Dismissed

Asif, v. the Alappuzha Municipality

Kerala HC14 Aug 2019WP(C)/11980/2019

Case brief

AI extract

What is this about?

This writ petition challenged a stop memo and subsequent notice issued by the Municipality regarding construction without a permit. The Court held that since the petitioner did not obtain a building permit, the statutory remedy under Section 509 of the Kerala Municipality Act, 1994, is the appropriate forum. Consequently, the writ jurisdiction under Article 226 was held not to be applicable. The p

What did the court decide?

Petitioner directed to exhaust statutory remedy under Section 509 of Kerala Municipality Act, 1994; second respondent directed to finalize pending proceedings within two weeks.

Asif, Vs the Alappuzha Municipality — Specific Performance | 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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WEDNESDAY, THE 14TH DAY OF AUGUST 2019 / 23RD SRAVANA, 1941

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WP(C).No.11980 OF 2019(V)

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PETITIONER:

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ASIF, AGED 42 YEARS, S/O.BASHEER, PANAKKAL BUNGLOW, ALISSERY WARD, ALAPPUZHA-688001.

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BY ADV. SRI.P.SHANES METHAR

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RESPONDENTS:

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1 THE ALAPPUZHA MUNICIPALITY, ALAPPUZHA P.O., ALAPPUZHA-688001, REP. BY ITS SECRETARY.

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2 THE SECRETARY, ALAPPUZHA MUNICIPALITY, ALAPPUZHA P.O., ALAPPUZHA-688001

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R1-2 BY SRI.AZAD BABU, SC, ALAPPUZHA MUNICIPALITY

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WPC.11980/2019

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ANIL K.NARENDRAN

W.P.(C) No.11980 of 2019

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Dated this the 14^th day of August, 2019

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J U D G M E N T

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The petitioner along with his mother are stated to be the absolute owners in possession of 4.80 cents of property in block No.66 in Sy.No.4/2-2 of Alappuzha West Village covered by Ext.P1 partition deed No.1533 of 2018 of the Sub Registrar Office, Alappuzha and Ext.P2 basic tax receipt dated 16.05.2008. The petitioner has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Exts.P9 and P11 and a writ of mandamus commanding the respondents to permit him to put asbestos in the roof portion of shop room bearing Nos.34/85-A and 34/86-A.

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On 24.05.2019, when this writ petition came up for admission, the learned Standing Counsel for the first respondent Municipality sought time to file a statement. On 12.06.2019, when this writ petition came for consideration this Court passed the following order;

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"The learned counsel for the petitioner seeks adjournment. The learned Standing Counsel for the 1^st respondent Municipality, representing respondents 1 and 2, would submit that the petitioner was undertaking reconstruction of his building without obtaining necessary building permit.

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WPC.11980/2019 -3-

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The 2^nd respondent has already issued a stop memo, based on which, the petitioner has stopped the said construction. Respondents to file a statement within one week."

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Heard the learned counsel for the petitioner and also the learned Standing Counsel for the respondent Municipality.

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The issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P9 stop memo dated 16.02.2019 and Ext.P11 notice dated 18.03.2019, which are issued in connection with certain construction works undertaken by the petitioner in the shop rooms in question.

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Admittedly, the petitioner has not obtained any building permit for effecting such re-construction. In such circumstances, the second respondent cannot be found fault with in issuing Ext.P9 stop memo, which was followed by Ext.P11 notice. On receipt of Ext.P9 stop memo, the petitioner has submitted Ext.P10 objection. On receipt of Ext.P11 notice, the petitioner has submitted Ext.P12 reply. In view of the provisions under Section 509 of the Kerala Municipality Act,1994 the petitioner is having a statutory remedy against Ext.P9 stop memo and Ext.P11 notice, before the appropriate forum. In such circumstances, the petitioner cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India in order to challenge Ext.P9 stop memo and Ext.P11 notice.

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The learned counsel for the petitioner would submit that

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WPC.11980/2019 -4-

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Ext.P10 objection and Ext.P12 reply made by the petitioner are now pending consideration before the second respondent, which may be directed to be considered and disposed of within a time limit to be fixed by this Court.

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The learned Standing Counsel for the Municipality would submit that the second respondent shall consider Ext.P10 objection and Ext.P12 reply and finalise the proceedings initiated against the petitioner pursuant to Exts.P9 and P11, within a time limit to be fixed by this Court.

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In such circumstances, this writ petition is disposed of by directing the second respondent to take appropriate decision on Ext.P10 objection and Ext.P12 reply submitted by the petitioner to Ext.P9 stop memo and Ext.P11 notice and finalise the proceedings initiated against the petitioner, in accordance with law, with notice to the petitioner and after affording him an opportunity of being heard, as expeditiously as possible, at any rate, within a period of two weeks from the date of receipt of a certified copy of the judgment.

JUDGE

WPC.11980/2019

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APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE PARTITION DEED NO.1533/2018 OF SRO, ALAPPUZHA. EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT DATED 16.05.2018.

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EXHIBIT P3 TRUE COPY OF THE SURVEY PLAN APPENDED TO THE FINAL DECREE IN O.S.NO.366/2011 ON THE FILE OF THE SUB COURT, ALAPPUZHA.

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EXHIBIT P4 TRUE COPY OF THE PERMIT AND APPROVED PLAN FOR RENOVATION OF THE BUILDING IN EXT.P1 DATED 23.02.2018.

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EXHIBIT P5 TRUE COPY OF THE OCCUPANCY CERTIFICATE/USE CERTIFICATE DATED 19.03.2018 ISSUED BY THE ASSISTANT ENGINEER OF THE 1ST RESPONDENT.

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EXHIBIT P6 TRUE COPY OF THE DEMAND NOTICE NO.T2/ES/537/2018 FOR SHOP ROOM BEARING NO.34/85-A ISSUED BY THE RESPONDENT.

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EXHIBIT P7 TRUE COPY OF THE DEMAND NOTICE NO.T2/ES/537/2018 FOR SHOP ROOM BEARING NO.34/86-A.

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EXHIBIT P8 TRUE COPY OF THE DEMAND NOTICE NO.T2/ES/537/2018 FOR RESIDENTIAL BUILDING BEARING 34/85-B.

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EXHIBIT P9 TRUE COPY OF THE STOP MEMO NO.PW1/V1/5 DATED 16.02.2019 ISSUED BY THE MUNICIPAL ENGINEER.

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EXHIBIT P10 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 22.02.02019.

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WPC.11980/2019 -6-

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EXHIBIT P11 TRUE COPY OF THE NOTICE NO.E5-5665/19 DATED 18.03.2019 OF THE MUNICIPAL ENGINEER.

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EXHIBIT P12 TRUE COPY OF THE REPRESENTATION DATED 20.03.2019 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

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//TRUE COPY// PA TO JUDGE

Asif, v. the Alappuzha Municipality

Case brief

What is this about?

What did the court decide?

Asif, v. the Alappuzha Municipality

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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