Abdu Rahiman v. Tirur Municipality
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE TUESDAY, THE 26TH DAY OF MAY 2015/5TH JYAISHTA, 1937 WP(C).No. 4648 of 2015 (E) --------------------------- PETITIONER(S):
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1. ABDU RAHIMAN, AGED 41 YEARS, S/O. LATE KAINIKKARA MAMMI, KAINIKKARA HOUSE, NORTH ANNARA, TIRUR-676 101.
2. MUHAMMED ABDU RAHIMAN, S/O. SAITHU MOOPPAN, THRIKKANDIYOOR AMSOM DESOM, KOTT PAYYANANGADI, TIRUR-676 101.
BY ADV. SRI.R.T.PRADEEP.
RESPONDENT(S):
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1. TIRUR MUNICIPALITY, REPRESENTED BY ITS SECRETARY, TIRUR-676 101.
2. SECRETARY, TIRUR MUNICIPALITY, TIRUR-676 101.
* ADDL. R3 TO R27 IMPLEADED
3. M.A.MOHAMMED, M.A. STORE, 6/337, AYISHA COMPLEX, GOOD SHED ROAD, TIRUR-676 101.
4. K.P. ABDU, KPA CHIICKEN, 6/336, AYISHA COMPLEX, GOOD SHED ROAD, TIRUR-676 101.
5. N. RASHEED, MUSIC PALACE, 6/335, AYISHA COMPLEX, GOOD SHED ROAD, TIRUR-676 101.
6. ISMAIL, GULF POINT, 6/334, AYISHA COMPLEX, GOOD SHED ROAD, TIRUR-676 101.
7. JAFFER, A.M. GULF COLLECTION MOBILE ACCESSORIES, 6/333, AYISHA COMPLEX, GOOD SHED ROADTIRUR-676 101.
8. KOYAMMU, FRAGRANCE WORLD, 6/332, AYISHA COMPLEX, GOOD SHED ROAD, TIRUR-676 101.
WP(C).No. 4648 of 2015 (E)
