Disposed

K.H.Abdul Majeed v. the Kalamassery Municipality

Kerala HC19 Jan 2021WP(C)/23274/2020

Case brief

AI extract

What is this about?

The High Court disposed of this writ petition challenging notices from the Tribunal regarding an appeal against a renewed building permit. The Court held that challenging the notices directly is inappropriate but set aside the ex parte order appointing an Advocate Commissioner, directing the Tribunal to examine the application afresh after giving the petitioners an opportunity to object.

What did the court decide?

Set aside the order appointing the Advocate Commissioner in Ext.P19 application; direct the Tribunal to consider the application afresh after affording petitioners an opportunity to raise objections.

K.H.Abdul Majeed Vs the Kalamassery… — Constitutional and Fundamental Rights | Kerala HC (2021)

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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 P.B.SURESH KUMAR

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TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942

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WP(C).No.23274 OF 2020(H)

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PETITIONER/S:

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1 K.H.ABDUL MAJEED, AGED 54 YEARS, SON OF LATE HASSAN, ILLIKKAL HOUSE, KAVUNGAPADATH, VMB ROAD, PATHADIPALAM, KOCHI-682033.

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2 K.H.ABDUL SALAM, AGED 50 YEARS, SON OF LATE HASSAN, ILLIKKAL HOUSE, KAVUNGAPADATH, VMB ROAD, PATHADIPALAM, KOCHI-682033. BY ADVS. SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SMT.ANILA PETER SRI.SAJEN THAMPAN

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RESPONDENT/S:

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1 THE KALAMASSERY MUNICIPALITY, KALAMASSERY-682033 REPRESENTED BY ITS SECRETARY.

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2 THE SECRETARY, KALAMASSERY MUNICIPALITY, KALAMASSERY-682033.

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3 A.K.NAZAR, AGED 55 YEARS, SON OF LATE KADAR PILLAI, ANJIKKATH HOUSE, VMB ROAD, PATHADIPALAM-682033.

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4 THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, VANCHIYOOR, THIRUVANANTHAPURAM-695033, REPRESENTED BY IT'S SECRETARY.

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R3 BY ADV. SRI.P.B.KRISHNAN R3 BY ADV. SRI.P.B.SUBRAMANYAN R3 BY ADV. SRI.SABU GEORGE R3 BY ADV. SMT.B.ANUSREE R3 BY ADV. SRI.MANU VYASAN PETER BY SRI.M.K.ABOOBACKER, STANDING COUNSEL BY SMT.G.RANJITA, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.23274 of 2020

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J U D G M E N T

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This writ petition relates to Appeal No.426 of 2020 pending before the Tribunal for Local Self Government Institutions (the Tribunal).

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The facts relevant for disposal of the writ petition are

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the following;

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The petitioners obtained building permit B.A.No.755/2011 during 2012 from the first respondent Municipality for construction of a building in a land stated to be owned and possessed by them measuri ng 31.59 cents. The mother of the third respondent challenged the building permit before the Tribunal in Appeal No.225 of 2011 on t he ground mainly that the petitioners do not have title to the land over which the building is proposed by them. The case set out by the mother of the third respondent in the appeal was that the building is proposed by the petitioners in a portion of her land also, which is situated on the southern side of the land of the petitioners. It was pointed out by the mother of the third respondent in the appeal that she had already filed a suit for recovery of possession of her land from the petitioners as O.S.No.293 of 2010 before the Sub Court,

