Kerala High Court
Antony Mathew vs Alappuzha Municipality on 20 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
WP(C) NO. 28426 OF 2018
PETITIONER:
ANTONY MATHEW
AGED 81 YEARS
S/O MATHEW, NELLIKKUNNAM HOUSE, PUNNAPRA FROM
SANATHANAM WARD, ALAPPUZHA.
BY ADVS.
BINDU C.G.
AJITHA C.G.
RESPONDENTS:
1 ALAPPUZHA MUNICIPALITY
REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE
WARD, ALAPPUZHA.
2 RAJEENA AGED 36 YEARS, W/O. SHABEER, HOUSE WIFE
AGED 36 YEARS
W/O. SHABEER, HOUSE WIFE, RESIDING AT M.SMANZIL,
PANAVALLY PURAYIDAM, VAZHICHERI WARD, ALAPPUZHA-
688001.
3 SABEER
AGED 46 YEARS, S/O. LATE MOHAMMAD KHAN,
KANIYAMPARAMBU, THONDANKULANGARA WARD, AVALOOKUNNU
P.O., ALAPPUZHA-688001.
4 MUNCIPAL ENGINEER
ALAPPUZHA MUNICIPALITY, ALAPPUZHA.
BY ADVS.
SRI.AZAD BABU, SC, ALAPPUZHA MUNICIPALITY
SMT.REJITHA RAJAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
20.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO.28426 OF 2018
2
JUDGMENT
The petitioner along with brothers and sisters, who
are ten in numbers are inherited extent of 31 cents of land.
The petitioner in the aforesaid 31 cents, there are number of
trespassers claiming 'Kudikidappu' right, which could be
ascertained by Ext.P2 proceedings in OA No. 1510/75 before
the Land Tribunal, Alappuzha. Later, one Mohammad Khan
was running a charcoal shop with the petitioner had also
claimed 'Kudikidappu' right. The said right is not accepted by
the petitioner and according to him the said person has no
right over the property. The issue with regard to the right of
the 3rd respondent to claim 'Kudikidappu' right is now
pending before this Court in C.R.P No.564/2012. Thereafter,
the 3rd respondent appears to have created some fraudulent
documents in favour of the 2nd respondent in respect of 1.81
ares of land, which is produced as Ext.P10. On seeing
Ext.P10, the 1st respondent has issued a special residential
building permit in a property having an extent of 2.02 Ares of
land (Ext.P11). As against Ext.P11, the petitioner had filed
Ext.P12 complaint and Ext.P13 is the receipt. Based on the
WP(C) NO.28426 OF 2018
complaint, under Ext.P14, a Stop Memo was also issued to the
respective persons therein. Pursuant to Ext.P14, the 4 th
respondent had again issued notice on 09.05.2018 to
respondents 2 and 3 stating that construction of the building
is in violation to Rule 24(ii) of the Kerala Municipality Building
Rules. Ext.P5 is such notice. While so, according to the
petitioner, he received a notice dated 10.05.2018 from the 4 th
respondent directing the petitioner to appear before him.
After expiry of two months, the 4 th respondent has informed
on 05.07.2018 that he has got legal opinion from the counsel
to the effect that there is no legal hurdle on the part of the 2 nd
respondent to proceed with the construction. Ext.P18 is such
notice. On getting Ext.P18, the petitioner had submitted an
application on 23.07.2018 under the Right to Information Act
seeking certain information with regard to the illegal
construction of the 2nd respondent. Thereafter, the petitioner
has also filed Ext.P20 representation before the 1 st
respondent. Thus the petitioner has approached this Court for
a direction to the 1 st respondent to take up Exts.P7, P9, P16
and P20 representations and considering the same within the
prescribed time limit.
WP(C) NO.28426 OF 2018
2. I have heard Smt. C.G.Bindhu - learned counsel
appearing for the petitioner. There is no appearance on behalf
of the respondents.
3. When the pleadings in the Writ Petition is seen, the
essential grievances of the petitioner is with regard to the
grant of building permit on the property having an extent of
2.02 Ares of land, which the petitioner claimed that the 2 nd
and 3rd respondents have not right in 'Kudikidappu', which is
the pending dispute before this Court in the Civil Revision
Petition as stated above.
4. The learned counsel appearing for the petitioner
contended that the 4th respondent had earlier issued a Stop
Memo on the premises that the construction in the property in
question is without any sanction of law and therefore, there
was no basis for the 4 th respondent, who have withdrawn the
said notice at a later point of time. The materials on the basis
of which the said decision was revisited was also not put to
notice to the petitioner and therefore, their grievance is well
founded.
