Disposed

Puthiya Ogintakath Hashim v. 1. the Calicut Corporation Rep. by Its Secretary

Kerala HC17 Nov 2022WP(C)/32439/2022

Case brief

AI extract

What is this about?

Petitioner challenged notices and orders for unlawful construction while abroad. Court dismissed writ but directed respondents to consider a regularisation application and defer coercive action pending that decision and CRZ clearance.

What did the court decide?

Respondents to consider the petitioner's regularisation application; proceedings pursuant to Ext.P8 deferred till a final order on regularisation is passed.

Puthiya Ogintakath Hashim Vs 1. the Calicut Corporation… — 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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THURSDAY, THE 17TH DAY OF NOVEMBER 2022 / 26TH KARTHIKA, 1944

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WP(C) NO. 32439 OF 2022

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PETITIONER

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PUTHIYA OGINTAKATH HASHIM
AGED 69 YEARS
S/O.P.I.AHMED KOYA, 4/1219-A, BAITH HOUSE, BEACH
ROAD, KOZHIKODE, PIN – 673032

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BY ADVS.
NIRMAL.S
VEENA HARI
RIA ELIZABETH JOSEPH
IRENE ELZA SOJI
K. REMIYA RAMACHANDRAN
VARUN MURALEEDHARAN

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RESPONDENTS

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1 THE CALICUT CORPORATION REP. BY ITS SECRETARY KOZHIKODE MUNICIPAL CORPORATION OFFICE, BEACH ROAD, NEAR AKASHVANI, KOZHIKODE, PIN – 673032

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2 THE SECRETARY KOZHIKODE MUNICIPAL CORPORATION OFFICE, KOZHIKODE MUNICIPAL CORPORATION, BEACH ROAD, NEAR AKASHVANI, KOZHIKODE, PIN – 673032

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BY ADV G.SANTHOSH KUMAR (P).

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 17.11.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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W.P(C) No. 32439 of 2022 ]

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J U D G M E N T

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Dated this the 17^th day of November, 2022

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The petitioner states that he is engaged in the export and manufacture of wooden boats. The petitioner, his daughter and his son are owners of property comprised in Re-Survey No.92/3 having an extent of 2.945 Ares in Nagaram Village in Kozhikode Taluk. As the building was an old one, the petitioner submitted application for Building Permit for reconstruction of roof. The petitioner states that the 1^st respondent- Corporation issued Ext.P4 and granted sanction for reconstruction of the roof.

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A notice was, however, issued alleging that the petitioner has made unauthorised construction. When notice was issued, the petitioner was not in India and was abroad. Notice was not handed over by the postman to the petitioner’s wife. The wife of the petitioner informed the

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W.P(C) No. 32439 of 2022 3 ] respondents that the petitioner is still abroad and has not come back. In the meanwhile, the respondents have confirmed Ext.P10 preliminary notice issued under Section 406(2) of the Kerala Municipalities Act, as per Ext.P8. By Ext.P8, the petitioner was required to demolish the building construction within 15 days.

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The grievance of the petitioner is that the petitioner was not given an effective opportunity to give reply to Ext.P10. The petitioner was abroad when Ext.P10 was issued. The attempt made by the petitioner's wife to obtain a copy of Ext.P10 was not successful. Ext.P8 was passed without hearing the petitioner.

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Thereafter, by Ext.P11, the Secretary to the Municipality cancelled the Building Permit issued to the petitioner for reconstruction of the roof. In Ext.P11, it was alleged that manipulations were made in the ‘Sanchaya’

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W.P(C) No. 32439 of 2022 4 ] Software and Permit was obtained by the petitioner

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clandestinely. The petitioner challenges Exts.P8, P10 and P11.

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The respondents entered appearance through Standing Counsel and resisted the writ petition. The respondents stated that the petitioner was granted permission only for constructing a concrete roof by changing the existing roof. However, the petitioner has demolished the entire building and put up a new building. The building now constructed by the petitioner is in gross violation of the Kerala Municipality Building Rules and CRZ norms.

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6 . The Standing Counsel would assert that the Kerala Municipality Building Rules stand violated. The building numbers were obtained by the petitioner unlawfully manipulating the ‘Sanchaya’ Software. The construction of the building is not reflected in the Assessment Register. The Vigilance Wing of the Corporation is making an enquiry in the matter. The petitioner has committed gross violations of the

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W.P(C) No. 32439 of 2022 5 ]

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Building Rules. The writ petition is therefore liable to be dismissed.

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I have heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents.