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Ernakulam, and the said suit is pending. The Tribunal allowed Appeal No.225 of 2011 and directed the second respondent to reconsider the application for building permit submitted by the petitioners. The petitioners challeng ed the decision of the Tribunal before this Court in W.P.(C)No.21526 of 2013. Later, the mother of the third respondent also filed a writ petition as W.P.(C)No.19911 of 2015 before this Court, alleging that the petitioners have fraudulently obtained transfer of registry in respect of lands which do not belong to them. In the meanwhile, the third respondent instituted W.P.(C)No.19733 of 2014 seeking directions to the Director of Vigilance and Anti-Corruption Bureau (VACB) to consider a complaint preferred by him concerning the alleged illegalities committed by the revenue officials in the matter of effecting mutation in respect of lands belonging to his mother in favour of the petitioners. The aforesaid writ petitions were disposed of by this Court as per Ext.P4 judgment. In Ext.P4 judgment, having regard to the facts and circumstances of the case, this Court took the view that it may not be appropriate to interdict the construction proposed by the petitioners till the final disposal of O.S.No.293 of 2010 and consequently, permitted the petitioners to file a fresh application for construction and directed the second respondent, the Secretary of the Municipality to consider and pass appropriate orders on that application. Though Ext.P4 judgment has been challenged by the third respondent in W.A.Nos.246 of 2018, 2427 of 2017 and 1934 of 2017, there was no interim order in the said matters. The petitioners, in the circumstances, preferred an application for renewal of building permit,

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B.A.No.755 of 2011, and the second respondent renewed the said building permit in the light of Ext.P4 judgment, as per Ext.P6 order subject to a few conditions, including the condition that there shall not be any construction in the disputed land and that if it is found by the court that any construction has been carried out in the land owned by the mother of the third respondent later, the same is liable to be removed. Ext.P6 renewed permit issued on 28.10.2017 was valid only till 04.12.2018. On 30.11.2018, the petitioners preferred an application for renewal of Ext.P6. By Ext.P13 order, the second respondent renewed Ext.P6 permit for the period upto 04.12.2021. The third respondent thereupon filed Ext.P18 appeal before the Tribunal challenging Ext.P13 order. Along with Ext.P18 appeal, third respondent preferred Ext.P19 application for appointment of an Advocate Commissioner for conducting a local inspection. The petitioners were issued Ext.P22 notice initially by the Tribunal in Ext.P18 appeal calling upon them to appear before the Tribunal on 17.11.2020. It is stated by the petitioners that while the petitioners were taking steps to appear before the Tribunal in Ext.P18 appeal in terms of Ext.P22 notice, they received Ext.P23 notice from the Advocate Commissioner appointed by the Tribunal in Ext.P19 application to conduct local inspection. It is stated by the petitioners that it was only then they came to know that an Advocate Commissioner has already been appointed ex parte by the Tribunal on Ext.P19 application. In Ext.P23 notice, the Advocate Commissioner informed the petitioners that he will be inspecting the site of the

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building on 02.11.2020. While so, the petitioners received another notice from the Tribunal informing them that the hearing of the appeal stands advanced to 02.11.2020, the date on which, the Advocate Commissioner has informed them that he would be inspecting the site of the building. Ext.P24 is the notice issued in this regard to the petitioners by the Tribunal. The writ petition is filed in the aforesaid background, seeking the following reliefs :

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“i) issue a writ, order or direction in the nature of Certiorari or any other appropriate writ, order or direction quashing Ext. P22 and P24 notices issued to the petitioners.

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ii) issue a writ, order or direction in the nature of prohibition or any other appropriate writ, order or direction against the 4^th respondent considering Ext. P18 or any appeal seeking to cancel B.A.755/2011.

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Iii) issue a writ, order or direction in the nature of prohibition or nay other appropriate writ, order or direction against the 4^th respondent in proceeding with Ext. P20.

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iv) issue such other writ, order or direction that this Honourable Court may deem fit in the facts and circumstances of the case.”

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A counter affidavit has been filed by the third respondent, and the petitioners have filed a reply to the said counter affidavit.

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Heard the learned counsel for the petitioners, the learned Standing Counsel for respondents 1 and 2 as also the learned counsel for the third respondent.

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The learned counsel for the petitioners contended that Ext.P13 being a building permit issued pursuant to the direction issued by this Court in Ext.P4 judgment, it was highly inappropriate for the Tribunal to entertain an appeal against the same. It was also contended by the learned counsel that Ext.P13 building permit is seen challenged by the third respondent in Ext.P18 appeal on grounds which are repelled by this Court in Ext.P4 judgment. It was further contended by the learned counsel that the appeal against Ext.P13 building permit is hopelessly barred by limitation. It was argued by the counsel that even otherwise, the third respondent is precluded from challenging Ext.P13 building permit as he has not challenged Ext.P6 building permit issued earlier on the same lines. It was further contended by the learned counsel that the Tribunal does not have power to issue a Commission for local inspection and even if such a power is available to the Tribunal, an Advocate Commissioner ought not have been appointed by the Tribunal in a matter like this without notice to the petitioners, especially when the materials produced by the third respondent in the appeal would reveal that an Advocate Commissioner has been appointed by this Court in the appeal preferred against the interim order passed in one of the writ petitions disposed of in terms of Ext.P4 judgment and the report of the said Advocate Commissioner was made available for perusal of the Tribunal.

