Remanded

Abdul Rahiman v. the State of Kerala

Kerala HC3 Mar 2017WP(C)/32361/2015

Case brief

AI extract

What is this about?

Provisions of Rule 60 of the Kerala Municipality Building Rules apply to plots not exceeding 125 sq. metres unless modifications prevent construction. Dispute centered on land extent. Court directed physical measurement by Taluk Surveyor.

What did the court decide?

Secretary of the 2nd respondent Corporation to cause physical measurement of petitioner's property by Taluk Surveyor within 4 months to verify extent.

Abdul Rahiman Vs the State of Kerala — Municipal and Town Planning | Kerala HC (2017)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

¶4

FRIDAY, THE 3RD DAY OF MARCH 2017/12TH PHALGUNA, 1938

¶5

WP(C).No. 32361 of 2015 (U)

¶6

PETITIONER(S):

¶7

ABDUL RAHIMAN, AGED 67, S/O. UMMER, RESIDING AT PANIKAVEETIL, MULLASSERY VILLAGE DESOM, MULLASSERY P.O, CHAVAKKAD TALUK, THRISSUR DISTRICT- 680 509.

¶8

BY ADV. SRI.G.SREEKUMAR (CHELUR).

¶9

RESPONDENT(S):

¶10

1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

¶11

2. THE CORPORATION OF THRISSUR, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, THRISSUR- 680 001.

¶12

3. THE EXECUTIVE ENGINEER, CORPORATION OF THRISSUR, CORPORATION OFFICE, THRISSUR- 680 001.

¶13

4. SHAHIM K.B., AGED 40, S/O. BEERANKUNJI, RESIDING AT KOCHIKARAN, VADAKKEVEETIL, AISWARYA GARDENS, VAKAYIL, KOORKANCHERY VILLAGE DESOM, KOORKANCHERY P.O, THRISSUR- 680 007.

¶14

R1 BY GOVT. PLEADER SMT.MABLE C.KURIAN. R2 & R3 BY SRI.K.P.VIJAYAN, SC. SRI. SANTHOSH P.PODUVAL, SC. R4 BY ADV. SRI.GEORGE POONTHOTTAM.

¶15

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶16

rs.

¶17

WP(C).No. 32361 of 2015 (U)

¶18

APPENDIX

¶19

PETITIONER'S EXHIBITS:-

¶20

EXHIBIT P1. COPY OF THE BUILDING PERMIT IN THE NAME OF THE PETITIONER ISSUED BY THE SECOND RESPONDENT DATED 26.12.2011.

¶21

EXHIBIT P2. COPY OF THE JUDGMENT IN APPEAL NOS. 967 AND 1045 OF 2012 BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM DATED 31.01.2013.

¶22

EXHIBIT P3. COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C).NO.4648/2013 DATED 01.06.2015.

¶23

EXHIBIT P4. COPY OF THE ORDER PASSED BY 2ND RESPONDENT DATED 13.08.2015.

¶24

EXHIBIT P5. COPY OF THE POSSESSION CERTIFICATE ISSUED TO THE PETITIONER DATED 28.01.2013.

¶25

EXHIBIT P6. COPY OF THE TAX RECEIPT ISSUED IN THE NAME OF THE PETITIONER DATED 09.04.2015.

¶26

RESPONDENT'S EXHIBITS:-

¶27

EXT.R4A	COPY OF THE BUILDING PERMIT DATED 26/12/2011 AND APPROVED PLAN.
EXT.R4B	COPY OF THE STOP MEMO NO.DW3-31376/12 DATED 26/11/2012.
EXT.R4C	COPY OF THE ORDER NO.DW3-31376/12 DATED 12/12/2012.
EXT.R4D	THE SURPRISE CHECK REPORT NO.E8 (SC 05/13/TSR) 1575/2013 DATED -01.2013.
EXT.R4E	COPY OF THE REPORT NO.C/143/2013/DIS DATED 16/01/2013.

//TRUE COPY//

P.S. TO JUDGE

rs.

DEVAN RAMACHANDRAN, J.

¶32

============================== W.P.(C)No.32361 of 2015 ============================== Dated this, the 03^rd day of March, 2017.

¶33

J U D G M E N T

¶34

Rule 60 of the Kerala Municipality Building Rules,

¶35

1999 (hereinafter referred to as 'the Rules' for short) provided as under:

¶36

“ 60. Special provisions for construction in small plots .-The provisions in the Kerala Municipality Building rules shall apply to construction of building under residential and or commercial occupancy, in plots not exceeding 125 sq. metres of area subject to the modifications in this chapter:

¶37

Provided that permit shall not be granted under this chapter to one and the same person or with his consent to another person, for constructing different buildings, whether separately or abutting each other, in plots formed by division of one or more plots, he remaining as owner of more than one such divided plots or if that person has another plot abutting the proposed plot.”

