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High Court of KeralaWP(C)/9276/2015disposed of

Jabeena Hamid Yafi v. Alappuzha Municipality

2015-06-08Honourable Mr. Justice A.V.Ramakrishna Pillai9 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI MONDAY, THE 8TH DAY OF JUNE 2015/18TH JYAISHTA, 1937 WP(C).No. 9276 of 2015 (H) --------------------------- PETITIONERS :

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1. JABEENA HAMID YAFI, AGED 42 YEARS, W/O. HAMID YAFI, FATHIMANIKETH, CIVIL STATION WARD, ALAPPUZHA-12.

2. HAMID YAFI, S/O.ABDUL KHADER YAFI, FATHIMA NIKETH, CIVIL STATION WARD, ALAPPUZHA-12 BY ADVS.SRI.A.T.ANILKUMAR SMT.V.SHYLAJA RESPONDENTS :

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1. ALAPPUZHA MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL WARD, ALAPPUZHA - 688001

2. THE SECRETARY ALAPPUZHA MUNICIPALITY, MUNICIPAL WARD, ALAPPUZHA - 688001

3. THE MUNICIPAL ENGINEER, ALAPPUZHA MUNICIPALITY, MUNICIPAL WARD, ALAPPUZHA - 688001

4. THE BUILDING INSPECTOR ALAPPUZHA MJNICIPALITY, MUNICIPAL WARD, ALAPPUZHA - 688001

5. NIZAR, S/O.N.M. SHERIF, FORMAN COTTAGE, SACARIA BAZAR WARD ALAPPUZHA - 688001 ADDL. R6 IMPLEADED :

6. THE CIRCLE INSPECTOR OF POLICE, SOUTH POLICE STATION, ALAPPUZHA ADDL. R6 IS IMPLEADED AS PER ORDER DT 27.3.2015 IN IA 4679/2015. R1 & 2 BY ADV. SRI.AZAD BABU, SC, ALAPPUZHA MUNICIPALITY R5 BY ADV. SRI.P.K.IBRAHIM R5 BY ADV. SMT.K.P.AMBIKA R5 BY ADV. SMT.A.A.SHIBI ADDL. R6 BY GOVERNMENT PLEADER SRI. SHYSON P. MANGUZHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-06-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 9276 of 2015 (H) --------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT-P1:

TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER DATED 15/01/2015 WITH TRANSLATION.

EXHIBIT-P2:

TRUE COPY OF THE COMPLAINT BEFORE THE 2ND RESPONDENT DATED 07/02/2015 WITH TRANSLATION.

EXHIBIT-P3:

TRUE COPY OF THE PHOTOGRAPHS.

EXHIBIT-P4:

TRUE COPY OF THE STOP MEMO DATED 06/02/2015 WITH TRANSLATION.

EXHIBIT-P5:

TRUE COPY OF THE REQUEST TO THE POLICE TO IMPLEMENT EXHIBIT-P4 MEMO WITH ENGLISH TRANSLATION.

RESPONDENT(S)' EXHIBITS :

--------------------------------------- EXT.R5(a):

COPY OF THE BUILDING PERMIT ISSUED UNDER RULE 146(3) OF THE KERALA MUNICIPAL BUILDING RULES BY THE R1 DT 20/3/2015 VALID FOR PERIOD OF 3 YEARS.

EXT.R5(b):

COPY OF THE NOTICE SERVED BY THE SUB INSPECTOR OF POLICE, SOUTH POLICE STATION ON 31/3/2015 AT 8/30 PM. WITH TRUE ENGLISH TRANSLATION .

EXT.R5(c):

COPY OF THE REPRESENTATION DT 01/04/2015 WITHOUT ITS ENCLOSURE SUBMITTED BEFORE THE R6 WITH COPY TO THE SUB INSPECTOR OF POLICE AND MUNICIPAL ENGINEER.

//TRUE COPY// P.A. TO JUDGE bp

A.V.RAMAKRISHNA PILLAI, J --------------------------------------------- WPC No.9276 of 2015 --------------------------------------------- Dated this the 8th day of June, 2015

JUDGMENT

Alleging that respondents 1 to 4 who are knowing that there are no valid permits subsisting are giving silent permission to the 5th respondent to continue with the construction of a two storeyed building in his property in spite of Ext.P4 stop memo, the petitioners have come up before this Court.