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Per contra, the learned counsel for the third respondent contended that the petitioners are not entitled to any of

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the reliefs claimed in the writ petition. It was pointed out by the learned counsel that in terms of Ext.P4 judgment, while permitting the petitioners to prefer a fresh application for building permit and directing the second respondent to consider the same, this Court has indicated the manner in which the application permitted to be filed shall be considered by the Municipality, and the grievance of the third respondent in the appeal pending before the Tribunal is that Ext.P13 building permit is one issued flouting the specific directions issued by this Court in Ext.P4 judgment. It was pointed out by the learned counsel that it is for substantiating the said contention of the third respondent that he preferred Ext.P19 application for appointment of an Advocate Commissioner for local inspection and there is nothing illegal in the Tribunal allowing the said application ex parte .

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I have considered the contentions raised by the learned counsel for the parties on either side.

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As noted, the petitioners seek to quash Exts.P22 and P24 notices issued by the Tribunal. Ext.P22 is a notice issued by the Tribunal calling upon the petitioners to appear before the Tribunal in Ext.P18 appeal on 17.11.2020 and Ext.P24 is a notice issued by the Tribunal informing the petitioners that the hearing on Ext.P18 appeal is advanced to 2.11.2020. I do not find any justification at all for the petitioners to challenge the said notices in a proceedings under Article 226 of the Constitution, whatever be the grounds. If Ext.P18 appeal is not maintainable, or if the prayers in the said appeal are not sustainable, the petitioners have to raise those contentions before the

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Tribunal and only the decision taken by the Tribunal on those contentions can be challenged before this Court. On the very same reasoning, according to me, the petitioners are not entitled to seek a direction from this Court to the Tribunal to refrain from considering Ext.P18 appeal also.

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The remaining prayer in the writ petition is for a direction to the Tribunal to refrain from proceeding with Ext.P19 application, wrongly mentioned in the prayer portion of the writ petition as Ext.P20 application. As noted, Ext.P19 is an application preferred by the third respondent in Ext.P18 appeal for appointment of an Advocate Commissioner for local inspection. The contention of the petitioners is that the Tribunal has no power to appoint an Advocate Commissioner for local inspection. Alternatively, it is also contended by the petitioners that even if the Tribunal has such powers, the Tribunal was not justified in exercising that power without notice to the petitioners, and the application for local inspection has been filed mischievously for some purpose which is not divulged by the third respondent. Having regard to the powers conferred on the Tribunal under Section 271-S(3) of the Kerala Panchayat Raj Act, 1994, it is do ubtful as to whether the Tribunal is empowered to appoint an Advocate Commissioner for local inspection. I am not deciding the said question in this matter as the said question is one to be decided by the Tribunal at the fist instance. Be that as it may, paragraph 42 of Ext.P4 judgment indicates that the direction in Ext.P4 judgment to the second respondent is to consider the application for building permit in

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the light of the report and sketch of the Advocate Commissioner referred to in the said judgment which are the report and sketch of the Advocate Commissioner appointed by this Court in the appeal against the interim order passed in one of the writ petitions disposed of as per Ext.P4 judgment. In other words, the correctness of the building permit issued to the petitioners is to be examined in the light of the report and sketch of the Advocate Commissioner referred to in Ext.P4 judgment. In a case of this nature, according to me, if there is a need for a further local inspection, the same has to be explained by the third respondent. The relevant paragraphs in the affidavit filed in support of Ext.P19 application which was passed on to the court at the time of admission of the writ petition by the counsel for the petitioners read thus:

