRICT-680506.

    2     R.V. ABDUL MAJEED
          S/O. MUHAMMED, RAYEEN MARAKKAR VEETTIL, PALAYUR,
          CHAVAKKAD P.O., THRISSUR DISTRICT-680506.

    3     A.V. UMMER
          AGED 80 YEARS
          S/O. MUHAMMED HAJI, AMBALATHIL VEETTIL, PALAYUR,
          CHAVAKKAD P.O., THRISSUR DISTRICT-680506.

          BY ADVS.
          P.B.KRISHNAN
          P.B.SUBRAMANYAN
          MANU VYASAN PETER
          SABU GEORGE



RESPONDENTS:

    1     THE CHAVAKKAD MUNICIPALITY,
          REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE,
          CHAVAKKAD P.O., THRISSUR DISTRICT-680506.

    2     THE SECRETARY,
          CHAVAKKAD MUNICIPALITY, MUNICIPAL OFFICE,
          CHAVAKKAD P.O., THRISSUR DISTRICT-680506.

    3     P.S. MUHAMMEDALI,
          PZAHAMPILLIYIL HOUSE, MATHA AMRUTHA ROAD,
          OPP. MASJIDUL SALAFIYA, ORUMANAYUR P.O.,
 WP(C) NO. 5887 OF 2021

                                      2


             CHAVAKKAD P.O., THRISSUR DISTRICT-680506.

     4       THOMAS PALLATH,
             PALLATH HOUSE, POOVATHUR, PANGU P.O.,
             THRISSUR DISTRICT-680521.

     5       DAVID C.P.,
             CHALISSERY HOUSE, HOSPITAL ROAD,
             CHAVAKKAD, THRISSUR DISTRICT-680506.

     6       HAMSA P.,
             PUTHENPEEDIKAYIL HOUSE, VADANAMKURISSY P.O.,
             PALAKKAD DISTRICT-679121.

     7       M.V. HAMSA,
             MUSALLYARUVEETTIL HOUSE, PALAYUR,
             CHAVAKKAD P.O., THRISSUR DISTRICT-680506.

             BY ADVS.
             V.N.HARIDAS, SC, CHAVAKKAD MUNICIPALITY
             FAHEEM AHSAN S
             SREEHARI INDUKALADHARAN
             SRI.P.CHANDRASEKHAR
             SRI.K.K.MOHAMED RAVUF
             SHRI.SATHEESH V.T.
             SMT.RANI MADHU
             SMT.MANJARI G.B.
             SAIFUDEEN T.S
             ANJANA CHANDRAN
             ANAGHA AJITH
             GOKUL DEVIS
             DAYANA PAUL
             RAJA MADHAV JAYAKRISHNAN
             SOUDH N. NUJUM
             RAJESWARI R.K.
             HARIKRISHNAN R.K.
             KUNJAPPEASOW RAINGE,
             SMT.S.REKHA, SR.P.P.


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   09.02.2023,   THE   COURT   ON       THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 5887 OF 2021

                                      3




                            JUDGMENT

The petitioners aggrieved by the inaction on the part of the

respondents 1 and 2 in removing the unauthorized construction and illegal

trades in the Wakf property.

2. The property in dispute is situated in Sy.No.195/16 of Guruvayur

village having an extent of 35.316 Ares which according to the petitioner is a

Wakf property, but in possession of private parties. The petitioners

approached the Wakf Board by filing an application as O.P.No.44 of 2002 to

reclaim the Wakf property from the possession of 3 rd parties. The Wakf Board

held that the transaction effected in the name of the parties, who are in

possession, was without obtaining prior sanction of the Board as

contemplated under Section 51 of the Wakf Act and hence void. The Wakf

Board directed the District Collector to resume the property from them. The

order of the Wakf Board was challenged before the Wakf Tribunal

unsuccessfully. It is submitted that the revision preferred against the

judgment of the Wakf Tribunal is still pending before this Court.

3. In the meanwhile, a complaint was filed at the instance of the

petitioners to the 2nd respondent to initiate action to remove the illegal

constructions made in the Wakf property. Accordingly, a notice under

Section 406(1) of the Kerala Municipality Act was issued to the occupants of WP(C) NO. 5887 OF 2021

the buildings in the property. Thereafter, after hearing the parties, a final

order was passed as Ext.P4, whereby the occupants were directed to remove

the constructions in the Wakf property and also to stop the illegal trades

therein. This writ petition has been preferred mainly to give a direction to the

respondents 1 and 2 to take effective steps to enforce Ext.P4 order.

4. I have heard Sri.P.B.Krishnan, the learned counsel for the

petitioners, Sri.V.N.Haridas, the learned Standing Counsel for the

Chavakkad Municipality and Sri.Faheem Ahsan.S, the learned counsel

appearing for the 3rd respondent.

5. The learned Standing Counsel for respondents 1 and 2 submitted

that all the illegal constructions were already removed and all the illegal

trades were already stopped, in compliance of Ext.P4 and similar orders.

However, the learned counsel for the petitioners submitted that respondent

No.3 has made an illegal construction in the property and it has not been

removed so far. The counsel further submitted that the respondent No.4 is

conducting an illegal trade in one of the buildings in the property. In reply to

the said submission, the learned Standing Counsel for respondents 1 and 2

submitted that the trade conducted by respondent No.4 has already been

stopped. The said submission is recorded. So far as the building occupied by

the respondent No.3 is concerned, the Standing Counsel for respondents 1

and 2 and the learned counsel appearing for the respondent No.3, submitted WP(C) NO. 5887 OF 2021

that against the order passed by the Municipality to remove the said

construction, the respondent No.3 has approached the Tribunal for Local Self

Government Institutions, Thiruvananthapuram and obtained a stay against

its removal. The learned Standing Counsel for the Municipality submitted

that in these circumstances, they are unable to remove the said construction.

