Disposed

Prafullachandran Nair v. the Commandant General

Kerala HC23 May 2012WP(C)/409/2011

Case brief

AI extract

What is this about?

The Court disposed of three connected writ petitions concerning unauthorized construction and municipal regularization without adjudicating merits, directing parties to pursue maintainability arguments before the Tribunal for Local Self Government Institutions where an appeal regarding an occupancy certificate is pending.

What did the court decide?

Disposed without making any observation as to the merits; parties directed to address maintainability before the Tribunal.

Prafullachandran Nair Vs the Commandant General — Civil Procedure and Limitation | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

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WEDNESDAY, THE 23RD DAY OF MAY 2012/2ND JYAISHTA 1934

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WP(C).No. 409 of 2011 (A)

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PETITIONER:

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PRAFULLACHANDRAN NAIR, DRISYA, KULAVIKONAM, NEDUMANGAD P.O., TRIVANDRUM.

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BY ADVS. SRI. VAKKOM N. VIJAYAN, SMT.REEJA HARI, SMT.V.RENJU, SRI.P.ANIYAN, SMT.P.M.NASEEM BEEVI.

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RESPONDENTS:

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1. THE COMMANDANT GENERAL FIRE AND RESCUE SERVICES, HOUSING BOARD JUNCTION, THIRUVANANTHPURAM-695 001.

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2. THE DIVISIONAL OFFICER, FIRE AND RESCUE SERVES, THIRUVANANTHAPURAM-695 001.

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3. THE CHIEF TOWN PLANNER (CTP), GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001.

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4. THE NEDUMANGAD MUNICIPALITY, REP.BY ITS SECRETARY, NEDUMANGAD P.O, TRIVANDRUM DISTRICT, PIN-695 541.

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5. MR.ABDUL RASHEED, CITADEL, GOLF LINK ROAD, KOWDIAR, TRIVANDRUM-695 527.

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R1 TO R3 BY GOVT. PLEADER SMT. K.R. DEEPA, R4 BY ADV. SRI.P.RAMAKRISHNAN, R5 BY ADV. SRI.ELVIN PETER P.J.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08-02-2012, ALONG WITH W.P.(C). NOS. 793/2011 & 3957/2011, THE COURT ON 23/05/2012 DELIVERED THE FOLLOWING:

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W.P.(C).NO.409/2011-A:

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P.1: COPY OF THE JUDGMENT DTD. 08/12/09 IN W.P. NO.18134/09. EXT.P.2: COPY OF THE JUDGMENT DTD. 21/10/10 IN W.P. NO. 9871/10. EXT.P.3: COPY OF THE NO OBJECTION CERTIFICATE DTD. 30/10/10 ISSUED BY R.2. EXT.P.4: COPY OF THE LETTER DTD. 02/07/09 ISSUED BY R.1. EXT.P.5: COPY OF THE STANDING ORDER DTD. 06/07/09 ISSUED BY R.1. EXT.P.6: COPY OF THE REPRESENTATION DTD. 27/11/10 OF THE PETITIONER. EXT.P.7: COPY OF THE REPRESENTATION DTD. 08/12/10 OF THE PETITIONER. EXT.P.8: COPY OF THE REPORT OF ADVOCATE COMMISSIONER. EXT.P.9: COPY OF THE REPORT OF THE R.3.

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RESPONDENTS' EXHIBITS: NIL.

//TRUE COPY//

P.A. TO JUDGE.

Prv.

C.T.RAVIKUMAR, J.

