Quashed

Akbar Ali v. Nilambur Municipality

Kerala HC7 Nov 2016WP(C)/5680/2016

Case brief

AI extract

What is this about?

The Court quashed notices issued by the Nilambur Municipality alleging forgery and stopping construction. It held that issues regarding pathway rights must be adjudicated in pending civil suits before the Court of the Munsiff, Manjeri. Occupancy certificate issuance is subject to those suit outcomes.

What did the court decide?

Exhibits P8 and P9, i.e., notices issued by the 2nd Respondent, are quashed for the time being.

Akbar Ali Vs Nilambur Municipality — Property and Title | 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 7TH DAY OF NOVEMBER 2016/16TH KARTHIKA, 1938

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WP(C).No. 5680 of 2016 (H)

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PETITIONER(S):

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1. AKBAR ALI, S/O.EASSA HAJI, AGED 53 YEARS, PARAKKODE HOUSE, EDATHANATTUKARA P.O, PALAKKAD DISTRICT.

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2. AFSAL BABU, EASSA HAJI, AGED 46 YEARS, PARAKKODE HOUSE, EDATHANATTUKARA P.O. PALAKKAD DISTRICT.

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3. KUNHUMON, EASSA HAJI, AGED 42 YEARS, PARAKKODE HOUSE, EDATHANATTUKARA P.O. PALAKKAD DISTRICT.

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BY SRI.T.KRISHNANUNNI (SENIOR ADVOCATE) ADVS.SRI.VINOD RAVINDRANATH

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SRI.SAJU.S.A SMT.MEENA.A. SRI.K.C.KIRAN SRI.M.DEVESH SRI.VINAY MATHEW JOSEPH

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RESPONDENT(S):

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1. NILAMBUR MUNICIPALITY, REPRESENTED BY ITS SECRETARY, P.O.NILAMBUR, MALAPPURAM DISTRICT, PIN - 679 329.

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2. SECRETARY, NILAMBUR MUNICIPALITY, P.O.NILAMBUR, MALAPPURAM DISTRICT, PIN - 679 329.

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3. ABDULLAKUTTY, S/O.KOMUKUTTY, ATHIMANNIL HOUSE, NILAMBUR P.O. MALAPPURAM DISTRICT, PIN - 679 329.

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R1 & R2 BY ADVS.SRI.PRAMOD KUMAR

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SRI.BABU CHERUKARA

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R3 BY ADV. SRI.R.K.MURALEEDHARAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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WP(C).No. 5680 of 2016 (H)

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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EXT.P-1: TRUE COPY OF THE BUILDING PERMIT GRANTED BY THE IST RESPONDENT MUNICIPALITY DATED 18.3.2015.

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EXT.P-2: PHOTO GRAPH SHOWING THE LIE OF THE PROPERTIES AND ACCESS OF THE PLOT DATED 6.10.2015.

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EXT.P-3: TRUE COPY OF THE PLAINT IN O.S.431/2015 ON THE FILE OF THE COURT OF THE MUNSIFF OF MANJERI DATED 17.10.2015.

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EXT.P-4: TRUE COPY OF THE ORDER OF THE COURT OF THE MUNSIFF OF MANJERI IN IA 2512/2015 IN OS 431/2015.

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EXT.P-5: TRUE COPY OF PLAN AND REPORT OF THE COMMISSIONER DATED 4.11.2015.

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EXT.P-6: TRUE COPY OF NOTICE AFFIXED ON 13.11.2015 BY THE 2ND RESPONDENT ON THE BUILDING OF THE PETITIONERS.

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EXT.P-7: TRUE COPY OF REPLY OF THE PETITIONERS DATED 26.12.2015.

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EXT.P-8: TRUE COPY OF THE COMMUNICATION DATED 11.1.2016 FROM THE 2ND RESPONDENT TO THE PETITIONERS.

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EXT.P-9: TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT DATED 11.1.2016 TO THE IST PETITIONER.

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RESPONDENT(S)' EXHIBITS:

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EXT.R2A:	TRUE COPY OF THE LOCATION SKETCH PREPARED BY THE VILLAGE OFFICER, NILAMBUR.
EXT.R2B:	TRUE COPY OF THE STOP MEMO ISSUED BY THE RESPONDENTS TO THE PETITIONERS DATED 11.1.2016.
EXT.R2C:	TRUE COPY OF THE SHOW CAUSE NOTICE DATED 20.2.2016 ISSUED BY THE RESPONDENTS TO THE PETITIONERS.
EXT.R2D:	TRUE COPY OF THE LETTER DATED 11.1.2016 ISSUED BY THE RESPONDENT TO THE PETITIONERS.
EXT.R2E:	TRUE COPY OF THE COMMUNICATION FROM THE TOWN PLANNING OFFICER TO THE RESPONDENTS DATED 11.3.2016.
EXT.R4A:	A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 3RD RESPONDENT TO THE SECRETARY.

