Kerala High Court
Muthulakshmi Ammal vs The Attingal Municipality on 21 November, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
FRIDAY, THE 1ST DAY OF JUNE 2012/11TH JYAISHTA 1934
WP(C).No. 34185 of 2010 (W)
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PETITIONER :
--------------------
MUTHULAKSHMI AMMAL,
W/O.ARUMUGHAM ACHARI, MUTHULAKSHMI NIVAS,
ATTINGAL PO., THIRUVANANTHAPURAM DIST-695 101.
BY ADVS.SRI.BINOY VASUDEVAN
SMT.P.G.BABITHA
RESPONDENT(S):
--------------------------
1. THE ATTINGAL MUNICIPALITY,
REPRESENTED BY ITS SECRETARY,
THIRUVANANTHAPURAM 695 101.
2. SECRETARY, ATTINGAL MUNICIPALITY,
THIRUVANANTHAPURAM - 695 101.
BY ADV. SRI. AYYAPPAN SANKAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-06-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mn
...2/-
WP(C).No. 34185 of 2010 (W)
APPENDIX
PETITIONER'S EXHIBITS :
EXT.P1 : COPY OF DOCUMENT BEARING NO. 2006/1991 OF S.R.O. ATTINGAL.
EXT.P2 : COPY OF THE TAX RECEIPT EVIDENCING THE PAYMENT OF LAND TAX
FOR THE CURRENT YEAR.
EXT.P3 : COPY OF THE BUILDING PERMIT ISSUED TO THE PETITIONER HAVING
NO. BO.3513-03.04 DATED 21.11.2003.
EXT.P4 : COPY OF THE COMMUNICATION DATED 21.12.2004 ISSUED BY THE
SECOND RESPONDENT.
EXT.P5 : COPY OF THE COMMUNICATION DATED 29.12.2004 ISSUED BY THE
SECOND RESPONDENT.
EXT.P6 COPY OF THE COMMUNICATION DATED 22.01.2005 ISSUED BY THE
DISTRICT OFFICER, GROUND WATER DEPARTMENT.
EXT.P7 COPY OF THE PROCEEDINGS OF THE REVENUE DIVISIONAL OFFICER
DATED 10.06.2005.
EXT.P8 COPY OF THE COMMUNICATION DATED 2.2.2005 ISSUED BY THE
SECOND RESPONDENT.
EXT.P9 COPY OF THE REVISED PLAN DATED 3.2.2005 APPROVED BY THE
SECOND RESPONDENT.
EXT.P10 COPY OF THE PLAINT IN O.S. NO. 128/2005 OF MUNSIFF'S COURT,
ATTINGAL.
EXT.P11 COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT IN
O.S NO. 128/2005.
EXT.P12 COPY OF THE ORDER DATED 03.10.2005 IN APPEAL NO. 560/2005 OF
THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS.
(Contd...)
WP(C).No. 34185 of 2010 (W)
EXT.P13 COPY OF THE ORDER DATED 26.11.2005 ISSUED BY THE SECOND
RESPONDENT.
EXT.P14 COPY OF THE ORDER DATED 4.8.2006 IN APPEAL NO. 984/2005 ON THE
FILE OF THE TRIBUNAL FOR LOCAL SELF GOVRNMENT INSTITUTIONS.
EXT.P15 COPY OF THE ORDER DATED 30.10.2006 ISSUED BY THE SECOND
RESPONDENT.
EXT.P16 COPY OF THE ORDER DATED 01.01.2007 ISSUED BY THE SECOND
RESPONDENT.
EXT.P17 COPY OF THE ORDER DATED 14.09.2007 IN APPEAL NO. 41/2007 OF THE
TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS.
EXT.P18 COPY OF THE JUDGMENT DATED 23.1.2010 IN O.S. NO. 128/2005 OF THE
MUNSIFF'S COURT, ATTINGAL.
EXT.P19 COPY OF THE TAX RECEIPTS ISSUED BY THE SECOND RESPONDENTS
FOR THE CURRENT FINANCIAL YEAR.