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W.P.(C)Nos.409, 793 & 3957 of 2011

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Dated 23^rd May, 2012

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JUDGMENT

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The issues to be resolved in these writ petitions germinate from common facts as also between the same parties. Therefore, they were taken up for joint hearing and disposal. W.P.(C)Nos.409 and 793 of 2011 are filed by the same petitioner and he is the fourth respondent in W.P.(C)No.3957 of 2011. The fifth respondent' filed W.P.(C) No.3957 of 2011 and he is the fifth respondent in W.P.(C)No.409 of 2011 and the fourth respondent in W.P.(C)No.793 of 2011. Nedumangad Municipality is also a common respondent in all the three writ petitions. For the sake of convenience, the petitioner in W.P.(C) Nos.409 & 793 of 2011 is referred to hereinafter as the petitioner' and the common party respondent in the said writ petitions, who is also the petitioner in W.P.(C)No.3957 of 2011, is referred to hereinafter as the `fifth respondent'.

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W.P.(C)No.409 of 2011 is filed challenging Ext.P3 and

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seeking issuance of a writ of mandamus commanding Nedumangad Municipality not to issue license to the building being constructed unauthorizedly by the fifth respondent and also for commanding respondents 1 and 2 therein to consider and pass orders on Exts.P5 and

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WP(C).No.409/2011 & con. cases 2

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P6 representations (sic. Exts.P6 and P7 representations), pending before them. Ext.P3 therein is the `No Objection Certificate' bearing No.B16179/10 dated 30.10.2010 issued by the second respondent, the Divisional Officer, Fire and Rescue Services, Thiruvananthapuram. It was aggrieved by Ext.P3 that Ext.P6 representation dated 27.11.2010 and Ext.P7 representation dated 8.12.2010 were filed respectively before respondents 2 and 1. The petitioner is aggrieved by the non-feasance on the part of respondents 1 and 2 on receipt of Exts.P6 and P7 representations. As noticed earlier, W.P.(C)No.793 of 2011 is also filed by the same petitioner. In fact, it is the subsequent developments that led to its institution. The petitioner assails Ext.P4 which is a letter bearing No.E1-6640/2010 dated 28.12.2010 of the Chief Town Planner, the second respondent therein, directing the Municipality to recommend for regularizing the construction of the building by the fifth respondent viz., the fourth respondent therein. The further prayers are for issuance of a writ of mandamus commanding Nedumangad Municipality not to regularize the construction carried out by the fifth respondent and also not to issue license to the fifth respondent for the building constructed alleging violation of the provisions under the Building Rules. Issuance of writ of mandamus commanding the third respondent to consider and

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WP(C).No.409/2011 & con. cases

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pass orders on Ext.P5 representation filed against Ext.P4 is also sought for.

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As regards W.P.(C)No.3957 of 2011, it is filed by the fifth respondent. It is the apprehension regarding consideration of Appeal No.72 of 2011 viz., Ext.P14 filed by the petitioner before the Municipality that made him to file the said writ petition mainly with the following prayers:

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“(i) issue a writ of mandamus or any other appropriate writ or prohibition, restraining the 3^rd respondent from considering Appeal No.72/2011, Ext.P14, filed by the 4^th respondent and passing orders thereon.

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(ii) issue a writ of certiorari or any other appropriate writ, direction or order calling for the records leading to Exts.P14 and P15 and quashing the same.

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(iii) declare that Ext.P15 is one issued without any authority of law and is therefore void and nonest.”

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Ext.P15 is an order passed by the Tribunal for Local Self Government Institutions, the third respondent, in I.A.No.95 of 2011 dated 28.1.2011 in Ext.P14 appeal.

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WP(C).No.409/2011 & con. cases 4

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Both the petitioner and the fifth respondent were before this Court, in relation to the same subject matter involved in these cases, on different rounds. All the litigations pertain to the construction/renovation of an auditorium and a lodge/hotel by the fifth respondent within the limits of Nedumangad Municipality. According to the petitioner, they were constructed in total disregard to and in violation of the provisions of the Kerala Municipality Building Rules (for short `KMBR'). According to the fifth respondent they were constructed strictly adhering to the provisions under the KMBR and also the building permit and the approved plan (Exts.P1 and P2 in W.P.(C)No.3957 of 2011), issued to him.

