Remanded

K.Mohandas v. the Guruvayoor Municipality

Kerala HC3 Oct 2016WP(C)/17190/2015

Case brief

AI extract

What is this about?

The High Court of Kerala quashed an order passed by the Guruvayoor Municipality for violation of building rules. The Court held that the Order failed to address contentions raised in the petitioner's reply, violating natural justice, and remanded the matter for reconsideration while noting that ownership disputes remain pending with the Civil Court.

What did the court decide?

The impugned order Ext.P9 was set aside. The Municipality is directed to reconsider the matter after hearing both parties and pass appropriate orders.

K.Mohandas Vs the Guruvayoor Municipality — Municipal and Town Planning | Kerala HC (2016)

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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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MONDAY, THE 3RD DAY OF OCTOBER 2016/11TH ASWINA, 1938

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WP(C).No. 17190 of 2015 (W)

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PETITIONER(S):

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K.MOHANDAS, S/O.MAMU, SREENIDHI, XXI/299, SREE NAGAR, POOTHOLE, THRISSUR DISTRICT.

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BY ADVS.SRI.BABU S. NAIR SMT.SMITHA BABU

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RESPONDENT(S):

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1. THE GURUVAYOOR MUNICIPALITY, REPRESENTED BY ITS SECRETARY, GURUVAYOOR, THRISSUR DISTRICT, PIN-680 101.

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2. THE SECRETARY,

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GURUVAYOOR MUNICIPALITY, GURUVAYOOR, THRISSUR DISTRICT, PIN-680 101.

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*** ADDITIONAL R3 IMPLEADED**

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3. SREENIDHI APARTMENT OWNER'S ASSOCIATION (REGISTRATION NO.397/2012) GROUND FLOOR, SREENIDHI APARTMENT, EAST NADA, GURUVAYUR, REPRESENTED BY THE SECRETARY, SHAJI M.L., AGED 39 YEARS, S/O LOHITHAKSHAN, MUTTIL HOUSE, ERATTAPUZHA, BLANGAD, CHAVAKKAD THALUK, THRISSUR DISTRICT.

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*** ADDITIONAL R3 IMPLEADED AS PER ORDER DTD.23.7.2015 IN THE IA.NO.10016/2015 IN THE WP(C) R1 & R2 BY ADVS. SRI.P.A.AHAMMED SRI.M.SREEKUMAR R3 BY SRI.KRISHNA PRASAD S., ADVOCATE COMMISSIONER ADV. SRI.RAJIT**

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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WP(C).No. 17190 of 2015 (W)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 : TRUE COPY OF THE SALE DEED ENTERED INTO BETWEEN THE PETITIONER AND ONE OF THE PURCHASER OF THE APARTMENT DATED 11-2-1998.

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P2 : TRUE COPY OF THE NOTICE ISSUED TO THE PETITIONER DATED 18-1-2013 BY THE 2ND RESPONDENT.

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P3 : TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER DATED 11-2-2013.

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P4 : TRUE COPY OF THE PLAINT IN OS.NO.1697/2014 OF THE MUNSIFF COURT, CHAVAKKAD

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P5 : TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN OS.NO.1697/2014 OF THE MUNSIFF COURT, CHAVAKKAD.

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P6 : TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

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P7 : TRUE COPY OF THE PROVISIONS ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER

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P8 : TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER DATED 4-4-2015.

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P9 : TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 25-5-2015.

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RESPONDENT(S)' ANNEXURES:

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ANNEXURE	C1: ANSWER TO QUERY B1	(NO OF PHOTOS: 1)
ANNEXURE	C2: ANSWER TO QUERY B2	(NO OF PHOTOS: 4)
ANNEXURE	C3: ANSWER TO QUERY B5	(NO OF PHOTOS: 1)
ANNEXURE	C4: ANSWER TO QUERY B8	(NO OF PHOTOS: 1)
ANNEXURE	C5: APPROVED BUILDING	LAYOUT PLAN DTD.8.7.96.
ANNEXURE	C5(a): APPROVED BASEMENT	FLOOR PLAN DTD.19.8.99.

