Abdul Hakeem vs Malappuram Municipality
2023 Latest Caselaw 1238 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 18TH DAY OF JANUARY 2023 / 28TH POUSHA, 1944
                     WP(C) NO. 520 OF 2023
PETITIONER:

         ABDUL HAKEEM
         AGED 54 YEARS
         S/O. MOHAMMED,
         PULLANI HOUSE,
         HAJIYARPALLI,
         MALAPPURAM, PIN - 676505

         BY ADVS.
         C.M.MOHAMMED IQUABAL
         P.ABDUL NISHAD
         RAIHANATH T.H.
         ISTINAF ABDULLAH
         MUHAMMED AMEEN


RESPONDENTS:

    1    MALAPPURAM MUNICIPALITY
         MUNICIPAL OFFICE, MALAPPURAM P.O.,
         REPRESENTED BY ITS SECRETARY.,
         PIN - 676505
    2    THE SECRETARY
         MALAPPURAM MUNICIPALITY,
         MUNICIPAL OFFICE,
         MALAPPURAM P.O, PIN - 676505
    3    THE GEOLOGIST,
         DISTRICT OFFICE,
         DEPARTMENT OF MINING AND GEOLOGY,
         MINI CIVIL STATION, MANJERI P.O.,
         MALAPPURAM DISTRICT, PIN - 676517
    4    THE DISTRICT TOWN PLANNER, MALAPPURAM,
         OFFICE OF THE DISTRICT TOWN PLANNER,
         UP HILL, MALAPPURAM P.O., PIN - 676505
 WP(C) No.520 of 2023

                            2


     5      HAREESH,
            S/O. HARIDAS,
            MATHODI HOUSE,
            KOTTAKUNNU,
            MALAPPURAM, PIN - 676505

            BY ADVS.
            K.I.ABDUL RASHEED, SC, MALAPPURAM MUNICIPALITY
            SMT.DEEPA NARAYANAN SR GP
            SMT.DEEPA SASIDHARAN(K/000119/2018)


     THIS WRIT PETITION (CIVIL) HAVING COME UP          FOR
ADMISSION ON 18.01.2023, THE COURT ON THE SAME          DAY
DELIVERED THE FOLLOWING:
 WP(C) No.520 of 2023

                               3


                           JUDGMENT

Dated this the 18th day of January, 2023

The petitioner states that after issuing a Building Permit

and after the petitioner starting construction based thereon,

Ext.P7 order has been issued requiring the petitioner to stop

the construction work, alleging that a permission from the

Geology Department has not been obtained by the petitioner.

2. The petitioner would submit that the petitioner does

not intend to transport the ordinary earth being excavated

from the land, where the building construction is taking place

and therefore no permission from the Geologist is required.

3. Standing Counsel representing the Municipality, on

instruction, submitted that there are two major Building Rule

violations in the matter of construction by the petitioner.

Firstly, the petitioner has not obtained Mineral Transit Passes

or permission from the Geologist as required under the Kerala

Minor Mineral Concession Rules, 2015. Secondly, the WP(C) No.520 of 2023

petitioner has constructed a swimming pool departing from the

Approved Building Plan. It was in such circumstances that

Ext.P7 order was issued.

4. The Senior Government Pleader also, under

instruction from the District Town Planner, pointed to the afore

two illegalities.

5. I have heard the learned counsel for the petitioner,

the learned Standing Counsel representing respondents 1 and

2 and the learned Senior Government Pleader representing

respondents 3 and 4. In view of the nature of the relief being

granted in the writ petition, notice to the 5th respondent is

dispensed with.

6. It is evident that the petitioner has been issued with

Ext.P2 Building Permit. The Building Permit was issued on

12.01.2022. While the petitioner was constructing the building,

Ext.P6 notice has been issued requiring the petitioner to stop

construction. Ext.P6 indicates that the petitioner is required to

stop the work for the reason that necessary permission from WP(C) No.520 of 2023

the Geology Department has not been obtained.

7. The petitioner states that the petitioner is not

intending or proposing to transport ordinary earth from the

property. Whatever material excavated from the land, will be

deposited there itself.

8. In view of the stand taken by the petitioner, I do not

think that the reason of non obtaining a permit from the

District Geologist can affect the petitioner's building

construction. As regards the departure from the Approved

Building Plan, the case of the Municipality is that the petitioner

is constructing a swimming pool. The petitioner submits that

he will give up any proposal of construction of a swimming

pool and if any construction is made already that will be filled

up. However, for that reason, the Building Permit application

may not be suspended as has been done by Ext.P7.

In view of the afore facts, the writ petition is disposed of

directing the petitioner to file an affidavit before the

2nd respondent-Secretary to the Municipality undertaking that WP(C) No.520 of 2023

the petitioner will not transport ordinary earth from the land of

the petitioner and further that the petitioner will give up the

construction of swimming pool and fill up the dug portion, if

any. It is made clear that respondents 2 and 3 will be entitled

to visit the site and take any action in response to the letter

issued by the Municipality and take appropriate action, if at all

there are any other statutory violations.

Sd/-

N.NAGARESH JUDGE spk WP(C) No.520 of 2023

APPENDIX OF WP(C) 520/2023

PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF POSSESSION CERTIFICATE ISSUED BY MALAPPURAM VILLAGE OFFICE DATED 29.10.2021 Exhibit P2 THE TRUE COPY OF THE BUILDING PERMIT NO.BA224/21-22 ISSUED BY THE 1ST RESPONDENT DATED 12.1.2022 Exhibit P3 THE TRUE COPY OF THE APPROVED PLAN OF THE PROPOSED BUILDING DATED NIL Exhibit P4 THE TRUE COPY OF THE ORDER THE SHOW CAUSE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 23.7.2022 Exhibit P5 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 6.8.2022 Exhibit P6 THE TRUE COPY OF THE HEARING NOTICE ISSUED BY THE 2ND RESPONDENT DATED 6.10.2022 Exhibit P7 THE TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 30.11.2022