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The petitioner is a former Chairman of Nedumangad

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Municipality. Earlier, he filed W.P.(C)No.2351 of 2008 alleging unauthorised and illegal construction/renovation of an old and existing building by the fifth respondent in violation of the conditions in Ext.P1 Government Order dated 5.11.2007, marked as such in W.P.(C)No.793 of 2011. The fifth respondent was granted permission for demolition and modification of an already existing auditorium, namely `Summer Shade'. Exts.P1 and P2 are respectively the building permit and approved plan

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WP(C).No.409/2011 & con. cases 5

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issued by Nedumangad Municipality, therefor. After the commencement of the construction, the fifth respondent was issued with notice dated 21.11.2006 by the Municipality to stop the construction alleging violation of certain conditions. That notice was challenged by the fifth respondent in W.P.(C)No.32222 of 2006 and the same was disposed of as per Ext.P3 judgment dated 9.3.2007, marked as such in W.P.(C)No.3957 of 2011. It was pursuant to the direction in the said Ext.P3 judgment that the aforesaid Ext.P1 Government Order dated 5.11.2007 was passed. While the fifth respondent started rectifying the defects noted in Ext.P1 order dated 5.11.2007, the Municipality issued a provisional order under section 406 of the Kerala Municipality Act notifying certain defects in the construction. After conducting hearing on the issue the Municipality confirmed the said provisional order dated 21.4.2009. That order was challenged by the fifth respondent by filing Appeal No.350 of 2009 before the Tribunal for Local Self Government Institutions. He has also filed Appeal No.369 of 2009 before the Tribunal seeking a declaration that he was entitled to get deemed permit for the renovation. The said appeals were allowed by the Tribunal respectively, as per Exts.P5 and P6 orders, both dated 12.6.2009, marked as such in W.P.(C)No.3957 of 2011. W.P. (C)No.2351 of 2008 filed by the petitioner was closed as it had become

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WP(C).No.409/2011 & con. cases 6

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infructuous in view of Exts.P5 and P6 orders, referred above, passed by the Tribunal, leaving open the petitioner's right to pursue the matter in appropriate proceedings. Feeling aggrieved by Exts.P5 and P6 orders dated 12.6.2009, of the Tribunal, the Nedumangad Municipality had then, challenged the same by filing W.P.(C)No.18134 of 2009. The petitioner got himself impleaded in the said writ petition. The writ petition in which the petitioner and the fifth respondent were also parties was disposed of by this Court as per Ext.P2 judgment dated 8.12.2009, marked as such in W.P.(C)No.793 of 2011. In Ext.P2, after taking into consideration all the aspects and facts, it was directed that after carrying out the rectifications in terms of Ext.P1 Government Order dated 5.11.2007 the petitioner therein viz., the fifth respondent should notify about such completion to the Chief Town Planner and the Secretary of the Municipality. The Chief Town Planner was also directed to conduct an inspection to certify whether all rectifications in terms of Ext.P1 Government Order dated 5.11.2007 had been carried out. It was further directed : “If the Chief Town Planner is satisfied that such rectifications have been done, a certificate in that regard would be issued by him, following which, the municipality will do the needful to regularize the construction.” All interim orders passed by this Court in the said writ

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WP(C).No.409/2011 & con. cases 7

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petition were vacated and Exts.P18 and P19, the impugned orders of the Tribunal, were also set aside to enable to do the needful in terms of the said judgment. The petitioner had again approached this Court by filing W.P.(C)No.9871 of 2010 alleging the continuance of construction in violation of the KMBR and Ext.P1 Government Order dated 5.11.2007 by the fifth respondent. That writ petition was disposed of as per Ext.P3 judgment dated 21.10.2010, marked as such in W.P.(C)No.793 of 2011. In W.P.(C)No.9871 of 2010, the petitioner sought for a direction to the Municipality and also the Chief Town Planner to take a decision on a representation, marked therein as Ext.P3, and for a further prayer to restrain the fifth respondent from proceeding with the construction of the building referred to in the said Ext.P3 judgment without obtaining the permission of respondents 2 and 3 therein viz., the Municipality and the Chief Town Planner. However, that writ petition was disposed of by this Court taking into account Ext.P2 judgment in W.P.(C)No.18134 of 2009.

