Kerala High Court
A.M.Faisal vs Thrissur Corporation on 19 December, 2019
Equivalent citations: AIRONLINE 2019 KER 706
Bench: S.Manikumar, A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THURSDAY, THE 19TH DAY OF DECEMBER 2019 / 28TH AGRAHAYANA, 1941
WP(C).No.28080 OF 2019(H)
PETITIONER:
A.M.FAISAL
AGED 54 YEARS
S/O. THANGALAKATH MITHAL ABDULLA, POONTHOLE DESOM,
THALASSERY TALUK, KANNUR DISTRICT, NOW RESIDING AT
POST OFFICE ROAD, THRISSUR-680 001
BY ADV. SRI.P.K.ANIL
RESPONDENTS:
1 THRISSUR CORPORATION
THRISSUR CORPORATION,
REPRESENTED BY ITS SECRETARY,
THRISSUR-680 001.
2 THE SECRETARY,
THRISSUR CORPORATION,
THRISSUR-680 001
3 PROF. (DR.) SAYEED HUSSAIN SHAH,
S/O. PROF. SAYED MOHYIDHEEN SHAH, SHAHABAD,
THRISSUR-680 027
R1-2 BY SRI. SANTHOSH P.PODUVAL, SC, THRISSUR
CORPORATION
R3 BY ADV. SRI.BABU KARUKAPADATH
R3 BY ADV. SMT.M.A.VAHEEDA BABU
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
9.12.2019, THE COURT ON 19.12.2019 DELIVERED THE FOLLOWING:
WP(C) No.28080/19
-:2:-
JUDGMENT
Dated this the 19th day of December 2019 Shaffique, J.
This writ petition is filed by a tenant of a premises challenging Ext.P9, an order passed by the Thrissur Corporation calling upon the owner of the building to demolish the unauthorised construction within a period of 14 days failing which it was indicated that demolition will be done by the department at the cost of the landlord and prosecution steps will be taken for non compliance of the directions. The 3 rd respondent is the owner of the building. According to the petitioner, he is running a hotel by name Doublex in the building along with his brother. A Rent Control Petition had been filed by the landlord claiming arrears of rent and the landlord has also filed a suit as OS No.6143/2006 before the Munsiff Court, Thrissur to restrain the petitioner from making any construction in the rented building.
2. It is stated that the 3rd respondent/landlord had filed WP(C) No. 26320/2017 seeking for a direction to the Thrissur WP(C) No.28080/19 -:3:- Corporation to take action against the petitioner on the ground that he was making unauthorised constructions. Pursuant to the directions issued by this Court, the Municipality had issued Ext.P1 notice dated 7/3/2018 calling upon the landlord to demolish the said structure.
3. Petitioner challenged the same by filing WP(C) No. 11022/2018 and by judgment dated 28/3/2018, this Court directed the Corporation to consider the objection preferred by the petitioner and pass appropriate orders. It was further directed that the building need not be demolished until such time. Petitioner was also permitted to file an appeal within two weeks from the date of the said order. Petitioner had also approached this Court by filing WP(C) No. 12446/2018 when his request for D & O licence was rejected by the Thrissur Corporation. By judgment dated 2/11/2018, this Court disposed of the writ petition directing the Secretary of Thrissur Corporation to consider the renewal application submitted by the petitioner and to pass appropriate orders. However, the application for D & O licence was rejected as per Ext.P4 order dated 3/3/2019 inter alia WP(C) No.28080/19 -:4:- observing that the petitioner has not installed waste management system. He however filed a representation seeking 6 months' time to erect the waste treatment plan in order to get renewal of D & O licence. Petitioner again challenged Ext.P4 order dated 3/3/2019 by filing WP(C) No. 13230/2019 which was disposed of on 24/9/2019 with a direction to move the competent authority especially on account of the fact that the time sought by the petitioner had already elapsed. Petitioner submits that in the meantime, Ext.P7 notice dated 13/8/2019 was issued for a hearing on the basis of the direction issued by this Court in Review Petition No.529/2019. He challenged the said order by filing WP(C) No. 22571/2019 which was later withdrawn as evident from judgment dated 24/9/2019. He appeared before the Secretary on 1/10/2019 and finally the Secretary issued proceedings dated 4/10/2019 (Ext.P9). It is contended that Ext.P9 has been issued without complying with the provisions of S.406 of the Kerala Municipality Act and there was no justification in denying the D & O licence. At the time of argument, learned counsel for the petitioner submitted that in the light of judgment of a learned Single Judge of this Court in Sheela R. v WP(C) No.28080/19 -:5:- Corporation of Thiruvananthapuram and others (2009 (3) KLT 197), the tenant has also a right to seek for regularisation. Learned counsel submits that when the petitioner has such a right, he should be permitted to avail of the said remedy.
