Remanded

P.P.Raghavan Nair v. the Kozhikode Corporation

Kerala HC1 Mar 2013WP(C)/34991/2011

Case brief

AI extract

What is this about?

Writ petition challenging Tribunal order directing issuance of occupancy certificate. Court set aside proceedings and directed Corporation to pass appropriate orders on pending violation notice after serving it to all parties.

What did the court decide?

Directed the Corporation to pass appropriate orders pursuant to the notice issued to the second respondent after issuing notice to the petitioners and the second respondent within one month from the d

P.P.Raghavan Nair Vs the Kozhikode Corporation — Landlord and Tenant | Kerala HC (2013)

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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 A.M.SHAFFIQUE

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FRIDAY, THE 1ST DAY OF MARCH 2013/10TH PHALGUNA 1934

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WP(C).No. 34991 of 2011 (Y)

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PETITIONERS:

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P.P.RAGHAVAN NAIR, AGED 84 YEARS, S/O.KRISHNAN NAIR, RESIDING AT 2/2131 TRIVENI, CIVIL STATION, KOZHIKODE

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A.G.ASHA, AGED 46 YEARS, D/O.GOPALAN NAIR, RESIDING AT 2/2132, AISWARYA, CIVIL STATION, KOZHIKODE

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BY ADVS.SRI.V.V.SURENDRAN SRI.P.A.HARISH SMT.RESMI NANDANAN

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RESPONDENTS:

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THE KOZHIKODE CORPORATION, REP: BY ITS SECRETARY, CORPORATION, BEACH ROAD, CALICUT-673 001

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C.P.RAFEEQ, S/O.C.P.MOIDEENKOYA, RESIDING AT MANOLI PARAMBIL HOUSE, ERANHIPALAM, KOZHIKODE-673 006

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THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM-695 014

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THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM-695 001

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R2 BY ADV. SRI.C.P. MOHAMMED NIAS R1 BY ADV. SRI.P.V.SURENDRANATH BY SRI.K.D.BABU,SC,KOZHIKODE CORPORATION

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 34991 of 2011 (Y) APPENDIX

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PETITIONER(S) EXHIBITS

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EXT.P1 : TRUE COPY OF THE COMPLAINT DTD.15.2.2010.

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EXT.P2 : TRUE COPY OF THE APPLICATION FILED BY THE 1ST PETITIONER UNDER THE RIGHT TO INFORMATION ACT, DTD.19.5.2010.

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EXT.P3 : TRUE COPY OF THE LETTER DTD.25.5.2010 FROM THE TOWN PLANNING OFFICER TO THE 2ND PETITIONER.

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EXT.P4 : TRUE COPY OF THE REPLY OF THE 2ND PETITIONER TO THE TOWN PLANNING OFFICER, DTD.28.6.2010.

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EXT.P5 : TRUE COPY OF THE MEMORANDUM OF APPEAL DTD.23.6.2010 FILED BY THE 1ST PETITIONER.

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EXT.P6 : TRUE COPY OF THE INTIMATION GIVEN TO THE 1ST PETITIONER FROM THE SECRETARY OF KOZHIKODE CORPORATION, DTD.13.8.2010.

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EXT.P7 : TRUE COPY OF THE NOTICE DTD.15.3.2010 BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT.

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EXT.P8 : TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONERS BEFORE HON'BLE OMBUDSMAN DTD.25.11.2010.

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EXT.P9 : TRUE COPY OF THE ORDER OF THE HON'BLE OMBUDSMAN DTD.25.11.2010.

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EXT.P10: TRUE COPY OF THE REPORT OF THE JOINT DIRECTOR OF URBAN AFFAIRS DTD.31.3.2011.

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EXT.P11: TRUE COPY OF THE STATEMENT DTD.18.5.2011 FILED BY THE PETITIONERS BEFORE THE OMBUDSMAN.

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EXT.P12: TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT ISSUED TO THE 2ND RESPONDENT DTD.9.5.2011.

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EXT.P13: TRUE COPY OF THE APPEAL MEMORANDUM FILED BY THE 2ND RESPONDENT BEFORE THE TRIBUNAL.

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EXT.P14: TRUE COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT BEFORE THE TRIBUNAL.

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EXT.P15: TRUE COPY OF THE ORDER PASSED BY THE HON'BLE TRIBUNAL, DTD.10.8.2011.

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EXT.P16: TRUE COPY OF THE ORDER PASSED BY THE HON'BLE OMBUDSMAN DTD.17.8.2011.