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Ext.P6(2) in W.P.(C)No.793 of 2011 is a report of the Town Planner, Thiruvananthapuram who was deputed by the Chief Town Planner, pursuant to the order dated 8.9.2010 of this Court in W.P.(C) No.9871 of 2010, to conduct inspection of the site and the building in

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WP(C).No.409/2011 & con. cases 8

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question. In Ext.P6(2) it is reported thus:-

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“Since the owner of the building has not carried out the rectifications required to be done as per the said Government order, directions have been given to complete the rectification works in accordance with the G.O. and to submit a rectified plan through the Municipal Authorities. On receipt of the same The Chief Town Planner can again inspect the site and after being satisfied that the rectifications have been done, a certificate in this regard would be issued.”

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Ext.P8 in W.P.(C)No.3957 of 2011 viz., letter bearing No.E1-6640/2010 dated 28.12.2010 of the Chief Town Planner would reveal that subsequently he had conducted inspection of the site and the building in question and the said letter was issued pursuant to such an inspection. Ext.P9 in W.P.(C)No.3957 of 2011 is an order issued by the Municipality dated 7.1.2011 regularising the constructions effected by the fifth respondent. The Divisional Officer of Fire and Rescue Services had also issued Ext.P10 No Objection Certificate dated 30.10.2010. It is the said certificate which has been marked as Ext.P3 in W.P.(C)No.409 of 2011 that is impugned therein. The contention in W.P.(C)No.3957 of 2011 would reveal that thereafter in terms of Rule 22 of the KMBR the fifth respondent submitted the completion certificate to the Municipality and

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WP(C).No.409/2011 & con. cases 9

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thereafter Ext.P11 occupancy certificate dated 12.1.2011, marked as such in W.P.(C)No.3957 of 2011, was issued by the Municipality. The fifth respondent contends that the petitioner is working in a hotel by name “Hotel Soorya”. On account of his involvement in a criminal case relating to counterfeit the petitioner was expelled from his party and consequently from the post of Chairman of the Municipality. Further, it is contended that it is the business rivalry on the part of the owner of Hotel Soorya that is being pursued through the petitioner. In other words, according to him, the petitioner is waging a proxy battle at the instigation of the owner of the said hotel. Earlier, the petitioner filed O.S.No.380 of 2009 before the Munsiff's Court, Nedumangad praying for permanent prohibitory injunction restraining the fifth respondent from completing the construction of the hotel. The said suit was dismissed by the Additional Munsiff's Court, Nedumangad as per judgment 1.6.2010; Ext.P13 in W.P.(C)No.3957 of 2011. It is further contended by the fifth respondent that as against Ext.P10 certificate dated 30.10.2010 issued by the Divisional Officer, Fire and Rescue Services, W.P.(C)No.409 of 2011 was filed and though the petitioner had sought for stay of operation of Ext.P10 (Ext.P3 therein) no interim order was passed by this Court. According to the fifth respondent, it is in the said circumstances that

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WP(C).No.409/2011 & con. cases 10