EXT.P20 COPY OF THE REPRESENTATION DATED 29.01.2010 SUBMITTED BY
THE PETITIONER.
EXT.P20(a) COPY OF THE REPRESENTATION DATED 04.02.2010 SUBMITTED BY
THE PETITIONER.
EXT.P21 COPY OF THE REQUEST SUBMITTED BY THE PETITIONER DATED
28.08.2010 INVOKING THE PROVISIONS UNDER THE RIGHT TO
INFORMATION ACT, 2005.
EXT.P22 COPY OF THE COMMUNICATION DATED 28.09.2010 ISSUED BY THE
PUBLIC INFORMATION OFFICER.
RESPONDENT'S EXHIBITS : NIL
//TRUE COPY//
P.A. TO JUDGE
Mn
P.N.RAVINDRAN, J.
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W.P.(C) No.34185 OF 2010
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Dated this the 1st day of June, 2012
J U D G M E N T
The petitioner purchased 11.5 cents of land situate in Survey No.1543/A-5-2 of Attingal Village, Chirayankeezh Taluk, Thiruvananthapuram District as per Ext.P1 sale deed dated 22.8.1991. With a view to put up a three stored apartment building therein, the petitioner submitted an application dated 4.11.2003 to the second respondent for the grant of a building permit. On that application, Ext.P3 building permit was issued on 26.11.2003. After the construction of the building commenced, the second respondent issued a provisional order dated 8.12.2004 under section 406(3) of the Kerala Municipalities Act, 1994 (hereinafter referred to as 'the Act' for short) alleging that the petitioner is constructing the building in violation of the permit and the approved plan and called upon her to stop further construction and to show cause why the unauthorised construction should not be demolished.
2. The petitioner did not submit a reply in time. Consequently, the second respondent passed Ext.P4 order dated 21.12.2004 confirming the provisional order passed by him. By that order the second respondent called upon the petitioner to demolish the WPC No.34185/2010 2 unauhorised construction within three days and to inform him thereafter. The day previous to the date on which Ext.P4 order was passed, the petitioner submitted a reply dated 20.12.2004 to the preliminary order and show cause notice issued on 8.12.2004. The second respondent thereupon considered the reply submitted by the petitioner and as undertaken by her therein, directed the petitioner to produce a revised plan within three days. It is stated that a revised plan was accordingly submitted on 29.12.2004 itself, it was approved on 22.1.2005 and Ext.P9 revised plan was issued on 3.2.2005.
3. After the construction of the apartment building commenced, the petitioner applied for and obtained permission from the Ground Water Department for digging a borewell in the appurtenant land. The neighbouring land owner Sri.V.Gopalan and others thereupon filed a complaint before the Revenue Divisional Officer, Thiruvananthapuram contending that if a borewell is sunk, the wells in the locality will dry up. The petitioner entered appearance before the Revenue Divisional Officer, Thiruvananthapuram and contended that the District Officer, Ground Water Department has by letter dated 22.1.2005 permitted her to sink a borewell. By Ext.P7 order passed on 10.6.2005 the Revenue Divisional Officer directed the petitioners before him to approach the District Officer, Ground Water Department to seek WPC No.34185/2010 3 cancellation of the permit granted by him. The Revenue Divisional Officer also directed that in the event of the petitioners before him moving the District Officer of the Ground Water Department, he shall cause an enquiry to be conducted as to whether the permission was granted based on wrong information.