¶38

The effect of this Rule is that those persons who

¶39

W.P.(C)No.32361 of 2015 : 2 :

¶40

are holding less than 125 sq.metres of area namely, 3 cents of land are entitled to cause construction in the said property without being under the rigour of the said Rules. The dispute in this case is whether the petitioner is in possession of less than 3 cents or more than 3 cents. The controversy in question arose because, the petitioner claims that his property is less than 3 cents in extent whereas, 4^th respondent asserts that the extent of the property is much more than 3 cents.

¶41

The 4^th respondent initiated action by filing a complaint, because, the petitioner had claimed that his property is below 3 cents and availed benefits under the Rule and had caused certain constructions. This lead to various proceedings and finally to Ext.P3 judgment of this Court. This Court had directed the Corporation to verify the various aspects by actual inspection in the presence of the petitioner herein and the 4^th respondent and to take action based on the same. The Corporation thereafter issued Ext.P4 order, which according to the petitioner,was not based on such inspection, but, on irrelevant

¶42

W.P.(C)No.32361 of 2015 : 3 :

¶43

considerations. He has therefore, impugned the same as being illegal and unlawful.

¶44

I have heard the learned counsel for the petitioner Shri.Nandagopal S.Kurup, the learned counsel for the 4^th respondent, the learned Standing Counsel appearing for Corporation and the learned Government Pleader.

¶45

The only question of dispute in this case is whether the petitioner possesses more than or less than 3 cents of land. There should have been normally no controversy, but for the fact that, as per the title deeds and other certificates including possession certificate, the petitioner is shown to be in possession of more than 3 cents. The Corporation, based on an evaluation of these documents and according to them, even by physical inspection, has found that the petitioner is actually in possession of more than 3 cents of land. The petitioner refutes this and says that there was no physical inspection.

¶46

The pleadings on record would indicate that it is

¶47

W.P.(C)No.32361 of 2015 : 4 :

¶48

the stand of the Corporation that they have done a physical inspection, but, unfortunately there is nothing on record by way of material to show that this inspection was done. I do not want to precipitate this any further and I deem it necessary that a quietus to the disputations be found in equity. There cannot be a better method of doing so except by a proper physical verification of the extent of land which is owned and possessed by the petitioner. For this purpose, the Secretary of the 2^nd respondent Corporation shall immediately cause the physical measurement of the petitioner's property to be done by a competent authority, namely, the Taluk Surveyor in the presence of the petitioner and the 4^th respondent. The Secretary will be obligated by the terms of this judgment to issue a proper notice with a minimum of 7 days in advance to the petitioner and the 4^th respondent and cause the inspection and measurement of the property by the Taluk Surveyor as expeditiously as possible. The learned counsel for the petitioner prays that the verification of the property also be done with the

¶49

W.P.(C)No.32361 of 2015 : 5 :

¶50

village records, because, what is now shown to be in his possession is also an extent of Government puramboke, which according to him, required to be executed in such verification. The Secretary will advert to this contention of the petitioner also and verify the property in the manner that is required in law and adverting to the various documents that may be produced before it by the parties and with the assistance of such officers or Competent Authorities as would be required.

¶51

Until such time an inspection and verification is completed, of course, Ext.P4 will not be implemented and if after inspection, it is found that the property is below 3 cents, obviously, the petitioner would be given the benefit of the Rule and if it is found to be in excess of 3 cents, Ext.P4 would continue to operate.

¶52

Since I have already indicated that I am interested in a quick resolution of the disputes, I deem it appropriate that the 2^nd respondent complete the exercise as afore-directed as expeditiously as possible but not later than 4 months from the date of receipt of a copy of this

¶53

W.P.(C)No.32361 of 2015 : 6 :

¶54

judgment.

¶55

This writ petition is ordered thus.

¶56

Sd/-

¶57

DEVAN RAMACHANDRAN, JUDGE.

¶58

Bb/08/03/2017

¶59

[True copy]

¶60

P.A to Judge

Abdul Rahiman v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Abdul Rahiman v. the State of Kerala

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

Coram

Case details

Similar cases

E.Velayudhan Vs the Director of Collegiate Education

R.Gopalakrishnan Vs the Kerala State Financial Enterprises

M.Syed Alavi Vs State of Kerala

Vasudevan Pillai Vs State of Kerala & Others

The State of Kerala Vs Ramesan

K.v.Muraleedharan Vs the Managing Committee