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based on the subsequent developments the petitioner had filed a fresh writ petition viz., W.P.(C)no.793 of 2011. As already noticed in the said writ petition, the petitioner is challenging Ext.P4 letter (Ext.P8 letter in W.P.(C)No.3957 of 2011) issued by the Chief Town Planner. It is further contended that the petitioner had filed Ext.P14 appeal before the Tribunal for Local Self Government Institutions challenging Ext.P11 occupancy certificate dated 12.1.2011 issued by the Municipality under Rule 22 of the KMBR only on account of his failure to obtain any interim order in W.P.(C)No.793 of 2011. Ext.P15 is an order passed in I.A.No.95 of 2011 in Ext.P14 appeal by the Tribunal for Local Self Government Institutions against the implementation of the occupancy certificate dated 12.1.2011. I have adverted to all the aforesaid aspects and facets of the issue only to deduce the scope of consideration of these writ petitions. Essentially, the endeavour of the fifth respondent is to establish that Ext.P14 appeal filed by the petitioner before the Tribunal for Local Self Government Institutions is not maintainable. According to the fifth respondent, the entire aspects have to be considered by this Court. It is contended that Ext.P11 occupancy certificate was issued under Rule 22 of the KMBR and it was issued not based on any decision by the Council or the Chairman. At any rate, it is submitted that it is not

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WP(C).No.409/2011 & con. cases 11

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an order passed on any decision referred to under sub-section 7 or 8 of section 509 of the Municipality Act and, therefore, Ext.P14 appeal is not maintainable before the Tribunal for Local Self Government Institutions. Per contra, the learned counsel for the petitioner submits that the said appeal is maintainable and it is on satisfying the maintainability of the appeal that Ext.P15 interim order was passed by the Tribunal staying the implementation of Ext.P11 occupancy certificate. Thus, the short question is whether the entire aspects have to be considered based on the rival pleadings in this court in these writ petitions or whether the parties have to be directed to raise their respective contentions before the Tribunal for Local Self Government Institutions in Ext.P14 appeal.

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In the context of the case, it is relevant to note that in Ext.P7 judgment viz., the judgment dated 8.12.2009 in W.P.(C)No.18134 of 2009 was delivered by this Court to give a quietus to the entire issues. Even according to the fifth respondent as per Ext.P7 judgment, this Court after taking into consideration of all the relevant aspects directed the fifth respondent to carry out the rectifications in terms of G.O.(Rt) No.3011/2007/LSGD dated 5.11.2007 (Ext.P1 in W.P.(C)No.793 of 2011) and notify about such completion to the Chief Town Planner and also to

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WP(C).No.409/2011 & con. cases 12

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the Secretary of the Municipality. The Chief Town Planner was also directed to conduct an inspection and thereafter to certify whether all rectifications in terms of the said Government order have been carried out. Subject to the satisfaction on such inspection regarding all rectification works the Chief Town Planner was to issue a certificate in that regard and the Municipality was directed to do the needful on receipt of such certificate to regularize the construction. Exts.P8 and P9 in W.P. (C)No.3957 of 2011 have been issued in purported compliance of the said direction. Ext.P7 judgment is dated 8.12.2009. Obviously, the petitioner had then approached this Court by filing W.P.(C)No.9871 of 2010. As noticed earlier, taking note of Ext.P7 judgment dated 8.12.2009 in W.P.(C)No.18134 of 2009 that writ petition was disposed of as per Ext.P3 judgment, marked as such in W.P.(C)No.793 of 2011. Ext.P3 judgment is dated 21.10.2010. The operative portion of Ext.P3 judgment reads thus:-

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“The petitioner was a party to Ext.P2 judgment. In such circumstances, I am of the opinion that he should await the rectification works being carried out by the 4^th respondent before raising any further dispute as regards the building being put up by the 4^th respondent. The request made by the petitioner in Ext.P3 is, in my opinion, premature. After the rectification works are carried out by the 4^th respondent and the Chief Town Planner submits a

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WP(C).No.409/2011 & con. cases

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report and if that report discloses any irregularities the petitioner can certainly bring the same to the notice of the local authority and the local authority shall in that event consider such irregularities also while taking steps to regularise the construction.”