4. The petitioners before the Revenue Divisional Officer did not move the District Officer of the Ground Water Department. Instead they filed O.S.No.128 of 2005 in the Court of the Munsiff of Attingal for various reliefs including a mandatory injunction directing the petitioner and her husband to demolish and dismantle the building put up by her. The Attingal Municipality, its Secretary and the Municipal Engineer of Attingal Municipality were joined as defendants 1 to 3 and the petitioner and her husband were joined as defendants 4 and 5 in that suit. Defendants 1 to 3 filed Ext.P11 joint written statement dated 28.5.2005 wherein it was specifically pointed out that the building is being constructed in accordance with the Kerala Municipality Building Rules and if there is any deviation, appropriate action will be taken. While matters stood thus, the second respondent issued an order dated 2.7.2005 under section 408 of the Kerala Municipality Act pursuant to a letter dated 22.6.2005 issued by the Government to the effect that building is constructed in violation of the Kerala Municipality WPC No.34185/2010 4 Building Rules. Aggrieved by that order, the petitioner filed Appeal No.560 of 2005 before the Tribunal for Local Self Government Institutions. After the order of stay was issued, the second respondent issued a provisional order dated 6.7.2005 under section 406(1) of the Act along with a show cause notice dated 26.7.2005. The petitioner thereupon submitted a reply dated 30.7.2005. By Ext.P12 order passed on 3.10.2005, the Tribunal set aside the order dated 2.7.2005 issued under section 408 of the Kerala Municipality Act directed the second respondent to pass final orders under section 406(3) of the Kerala Municipality Act, after affording the petitioner an opportunity of being heard, within 30 days from the date of receipt of the order. The Tribunal also directed that the construction made by the petitioner after 2.7.2005 will be at her risk and cost.
5. Pursuant to Ext.P12 order, the Secretary, Attingal Municipality passed Ext.P13 order dated 26.11.2005 directing the petitioner to remove the unauthorised construction and to close down the borewell. Aggrieved thereby, the petitioner filed Appeal No.984 of 2005 before the Tribunal for Local Self Government Institutions. By Ext.P14 order passed on 4.8.2006, the Tribunal set aside Ext.P13 order and directed the Secretary of Attingal Municipality to pass fresh orders after affording the petitioner an opportunity of being heard and WPC No.34185/2010 5 considering her application for regularisation of the construction. Pursuant thereto, the Secretary of Attingal Municipality issued Ext.P15 order dated 30.10.2006 whereby he directed the petitioner to comply with five conditions for the purpose of regularising the construction. The petitioner was also informed that if the conditions are not complied with, within 30 days from the date of receipt of the order, the provisional order dated 6.7.2006 issued under section 406(1) of the Act will be treated as the final order issued under section 406(3) of the Act with all attendant consequences.
6. On the allegation that the petitioner did not comply with Ext.P15, the Secretary of Attingal Municipality issued Ext.P16 order dated 1.1.2007 making the provisional order dated 6.7.2006 issued under section 406(1) of the Act, absolute. The petitioner was directed to remove the unauthorised construction within 30 days from the date of the order. Aggrieved thereby, the petitioner moved the Tribunal for Local Self Government Institutions by filing Appeal No.41 of 2007. By Ext.P17 order passed on 14.9.2007, the Tribunal set aside Ext.P16 and reserved liberty with the Secretary, Attingal Municipality to initiate fresh proceedings under section 406 of the Kerala Municipality Act without unnecessary delay, if grounds exist for taking such action. Since no action was taken, the petitioner completed the construction of WPC No.34185/2010 6 the building. In the meanwhile, the plaintiffs in O.S.No.128 of 2005 filed I.A. No.255 of 2010 to withdraw the suit, reserving liberty with them to file a fresh suit. That application was allowed and by Ext.P18 judgment delivered on 23.1.2010, O.S.No.128 of 2005 was dismissed as withdrawn. After the construction of the building was completed and the suit was withdrawn, the petitioner moved the Secretary of Attingal Municipality to number the building and to issue an occupancy certificate by submitting Ext.P20 representation dated 29.1.2010 and Ext.P20(a) representation dated 4.2.2010. The petitioner thereafter submitted Ext.P21 application dated 28.8.2010 to the Public Information Officer, Attingal Municipality under the Right to Information Act, 2005 whereby she requested the Public Information Officer to inform her as to whether any decision has been taken on Ext.P20 representation dated 29.1.2010 and Ext.P20(a) representation dated 4.2.2010. By Ext.P22 letter dated 28.9.2010 the Public Information Officer of Attingal Municipality informed the petitioner that the occupancy certificate cannot be issued and the building cannot be numbered for the reason that she has not complied with the conditions stipulated in Ext.P16 order dated 1.1.2007 and that the building is constructed in violation of rule 24(4), 24(ii), 103 and 104(2) of the Kerala Municipality Building Rules. Hence this writ petition challenging WPC No.34185/2010 7 Ext.P22 and seeking the following reliefs:
"(i) Issue a writ of certiorari or other appropriate writs, orders or directions call for the records leading up to Exhibit P-22 and to quash the same.