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“The appeal is filed against Order No.T.P.6784/2020 dated 15/06/2020, BA.755/2011 issued on 05.12.2012 in favour of respondents 2 and 3 and B.A.697/2019 issued on 24.12.2019 in favour of respondents 4 by the Secretary, Kalamassery Municipality. The aforesaid order and the building permits issued by Respondent No.1 are illegal and unsustainable for the various grounds raised in the Appeal. The brief facts of the case are stated in the memorandum of Appeal and that may be read as part of this Affidavit. I have got a meritorious case that there is every chance in allowing the Appeal in my favour. However, on the basis of the illegal permits issued by Respondent No.1, Respondents 2 to 4 are proceeding with the illegal construction of the buildings.

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For a fair adjudication of the subject matter in issue, a report by an advocate commission with regard to the constructions being carried out by the respondents is highly necessary. Therefore, it is respectfully prayed that this Hon'ble Tribunal be pleased to

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depute an advocate commission for ascertaining the matters listed along with the accompanying Application. Otherwise irreparable injury will be caused to me.”

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As noted, in the affidavit, there is only a bald statement that a report by an Advocate Commissioner with regard to the constructions that are being carried on by the petitioners is necessary for the fair adjudication of the issues in dispute between the parties. There is, therefore, force in the contention raised by the petitioners that Ext.P19 application is not a bona fide one.

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In the aforesaid circumstances, the writ petition is disposed of setting aside the order appointing the Advocate Commissioner in Ext.P19 application, and directing the Tribunal to consider Ext.P19 application afresh, after affording the petitioners an opportunity to raise objections against Ext.P19 application. Parties are directed to appear before the Tribunal through counsel on 1.2.2021.

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Sd/- P.B.SURESH KUMAR, JUDGE

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rkj

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W.P.(C) No.23274 of 2020

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER IN WA NO.2647/2015 DATED 12/05/2016 (WITHOUT ANNEXURES).
EXHIBIT P2	TRUE COPY OF THE SKETCH DATED 15/04/2016 NUMBER 2 REFERRED TO BY THE COMMISSIONER IN EXHIBIT P1.
EXHIBIT P3	TRUE COPY OF THE SKETCH NUMBER 3 DATED 15/04/2016 REFERRED TO BY THE COMMISSIONER.
EXHIBIT P4	TRUE COPY OF THE COMMON JUDGMENT DATED 05/05/2017 IN WPC 21526/2013, WPC 19733/2014 AND WPC 19911/2015.
EXHIBIT P5	TRUE COPY OF THE PLAINT IN OS NO. 656/2008 (RENUMBERED AS O.S.NO. 293/2010)PREFERRED BY THE 3RD RESPONDENT HEREIN BEFORE THE HON'BLE SUB COURT, ERNAKULAM.
EXHIBIT P6	TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT IN BA 755/2011 DATED 28/10/2017 RENEWING THE PERMIT.
EXHIBIT P7	TRUE COPY OF THE LETTER DATED 05/01/2018 SUBMITTED BY THE PETITIONERS TO THE 2ND RESPONDENT.
EXHIBIT P8	TRUE COPY OF THE LOCATION PLAN REFERRED TO IN EXHIBIT P7.
EXHIBIT P9	TRUE COPY OF THE RECEIPT DATED 08/01/2018 ISSUED BY THE 1ST RESPONDENT ACKNOWLEDGING RECEIPT OF EXHIBIT P7.
EXHIBIT P10	TRUE COPY OF THE AFFIDAVIT DATED NIL OF THE 2ND RESPONDENT.
EXHIBIT P11	TRUE COPY OF THE APPLICATION DATED 30/11/2018 SUBMITTED BY THE PETITIONERS TO THE 2ND RESPONDENT.

