Allowed

K M Asha v. the State of Kerala Represented by the Secretary to the Government

Kerala HC3 Jun 2024WP(C)/12991/2023

Case brief

AI extract

What is this about?

A building owner's regularisation application was rejected for being filed jointly with persons lacking title over the plot and for set-back violations. The court found a violation of natural justice as she was not heard and no objection existed from neighbours. It quashed the rejection orders and directed fresh consideration of a new regularisation application within fixed timelines.

What the court decided

AI extract

K M Asha Vs the State of Kerala Represented by… — Municipal and Town Planning | Kerala HC (2024)

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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 MOHAMMED NIAS C.P.

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MONDAY, THE 3^RD DAY OF JUNE 2024 / 13TH JYAISHTA, 1946

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WP(C) NO. 12991 OF 2023

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PETITIONER:

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K M ASHA AGED 44 YEARS D/O MUHAMMED, RESIDING IN THE ADDRESS KANISAMKANDI MUCHIKOOTATHIL HOUSE, ANSHAS, TIPPU SULTHAN ROAD, CHALIYAM P O, KOZHIKODE, PIN - 673301 BY ADV G.SREEKUMAR (CHELUR)

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RESPONDENTS:

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1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM P O, THIRUVANANTHAPURAM DISTRICT, PIN - 695001

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2 THE KOZHIKODE MUNICIPAL CORPORATION OFFICE OF THE KOZHIKODE MUNICIPAL CORPORATION , BEACH ROAD, REPRESENTED BY ITS SECRETARY, KOZHIKODE P O, KOZHIKODE DISTRICT, PIN - 673001

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3 THE SECRETARY KOZHIKODE MUNICIPAL CORPORATION, OFFICE OF THE KOZHIKODE MUNICIPAL CORPORATION , BEACH ROAD, KOZHIKODE P O, KOZHIKODE DISTRICT, PIN - 673001 BY ADV V KRISHNA MENON

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OTHER PRESENT:

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SMT.G.SHEEBA, GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 12991 OF 2023

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MOHAMMED NIAS C.P, J.

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======================== W.P.(C.) No. 12991 of 2023

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========================

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Dated this the 3^rd day of June, 2024

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J U D G M E N T

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The petitioner put up a building on the strength of the permit granted by the Kozhikode Municipal Corporation, and he submitted the completion of the plan and the occupancy certificate. Pursuant to her application, the inspection conducted by the authorities under respondents 2 and 3, found violations of the permit and non-compliance of the statutory requirements. In view of the nature of the objections raised, the petitioner, possibly to avoid disputes, filed an application seeking regularisation along with the neighbours, (the assignees in Ext.P2 and P3) by submitting a joint application along with the revised plan.

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One of the objections pointed out by the Corporation was that a portion of the completed construction protrudes into the neighbouring plots owned by the assignees in Exts.P2 and P3, who are the joint applicants. The application made by the above-mentioned persons marked as Ext.P8 shows that the other applicants did not have any objection to the construction effected by the petitioner. By Ext.P9 order dated 05.01.2022 the application was rejected primarily for the reason that the application was made by the petitioner and two others who did not have any right over the plot on which the subject building is situated. The 2^nd defect noticed was that the

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WP(C) NO. 12991 OF 2023

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construction was made without leaving the requisite set back. Consequential orders were also passed, Ext.P10 dated 04.08.2022 rejecting the application. The writ petition was filed on 10.04.2023 challenging Exts.P9 and P10 orders.

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The learned Counsel appearing for the Corporation argues that the petitioner has not availed the statutory remedy for challenging Exts.P9 and P10 orders and the writ petition filed after the expiry of the time granted under law to challenge the same, is not maintainable. The learned Counsel relies on the judgments in Assistant Commissioner of Central Excise v. Krishna Poduval (2005 (4) KLT 947) and Thomas Thomas v. Kottayam Municipality (2008 (3) KLT 964) which held that once the statutory remedy was barred by limitation, the remedy of a writ petition also would come to an end.