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The grievance projected by the petitioner is that the respondents have issued Ext.P10 notice under Section 406(2) of the Kerala Municipalities Act while the petitioner was abroad. Inspite of the request and attempts made by the petitioner’s wife, Section 406(2) notice or a copy of it could not be obtained by them so as to give an effective reply. Ext.P8 order has been passed in gross violation of the principles of natural justice.

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9 . It is the case of the petitioner that had the petitioner been given an opportunity to defend Ext.P10, Ext.P8 would not have been passed. The Standing Counsel, on the other hand, would argue that the petitioner was aware of the proceedings and construction was done in violation of the Building Rules by the petitioner himself.

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W.P(C) No. 32439 of 2022 6 ]

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During the pendency of the writ petition, the petitioner has preferred Ext.P12 application for regularisation of the building construction made by the petitioner. If the petitioner has filed application for regularisation, this Court is of the view that the same can be considered by the respondents before taking any coercive action pursuant to Ext.P8.

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In the circumstances, the writ petition is disposed of directing the respondents to consider Ext.P12 application for regularisation submitted by the petitioner. If the constructions are regularisable under the Kerala Municipality Building Rules, the respondents may regularise the same. If clearance from the CRZ is necessary, the petitioner and the respondents shall take steps for forwarding appropriate application to the CRZ Authroities. Proceedings pursuant to Ext.P8 shall stand deferred till a final order is passed by the respondents on the application for regularisation of the building. It is made clear

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W.P(C) No. 32439 of 2022 ]

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that this judgment shall not in any manner affect the Vigilance Enquiry or any other proceedings on allegation of fraud committed by the petitioner or anyone on his behalf.

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Sd/-

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N. NAGARESH, JUDGE

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smm

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W.P(C) No. 32439 of 2022 ]

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APPENDIX OF WP(C) 32439/2022

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`PETITIONER EXHI` `Exhibit P1`	`BITS` `TRUE COPY OF THE BASIC TAX RECEIPT` `DATED 27/08/2020`
`Exhibit P2`	`TRUE COPY OF THE POSSESSION CERTIFICATE` `DATED 09/09/2020`
`Exhibit P3`	`TRUE COPY OF THE BUILDING TAX RECEIPTS` `DATED 16/09/2020 ISSUED FOR THE SHOP` `ROOMS BELONGING TO THE PETITIONER`
`Exhibit P4`	`TRUE COPY OF THE SITE APPROVAL AND` `BUILDING PERMIT DATED 28/05/2021 BY THE` `RESPONDENT CORPORATION FOR THE` `CONSTRUCTION OF THE ROOF`
`Exhibit5`	`TRUE COPY OF THE PASSPORT OF THE` `PETITIONER EVIDENCING THE FACT THAT THE` `PETITIONER WAS OUT OF STATION AND WAS` `IN QATAR IN CONNECTION WITH HIS` `BUSINESS`
`Exhibit P6`	`TRUE COPY OF THE LETTER DATED` `12/07/2022 SENT BY THE PETITIONER'S` `WIFE TO THE SECRETARY OF THE CALICUT` `CORPORATION TOGETHER WITH THE RECEIPT` `ISSUED BY THE CORPORATION`
`Exhibit P7`	`TRUE COPY OF THE LETTER PREFERRED BY` `THE PETITIONER'S WIFE BEFORE THE 2ND` `RESPONDENT DATED 06/08/2022`
`Exhibit P8`	`TRUE COPY OF THE ORDER DATED 14/09/2022` `ISSUED BY THE RESPONDENTS`
`Exhibit P9`	`TRUE COPY OF THE LETTER DATED 03/10/` `2022`
`Exhibit P10`	`TRUE COPY OF THE COVERING LETTER DATED` `25/05/2022 TOGETHER WITH THE` `PRELIMINARY ORDER DATED 28/05/2022` `PASSED U/SEC. 406(2)`
`Exhibit P11`	`TRUE COPY OF THE ORDER TP9/80884/21` `DATED 29/06/2022`
`Exhibit P12`	`TRUE COPY OF THE APPLICATION FOR` `REGULARISATION/BUILDING PERMIT DATED` `21/10/2022 ALONG WITH THE` `ACKNOWLEDGMENT RECEIPT`

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W.P(C) No. 32439 of 2022 9 ]

Puthiya Ogintakath Hashim v. 1. the Calicut Corporation Rep. by Its Secretary

Case brief

What is this about?

What did the court decide?

Puthiya Ogintakath Hashim v. 1. the Calicut Corporation Rep. by Its Secretary

Case brief

What is this about?

What did the court decide?

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