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It is thus obvious that when the petitioner approached this Court by filing W.P.(C)No.9871 of 2010 this Court found that it is a premature writ petition and consequently made the above extracted observations while disposing of the said writ petition. Going by Ext.P3 judgment, the limited right of the petitioner is to bring to the notice of the local authority of any irregularity, if reported by the Chief Town Planner after inspecting the rectification works carried out by the fifth respondent. Needless to say that there is further direction in Ext.P3 to the local authority viz., the Municipality, to consider such irregularities while taking steps to regularise the construction. Ext.P9 in W.P.(C)No.3957 of 2011 is the order regularising the construction effected by the fifth respondent by the Nedumangad Municipality. As already noticed hereinbefore, the right conferred on the petitioner as per Ext.P3, is to bring to the notice of the local authority any irregularity, if reported by the Chief Town Planner pursuant to the verification of the rectification works carried out by the fifth respondent. Thus, the right of the petitioner to take further action

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WP(C).No.409/2011 & con. cases 14

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based on Ext.P3 depends upon the contents of the report of the Chief Town Planner after inspection of the rectification works carried out by the fifth respondent. There is no challenge in W.P.(C)No.409 of 2011 or W.P.(C)No.793 of 2011 against Ext.P9 order regularizing the construction effected by the fifth respondent. In W.P.(C)No.409 of 2011 the petitioner seeks for quashing Ext.P3 No Objection Certificate dated 30.10.2010 issued by the Divisional Officer, Fire and Rescue Services. In W.P.(C)No.793 of 2011 he seeks for quashing Ext.P4 letter dated 28.10.2000 of the Chief Town Planner. The petitioner had not brought out the irregularities , if any, reported by the Chief Town Planner in his report made pursuant to the inspection of the rectification works carried out by the fifth respondent pursuant to Ext.P7 judgment dated 8.12.2009. Evidently, in W.P.(C)No.793 of 2011 the attempt of the petitioner is to assail the report as such of the Chief Town Planner. At any rate, it is evident that based on the report of the Chief Town Planner and the No Objection Certificate issued by the Divisional Officer, Fire and Rescue Services, the Municipality had already issued occupancy certificate to the fifth respondent. The petitioner himself challenged the same before the Tribunal for Local Self Government Institutions. The Tribunal has already passed an order staying the implementation of

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WP(C).No.409/2011 & con. cases

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Ext.P11 occupancy certificate dated 12.1.2011 as per Ext.P15 order dated 28.1.2011 passed in I.A.No.95 of 2011 in Appeal No.72 of 2011 (Ext.P14). In short, it is evident that the matter is now before the Tribunal for Local Self Government Institutions. There is nothing on record to show that the fifth respondent has raised any objection against the maintainability of Ext.P14 appeal and sought for vacating the order in Ext.P15 passed in Ext.P14 appeal. In the totality of the circumstances and also taking into account the disputatious fact involved in these writ petitions, I do not propose to consider these writ petitions on merits. Since Ext.P14 appeal is now pending before the Tribunal for Local Self Government Institutions, these writ petitions are disposed of, without making any observation as to the merits of the rival contentions, as hereunder:-

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It will be open to the fifth respondent to raise objection, if any, against the maintainability of Ext.P14 appeal viz., Appeal No.72 of 2011 before the Tribunal for Local Self Government Institutions. It will also be open to the `petitioner' to file appropriate petition, in accordance with law, seeking for effecting Ext.P15 interim order subject to the decision on the maintainability of the appeal. Even if the appeal is

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WP(C).No.409/2011 & con. cases

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not maintainable the parties have to work out their remedies in terms of the earlier orders passed by this Court as per Ext.P7 and the judgment in W.P.(C)No.9871 of 2011.

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Subject to the above observations, these writ petitions are

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disposed of.

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Sd/C.T.RAVIKUMAR Judge

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TKS

Prafullachandran Nair v. the Commandant General

Case brief

What is this about?

What did the court decide?

Prafullachandran Nair v. the Commandant General

Case brief

What is this about?

What did the court decide?

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