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--2--

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--2--

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WP(C).No. 5680 of 2016 (H)

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EXT.R4B: TRUE COPY OF THE RELEVANT PAGE OF THE FMB REGISTER OF FIELD NO.195 OBTAINED UNDER THE RTI ACT FROM VILLGE OFFICE, NILAMBUR. EXT.R4C: A TRUE COPY OF THE TAX RECEIPT. EXT.R4D: A TRUE COPY OF THE REQUEST SUBMITTED DATED 12.11.2015 AND THE REPLY UNDER THE RTI ACT DATED 20.11.2015. EXT.R4E: A TRUE COPY OF THE LOCATION SKETCH PREPARED BY THE VILLAGE OFFICER, NILAMBUR, RECEIVED UNDER THE RTI ACT.

//TRUE COPY//

P.S. TO JUDGE

mbr/

A.M. SHAFFIQUE, J.

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=============== W.P. (C) No. 5680 of 2016

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==================

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Dated this, the 7^th day of November, 2016

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J U D G M E N T

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Petitioners have approached this Court inter alia seeking the

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following reliefs:-

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“a) call for the records of the case leading upto Exhibits P8 and P9 and to quash the same by the issuance of writ of certiorari or any other appropriate writ, order or direction.

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b) to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to permit the petitioners to complete the construction of the building as per Ext.P1 permit and to assign number to the building so constructed.”

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Ext.P8 is a notice dated 11/1/2016 issued by the Municipality based on a complaint given by the 3^rd respondent informing the petitioners that in the application for building permit as well as in regard to the existence of a pathway, petitioners had misrepresented facts by forging signature in the documents and therefore petitioners were called upon to show cause why action should not be taken for forgery. Ext.P9 is a further notice dated

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W.P(C) No.5680/16

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-:2:-

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11/1/2016 calling upon the petitioners to stop construction of the building subject to a final decision being taken in respect of the pathway leading to the building.

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The facts involved in the writ petition would disclose that petitioners obtained a building permit from the Municipality for construction of a building. The 3^rd respondent objected to the same inter alia contending that petitioners do not have any right over the pathway through which the petitioners claim access to the building in which event the building permit itself will be in violation of the Building Rules.

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Both sides now agree that the construction of the building has been completed. It is also submitted that petitioners had filed a suit as OS No.431/2015 before the Munsiff's Court, Manjeri seeking for an injunction to restrain the defendant therein, the 3^rd respondent, from obstructing or blocking plaint C and D Schedule properties and for other reliefs. The 3^rd respondent had also filed a suit as OS No.103/2016 before the same Court seeking for recovery of possession and permanent prohibitory injunction with reference to the pathway in question.

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W.P(C) No.5680/16

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-:3:-

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The issue projected in Ext.P8 in regard to the alleged forgery of signature by the petitioners may not be relevant for the time being especially on account of the fact that there are no other persons claiming right on the basis of the building permit granted by the Municipality. As far as the building owners are concerned, they do not have a case that any of the documents have been forged. Therefore, such an issue does not arise for consideration presently. Even otherwise, it is not for the Municipality to consider whether there is forgery of signature or not. If the petitioners who have applied for building permit do not dispute the veracity of the documents filed, there is no reason why the same should be considered by the Municipality.

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In regard to the dispute the petitioners have with the 3^rd respondent, lis is pending before the Munsiff Court, Manjeri, which is required to be adjudicated in accordance with law.

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In so far as the building construction had already been completed, if the same is in accordance with the plan approved by the Municipality, petitioners are entitled for an occupancy certificate, which shall be considered by the Municipality in

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W.P(C) No.5680/16

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accordance with law. However, it is made clear that the issuance of occupancy certificate or building number to the aforesaid building shall be subject to the final outcome of the civil suits which are pending consideration before the Munsiff's Court, Manjeri. Hence, I do not think that there is any reason for the Municipality to proceed with Exts.P8 and P9 and therefore, Exts.P8 and P9 are quashed for the time being. Further proceedings, if any, is required to be taken only based on the decision in the pending civil suits.

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Writ petition is disposed of accordingly.

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Sd/- A.M. SHAFFIQUE, JUDGE

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Rp8/11/2016

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//True Copy//

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P.S to Judge

Akbar Ali v. Nilambur Municipality

Case brief

What is this about?

What did the court decide?

Akbar Ali v. Nilambur Municipality

Case brief

What is this about?

What did the court decide?

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