4. Counter affidavit has been filed by the 3 rd respondent inter alia contending that when the tenant had demolished the building completely and started to construct a new building without his permission or getting permit or approved plan, he also filed OS No 6143/2016 before the Munsiff's Court restraining further construction and by order dated 12/4/2017, petitioner and his brother were restrained from making any constructions in the property. Suit is still pending. The construction already undertaken is illegal and is without building permit and approved plan. He submitted a petition before the Thrissur Corporation alleging illegal construction and pursuant to the directions issued in WP(C) No. 26320/2017, initially a provisional order was passed and a final order was passed on 15/3/2018 directing demolition of the entire illegal structure. The challenge to the said order did not yield any result and final orders were passed as Ext.P9. WP(C) No.28080/19 -:6:-
5. The only question to be considered is whether Ext.P9 suffers from any infirmity and whether the petitioner is entitled for a writ of mandamus or be issued with a D & O licence. As far as the claim for D & O licence is concerned, the issue had become final in the light of the judgment dated 2/11/2018 in WP(C) No.12446/2018 and the further direction of the Corporation as per order dated 3/3/2019. Though writ petition was filed challenging the same, the same came to be dismissed by order dated 24/9/2019 in WP(C) No. 13230/2019. Therefore, no such direction can be issued.
6. With reference to Ext.P9, admittedly the construction made is unauthorised. The petitioner has a case that the construction was made by the landlord. The landlord has no such case. Learned counsel appearing for Thrissur Corporation submitted that the construction made is totally unauthorised and it is in the said circumstances that direction had been issued to demolish the structure. The contention that the landlord himself had made the construction cannot be sustained. Landlord had approached the Civil Court seeking an injunction to restrain the WP(C) No.28080/19 -:7:- tenant from making illegal construction and there is an interim order of injunction as well. Under such circumstance, when Corporation had taken action to demolish the unauthorised structures, there is no reason why the writ petition should be entertained. That apart, this Court in WA No.844/2019 having taken note of the order dated 15/3/2018 observed that the Municipality should implement the said order of demolition of the unauthorised structure unless order is varied or modified by a competent authority. Petitioner had sufficient time to challenge the order dated 15/3/2018. But he did not do so and Ext.P9 order is only a continuation of the earlier order passed for demolition of the structure. Under such circumstance, when there is no illegality in the order passed by the Thrissur Corporation, we do not find any reason to interfere with the impugned order. The petitioner submits that he is entitled to seek regularization of the construction. Learned counsel for the appellant however sought time for filing an application for regularisation. According to him, though the petitioner is a tenant, he can also seek for regularising the unauthorised construction. From the facts of the case, we do not think it that the tenant is entitled to seek such a WP(C) No.28080/19 -:8:- relief. Even otherwise, no such claim had been made in the writ petition. No tenant is entitled to pull down the building of the landlord and make his own construction unless it is permitted by the landlord. In the case on hand, the landlord has not given any such permission nor any document has been submitted to indicate that any such permission was granted. That apart, reconstruction or modification to an existing building requires a valid permit. No such document is seen produced. Under such circumstances, Corporation was justified in directing demolition of the structure. We do not find any reason to interfere with Ext.P9 order. Petitioner is not entitled for any reliefs.
Writ petition is dismissed.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
A.M.SHAFFIQUE Rp JUDGE WP(C) No.28080/19 -:9:- APPENDIX OF WP(C) 28080/2019 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER DATED 7.3.2018 ISSUED BY THE EXECUTIVE ENGINEER, THRISSUR CORPORATION AND READABLE COPY.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 28.3.18 IN W.P.(C) NO. 11022/18.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 2.11.18 IN W.P.(C) NO. 12446/18.
EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS DATED 3.3.2019 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 9.3.19 SENT BY THE PETITIONER TO THE 2ND RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 24.9.19 IN W.P.(C) NO. 13230/19 EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 13.8.19 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE JUDGEMENT DATED 24.9.19 IN W.P.(C) NO. 22571/19.
EXHIBIT P9 TRUE COPY OF THE NOTICE DATED 4.10.19. RESPONDENT'S EXHIBITS:
EXHIBIT R3 A A TRUE COPY OF THE COMMON ORDER DATED 12/4/2017 IN I.A NOS.21902/16, 22856/16 AND 3721/2017 IN OS NO.6143/2016 OF THE HON'BLE MUNSIFF'S COURT, THRISSUR WP(C) No.28080/19 -:10:- EXHIBIT R3 B A TRUE COPY OF THE PETITON DATED 30/11/2016 SUBMITTED BY ME BEFORE THE 1ST RESPONDENT EXHIBIT R3 C A TRUE COPY OF THE JUDGMENT DATED 6/11/2017 IN WPC NO.26320/2017 OF THIS HON'BLE COURT EXHIBIT R3 D A TRUE COPY OF THE FINAL ORDER DATED 15/3/2018 OF THE 1ST RESPONDENT CORPORATION ISSUED UNDER SECTION 406(1) OF THE MUNICIPALITY ACT, DIRECTING TO DEMOLISH THE ENTIRE ILLEGAL CONSTRUCTION IN THE PROPERTY EXHIBIT R3 E A TRUE COPY OF THE NOTICE DATED 19/3/2018 OF THE 1ST RESPONDENT CORPORATION, GIVING U.A NUMBER AND ALSO FIXING ANNUAL PROPERTY TAX FOR THE ILLEGAL CONSTRUCTION MADE BY THE PETITIONER AND HIS BROTHER EXHIBIT R3 F A TRUE COPY OF THE JUDGMENT DATED 5/9/2018 OF THIS HON'BLE COURT IN WPC NO.11205/2018 EXHIBIT R3 G A TRUE COPY OF THE ORDER DATED 5/2/2019 ISSUED BY THE 1ST RESPONDENT UPHOLDING EXHIBIT R3(E) EXHIBIT R3 H A TRUE COPY OF THE JUDGMENT DATED 21/2/2019 IN WPC NO.5300/2019 OF THIS HON'BLE COURT EXHIBIT R3 I A TRUE COPY OF THE JUDGMENT DATED 20/3/2019 OF THIS HON'BLE COURT IN W.A.NO.844/2019 EXHIBIT R3 J A TRUE COPY OF THE INTERIM ORDER DATED 19/6/2019 IN REVIEW PETITION NO.529/2019 OF THIS HON'BLE COURT WP(C) No.28080/19 -:11:- EXHIBIT R3 K A TRUE COPY OF THE INTERIM ORDER DATED 8/7/2019 IN REVIEW PETITION NO.529/2019 OF THIS HON'BLE COURT EXHIBIT R3 L A TRUE COPY OF THE ORDER DATED 3/9/2019 OF THE 2ND RESPONDENT SECRETARY AUTHORIZING THE ASSISTANT ENGINEER TO DEMOLISH THE UNAUTHORIZED CONSTRUCTION, IF NECESSARY, WITH THE ASSISTANCE OF THE POLICE ETC, EXHIBIT R3 M A TRUE COPY OF THE JUDGMENT DATED 4/9/2019 CLOSING REVIEW PETITION NO.529/2019, RECORDING EXHIBIT R3(I) EXHIBIT R3 N A TRUE COPY OF THE REQUEST DATED 23/9/2019 SUBMITTED BY THE ASSISTANT ENGINEER SEEKING FOR POLICE PROTECTION, PROPOSING TO EXECUTE THE SAME ON 25/9/2019 AT 2 P.M True Copy PS to Judge Rp WP(C) No.28080/19 -:12:-