Disposed

Thomas Jose.P.F v. Kalamassery Municipality

Kerala HC5 Aug 2019WP(C)/11326/2019

Case brief

AI extract

What is this about?

Writ petition challenging a municipality's development permit and excavation work. Upon hearing submissions, the court recorded counsel observations and made the interim order dated 17.04.2019 absolute.

What did the court decide?

The interim order dated 17.04.2019 was made absolute, directing the 2nd respondent to ensure construction complies with permitted rules and no destruction causes to neighbourhood buildings.

Thomas Jose.P.F Vs Kalamassery Municipality — Municipal and Town Planning | Kerala HC (2019)

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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 ANIL K.NARENDRAN

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MONDAY, THE 05TH DAY OF AUGUST 2019 / 14TH SRAVANA, 1941

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WP(C).No.11326 OF 2019(M)

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PETITIONERS:

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1 THOMAS JOSE.P.F., AGED 45 YEARS, S/O P.T.FRANCIS, PAZHAMPILLIL HOUSE, 25/136,CHANGAMPUZHA NAGAR P.O., KALAMASSERRY, ERNAKULAM DISTRICT, PIN-682 033.

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2 M.A.CLEETUS, AGED 66 YEARS, S/O M.R.ANTONY, EWS-3, HOUSE, 25/136, CHANGAMPUZHA NAGAR P.O.KALAMASSERRY, ERNAKULAM DISTRICT, PIN-682 033.

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BY ADVS. SRI.JOSEPH GEORGE SMT.NICEY A. MENON

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RESPONDENTS:

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1 KALAMASSERY MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, CHANGAMPUZHA NAGAR P.O., ERNAKULAM DISTRICT, PIN-682 033.

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2 THE SECRETARY, KALAMASSERY MUNICIPALITY, MUNICIPAL OFFICE, CHANGAMPUZHA NAGAR P.O., ERNAKULAM DISTRICT, PIN-682 033.

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3 THE GEOLOGIST, DISTRICT OFFICE, MINING AND GEOLOGY DEPARTMENT, CIVIL STATION, KAKKANAD P.O., KOCHI, PIN-682 030.

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WP(C).No.11326 OF 2019(M)

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4 CHRISTY PAUL, AGED 65 YEARS, FATHERS NAME NOT KNOWN TO THE PETITIONERS, HOUSE NO 25/137, KONTHURUTHY HOUSE, CHANGAMPUZHA NAGAR P.O., KALAMASSERRY, ERNAKULAM DISTRICT, PIN-682 033.

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R1&R2 BY SRI.M.K.ABOOBACKER, STANDING COUNSEL R3 SRI.K.P.HARISH, SENIOR GOVERNMENT PLEADER R4 SRI.JOLLY JOHN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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The petitioners, who are residents in Ward No.25 of the 1^st respondent Municipality, adjacent to 10.01 Ares of property owned by the 4^th respondent comprised in Re.survey No.511/9 of Thrikkakara North Village, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P5 order dated 23.01.2019 of the 2^nd respondent Municipality. The petitioners have also sought for a writ of mandamus commanding respondents 1 and 2 to ensure strict compliance of the directions contained in Ext.P4 report and Ext.P7 communication of the 3^rd respondent Geologist; a writ of mandamus commanding the 2^nd respondent to recall the development permit for developing 10.01 Ares of property owned by the 4^th respondent comprised in Re.survey No.511/9 of Thrikkakara North Village; and a writ of mandamus commanding the 3^rd respondent to assess the quantity of earth to be removed for effecting construction in 10.01 Ares of property owned by the 4^th respondent.

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On 09.04.2019, when this writ petition came up

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for admission, the learned Standing Counsel took notice on admission for respondents 1 and 2. The learned Government

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Pleader took notice on admission for the 3^rd respondent. Urgent notice on admission by special messenger was ordered to the 4^th respondent, returnable by 17.04.2019.

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The learned Standing and also the learned Government Pleader were directed to get instructions.

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On 17.04.2019, when this writ petition came up

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for consideration, this Court passed the following order;

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“Respondents seek time for filing counter affidavit. Post after vacation.

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In the meanwhile, there will be a direction to the 2^nd respondent to ensure that the 4^th respondent is carrying on the construction of the building in accordance with the permit issued and in accordance with the Kerala Municipality Building Rules, 1994.

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The 4^th respondent also shall ensure that, no destruction is caused to any neighbourhood building.”

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A counter affidavit has been filed by the 4^th

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respondent, opposing the reliefs sought for in this writ petition. The petitioner has filed a reply affidavit to the

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counter affidavit filed by the 4^th respondent.

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The 3^rd respondent has also filed a counter

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affidavit, opposing the reliefs in this writ petition.

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Today, when this case is taken up for

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consideration, along with W.P.(C) No.15774 of 2019, the learned counsel for the petitioners and also the learned counsel for the 4^th respondent would submit that this writ petition may be disposed of, by making the interim order dated 17.04.2019 absolute.

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The learned counsel for the 4^th respondent would submit that the said respondent shall carry out the construction of the building in accordance with the building permit issued and in conformity with the provisions under the Kerala Municipality Building Rules, 1999 and that, he shall

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also ensure that no destruction is caused to any neighbourhood buildings.