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EXHIBIT P12	TRUE COPY OF THE RECEIPT DATED 30/11/2018 FOR EXHIBIT P11 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P13	TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT RENEWING BA 755/2011 DATED 11/03/2020.
EXHIBIT P14	TRUE COPY OF THE REVISED PERMIT NO. BA 697/2019 DATED 28/05/2020 SIGNED BY THE ASSISTANT EXECUTIVE ENGINEER OF THE 1ST RESPONDENT AND ISSUED TO THE SAID SRI. MUHAMMADALI ON 29/05/2020.
EXHIBIT P15	TRUE COPY OF WPC 9861/2020 DATED 09/05/2020 (AND FILED ON 11/05/2020) WITHOUT EXHIBITS.
EXHIBIT P16	TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 12/05/2020 IN WPC 9861/2020.
EXHIBIT P17	TRUE COPY OF THE ORDER NO. TP 6784/2020 DATED 15/06/2020 OF THE 2ND RESPONDENT.
EXHIBIT P18	TRUE COPY OF THE APPEAL NUMBER 426/2020 (WITHOUT DOCUMENTS) FILED BY THE 3RD RESPONDENT BEFORE THE 4TH RESPONDENT.
EXHIBIT P19	TRUE COPY OF THE PETITION NUMBERED AS IA NO.792/2020 IN APPEAL NO.426/2020 FILED BY THE 3RD RESPONDENT BEFORE THE 4TH RESPONDENT.
EXHIBIT P20	TRUE COPY OF THE PETITION NUMBER IA 791/2020 IN APPEAL NO.426/2020 FILED BY THE 3RD RESPONDENT BEFORE THE 4TH RESPONDENT.
EXHIBIT P21	TRUE COPY OF THE INTERIM ORDER DATED 08/10/2020 IN IA NO.791/2020 IN APPEAL NO.426/2020 PASSED BY THE 4TH RESPONDENT AND RECEIVED BY THE PETITIONERS.
EXHIBIT P22	TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT TO THE 2ND PETITIONER.

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EXHIBIT P23 TRUE COPY THE NOTICE DATED 20/10/2020 ISSUED BY SRI. SREELAL S., ADVOCATE COMMISSIONER IN IA NO.792/2020 IN APPEAL NO.426/2020. EXHIBIT P24 TRUE COPY OF THE NOTICE DATED 23/10/2020 ISSUED BY THE 4TH RESPONDENT AND RECEIVED BY THE PETITIONERS ON 27/10/2020.

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EXHIBIT P25 TRUE COPY OF THE PROCEEDINGS OF 1ST RESPONDENT DATED 10.5.2010.

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RESPONDENT'S/S EXHIBITS: EXHIBIT R3(a) TRUE PHOTOCOPY OF THE PLANS SUBMITTED BY PETITIONER NO.1 ALONG WITH THE APPLICATION FOR BA NO 755/2011

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EXHIBIT R3(b) TRUE COPY OF THE REPLY DATED 19.11.2014 ISSUED BY THE PUBLIC INFORMATION OFFICER OF RESPONDENT NO.1 MUNICIPALITY EXHIBIT R3(c) TRUE PHOTOCOPY OF THE REPORT OF THE ADVOCATE COMMISSIONER IN WA NO. 2647 OF 2015 DATED 12.5.2016 EXHIBIT R3(d) TRUE PHOTOCOPY OF THE APPLICATION DATED 10.11.2020 FILED BEFORE RESPONDENT NO.1 ALONG WITH ITS RECEIPT EXHIBIT R3(e) TRUE PHOTOCOPY OF THE REPLY DATED 29.2.2020 ISSUED BY THE PUBLIC INFORMATION OFFICER OF RESPONDENT NO.1 MUNICIPALITY

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EXHIBIT R3(f) TRUE PHOTOCOPY OF THE COMPLAINT, DATED 01.06.2020, SUBMITTED BY RESPONDENT NO.3 ALONG WITH ITS RECEIPT

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EXHIBIT R3(g) TRUE PHOTOCOPY OF THE REPLY DATED 14.08.2020 ISSUED BY RESPONDENT NO.1 EXHIBIT R3(h) ORIGINAL OF THE FILE REGARDING BA NO. 697/2019 OBTAINED FROM RESPONDENT NO.1 MUNICIPALITY UNDER THE RIGHT TO INFORMATION ACT, 2005

K.H.Abdul Majeed v. the Kalamassery Municipality

Case brief

What is this about?

What did the court decide?

K.H.Abdul Majeed v. the Kalamassery Municipality

Case brief

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