In the light of the above facts, this Writ Petition (Civil) is disposed of,

recording the substantial compliance of Ext.P4 order. The respondents 1 and

2 shall proceed against the construction made by the respondent No.3 in the

property subject to the outcome of the proceedings now pending before the

Tribunal for Local Self Government Institutions, Thiruvananthapuram.

Sd/-

DR.KAUSER EDAPPAGATH, JUDGE AS WP(C) NO. 5887 OF 2021

APPENDIX OF WP(C) 5887/2021

PETITIONERS' EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 14/06/2018 IN WOA NO.3/2017 ON THE FILE OF THE WAKF TRIBUNAL, ERNAKULAM.

EXHIBIT P2 TRUE COPY OF THE NOTICE NO. E2-7529/18 ISSUED BY THE 2ND RESPONDENT DATED 05/07/2018.

EXHIBIT P3 TRUE COPY OF THE NOTICE ISSUED UNDER SECTION 406(2) OF THE ACT DATED 05/07/2018.

EXHIBIT P4 TRUE COPY OF THE FINAL ORDER UNDER SECTION 406(3) DATED 24/10/2018 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE LETTER DATED 26/11/2018 ADDRESSED BY THE 2ND RESPONDENT TO THE STANDING COUNSEL OF THE 1ST RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE LEGAL OPINION GIVEN BY ADVOCATE SRI.K.I.CHACKO DATED 26/11/2018.

EXHIBIT P7 TRUE COPY OF THE NOTICE OF THE 2ND RESPONDENT GIVEN TO DAVIS DATED 01/12/2018.

EXHIBIT P7(A) TRUE COPY OF THE NOTICE OF THE 2ND RESPONDENT GIVEN TO MUHAMMADALI DATED 01/12/2018.

EXHIBIT P7(B) TRUE COPY OF THE NOTICE OF THE 2ND RESPONDENT GIVEN TO M.V.HAMSA DATED 01/12/2018.

EXHIBIT P8 TRUE COPY OF THE REPRESENTATION SUBMITTED WP(C) NO. 5887 OF 2021

BY THE 3RD PETITIONER BEFORE THE 2ND RESPONDENT DATED 17/06/2019.

EXHIBIT P9 TRUE COPY OF THE INTIMATION NO.E2-

7829/2018 DATED 11/02/2021 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P9 TRUE COPIES OF THE PHOTOGRAPHS (TWO IN NUMBERS) EVIDENCING THE EXISTENCE OF THE UNAUTHORIZED CONSTRUCTION PUT UP BY RESPONDENT NO.4

RESPONDENTS' EXHIBITS:

EXHIBIT R2(A) A TRUE COPY OF THE ORDER DATED 4/12/2018 IN IA NO.1741/2018 CRP (WAKF) 603/2018

EXHIBIT R2(B) A TRUE COPY OF THE ORDER DATED 6/4/2022 IN CRP (WAKF) NO 603/2018

EXHIBIT R2(C) PHOTOGRAPH OF THE TEMPORARY CONSTRUCTIONS THAT WAS ERECTED AT THE INSTANCE OF RESPONDENTS 3,5 &6 IN THE PROPERTY OF THE 7TH RESPONDENT

EXHIBIT R2(D) PHOTOGRAPH EVIDENCING THE STATE OF AFFAIRS AFTER DEMOLITION OF THE ROOFS OF THE TEMPORARY CONSTRUCTIONS EFFECTED BY RESPONDENTS 3,5 &6

EXHIBIT R2(E) TRUE COPY OF NOTICE NO.H-2097/22 DATED 12/4/2022 ISSUED BY THE 2ND RESPONDENT TO THE 5TH RESPONDENT

EXHIBIT R2(F) TRUE COPY OF THE REPLY DATED 21/4/2022

EXHIBIT R2(G) TRUE COPY OF THE ORDER DATED 7/5/2022 IN APPEAL NO.286/2022 PASSED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS

EXHIBIT R2(H) TRUE COPY OF THE NOTICE DATED 12/4/2022 TO THE DIVISIONAL OFFICER, KERALA STATE WP(C) NO. 5887 OF 2021

WAKF BOARD, THRISSUR

EXHIBIT R2(I) PHOTOGRAPH SHOWING THE BUSINESS OF THE 4TH RESPONDENT AND THE REMANTS OF THE SHEDS OF RESPONDENTS 3,5 &6

EXHIBIT R1(A) A PHOTOGRAPH OF THE LAND PRIOR TO THE REMOVAL OF THE ILLEGAL VENDORS AND CONSTRUCTIONS.

EXHIBIT R1(B) A PHOTOGRAPH OF THE LAND AFTER THE REMOVAL OF THE UNAUTHORISED CONSTRUCTIONS AND ILLEGAL VENDORS.

EXHIBIT R1(C) A TRUE COPY OF THE NEWSPAPER REPORT DATED SHOWN NIL.

EXHIBIT R1(D) A TRUE COPY OF THE ORDER OF THE TRIBUNAL FOR LSGD DATED 03.09.2022.