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Recording the aforesaid submission made by the learned counsel for the 4^th respondent, this writ petition is disposed of making the interim order dated 17.04.2019 absolute.

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Sd/-

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ANIL K. NARENDRAN JUDGE

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bpr

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXHIBIT P1 TRUE PHOTOCOPY OF THE SITE PLAN OF THE PROPOSED BUILDING OF THE 4TH RESPONDENT.

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EXHIBIT P2	TRUE PHOTOCOPY OF THE COMPLAINT DATED 23.04.2018 SUBMITTED BY THE PETITIONERS AND OTHERS BEFORE THE 2ND RESPONDENT.
EXHIBIT P3	TRUE PHOTOCOPY OF JUDGMENT DATED 04.05.2018 IN WP(C)NO.15213/2018 OF THIS HON'BLE COURT.
EXHIBIT P4	TRUE PHOTOCOPY OF THE REPORT SUBMITTED BY THE CIVIL ENGINEERING DEPARTMENT OF GOVERNMENT ENGINEERING COLLEGE THRISSUR.
EXHIBIT P5	TRUE PHOTOCOPY OF ORDER NUMBER B.A.NO. 323/16 DATED 23.01.2019 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P6	TRUE PHOTOCOPY OF LETTER NUMBER BA 323/16 DATED 01.02.2019 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P7	TRUE PHOTOCOPY OF LETTER NUMBER D.O.E./580/E1/18 DATED 04.05.2018 OF THE 3RD RESPONDENT.

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RESPONDENTS' EXHIBITS:

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EXHIBIT R3(A)	TRUE COPY OF THE APPROVED DEVELOPMENT PERMIT ISSUED BY KALAMASSERY MUNICIPALITY.
EXHIBIT R4(A)	THE TRUE COPY OF THE BUILDING PERMIT NO TP1-BA(31672)2017 DATED 30.06.2017 ISSUED BY THE 1ST RESPONDENT MUNICIPALITY.
EXHIBIT R4(B)	THE TRUE COPY OF THE COMPLAINT DATED 29.11.2016 FILED BY THE PETITIONERS.

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EXHIBIT R4(C)	A TRUE COPY OF THE JUDGMENT IN WPC NO 7562/2018 DATED 07.03.2018.
EXHIBIT R4(D)	THE SOIL TEST REPORT OF THE WORK SITE DATED 10.12.2016 BY JOE-TECH PILE FOUNDATIONS.
EXHIBIT R4(E)	A TRUE COPY OF THE REPORT DATED 20.07.2018 SUBMITTED BY THE EXPERT COMMITTEE.
EXHIBIT R4(F)	THE TRUE COPY OF THE ORDER OF THIS HON'BLE COURT DATED 24TH JANUARY 2019 IN CONTEMPT CASE NO.102/2019.
EXHIBIT R4(G)	THE EXPERT COMMITTEE HAD GIVEN INSTRUCTIONS AND DIRECTIONS TO THE PETITIONER FROM TIME TO TIME. AN ADDITIONAL CLARIFICATIONS GIVEN BY THE EXPERT COMMITTEE SUBSEQUENT TO EXHIBIT R4(G) VIDE ITS LETTER DATED 09.04.2019.
EXHIBIT R4(H)	THE TRUE COPY OF THE COMPLAINT DATED 04.04.2019 FILED BY THE BUILDER OF THE 4TH RESPONDENT BEFORE THE CIRCLE INSPECTOR OF POLICE KALAMASSERY.
EXHIBIT R4(I)	TRUE COPY OF THE MEASUREMENT OF THE EXCAVATED AREA IN THE WORKSITE OF THE 4TH RESPONDENT AND THE MEASUREMENT OF THE AVAILABLE ORDINARY EARTH OUT OF EXCAVATION.
EXHIBIT R4(J)	TRUE COPY OF THE MEASUREMENT OF THE EXCAVATED AREA IN THE WORKSITE OF THE 4TH RESPONDENT AND THE MEASUREMENT OF THE AVAILABLE ORDINARY EARTH OUT OF EXCAVATION.
EXHIBIT R4(K)	TRUE COPY OF THE CHALLAN DATED 08.01.2019 FOR ROYALTY FOR 1691 M3 OF ORDINARY EARTH.

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EXHIBIT R4(L) THE CERTIFIED TRUE COPY OF THE COMMUNICATION OF THE 3RD RESPONDENT DATED 20.05.2019 SEEKING CLARIFICATION FROM THE 2ND RESPONDENT AS D.O.E/2629/E2/18. EXHIBIT R4(M) THE TRUE COPY OF THE CERTIFIED COPY OF THE OFFICE NOTE OF THE 1ST RESPONDENT MUNICIPALITY DATED 01.02.2019 TO 29.05.2019 WHEREIN THE EXCAVATION WORK IS REPORTED AS STARTED ON 29.05.2019. EXHIBIT R4(N) THE TRUE COPY OF THE NOTIFICATION VIDE GO(P) NO.93/2014/ID DATED 30TH JUNE 2014 UNDER KERALA MINOR MINERAL CONCESSION RULES.

Thomas Jose.P.F v. Kalamassery Municipality

Case brief

What is this about?

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Thomas Jose.P.F v. Kalamassery Municipality

Case brief

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