Allowed

Raju Varghese v. Thrippunithura Municipality

Kerala HC7 Jan 2021WP(C)/9657/2019

Case brief

AI extract

What is this about?

The Kerala High Court allowed a writ petition filed by landowners against the Thirippunithura Municipality. The court held that the Municipality inappropriately failed to revoke a suspension and to renew their valid building permit despite the petitioners producing all required documents. The court directed the respondents to renew the permit within one month.

What did the court decide?

The writ petition is allowed; respondents directed to renew the building permit for the usual period to enable completion of construction within one month.

Raju Varghese Vs Thrippunithura Municipality — Writ and Judicial Review | 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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THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942 WP(C).No.9657 OF 2019(F)

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PETITIONERS:

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1 RAJU VARGHESE AGED 66 YEARS S/O LATE M.I.VARKEY,MUKKADACKAL HOUSE,SEAPORT AIRPORT ROAD, IRUMPANAM.P.O,THIRUVANKULAM VILLAGE,-682309.

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2 JOBY RAJ, AGED 35 YEARS S/O RAJU VARGHESE,MUKKADACKAL HOUSE, SEAPORT AIRPORT ROAD,IRUMPAANAM.P.O, THIRUVANKULAM VILLAGE-682309.

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BY ADVS. SRI.JOLLY JOHN SMT.LIZA MEGHAN CYRIAC

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RESPONDENTS:

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1 THRIPPUNITHURA MUNICIPALITY REPRESENTED BY ITS SECRETARY, THRIPPUNITHURA.P.O.682301,ERNAKULAM, REPRESENTED BY THE SECRETARY.

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2 SECRETARY, THRIPPUNITHURA MUNICIPALITY, THRIPPUNITHURA.P.O.682031, ERNAKULAM DISTRICT.

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R1-2 BY ADV. SRI.C.V.MANUVILSAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.9657 OF 2019(F)

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W.P.(C) No.9657 of 2019

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J U D G M E N T

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The first petitioner is the father of the second petitioner. The petitioners hold adjoining lands covered by Exts.P1 and P2 sale deeds. They have obtained a building permit to put up a commercial building in the said lands from the first respondent Municipality on 27.09.2014. Ext.P3 is the building permit obtained by the petitioners. Ext.P3 was valid for a period of three years. It is stated that while the construction of the building was proceeding on the basis of Ext.P3 building permit, a stranger preferred a complaint before the Municipality alleging that the petitioners have encroached upon the adjoining PWD Puramboke as also river Puramboke in the matter of effecting the construction. The second respondent, in the circumstances, issued Ext.P6 communication to the petitioners calling upon them to produce the survey sketch and the possession certificate of their lands and directed the petitioners to stop the construction carried on by them. In Ext.P6, it was also mentioned by the second respondent that t he petitioners have not made available the No Objection Certificate of the Fire Services Department in terms of the

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WP(C).No.9657 OF 2019(F)

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building permit. The petitioners could not comply with the directions in Ext.P6 communication. Consequently, building permit granted to the petitioners has been suspended by the second respondent. Ext.P7 is the communication issued by the second respondent to the petitioners in this regard. It is stated by the petitioners that as required by the second respondent, the Tahasildar concerned has forwarded Ext.P8 report and sketch of the lands of the petitioners on 16.02.2016. Subsequently, on 29.09.2016, the petitioners have obtained No Objection Certificate from the Fire Services Department and the same also produced by them before the Municipality. It is stated that despite production of the documents referred to above, the suspension of the building permit was not revoked by the Municipality. In the meanwhile, as the validity of the building permit obtained by the petitioners was due to expire, the petitioners preferred an application for renewal of the building permit on 29.08.2017. Ext.P11 is the application preferred by the petitioners in this regard. It is alleged by the petitioners that Ext.P11 has not been considered. The writ petition is filed in the circumstances seeking directions to the respondents to renew Ext.P3 building permit so as to enable them to complete the construction carried on by them.

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A statement has been filed on behalf of the respondents. The fact that the petitioners have produced the

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WP(C).No.9657 OF 2019(F)

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documents required in Ext.P6 and complied with the cond ition in the building permit concerning production of the No O bjection Certificate from the Fire Services Department is not disputed by the Municipality in the statement. It is also admitted by the Municipality in paragraph 7 of the statement that the petitioners have not made any encroachment. As regards the inaction on the part of the Municipality in not considering the request of the petitioners for vacating the order suspending the building permit and the inaction on the part of the Municipality in not considering the application preferred by the petitioners for renewal of the building permit, it is vaguely stated by the Municipality in the statement that it is due to the delay on the part of the petitioners in curing the defects noted by the Municipality.

