Dismissed

Moncy Daniel v. the Alappuzha Municipality

Kerala HC4 Jan 2022WP(C)/3082/2021

Case brief

AI extract

What is this about?

Petitioner challenged Tribunal and Municipality orders directing demolition of an unauthorized commercial building. Court upheld the rejection of regularisation application due to construction defects and non-compliance with approved plans, dismissing the writ petition against the impugned orders.

What did the court decide?

The writ petition challenging the Tribunal's order and the Municipality's notice for demolition of the building was dismissed.

Moncy Daniel Vs the Alappuzha Municipality — Property and Title | Kerala HC (2022)

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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 N.NAGARESH

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TUESDAY, THE 4^TH DAY OF JANUARY 2022 / 14TH POUSHA, 1943 WP(C) NO. 3082 OF 2021

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PETITIONER:

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MONCY DANIEL AGED 53 YEARS S/O. LATE DANIEL, RESIDING AT PANCHOOR HOUSE, MULLAKKAL WARD, ALAPPUZHA P.O. 688 001.

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BY ADVS. K.S.HARIHARAPUTHRAN SMT.BHANU THILAK

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RESPONDENTS:

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1 THE ALAPPUZHA MUNICIPALITY REPRESENTED BY ITS SECRETARY, ALAPPUZHA P.O.-688 001.

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2 THE SECRETARY ALAPPUZHA MUNICIPALITY, ALAPPUZHA P.O.-688 001.

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3 N.A.MUHAMMED KUNJU AGED 59 YEARS S/O. N.M.ABDUL SALAM, NARANJI HOUSE, CCSB ROAD, ALAPPUZHA DISTRICT-688 001.

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BY ADVS.

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SRI.P.K.MANOJKUMAR SMT.SMITHA S.PILLAI SMT.ALICE THOMAS SMT.M.C.SINY SHRI.R.AZAD BABU, SC, ALAPPUZHA MUNICIPALITY

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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J U D G M E N T

~ ~ ~ ~ ~ ~ ~ ~ ~

Dated this the 4^th day of January, 2022

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The petitioner, who is owner of 12.47 Acres of property in Survey No.525/9/3 of Alappuzha West Village,

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seeks to set aside Ext.P7 Order of the Municipality and Ext.P9 order of the Tribunal for Local Self Government Institutions.

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With a valid permit, the petitioner constructed a three storied commercial building in the year 2010. On 24.06.2015, the petitioner submitted Ext.P1 application for regularisation of the building. Meanwhile, the 1^st respondentMunicipality issued Ext.P2 order dated 18.12.2015 requiring the petitioner to demolish alleged unauthorised construction. The 3^rd respondent filed WP(C) No.4205/2016 seeking to implement demolition order. By Ext.P3 judgment, this Court directed respondents 1 and 2 to consider application for regularisation filed by the petitioner.

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Thereafter, the Municipal Engineer issued Ext.P5 notice stating that there are certain defects in the building construction and the application for regularisation can be considered only after rectifying the defects. The petitioner also received Ext.P6 notice of the 1^st respondent which alleged that the building construction violates Rule 24(8) of the Kerala Municipality Building Rules. A further notice, Ext.P7, was issued to the petitioner to demolish the building within 48 hours. The petitioner submits that respondents 1 and 2 are bound to forward the application for regularisation of the building, submitted by the petitioner, to the Government. Without doing so, respondents 1 and 2 are issuing notices to the petitioner threatening with demolition.

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The petitioner filed Appeal No.459/2019 before the Tribunal for Local Self Government Institutions challenging Exts.P5 and P7. The Tribunal, without properly appreciating the facts of the case, dismissed the appeal as per Ext.P9 order.

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The learned counsel for the petitioner argued that when an application for regularisation is submitted by the petitioner, respondents 1 and 2 are bound to forward the application to the Government along with the report/ recommendations. But, respondents 1 and 2 are withholding the petitioner’s application for regularisation illegally and at the same time, proceeding against the petitioner for demolishing the building.

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There is no violation of Rule 24(8) of the KMBR, contended the learned counsel for the petitioner. The Tribunal failed to note that the petitioner had already cured the defects and intimated the said fact to the respondents. Ext.P9 order of the Tribunal is highly arbitrary and unsustainable, contended the petitioner.

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The 3^rd respondent, who is a neighboring property owner, filed counter affidavit and resisted the writ petition. The 3^rd respondent stated that as per the Building Permit, total height of the building is 10 metres. There was no provision for any window on the western side of the petitioner’s building.

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The petitioner, however, left provisions for numerous windows on the western side, violating the approved plan. The approved height of the Building which is 10 metres is enhanced to 12.17 metres. The Building Inspector of the Municipality submitted reports dated 03.08.2010 and 05.03.2011 stating that the construction is illegal. Hence, a Stop Memo was issued on 23.09.2011. In spite of the Stop Memo, the petitioner proceeded with the illegal construction.

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The 3^rd respondent was forced to file writ petitions and contempt cases to force the authorities to act against illegal construction by the petitioner. Finally, the 2^nd respondent issued Ext.R3(e) order dated 19.09.2012 under Section 406 of the Kerala Municipality Act, directing the petitioner to demolish unauthorised constructions. The Tribunal for Local Self Government Institutions rightly dismissed the appeal filed by the petitioner, urged the 3^rd respondent.