9. SAIDALAVI, GULF INDIAN COLLECTION, 6/331, AYISHA COMPLEX, GOOD SHED ROAD, TIRUR-676 101.
10. AYISHA BEEVI, BAPPU STORE, MOBILE PHONE & SALES SERVICE, 6/330, AYISHA COMPLEX, GOOD SHED ROAD, TIRUR-676 101.
11. T.C. BASHEER, NEW MEGA STAR DUTY PAID SHOP, 6/329, AYISHA COMPLEX, GOOD SHED ROAD, TIRUR-676 101.
12. V. KUNHARU, KUNHARU WATCH HOUSE, 6/328, AYISHA COMPLEX, GOOD SHED ROAD, TIRUR-676 101.
13. SAFFIA, DIALUP WATCH TRADING, 6/327, AYISHA COMPLEX, GOOD SHED ROAD, TIRUR-676 101.
14. SASIDARAN, REAL TIMES MOBILE COLLECTION, 6/326, AYISHA COMPLEX, GOOD SHED ROAD, TIRUR-676 101.
15. ADOOR ABDULLA, S PHONE THE MOBILE SHOP, 6/325, AYISHA COMPLEX, GOOD SHED ROAD, TIRUR-676 101.
16. P. MOHAMMED, MOBILE ACCESSORIES, 6/324, AYISHA COMPLEX, GOOD SHED ROAD, TIRUR-676 101.
17. SAKEER HUSSAIN, SHARJAH CONNECTION, 6/323, AYISHA COMPLEX, GOOD SHED ROAD, TIRUR-676 101.
18. T.P. ALIKUTTY, STAR FANCY, 6/322, AYISHA COMPLEX, GOOD SHED ROAD, TIRUR-676 101.
19. P. MOIDEEN, NATIONAL COLLECTION, 6/321, AYISHA COMPLEX, GOOD SHED ROAD, TIRUR-676 101.
20. K. MOIDEEN, SPARE MAX MOBILE & ORIGINAL PARTS, 6/320, AYISHA COMPLEX, GOOD SHED ROAD, TIRUR-676 101.
21. A.UMMER, MOHALLATH COLLECTION, 6/319, AYISHA COMPLEX, GOOD SHED ROAD, TIRUR-676 101.
22. K. MOHAMMED KUTTY, VISWAKEERTHY AYURVEDIC PHARMACY, 6/318, AYISHA COMPLEX, GOOD SHED ROAD, TIRUR-676 101.
WP(C).No. 4648 of 2015 (E)
23. M.K. MOHAMMED KUTTY, TKH AGENCY, 6/317, AYISHA COMPLEX, GOOD SHED ROAD, TIRUR-676 101.
24. M.V. SHAJI, MOBILE MAX SALES SERVICE ACCESSORIES, 6/316, AYISHA COMPLEX, GOOD SHED ROAD, TIRUR-676 101.
25. MOIDEEN MASTER, MOBILE PLAZA, 6/315, AYISHA COMPLEX, GOOD SHED ROAD, TIRUR-676 101.
26. MOIDEEN MASTER, MOBILE POINT, 6/314, AYISHA COMPLEX, GOOD SHED ROAD, TIRUR-676 101.
27. V. ISMAIL, MOBILE TOUCH THE COMPLETE MOBILE SHOP, 6/313, AYISHA COMPLEX, GOOD SHED ROAD, TIRUR-676 101. * ADDL. R3 TO R27 ARE IMPLEADED AS PER ORDER DATED 02/03/2015 IN I.A. NO.2675/2015.
R1 & R2 BY ADVS. SRI.P.K.VIJAYAMOHANAN, SRI.NISHIL.P.S.
R3 TO R27 BY ADVS. SRI.BABU S. NAIR, SRI.K.RAKESH.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-05-2015, ALONG WITH WP.(C) NO.8430 OF 2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs.
WP(C).No. 4648 of 2015 (E) APPENDIX PETITIONERS' EXHIBITS:
P1 :
COPY OF ORDER DTD. 22.10.2012 IN IA NO.968/2012 IN OP(MH)NO.165/1997 BY DISTRICT COURT, MANJERI. P2 :
COPY OF NOTICE DTD. 01.02.2014 ISSUED UNDER SECTION 406(1) OF KERALA MUNICIPALITIES ACT (WITH ENGLISH TRANSLATION). P3 :
COPY OF NOTICE DTD. 01.02.2014 ISSUED UNDER SECTION 406(2) OF KERALA MUNICIPALITIES ACT (WITH ENGLISH TRANSLATION). P4 :
COPY OF THE WRITTEN SUBMISSION DTD. 20.05.2014 BY PETITIONERS BEFORE 2ND RESPONDENT (WITH ENGLISH TRANSLATION). P5 :
COPY OF THE FINAL ORDER DTD. 29.05.2014 UNDER SECTION 406(3) OF THE ACT (WITH ENGLISH TRANSLATION).
P6 :
COPY OF THE REPRESENTATION DTD. 20.12.2014 BY 1ST PETITIONER BEFORE THE 2ND RESPONDENT (WITH ENGLISH TRANSLATION). P7 :
COPY OF THE RECEIPT DTD. 20.12.2014 WHICH IS ISSUED BY THE 1ST RESPONDENT FOR THE ACCEPTANCE OF EXT.P6.
RESPONDENTS' EXHIBITS:
EXT.R1A COPY OF THE ORDER NO.BA.634/2013 DATED 24/01/2014 OF THE MUNICIPALITY REJECTING THE APPLICATION OF THE PETITIONERS FOR BUILDING PERMIT.
EXT.R1B TRUE ENGLISH TRANSLATION OF EXT.R1A DATED 24/01/2014 OF THE MUNICIPALITY.
//TRUE COPY// P.S. TO JUDGE rs.