(ii) Issue a writ of mandamus or other appropriate writs, orders or directions commanding the second respondent to issue the completion certificate and to number the building constructed by petitioner as expeditiously as possible at any rate within a time frame to be fixed by this Hon'ble Court.
(iii) Issue a writ to declare that the construction under taken by the petitioner was in conformity with the provisions contained in the Kerala Municipality Building Rules."
7. The main contention raised by the petitioner is that though several years have passed after Ext.P17 order was passed by the Tribunal for Local Self Government Institutions, reserving liberty with the respondents to initiate fresh action, if such action is warranted, no fresh steps were taken under section 406 of the Kerala Municipality Act within a reasonable time and therefore, after the construction of the building is completed, the respondents cannot decline to issue the occupancy certificate or to number the building on the allegation that the construction is not in accordance with the provisions of the Kerala Municipality Building Rules.
8. The learned standing counsel appearing for the respondents has filed a statement dated 18.10.2011 wherein it is stated when Ext.P17 order was passed, the Tribunal for Local Self Government WPC No.34185/2010 8 Institutions had reserved liberty with the respondents to initiate fresh proceedings under section 406 of the Kerala Municipality Act, that such fresh proceedings were not initiated for the reason that O.S.No.128 of 2005 was pending in the Munsiff's Court, Attingal, that by the time the suit was dismissed and the files which were entrusted with the lawyer were received back, this writ petition was filed and that was the reason why fresh orders were not passed pursuant to Ext.P17 order passed by the Tribunal.
9. I heard Sri.Binoy Vasudevan, learned counsel appearing for the petitioner. The learned counsel appearing for the respondents was not present. I have considered the submissions made at the Bar by the learned counsel appearing for the petitioner. I have also gone through the pleadings and the materials on record. After Ext.P3 building permit was first issued to the petitioner on 21.11.2003 at least on three occasions, orders were passed by the Secretary, Attingal Municipality directing demolition of a portion of the building put up by the petitioner on the allegation that the construction is in violation of the approved plan and the Kerala Municipality Building Rules. The said orders were set aside by the Tribunal for Local Self Government Institutions by Exts.P12, P14 and P17 orders. In Ext.P17, the last of the orders passed by the Tribunal, the Tribunal had WPC No.34185/2010 9 observed as follows:
"In the result, the Appeal is allowed and the impugned order bearing No.PW2-9049, PW2-9366/04 & 8318/'05 in B.A.No.353/03-04 dated 1.1.2007 of the Secretary, Municipal Council, Attingal is set aside. The Respondent is at liberty to initiate proper fresh proceedings as indicated above under Section 406 of the Kerala Municipality Act without unnecessary delay if there are any grounds for doing so."