2. According to the petitioners, the 5th respondent is the holder of the property on the western side of the property of the petitioners. He purchased the property in the year 2005 and he started construction of a two storeyed building in his property recently. The 5th respondent obtained permit from the first respondent for the construction of a two storeyed residential building in the year 2007 and the same was in 2010. The same is in violation of Rule 15A of the Kerala Municipality Building Rules, 1997. As the permit was not renewed after 2010,

WPC No.9276/2015 2 the construction in pursuance of the same is illegal; it is alleged. The 5th respondent started construction of the residential building and continued the same without observing the Kerala Municipality Building Rules 1999. The sunshade of the first floor has been constructed over the western compound wall of the petitioners without leaving sufficient distance. The petitioners submitted Exts.P1 and P2 complaints before the second respondent. In pursuance of the petitioner's complaint, the 4th respondent issued Ext.P4 stop memo. But the 5th respondent continued the illegal construction disregarding Ext.P4 stop memo. Then the third respondent issued Ext.P5 request to the Circle Inspector of Police to give adequate police protection to implement Ext.P4.

As per the request of the third respondent, the police officials came to the spot and blocked the illegal construction.

WPC No.9276/2015 3 Ext.P4 stop memo; it is alleged. It is with this background the petitioners have come up before this Court.

3. The 5th respondent filed a counter affidavit contending as follows:

The 5th respondent had obtained a building permit for construction of a residential building in 7 cents of land comprised in sy.No.523/38A-2 in Alappuzha West Village of the first respondent Municipality vide order dated 18.9.2007. The building permit was valid for a period of 3 years. The construction was undertaken by the 5th respondent in 2007, however, it could not be completed for want of sufficient funds. However, in connection with the marriage of his daughter, he raised some funds to complete the construction. Accordingly, the work was resumed without being aware of the fact that the permit for construction issued in 2007 had expired. While so, upon a complaint by the 2nd petitioner, the Municipal Engineer, Alappuzha, issued a memo directing him to stop all construction work since the construction is being found undertaken without renewing the building permit. It was

WPC No.9276/2015 4 only after the receipt of stop memo he realised that the building permit issued to him had expired in 2010. Immediately, he stopped the work and approached the Municipality to regularise the construction and for permit to complete the building permit.

The first respondent regularised the construction by receiving the compounding fee and issued permit for completing the work under Rule 146(3) of the Municipalities Building Rules. A true copy of the building permit issued under Rule 146(3) of the Kerala Municipal Building Rules by the first respondent dated 20.3.2015 valid for a period of three years is produced and marked as Ext.R5(a). The construction was resumed accordingly. It is submitted by the 5th respondent that the construction undertaken by the 5th respondent is with a valid building permit and the stop memo issued is no more in force. The Municipal Engineer has not made any request for police interference to stop construction under the permit now issued by the Municipality.

The petitioners who are aware of these facts

WPC No.9276/2015 5 suppressed these facts and filed this writ petition on 23.3.2015 alleging that the construction undertaken by the 5th respondent is in violation of Ext.P4 stop memo dated 6.2.2015 and obtained an interim order directing the 6th respondent to take appropriate action to enforce Ext.P4. From the order, it is clear that this Court was made to believe from the pleadings that the construction work undertaken by the 5th respondent is without any permit and that despite a stop memo, for want of police assistance, the order could not be enforced. Had this Court was appraised of the true facts, this Court would not have passed such a direction in as much as Ext.P4 had lost all its relevance after the issue of Ext.R5(a); so contends the 5th respondent.

4. The petitioner has filed a reply affidavit.

5. I have heard the learned counsel for the petitioner, the learned standing counsel for the respondent Municipality and the learned counsel for the 5th respondent.

6. The learned counsel for the 5th respondent

WPC No.9276/2015 6 submitted that pursuant to the direction of this Court, the Sub Inspector of Police, Alappuzha South Police Station issued a notice on 31.3.2015 directing the 5th respondent to stop all constructions until further orders and the work has to be stopped notwithstanding a valid permit for constructing the residential building. Ext.R5(b) is the said notice. However, later the 5th respondent was able to convince the C.I. of Police that the construction was under valid building permit and he later submitted Ext.R5(c) representation before the C.I. of Police who is the 6th respondent. The proposed construction is undertaken by the 5th respondent in 7 cents of land comprised in sy.No.523/38A-2 in Alappuzha West Village.

7. The learned counsel for the petitioners would strenuously argue that though the permit was with respect to a particular ward, the construction was undertaken in a different ward. However, according to the learned counsel for the petitioners, it was a mistake committed by the respondent Municipality and later the same has been corrected. A copy of the plan which shows

WPC No.9276/2015 7 the name of the ward was also made available for my perusal.

8. On a specific query put by me during the course of the argument to the learned counsel for the respondent Municipality as to whether the petitioner has obtained the valid permit and plan for the construction, the learned counsel answered in the affirmative.

Therefore, this writ petition is disposed of permitting the 5th respondent to continue with the construction as per the permit and plan issued by the respondent Municipality. If the petitioner is constructing the building not in accordance with the permit and plan, it is open to the Municipality to proceed against the 5th respondent in accordance with law.

sd/- A.V.RAMAKRISHNA PILLAI JUDGE css/ true copy P.S.TO JUDGE