5. When this Court considers the pleadings in the Writ
Petition the submission made on behalf of the learned counsel
WP(C) NO.28426 OF 2018
for the petitioner, it is found that the entitlement of the
respondents 2 and 3 to have the building constructed in
accordance with the permit or rather the constitutions which
is now being proceeded is in accordance with law or in
accordance with the building permit and rules are not
essentially a matter, which should gain the attention of
authorities concerned. These facts are especially in the realm
of dispute in question of facts cannot be considered by this
Court in exercise of the power under Article 226 of the
Constitution of India.
Accordingly, the Writ Petition is disposed of directing the
1st respondent to take up Exts. P7, P9, P16 and P20
representation, after affording an opportunity of hearing the
petitioner to take a decision in accordance with law, at any
rate, within a period of three months from the date of receipt
of a copy of this judgment.
Any construction being proceeded by the respondents 2
and 3 will be subject to outcome of the decision to be taken
by the 1st respondent as directed above.
EASWARAN.S
JUDGE
lsn
WP(C) NO.28426 OF 2018
APPENDIX OF WP(C) 28426/2018
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE POWER OF ATTORNEY
DATED 28.12.1999.
EXHIBIT P2 TRUE COPY OF THE ORDER DATED 20.2.1976
OF THE LAND TRIBUNAL, ALAPPUZHA IN
O.A.NO.651/73,O.A.NO.932/73,O.A.NO.788
/73 AND O.A.NO.1510/75.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED
28.11.2006 IN O.A.NO.52/2006 BEFORE
THE LAND TRIBUNAL, CHERTHALA.
EXHIBIT P4 PHOTOGRAPH SHOWING THE INDEPENDENT
PROPERTY AND RESIDENTIAL BUILDING OF
SAID MUHAMMAD KHAN.
EXHIBIT P5 PHOTOGRAPH SHOWING THE INDEPENDENT
PROPERTY AND RESIDENTIAL HOUSE OF 2ND
AND 3RD RESPONDENT.
EXHIBIT P6 PHOTOGRAPH SHOWING THE CLOSED CHARCOAL
SHOP.
EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED
22.3.2016 GIVEN BEFORE THE 1ST
RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE ACKNOWLEDGEMENT FOR
EXHIBIT -P7.
EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED
23.5.2016 MADE BY PETITIONER BEFORE
THE 1ST RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE SETTLEMENT DEED IN
FAVOUR OF 2ND RESPONDENT DATED
17.11.2012.
EXHIBIT P11 TRUE COPY OF THE BUILDING PERMIT
ISSUED IN THE NAME OF 2ND RESPONDENT.
EXHIBIT P12 TRUE COPY OF THE COMPLAINT DATED
19.2.2018 GIVEN BY PETITIONER BEFORE
THE 1ST RESPONDENT.
EXHIBIT P13 TRUE COPY OF THE RECEIPT FOR EXHIBIT
P-12
WP(C) NO.28426 OF 2018
EXHIBIT P14 TRUE COPY OF THE STOP MEMO DATED
16.3.2018 ISSUED BY 4TH RESPONDENT
MUNICIPAL ENGINEER.
EXHIBIT P15 TRUE COPY OF THE NOTICE DATED 9.5.2018
ISSUED TO THE 2ND 3RD RESPONDENTS BY
4TH RESPONDENT.
EXHIBIT P16 TRUE COPY OF THE REPRESENTATION DATED
25.4.2018 GIVEN BY PETITIONER BEFORE
THE 1ST RESPONDENT.
EXHIBIT P17 TRUE COPY OF THE NOTICE DATED
10.5.2018 ISSUED BY THE 4TH
RESPONDENT.
EXHIBIT P18 TRUE COPY OF THE LETTER DATED 5.7.2018
ISSUED BY 4TH RESPONDENT.
EXHIBIT P19 TRUE COPY OF THE APPLICATION UNDER
RIGHT TO INFORMATION ACT DATED
23.7.2018 GIVEN BEFORE THE PUBLIC
INFORMATION OFFICER, OF 1ST RESPONDENT
MUNICIPALITY.
EXHIBIT P20 TRUE COPY OF THE REPRESENTATION DATED
23.7.2018 GIVEN BY PETITIONER BEFORE
THE 1ST RESPONDENT.
RESPONDENTS EXHIBITS: NIL
TRUE COPY
P.A TO JUDGE
LSN