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I have heard the counsel for the petitioner, the Standing Counsel for respondents 1 and 2 and the counsel for

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the 3^rd respondent.

The challenge is against Ext.P9 order dated 12.01.2021 of the Tribunal for Local Self Government Institutions in Appeal No.459/2019 filed by the petitioner challenging Ext.P7 order of the Municipality by which the petitioner was directed to demolish the illegal constructions. The Tribunal considered the facts involved and after appreciating the arguments observed that the petitioner has submitted an application for regularisation of unauthorised construction. The Municipal Engineer reported that the petitioner had undertaken to demolish the unauthorised portion, but did not demolish. Therefore, a demolition notice was issued. The regularisation application submitted by the petitioner was disposed of by the Municipality.

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The Municipal authorities had informed the petitioner that the regularisation application can be considered only after certain defects were rectified. The petitioner did not rectify those defects, in spite of the undertaking given. Sufficient opportunity was afforded to the petitioner to rectify

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the defects. The Tribunal noted that in view of Rule 5(3) of the Kerala Municipal (Regularisation of Unauthorised Construction) Rules, 2014, sending all documents to the Government for regularisation arises only if the application is found to be in order by the Secretary.

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The Tribunal noted that under the new Regularisation Rules of the year 2018, there is no provision to reconsider regularisation application. The Tribunal found that the regularisation application filed by the petitioner was rejected by respondents 1 and 2 on valid grounds.

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The Tribunal has considered all aspects of the application for regularisation submitted by the petitioner and found that the rejection of application is justified under law. This Court finds no error in the findings of the Tribunal. Therefore, the challenge against Exts.P7 and P9 made by the petitioner must fail.

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The writ petition is therefore dismissed.

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Sd/- N. NAGARESH, JUDGE

aks/03.01.2022

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APPENDIX OF WP(C) 3082/2021

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PETITIONER'S EXHIBITS

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EXHIBIT P1 TRUE COPY OF APPLICATION DATED 24.6.2015 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT. EXHIBIT P2 TRUE COPY OF THE ORDER NO.E5-126/05-06 DATED 18.12.2015 ISSUED BY THE IST RESPONDENT. EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN WPC NO.4205/2016 DATED 11.12.2018 OF THIS HON'BLE COURT. EXHIBIT P4 TRUE COPY OF RECEIPT DATED 31.12.2018 ISSUED BY THE IST RESPONDENT MUNICIPALITY. EXHIBIT P5 TRUE COPY OF THE NOTICE NO.E6-29258/18 DATED 31.5.2019 ISSUED BY THE IST RESPONDENT. EXHIBIT P6 TRUE COPY OF THE NOTICE NO.E6-29258/18 DATED 7.6.2019 ISSUED BY THE IST RESPONDENT. EXHIBIT P7 TRUE COPY OF THE NOTICE NO.E6/29258/18 DATED 1.7.2019 ISSUED BY THE RESPONDENT. EXHIBIT P8 TRUE COPY OF THE ORDER DATED 4.7.2019 IN I.A.97/2019 IN APPEAL NO.459/2019 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTION, THIRUVANANTHAPURAM. EXHIBIT P9 TRUE COY OF THE ORDER DATED 12.1.2021 IN APPEAL NO.459/2019 OF THE TRIBUNAL FOR LOCAL SELF, GOVT. INSTITUTION, THIRUVANANTHAPURAM. RESPONDENT EXHIBITS EXHIBIT R3(a): THE PHOTOSTAT COPY OF THE JUDGMENT DATED 28/02/2012 IN WPC.NO.15621/2010. EXHIBIT R3(b): THE PHOTOSTAT COPY OF THE AFFIDAVIT FILED BY THE 2ND RESPONDENT IN THE CONTEMPT OF COURT CASE. EXHIBIT R3(c): THE PHOTOSTAT COPY OF THE ORDER NO.E5126/05-06 DATED 16/07/2012.

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EXHIBIT R3(d): THE PHOTOCOPY OF THE JUDGMENT DATED 26/07/2012 CON.CASE(C)NO.999/2012 IN WPC.NO.15621/2010. EXHIBIT R3(e): THE PHOTOSTAT COPY OF THE ORDER NO.E5126/05-06 DATED 19/09/2012. EXHIBIT R3(f): THE PHOTOSTAT COPY OF THEJUDGMENT DATED 13/01/2015 IN WPC.24712/2012. EXHIBIT R3(g): THE PHOTOSTAT COPY OF THE JUDGMENT DATED 13/01/2015 IN CON.CASE (c).NO.880/2015 IN WP(c).NO.24712/2012. EXHIBIT R3(h): THE PHOTOSTAT COPY OF THE ORDER NO.E5126/05-06 DATED 18/12/2015 PASSED BY THE 2ND RESPONDENT ON THE BASIS OF EXHIBIT R3(f) JUDGMENT RENDERED BY THIS HON.BLE COURT. EXHIBIT R3(i): THE PHOTOCOPY OF THE JUDGMENT IN WP(c).NO.4205/2016 DATED 11/12/2018. EXHIBIT R3(j): THE PHOTOSTAT COPY OF THE JUDGMENT DATED 24/08/2020 CON.CASE(c) NO.736/2019 IN WP(c).NO.4205/2016.

Moncy Daniel v. the Alappuzha Municipality

Case brief

What is this about?

What did the court decide?

Moncy Daniel v. the Alappuzha Municipality

Case brief

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What did the court decide?

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