A.M. SHAFFIQUE, J.
================ W.P (C) Nos. 4648 & 8430 of 2015 ======================= Dated this, the 26th day of May, 2015
J U D G M E N T
W.P (C) No. 8430/15 is filed by 24 persons who are in possession of certain portion of building taken on rent from Smt.Ayisumma. Respondents 3 and 4 are the receivers of the property of Ayisumma appointed by the Civil Court. They are managing the affairs of Ayisumma and her properties. 2.
The receivers filed an application before the Municipality seeking permission to make additional constructions in the first floor on the 4th block. When the said application was pending, the Municipality called upon respondents 3 and 4 to demolish the unauthorised constructions on the ground floor of the building which is occupied by the petitioners. Though respondents 3 and 4 requested the petitioners to remove the unauthorised construction, they were not amenable for the same. Ultimately, the Municipality had issued Ext.P1 order under Section 406 (3) of the Kerala Municipality Act calling upon respondents 3
WA Nos.4648 & 8430/15 -:2:- and 4 to remove the unauthorised construction in the ground floor of the building occupied by the petitioners, within a specified time. It was mentioned that if no such action is taken, the same will be demolished by the Municipality at the cost of respondents 3 and 4.
3.
Petitioners challenged Ext.P1 on the ground that, they, being the persons in possession of the premises, were not given notice and they were not heard in the matter before passing Ext.P1. Respondents 3 and 4 in W.P (C) No. 8430/15 are the petitioners in W.P (C) No. 4648/15. They have filed the writ petition seeking to implement Ext.P5 order, which is Ext.P1 in W.P (C) No. 8430/15. It is stated in the writ petition that they were unable to remove the unauthorised construction on account of the obstruction created by the private respondents and therefore the Municipality should be directed to implement the said order. Further relief also is sought for to grant permit for making additional construction in the 4th block of first floor without waiting for the unauthorised constructions being demolished by the
WA Nos.4648 & 8430/15 -:3:- Municipality.
4.
Municipality has filed a counter affidavit inter alia stating that application for building permit of the petitioners in W.P (C) No. 4648/15 has been rejected by Ext.R1(a) dated 24/1/14. According to the petitioners, the said order has not been served on them.
5.
Having heard the learned counsel appearing on either side, it is clear that the petitioners in W.P.(C) No. 8430/15 are in possession of certain tenanted premises where they have made additional constructions, which is now being used by them for their business activities. Since they are in possession of the said premises, necessarily, the Municipality ought to have issued notice to them and they should also have been heard before passing the order. Therefore, I am of the view that Ext.P1 order is liable to be set aside for that reason alone. 6.
As far as the contention urged on behalf of the petitioners in W.P (C) No. 4648/15 is concerned, since the Municipality has already rejected their application for building
WA Nos.4648 & 8430/15 -:4:- permit, necessarily, the petitioners will have to file a separate application or cure the defects, which had been pointed out by the Municipality.
7.
Having regard to the nature of contentions urged on either side, these writ petitions are disposed of as follows; (1) That Ext.P1 in W.P (C) No.8430/15 (Ext.P5 in W.P. (C) No. 4648/15) is hereby quashed.
(2) The Municipality shall issue notice to the petitioners as well as respondents 3 and 4 and take fresh proceedings in the matter of removal of unauthorised construction within a period of three months from the date of receipt of a copy of the judgment. It is made clear that necessary notice in this regard shall be given to the persons in occupation by way of affixture or such other mode as may be decided by the Secretary in this regard.
(3) In W.P (C) No. 4648/15, there will be a direction to the Municipality to consider the application for
WA Nos.4648 & 8430/15 -:5:- building permit of the petitioners on their curing all the defects and without reference to the demolition of the unauthorised construction. Further construction of the building shall commence only after demolishing such unauthorised construction.
Sd/- A.M. SHAFFIQUE, JUDGE Rp //True Copy// PS to Judge