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Heard the learned counsel for the petitioners.

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It is seen that all the documents required by the Municipality so as t o enable th e petitioners to continue the construction covered by Ext.P3 building permit have been made available by the petitioners by September 2016. The Municipality has no case in the statement that the petitioners are not entitled to construct the building covered by Ext.P3 building permit or that they have not complied with any of the requirements of the Municipality concerning the same. In the circumstances, according to me, it was highly inappropriate for the Municipality to refuse to vacate the

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WP(C).No.9657 OF 2019(F)

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suspension of the building permit granted to the petitioners. Similarly, it was highly inappropriate in the aforesaid circumstances for the Municipality to delay consideration of the application submitted by the petitioners for renewal of the building permit applied for by them on 29.08.2017. Having stopped the construction carried on by the petitioners investing sizable amounts midway, the Municipality was obliged in law to vacate the suspension of the building permit once it was found that the complaint against the construction was without any basis. Similarly, it is seen that it was due to the interdiction of the Municipality that the petitioners could not have completed the construction within the time stipulated originally in the building permit. The Municipality, in the circumstances, is obliged to renew the building permit so as to enable the petitioners to complete the construction in terms of the building permit issued to them.

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In the circumstances, the writ petition is allowed and the respondents are directed to renew Ext.P3 building permit for the usual period of renewal so as to enable the petitioners to complete the construction proposed by them. This shall be done within one month.

Sd/-

P.B.SURESH KUMAR

JUDGE

WP(C).No.9657 OF 2019(F)

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE SALE DEED NO 2848/06 DATED 26/06/2006 EXECUTED BY MR.JOHN PAULO IN FAVOR OF THE 1ST PETITIONER.
EXHIBIT P2	TRUE COPY OF THE SALE DEED NO.2900/06 DATED 26/06/2006 EXECUTED BY MR.JOHN PAULO IN FAVOR OF THE 2ND RESPONDENT
EXHIBIT P3	TRUE COPY OF THE BUILDING PERMIT DATED 27/09/2014 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONERS.
EXHIBIT P4	TRUE COPY OF THE NOTICE DATED 11/06/2015 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONERS.
EXHIBIT P5	TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 12/06/2015.
EXHIBIT P6	TRUE COPY OF THE NOTICE FROM THE 2ND RESPONDENT DATED 18/06/2015 TO THE PETITIONERS.
EXHIBIT P7	TRUE COPY OF THE STOP MEMO DATED 25/09/2015 FROM THE 2ND RESPONDENT.
EXHIBIT P8	TRUE COPY OF THE REPORT OF THE ADDITIONAL TAHSILDAR DATED 16/2/2016 ALONG WITH THE SURVEY SKETCH DATED 3/12/2015
EXHIBIT P9	TRUE COPY OF THE FIRE SAFETY CLEARANCE FOR SITE DATED 29/09/2016.
EXHIBIT P10	TRUE COPY OF THE APPLICATION BY THE PETITIONERS TO THE 2ND RESPONDENT DATED 14/10/2016 FOR CONTINUATION OF CONSTRUCTION EXHIBIT P-2 BUILDIG PERMIT.
EXHIBIT P11	TRUE COPY OF THE APPLICATION BY THE PETITIONERS' TO THE 2ND RESPONDENT DATED 29/08/2017 ALONG WITH THE RESPECT OF ACKNOWLEDGMENT
EXHIBIT P12	TRUE COPY OF THE APPLICATION ALONG WITH THE COVERING LETTER FILED BY THE PETITIONER

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WP(C).No.9657 OF 2019(F)

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BEFORE THE SECOND RESPONDENT DATED 22/01/2019

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EXHIBIT P13 TRUE COPY OF THE APPLICATION WITH THE COVERING LETTER FILED BY THE PETITIONER BEFORE THE SECOND RESPONDENT DATED 25/02/2019.

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EXHIBIT P14 ORIGINALS OF THE PHOTOGRAPHS OF THE CONSTRUCTION SITE OF THE PETITIONERS' TAKEN IN THE MONTH OF FEBRUARY.

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//TRUE COPY// PA TO JUDGE

Raju Varghese v. Thrippunithura Municipality

Case brief

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Raju Varghese v. Thrippunithura Municipality

Case brief

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