Dismissed

K.Somasekharan Nair v. the Secretary

Kerala HC10 Oct 2022RP/187/2021

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a review petition challenging a PIL regarding illegal hotel constructions. The Court held that all contentions regarding building height, regularization, and categorization were adequately considered in the original judgment, and no error was apparent on the face of the record.

What did the court decide?

The Review Petition was dismissed without any relief being granted.

K.Somasekharan Nair Vs the Secretary — Property and Title | Kerala HC (2022)

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R.P. No. 187/2021

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: 1:

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 10^TH DAY OF OCTOBER 2022 / 18TH ASWINA, 1944

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RP NO. 187 OF 2021

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JUDGMENT DATED 28.01.2021 IN WP(C) 10818/2017 OF HIGH COURT OF

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KERALA

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REVIEW PETITIONER/PETITIONER IN W.P.©:

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K.SOMASEKHARAN NAIR AGED 78 YEARS S/O. K.K KUNJAN PILLAI, BHAVANI, CHERUPPORAKONAM, MELAMCODE, PAZHUKUTTY, NEDUMANGAD, THIRUVANANTHAPURAM 695 565.

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BY ADVS. S.GOPAKUMARAN NAIR (SR.) SRI.SOORAJ T.ELENJICKAL SRI.D.S.SREEKUMARAN SMT.T.S.MAYA (THIYADIL) ADV. SHAHIR SHOUKAT ALI

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RESPONDENTS/RESPONDENTS IN W.P.©:

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1 THE SECRETARY

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THE NEDUMANGAD MUNICIPALITY, MUNICIPAL OFFICE, NEDUMANGAD, THIRUVANANTHAPURAM 695 541.

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2 THE CHIEF TOWN PLANNER, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM 695 003.

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3 ABDUL RASHEED, S/O. ALIYAR (KNOWN AS HEERA BAB) CITADEL, GOLF LINKS ROAD, KOWDIAR, THIRUVANANTHAPURAM 695 003.

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4 THE DIVISIONAL OFFICER, OFFICE OF THE DIVISIONAL OFFICER, FIRE AND RESCUE SERVICES, THIRUVANANTHAPURAM 695 001.

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5 BIJU RAMESH S/O RAMESH,

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PARTNER HOTEL MYTHRI, RAJADHANI BUILDING, EAST FORT, THIRUVANANTHAPURAM-695 023.

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6 ARUN DINAKAR S/O DINAKARAN, PARTNER HOTEL MYTHRI, RAJADHANI BUILDING, EAST FORT, THIRUVANANTHAPURAM-695 023.

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R.P. No. 187/2021 : 2:

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7 ASSISTANT DIRECTOR GENERAL (H AND R) MEMBER SECRETARY (HRACC), MINISTRY OF TOURISM ,GOVERNMENT OF INDIA, C-1, HUTMENTS, DALHOUSIE ROAD, NEW DELHI- 110 011.

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THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 10.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.P. No. 187/2021

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: 3:

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S. MANIKUMAR, CJ & SHAJI P. CHALY, J.

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R.P. No. 187 of 2021

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in W.P.(C) No. 10818 of 2017

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Dated this the 10^th day of October, 2022.

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ORDER

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SHAJI P. CHALY, J.

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This Review Petition is filed by the petitioner in W.P.(C) No. 10818 of 2017 seeking to review the judgment dated 28.01.2021 in the aforesaid writ petition, a Public Interest Litigation alleging that illegal constructions are carried out by respondents 3, 5, and 6 in violation of the Kerala Municipality Act, 1994 (‘Act, 1994’ for short).

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This Court, after elaborately considering the issues raised by the rival parties, dismissed the writ petition taking note of each and every aspect pointed out by the review petitioner, including the issue with respect to the height of the building, regularization done, completion certificate issued and the number assigned to the building in question.

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The paramount contention advanced in the review petition is that from Exhibit P9 occupancy certificate, it is evident that regularization and occupancy was granted to the building under the mercantile category (Group F) under Rule 30(g) of the Act, 1994. However, the definition of ‘mercantile group’ under the said rule shows that only mercantile and trading usages are permitted under the said group, which cannot accommodate a hotel, much less a

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R.P. No. 187/2021

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: 4:

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Four Star Hotel under that category.

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It is also contended that the Vigilance Inspector, who had submitted Exhibit R5(a) report finding that the height of the building is 14.92m only, has not measured the height from the average centre point of the adjoining road. It is further contended that the Tribunal for Local Self Government Institutions also does not have a case in Exhibit R5(b) order that the height of the building should not be measured from the average centre point of the adjoining road.

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That apart, it is submitted that the authorities have, in fact, measured the height of the building from the ground level, but treated the ground floor of the building as the basement/cellar and thereby, reducing one floor of the building while measuring the height and reducing the five storied building as a four storied one. Other contentions are also raised with respect to the findings with regard to the measurement of the height of the building.

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We have heard Sri. Shahir Showkath Ali for the Review Petitioner, the learned Senior Government Pleader and the learned Standing Counsel for the respondent Municipality, and perused the pleadings and materials on record.

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The sole question to be considered is whether the petitioner is entitled to get any relief in the Review Petition. When the contentions raised in the Review Petition are considered taking into account the findings rendered in the judgment, we are of the

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R.P. No. 187/2021 : 5:

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undoubted opinion that all those aspects were considered by this Court in the judgment in question. Each of the provisions of the Act, 1994 required for the disposal of the writ petition was taken into account, and after appreciating the facts, circumstances and the law involved in the subject matter alone the findings were rendered.

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Therefore, having rendered the findings assigning reasons in accordance with law and the facts, it cannot be said that there is any error apparent on the face of the record or other legal infirmities enabling the Review Petitioner to seek review of the judgment.

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Taking into account the above aspects, we have no hesitation to hold that the Review Petitioner has not made out any case for reviewing the judgment, there being no error apparent on the face of the record or any other infirmities, justifying us to interfere with the judgment.

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Needless to say, the Review Petition fails and accordingly, it

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is dismissed.

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sd/-

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S. MANIKUMAR, CHIEF JUSTICE.

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sd/-

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SHAJI P. CHALY, JUDGE.

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K.Somasekharan Nair v. the Secretary

Case brief

What is this about?

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K.Somasekharan Nair v. the Secretary

Case brief

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