Msv/

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WP(C).No. 17190 of 2015 (W)

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ANNEXURE C5(b):	APPROVED	FRONT ELEV	ATION PLAN DTD.10.8.99.
ANNEXURE C5(c):	APPROVED	GROUND FLO	OR PLAN DTD.10.8.99.
ANNEXURE C6:	ANSWER TO	QUERY C6	(NO OF PHOTOS: 9)
ANNEXURE C7:	ANSWER TO	QUERY C6	(NO OF PHOTOS: 2)
ANNEXURE C8:	COPY OF T DTD.27.2.	HE LICENSE 2015.	BEARING NUMBER 28/18/2015
ANNEXURE C9:	ANSWER TO	QUERY C10	(NO OF PHOTOS: 1)
ANNEXURE C10:	ANSWER TO	QUERY C12	(NO OF PHOTOS: 1)
ANNEXURE C11:	ANSWER TO	QUERY C13	(NO OF PHOTOS: 1)
ANNEXURE C12:	ANSWER TO	QUERY C14	(NO OF PHOTOS: 1)
ANNEXURE C13:	ANSWER TO	QUERY C15	(NO OF PHOTOS: 2)
ANNEXURE C14:	ANSWER TO	QUERY C16	(NO OF PHOTOS: 2)
ANNEXURE C15:	ANSWER TO	QUERY C17	(NO OF PHOTOS: 3)
ANNEXURE C16:	ANSWER TO	QUERY C18	(NO OF PHOTOS: 2)
ANNEXURE C17:	ANSWER TO	QUERY C19	(NO OF PHOTOS: 1)
ANNEXURE C18:	ANSWER TO	QUERY C20	(NO OF PHOTOS: 1)
ANNEXURE C19:	ANSWER TO	QUERY C23	(NO OF PHOTOS: 2)
ANNEXURE C20:	ANSWER TO	QUERY C26	(NO OF PHOTOS: 5)
ANNEXURE C21:	ANSWER TO	QUERY C26	(NO OF PHOTOS: 2)
ANNEXURE C22:	ANSWER TO	QUERY C27	(NO OF PHOTOS: 1)
ANNEXURE C23:	ANSWER TO	QUERY C29	(NO OF PHOTOS: 1)
ANNEXURE C24:	ANSWER TO	QUERY C30	(NO OF PHOTOS: 4)

//TRUE COPY//

P.S.TO JUDGE

Msv/

A.M.SHAFFIQUE, J.

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W.P.(C).No.17190 of 2015

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----------------------------------- Dated this the 3^rd day of October, 2016

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J U D G M E N T

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The petitioner challenges Ext.P9 order passed by the Municipality under Section 406 of the Kerala Municipality Act ('the Act' for short) inter alia observing that the petitioner had not rectified the violations as pointed out in Ext.P7 notice issued under Section 406(1) of the Act.

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The main contention urged by the petitioner is that though a detailed objection had been filed to Ext.P7 in terms of Ext.P8 without considering any of those contentions, the impugned order had been passed, which amounts to violation of the principles of natural justice.

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The short facts involved in the writ petition would disclose that the petitioner had constructed a multi-storied building known as 'Sreenidhi Apartments'. He had assigned the floors 1,2 and 3 to third parties who had formed an association and is appearing before this Court as the additional 3^rd respondent. Certain issues had arisen between the additional 3^rd respondent and the petitioner. On the basis of complaints filed by the 3^rd respondent, Municipality had initiated action against the petitioner by issuing Ext.P2 notice alleging violation of provisions of the Kerala Municipality Building Rules. Though the petitioner submitted an objection as Ext.P3 on

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W.P.(C).No.17190 of 2015

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11.02.2013, no further action was taken in the matter. In the meantime, the additional 3^rd respondent had filed a suit as O.S.No.1697/2014 seeking to establish their rights with reference to the usage of their property and seeking restoration of the amenities. They also sought for demolition of certain structures. It is stated that the suit is pending consideration by the Civil Court. The 3^rd respondent, thereafter, filed W.P.(C).No.30885/2013 seeking for a direction to the Municipality to take necessary action against the petitioner. The said writ petition was disposed of directing the Municipality to take appropriate action, pursuant to which Ext.P7 show cause notice had been issued, which ultimately resulted in Ext.P9.