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It is to be noticed the application for regularization submitted by the petitioner was rejected as it was not just the petitioner who made the application, but it was along with two others who did not have any right on the plot. Therefore, it must be taken that the application was itself found to be defective, and there was no consideration of all the questions on facts. That apart the contention that the petitioner was not heard before passing the impugned order is not disputed by the respondent, and as such there is a violation of the principles of natural justice. The construction of the building is complete and there is no objection from the immediate neighbours about any encroachment into their area as they had joined the petitioner while seeking

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WP(C) NO. 12991 OF 2023

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regularization. Facts being so, the impugned orders cannot be allowed to stand despite the objection that they did not avail of the statutory remedies. These are the factors which I feel are good enough to entertain this writ petition and to grant limited relief to the petitioner.

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In view of the above, I quash Exts.P9 and P10. Accordingly, there will be a direction to the petitioner to file a fresh application for regularisation, in accordance with law. The other applicants, the neighbours and the assignees under Exts.P2 and P3 can file their affidavits pointing out that, they do not have any objection to the construction effected by the petitioner. If the petitioner makes an application for regularization within two weeks from today, the Corporation will consider the application after affording an opportunity of hearing to the petitioner and, if necessary to those who filed their affidavits and pass orders, in accordance with law, within a further period of six weeks. As regards the 2^nd defect noted in Ext.P9, it will be open to the petitioner to substantiate that the same is factually incorrect or take such measures as directed by the Corporation.

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The writ petition is allowed as above.

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Sd/-

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MOHAMMED NIAS C.P

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JUDGE

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WP(C) NO. 12991 OF 2023

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APPENDIX OF WP(C) 12991/2023

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PETITIONER EXHIBITS :

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EXHIBIT P1	A TRUE COPY	OF	THE	DOCUMENT EXECUTED IN THE
	NAME OF THE 2011 DATED 0	PE 4.03	TITI .201	ONER BEARING NO. 803 OF 1 OF THE KOZHIKODE SRO.
EXHIBIT P2	A TRUE COPY ALI AKBAR, 2017 DATED 1	OF PATT 5.02	THE ARKA .201	DOCUMENT IN THE NAME OF DAVU BEARING NO. 306 OF 7 OF THE KOZHIKODE SRO.
EXHIBIT P3	A TRUE COPY AFSA BEARING OF THE KOZHI	OF T NO. KODE	HE D 804 SRO	OCUMENT IN THE NAME OF K OF 2011 DATED 04.03.2011 .
EXHIBIT P4	A TRUE COPY TO IN EXTS P	OF 1 TO	THE P3	SKETCH WHICH IS REFERRED PREPARED DATED NIL.
EXHIBIT P5	A TRUE COPY PETITIONER D	OF T ATED	HE C 17.	OMMUNICATION GIVEN BY THE 12.2020.
EXHIBIT P6	A TRUE COP PETITIONER D	Y OF ATED	TH 09.	E COMMUNICATION BY THE 02.2021.
EXHIBIT P7	A TRUE COPY THE PETITION	OF ER D	THE ATED	FURTHER COMMUNICATION BY 08.03.2021.
EXHIBIT P8	A TRUE COPY THE PETITION	OF ER D	THE ATED	FURTHER COMMUNICATION BY 02.09.2022.
EXHIBIT P9	A TRUE COPY RESPONDENT D	OF ATED	THE 05.	ORDER PASSED BY THE 3RD 01.2022.
EXHIBIT P10	A TRUE COPY RESPONDENT D	OF ATED	THE 04.	COMMUNICATION BY THE 3RD 08.2022.

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// True Copy // PA To Judge

K M Asha v. the State of Kerala Represented by the Secretary to the Government

Case brief

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K M Asha v. the State of Kerala Represented by the Secretary to the Government

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