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EXT.P17: TRUE COPY OF SKETCH SUBMITTED BY THE ADVOCATE P.SHINI DTD.23.12.2011

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EXT.P18: TRUE COPY OF REPORT SUBMITTED BY THE ADVOCATE P.SHINI DTD.23.12.2011

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WP(C).No. 34991 of 2011 (Y) APPENDIX -2-

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RESPONDENTS' EXHIBITS :

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EXT.R2(a): COPY OF BUILDING PERMIT GRANTED TO R2 BY KOZHIKODE CORPORATION DTD.26.4.2004 ALONG WITH THE APPROVED PLAN.

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EXT.R2(b): COPY OF ORDERS OF R1 CORPORATION DTD.18.12.2007 RENEWING AND EXTENDING THE PERMIT.

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EXT.R2(c): COPY OF STATEMENT FILED BY PETITIONERS BEFORE HON'BLE OMBUDSMAN DTD.15.6.2011.

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EXT.R2(d): COPY OF STATEMENT FILED BY R1 CORPORATION BEFORE HON'BLE OMBUDSMAN ON 18.5.2011.

/TRUE COPY/

P.A.TO JUDGE

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A.M.SHAFFIQUE, J.

W.P(C) No.34991 OF 2011

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Dated this the 1^st day of March, 2013

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JUDGMENT

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Petitioners are the neighbours of the second respondent who had constructed an apartment complex in an extent of about 12 cents of land. The complaint of the petitioners was that the building is constructed in violation of the building permit and also the building rules. The petitioners had approached the Ombudsman for Local Self Government Institutions, and by virtue of an order passed by the Ombudsman a report is obtained from the Regional Joint Director, Department of Urban Affairs which is produced as Ext.P10. It seems that even before the said report Corporation had issued Ext.P7 notice to the second respondent alleging violation of the building permit, under Section 406(1) of the Municipalities Act. But it seems that no further steps were taken in that regard. Subsequently, when the petitioners approached for obtaining occupancy certificate Ext.P12 came to be passed on 9.5.2011 directing the second respondent to rectify the defects pointed out in regard to the alleged violations and to approach the Corporation. Ext.P12 was

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W.P(C) No.34991 OF 2011 2

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challenged by the second respondent before the Tribunal for Local Self Government Institutions. The Tribunal set aside Ext.P12 and directed the Corporation to issue the occupancy certificate. Pursuant to the same, the Ombudsman proceedings also came to an end.

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The petitioners challenge the order passed by the Tribunal, Ext.P15, inter alia contending that he was not a party to the proceedings and the Tribunal had not considered the fact that there was violation of the building permit and proceedings were pending before the Corporation under Section 406(1) of the Municipality Act.

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The Tribunal in fact had set aside Ext.P12 proceedings on the basis that the request for occupancy certificate was not considered within the specified time and therefore, there was a deemed grant of occupancy certificate.

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Counter affidavit is filed by the second respondent inter alia contending that they have not violated any of the provisions of the building permit or the building rules as such and as per Ext.R2(d) the only request made by the Corporation was to replace a door. No further violations had been pointed out by the

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W.P(C) No.34991 OF 2011 3

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Corporation with reference to Ext.R2(d) dated 16.5.2011. According to the learned counsel for the second respondent, the occupancy certificate is granted when it is found that the petitioners had not violated any of the provisions of the building rules and even as per the documents of the Corporation as evident from Ext.R2(d) there is only a minor violation which was already rectified. Therefore, according to the counsel, there is no violation of the building permit or the building rules as such. The learned Standing Counsel appearing for the Corporation contended that occupancy certificate had to be granted without considering the notice under Section 406(1) of the Act on account of the directions issued by the Tribunal.

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Having regard to the aforesaid factual situation, I am of the view that if there is violation of the building permit, de-hors the direction of the Tribunal to issue occupancy certificate, this is a matter to be considered and decided by the Corporation. Having issued Ext.P7, it seems that no further action was taken in that regard. Therefore, Ext.P7 has to come to a logical end. The Tribunal had already set aside Ext.P12. Therefore, it is necessary that Ext.P7 has to be considered after hearing the

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W.P(C) No.34991 OF 2011 4

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parties concerned. The petitioners have a case that on account of the projection in the sunshade there is every possibility of dumping waste into the petitioners well and therefore the projection in the sunshade has to be demolished. This however is

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a matter to be considered by the Corporation if there is any violation of the building permit or the rules.

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In the said circumstances, I direct the first respondent to pass appropriate orders pursuant to Ext.P7 notice after issuing notice to the petitioners as well as the second respondent within a period of one month from the date of receipt of a copy of this judgment. The parties shall be entitled to challenge the validity of the said order if advised.

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A.M.SHAFFIQUE, JUDGE.

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P.P.Raghavan Nair v. the Kozhikode Corporation

Case brief

What is this about?

What did the court decide?

P.P.Raghavan Nair v. the Kozhikode Corporation

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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