Allowed

C.v.Babu v. Kalamassery Municipality

Kerala HC4 Oct 2016WP(C)/8601/2016

Case brief

AI extract

What is this about?

The Court allowed a writ petition filed against a stay on construction. The petitioner was permitted to proceed with construction on the 4th and 5th floors as per the approval but was prohibited from any work on the 6th floor, with the petitioner obligated to remove unauthorised 6th-floor structures if the Tribunal rejects the appeal later.

What did the court decide?

Permission to continue construction on 4th and 5th floors; prohibition on 6th floor construction; obligation to demolish 6th floor if Tribunal rejects appeal.

C.v.Babu Vs Kalamassery 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 K.VINOD CHANDRAN

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TUESDAY, THE 4TH DAY OF OCTOBER 2016/12TH ASWINA, 1938

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WP(C).No. 8601 of 2016 (A)

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PETITIONER(S):

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C.V. BABU, AGED 57,

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S/O MOHAMMEDKUTTY, CHIRAYACHEM HOUSE, THYVELIKKAKATHU, NEAR I.T.I. QUARTERS, KALAMASSERY-683 104.

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BY ADVS.SRI.K.R.VINOD, MS.JENCY SUSAN JOSE, SRI.V.SRI NATH.

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RESPONDENT(S):

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1. KALAMASSERY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, KALAMASSERY-682 204.

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2. THE SECRETARY KALAMASSERY MUNICIPALITY, MUNICIPAL OFFICE, KALAMASSERY-682 204.

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BY ADV. SRI.M.K.ABOOBACKER, SC.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 8601 of 2016 (A)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXHIBIT P1: TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE ` RESPONDENTS IN FAVOUR OF THE PETITIONER.

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EXHIBIT P2: THE PHOTOGRAPH SHOWING THE APARTMENT COMPLEX OF THE PETITIONER.

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EXHIBIT P3: THE COPY OF THE FINAL ORDER OF THE RESPONDENTS DATED 04.11.2015 ISSUED U/S. 406(3) OF THE KERALA MUNICIPALITIES ACT.

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EXHIBIT P4: THE COPY OF THE ORDER OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS IN APPEAL NO.1015/2015 DATED 20.11.2015.

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EXHIBIT P5: THE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 22.04.2015.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

K. VINOD CHANDRAN, J.

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

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W.P.(C) No.8601 of 2016 - A

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

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Dated this the 04^th day of October, 2016

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J U D G M E N T

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The petitioner is aggrieved with the fact that the

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petitioner has been restrained from constructing the 4^th and 5^th floors in accordance with the approved plan, on the ground that there is an unauthorised construction on the 6^th floor.

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The petitioner contends that he had obtained

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Ext.P1 permit for construction of five floors and three floors were constructed, upon which, occupancy certificate was also issued. While the construction of the 4^th and 5^th floors were going on, the petitioner also constructed an over head water tank on the 6^th floor, is the submission made by the petitioner, when Ext.P3 notice was issued. Ext.P3 notice specifically

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W.P.(C) No.8601 of 2016 - A

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pointed out the unauthorised construction made on the 6^th floor and directed demolition of the same. The petitioner was before the Tribunal for Local Self Government Institutions against the said order, which has been stayed by the Tribunal. In the meanwhile,the petitioner continued with the constructions on the 4^th and 5^th floors, which is said to be in accordance with the permit issued and the plan approved by the Municipality.

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The learned Standing Counsel, appearing for the respondent Municipality based on the counter affidavit would point out that since the unauthorised construction was proceeded against and there was a stay obtained from the Tribunal, the petitioner cannot carry on the construction on the 4^th and 5^th floors. The learned Standing Counsel would also point out that there has been complaints from the neighbouring property owners as to the difficulties caused to

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W.P.(C) No.8601 of 2016 - A

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them for reason of the construction carried on by the petitioners.

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It is pertinent to note that the Municipality has

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not issued any order, restricting the construction of the 4^th and 5^th floors as has been permitted by the Municipality in the approved plan and permit issued by the Municipality. The order, which has been stayed by the Tribunal also speaks only of the unauthorised construction on the 6^th floor; which directs

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demolition of the same and does not at all deal with the construction carried on; as per the approved plan and permit. The Municipality cannot restrict the further construction of the building as per the permit granted, based on the unauthorised construction alleged on the 6^th floor.

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The further contention is with respect to the

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neighbouring property owners; which is is seen addressed in the year 2015 by Ext.P5. The petitioner had undertaken that

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W.P.(C) No.8601 of 2016 - A

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the construction activities would be carried on without any difficulties caused to the neighbouring property owners. If such construction is carried on in compliance with the undertaking, again there could be no interdiction of the valid construction made on the basis of a permit. Here again the Municipality has not issued any order, on the basis of the complaint said to have been filed by the neighbouring property owners.

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In the circumstances noticed above and also

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since the unauthorised construction on the 6^th floor is admitted by the petitioner, the petitioner would be permitted to carry on the construction on the 4^th and 5^th floors but however, leaving open the right of the Municipality to proceed, if any discrepancy is noticed with respect to the construction being carried on in violation of the plan or permit or any difficulties being caused to the neighbouring property owners. However,

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W.P.(C) No.8601 of 2016 - A

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it is made clear that the petitioner would not carry on any construction on the 6^th floor; which construction is now alleged to be unauthorised. The petitioner would also be obliged to remove the same if the Tribunal rejects the appeal and the petitioner would have no claim for equity on the basis of the completion of the five floors.

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The writ petition would stand allowed with the

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above reservations. No costs.

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Sd/-

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K. VINOD CHANDRAN, JUDGE

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SB/05/10/2016

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// true copy //

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P.A to Judge

C.v.Babu v. Kalamassery Municipality

Case brief

What is this about?

What did the court decide?

C.v.Babu v. Kalamassery Municipality

Case brief

What is this about?

What did the court decide?

What the court decided

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