Remanded

Gopinathan Nair v. Palakkad Municipality

Kerala HC8 Dec 2020WP(C)/15060/2015

Case brief

AI extract

What is this about?

The High Court challenged the final order passed by the Municipality under the Kerala Municipality Act without considering petitioner objections. The Court held the order was passed without application of mind, set it aside, and remanded the matter for a fresh order after hearing.

What did the court decide?

The final order (Ext.P7) is set aside. A fresh order shall be passed after hearing the petitioners and the second respondent within two months.

Gopinathan Nair Vs Palakkad Municipality — Landlord and Tenant | Kerala HC (2020)

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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.MUHAMED MUSTAQUE

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TUESDAY, THE 08TH DAY OF DECEMBER 2020 / 17TH AGRAHAYANA, 1942

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WP(C).No.15060 OF 2015(F)

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PETITIONERS:

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1 GOPINATHAN NAIR, AGED 75 YEARS, S/O. SIVARAMAN NAIR, MANAGING PARTNER, AMBAS PROPERTIES, 3/516, ADAM PLAZA, MINICIPAL JUNCTION, NORTH PARAVUR, ERNAKULAM - 683 513.

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2 FEDERAL FOR APARTMENT OWNERS ASSOCIATION FEDERAL FORT, MANAPPULLIKAVU, PALAKKAD - 678 013, REPRESENTED BY ITS SECRETARY.

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BY ADV. SRI.JACOB SEBASTIAN

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RESPONDENTS:

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1 PALAKKAD MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, PALAKKAD - 678 001.

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2 V.PADMANABHAN, 9/1474, JAYANAGAR, CHANDRANAGAR P.O., PALAKKAD - 678 007.

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R1 BY ADV. SRI.P.S.APPU R1 BY ADV. SRI.T.C.SURESH MENON R2 BY ADV. SRI.RAJESH SIVARAMANKUTTY BINOY VASUDAVAN SC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.15060 OF 2015(F)

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JUDGMENT

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Dated this the 8th day of December 2020

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This writ petition was filed challenging the final order dated

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30.03.2015 passed by the Palakkad Municipality, invoking Sec.406(2) of the Kerala Municipality Act, 1994.

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Before passing the final order, the Municipality issued Ext.P5 provisional order detailing the nature of the illegal construction made in an apartment complex. The petitioners raised Ext.P6 objection, clarifying the nature of construction undertaken by them. However, final order has been passed without adverting to any of the objection raised by the petitioners in Ext.P6. The final order passed without proper application of mind can be interfered by invoking article 226 of the Constitution of India.

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The learned counsel for the 2^nd respondent submits that the petitioners' remedy is to approach the Tribunal challenging the same. It may be true that the petitioners have an alternative remedy

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WP(C).No.15060 OF 2015(F)

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..3..

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before the Tribunal. However, taking note of the nature of the final order passed, I am of the considered view that the order is passed without any application of mind.

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The final order, should reveal as to what is the nature of violation and how the provisional order has been affirmed. The final order also should reflect the consideration of the objection raised by the petitioners. Without such consideration, the Secretary could not have passed the final order as seen in Ext.P7. Accordingly, Ext.P7 is set aside. A fresh order shall be passed, after hearing the petitioners and the 2^nd respondent, within a period of two months.

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This writ petition is disposed of as above.

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Sd/-

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A.MUHAMED MUSTAQUE

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JUDGE

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WP(C).No.15060 OF 2015(F)

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APPENDIX

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PETITIONERS EXHIBITS:

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EXHIBIT P1 A TRUE COPY OF THE OCCUPANCY CERTIFICATE DT. 11.8.11 ISSED BY THE FIRST RESPONDENT.

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EXHIBIT P2 A TRUE COPY OF THE DECREE IN OS NO. 545/2011 OF THE COURT OF THE MUNSIFF OF PALAKKAD. EXHIBIT P3 A TRUE COPY OF THE COMPLAINT IN CC NO. 70/2012 OF THE CONSUMER DISUTE REDRESSAL FORUM PALAKKAD. EXHIBIT P4 A TRUE COPY OF THE ORDER DT. 18.2.14 OF THE HON'BLE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. EXHIBIT P5 A TRUECOPY OF THE NOTICE DT. 12.2.15 ISSUED BY THE FIRST RESPONDENT. EXHIBIT P6 A TRUE COPY OF THE REPLY SUBMITTED BY THE FIRST PETITIONER IN RESPONSE TO EXT. P5. EXHIBIT P7 A TRUE COPY OF THE ORDER DT. MARCH 30,2015 ISSUED BY THE FIRST RESPONDENT.

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RESPONDENTS EXHIBITS:

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EXHIBIT R2(A) TRUE	COPY OF	THE BUILDING PERMIT NO.
EJBR/	814/0607	/PW4 DATED 09/02/2007.
EXHIBIT R2(B) TRUE PERMI	COPY OF T DATED	THE REVISED BUILDING 22/06/2007.
EXHIBIT R2(C) TRUE	COPY OF	THE ORDER IN EJBR/814/06-

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WP(C).No.15060 OF 2015(F)

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07/PW4 DATED 16/02/2010 ISSUED BY THE 1ST RESPONDENT TO 1ST PETITIONER.

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EXHIBIT R2(D) TRUE COPY OF THE FORM FOR COMPLETION CERTIFICATE DATED 30/11/2010 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT R2(E) TRUE COPY OF THE REPLY BY PALAKKAD MUNICIPALITY ISSUED UNDER RTI TO AN OWNER OF THE APARTMENT. EXHIBIT R2(F) TRUE COPY OF THE ORDER 30/03/2015 IN EJBR-814/06-07/PW4 ISSUED BY 1ST RESPONDENT TO 1ST PETITIONER. EXHIBIT R2(G) TRUE COPY OF THE PLAINT IN OS NO.402/2012 ON THE FILES OF THE SUB COURT, PALAKKAD.

Gopinathan Nair v. Palakkad Municipality

Case brief

What is this about?

What did the court decide?

Gopinathan Nair v. Palakkad Municipality

Case brief

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What did the court decide?

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