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A statement has been filed by the additional 3^rd respondent inter alia stating that the petitioner has blocked the entry to the basement as well as the common areas as described in the approved plan. It is stated that the additional 3^rd respondent is entitled to enjoy the property on the basis of the documents executed between the parties and it is the obligation of the petitioner to maintain the building as per the approved plan. Additional structures constructed without permission from the Municipality had resulted in the petitioner committing gross violation of the Municipality Building Rules as well as the building plan. It is stated that the petitioner being in possession of the

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W.P.(C).No.17190 of 2015

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ground floor, prevented the 3^rd respondent and its members from utilising the common entry and has diverted the entry to another portion. That apart, a coffee shop is being conducted in the space which was allotted as office and that too, without any license from the Municipality. It is, therefore, contended that the Municipality was justified in taking appropriate action against the petitioner. Further it is submitted that the petitioner has constructed a ramp to connect another building known as 'Krishna Inn' to the 4^th floor of the present apartment complex and which is again in gross violation of the Municipality Building Rules and no permission had been obtained from the Municipality to construct such a structure.

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Counter affidavit has been filed by respondents 1 and 2 wherein it is submitted that the petitioner had committed serious violations of the approved plan which was directed to be restored in terms with the impugned order.

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Heard the learned counsel on either side and perused the records.

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As far as the respective rights of the petitioner as well as the additional 3^rd respondent is concerned, the matter is now pending before the Civil Court which requires adjudication by the Civil Court. Therefore, I don't think that this Court will be justified in going into the said factual aspects of the matter and taking a decision in this writ petition.

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W.P.(C).No.17190 of 2015

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In the present writ petition, I am only concerned with Ext.P9 order passed by the Municipality. The only question to be considered is whether the order is passed in violation of principles of natural justice. Ext.P7 is the show cause notice which was issued as per directions issued by this Court, to which the petitioner had given a reply.

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Learned counsel for the Municipality submits that the petitioner virtually admits these factual details, but disputes the same on the contention that he is entitled to do so. It is argued by the learned counsel that when a plan has been approved, especially regarding an apartment complex, the builders/owners will have to comply with the approved plan and has to keep free all the common amenities including the basement for the usage of the apartment owners. Therefore, without the consent or approval of the Municipality and the owners of the respective apartments, the petitioner cannot by himself deviate from the approved plan. It is in the said circumstances that it was noticed that there was violation of the Building Rules and the approved plan, which has to be corrected.

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Learned counsel for the petitioner however would submit that as far as the basement is concerned, those are common areas for the purpose of car parking which is not assigned to any of the residents. A gate has been put up as instructed by the police since

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W.P.(C).No.17190 of 2015

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it was noticed that some immoral activities were being carried on in the said premises. Further, since there is a security available, if at all the said area is to be used, the gate can be opened. Learned counsel submits that the modifications now made does not amount to any violation of the Building Rules or the approved plan. Only minor modifications had been made which does not require any permission as stated in Ext.P9.

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Having considered the aforesaid factual situation, I am of the view that the matter requires fresh consideration, especially on account of the fact that none of the contentions urged by the petitioner had been controverted in the final order passed by the Municipality. When it is alleged that there is violation of the building plan and violation of the Building Rules, while passing the final orders, the Municipality was expected to consider the objections of the petitioner and clearly pointed out the nature of violations and the statutory provisions with reference to which such a direction is being issued. In the said circumstances, I am of the view that this matter requires fresh consideration.

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Accordingly, this writ petition is disposed of as under :

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Ext.P9 is set aside.

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The Municipality shall reconsider the matter after hearing the petitioner as well as the 3^rd respondent and pass appropriate orders.

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W.P.(C).No.17190 of 2015

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It is made clear that if any further violation is brought to the notice of the Municipality, fresh notice shall be issued and appropriate action shall be taken in accordance with law.

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The aforesaid procedure shall be completed within a period of two months from the date of receipt of a copy of this judgment.

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Sd/-

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A.M.SHAFFIQUE, JUDGE.

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K.Mohandas v. the Guruvayoor Municipality

Case brief

What is this about?

What did the court decide?

K.Mohandas v. the Guruvayoor Municipality

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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