10. Ext.P17 order was passed on 14.9.2007. More than four years have passed thereafter. The respondents did not however take steps to initiate fresh proceedings under section 406 of the Kerala Municipality Act against the petitioner. In fact not even an order under section 408 of the Kerala Municipality Act, 1994 was issued stopping further construction of the building. Therefore, the petitioner completed the construction of the building and submitted Ext.P20 representation dated 29.1.2010 followed by Ext.P20(a) representation dated 4.2.2010 for numbering the building and issuance of the occupancy certificate. After Ext.P20(a) application was received, an inspection was conducted and it was found that the building was not constructed in accordance with the stipulations in Ext.P16 order dated 1.1.2007 and therefore the respondents took the stand that the building cannot be numbered or occupancy certificate issued. It is also stated that it was because of the pendency of O.S.No.128 of 2005 that fresh action was not initiated pursuant to Ext.P17 order passed by WPC No.34185/2010 10 the Tribunal. In my opinion, both these grounds cannot be sustained. One of the reliefs sought by the plaintiffs in O.S.No.128 of 2005, as can be seen from Ext.P10 plaint, is to cancel the building permit issued to the petitioner to put up a building in the plaint scheduled property, if the building is being constructed in violation of the Kerala Municipality Building Rules and in deviation from the approved plan. In Ext.P11 written statement filed in that suit, defendants 1 to 3 had stated in paragraph 7 thereof that if the construction is not in accordance with the Kerala Municipality Building Rules and the approved plan, appropriate steps will be taken in the matter. It was after O.S.No.128 of 2005 was instituted that a notice dated 2.7.2005 was issued under section 408 of the Kerala Municipality Act followed by a provisional order dated 6.7.2005. The said order was set aside by the Tribunal for Local Self Government Institutions reserving liberty with the Secretary of Attingal Municipality to pass final orders. The Secretary thereupon passed Ext.P13 order dated 26.11.2005. That order was set aside by the Tribunal for Local Self Government Institutions by Ext.P14 order dated 4.8.2006, reserving liberty with the Secretary of Attingal Municipality to pass fresh orders. He thereafter passed Ext.P15 order followed by Ext.P16 order. The said orders were also set aside by Ext.P17 order dated 14.9.2007 once WPC No.34185/2010 11 again reserving liberty with the respondents to initiate fresh action.
11. It is evident from the materials on record that notwithstanding the pendency of O.S.No.128 of 2005, three orders had been issued under section 406 and 408 of the Kerala Municipality Act in respect of the very same building. All the three orders were set aside by the Tribunal for Local Self Government Institutions on appeal filed by the petitioner. Therefore the explanation offered in Ext.P22 letter and in the counter statement that it was in view of the pendency of O.S.No.128 of 2005 that further action was not taken pursuant to Ext.P17 order cannot be countenanced especially having regard to the fact that one of the reliefs sought in the suit was a mandatory injunction directing defendants 1 to 3 to take steps to demolish the building put up by the petitioner if the construction is in violation of the Kerala Municipality Act and the Kerala Municipality Building Rules. Therefore the mere fact that the O.S.No.128 of 2005 was pending till it was dismissed as withdrawn by Ext.P18 judgment delivered on 23.1.2010, is not a reason to hold that the respondents were prevented by sufficient cause from initiating fresh action against the petitioner. I accordingly overrule the said contention.
12. The second ground put forward in Ext.P22 is that the petitioner has not complied with the stipulations in Ext.P16 order and WPC No.34185/2010 12 therefore for that reason also, the building cannot be numbered and the occupancy certificate issued. The petitioner had aggrieved by Ext.P16 order filed Appeal No.41 of 2007 before the Tribunal for Local Self Government Institutions. By Ext.P17 order passed on 14.9.2007 after notice to the Secretary of Attingal Municipality and affording him an opportunity of being heard, the Tribunal set aside that order reserving liberty with him to initiate fresh proceedings if such action is warranted. With the passing of Ext.P17 order, Ext.P16 order ceased to be in force. Therefore no reliance can be placed on Ext.P16 to reject the request in Exts.P20 and P20(a) representations for numbering the building and for the issuance of an occupancy certificate. The respondents who did not chose to initiate fresh action against the petitioner for more than three years after Exts.P16 and P17 orders were set aside by the Tribunal, cannot in my opinion now be permitted to proceed afresh against the petitioner, long after the construction of the building was completed. The respondents ought to have initiated fresh action against the petitioner promptly and in time.
I accordingly allow the writ petition, set aside Ext.P22 and direct the respondents to number the building constructed by the petitioner on the strength of Ext.P3 building permit as modified by Ext.P9 and to issue the occupancy certificate expeditiously and in any event within WPC No.34185/2010 13 one month from the date on which the petitioner produces a certified copy of this judgment before the second respondent.
P.N.RAVINDRAN, (JUDGE) vps