Mayinkadath Aboobacker v Neeleeshwaram Municipality and The State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH WEDNESDAY, THE 7[TH] DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945 ``` ## **`WP(C) NO. 32147 OF 2019`** ## **`PETITIONER/S:`** ``` MAYINKADATH ABOOBACKER, AGED 62 YEARS S/O LATE MAMU, ROYAL TOWER , RAJA ROAD, NILESWARAM, KASARGOD DISTRICT. BY ADVS. ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH) RAJ CAROLIN V. ``` ## **`RESPONDENT/S:`** ``` 1THE NEELESHWARAM MUNICIPALITY, NEELESHWARAM , KASARGOD DISTRICT- 671 314, REPRESENTED BY ITS SECRETARY. 2THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT , TRIVANDRUM - 695 001. BY ADV M.SASINDRAN ``` ## **`OTHER PRESENT:`** ``` M. SASINDRAN-SC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C)No.32147 of 2019 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 7[th] day of February, 2024** The present writ petition has been filed by the petitioner seeking the following reliefs: - i. Declare that vigilance report taken behind the back of the petitioner based on which Ext.p5 order and P10 and 16 demand notice has been issued to the petitioner alleging that the petitioner had constructed the building in violation of the Building Rule is not legally sustainable. - ii. Issue a writ of mandamus or any other writ or order directing the 1[st] respondent to permit the petitioner to carry out the changes required as per the observations in Exhibit P13 communication of settlement in Adalath to the extent possible by considering Exhibit P14 and 15 representation filed by the petitioner. - iii. Quash Exhibit P5,6,10,16 as not legally sustainable in the light of Exhibit P13 Adalath. - iv. Issue a writ of mandamus or such other writ or order directing the 1[st] respondent to re-assign the building numbers to the entire rooms in the buildings and renew license to all the business concern in the building complex belonged to the petitioner. - v. Grant such other relief’s as this Hon’ble Court may deem fit and proper as on the facts and circumstances of the case. 2. The petitioner is the owner of the building complex consisting of several rooms situated in R.S No.62/7 in Ward No.3 of the Neeleshwaram Municipality, Kasargod District. According to the petitioner, the original structure having ground floor and first floor and a portion of second ``` WP(C)No.32147 of 2019 ``` ``` 3 ``` floor was constructed with due building permit given by the Gramapanchayat in the year 2003. The construction of the building got completed in January 2007 and the property came within the municipal limits of the 1[st] respondent in 2010. After the building came within the municipal limit of the 1[st] respondent, the petitioner had obtained permission in the year 2012 for additional construction of a portion of 2[nd] floor on the existing building, for which permit was granted on 24.12.2012. After completion of the building, number was allotted and occupancy certificate was also issued on 30.09.2013. The petitioner’s building was inspected by the respondent municipality in the year 2016 and several defects and unauthorized constructions were noted. The petitioner was issued Ext.P3 notice to remove unauthorized structure/construction and defects in the building. The petitioner did not remove the construction and approached the File Adalath. The File Adalath of the Local Self Government has passed the order in Ext.P13, pointing out the defects to be removed by the petitioner. Learned counsel for the petitioner submits that the ``` WP(C)No.32147 of 2019 ``` ``` 4 ``` petitioner has removed the defects as directed by the File Adalath in Ext.P13. 3. This assertion of the petitioner that the petitioner has complied with the direction given by the File Adalath in Ext.P13, is disputed by the learned counsel for the Municipality. Learned counsel for the Municipality submits that the petitioner has not removed or made alteration on the building as directed by the File Adalath and therefore, the petitioner’s building cannot be regularized inasmuch as the petitioner’s building is unauthorized structure and for the removal of the unauthorized structure, the notices have been given. But for the interim order passed by this Court, the petitioner’s building ought to have been demolished as unauthorized. 4. There is an assertion on behalf of the petitioner that the petitioner has complied with the direction given by the File Adalath in Ext.P13. However, the said assertion is disputed by the Municipality. To put an end to the controversy, the respondent Municipality is directed to constitute a team of 3 officers to make inspection of the building of the petitioner in his presence after due notice ``` WP(C)No.32147 of 2019 ``` ``` 5 ``` and submit a report that whether the directions of the File Adalath in Ext.P13 has been substantially complied with by the petitioner. Minor deviations may be overlooked and if the petitioner has substantially complied with the direction, the petitioner’s building maybe regularized subject to the payment of statutory tax and duties. The team so constituted should visit the building of the petitioner within a period of three weeks from today, and make inspection in the petitioner’s presence as directed above and submit a report to the Municipality for taking further decisions regarding regularization. With the aforesaid observations and direction, the present writ petition stands finally disposed of. Sd/- ## **DINESH KUMAR SINGH** AP **JUDGE** ``` WP(C)No.32147 of 2019 ``` ``` 6 ``` ## **`APPENDIX OF WP(C) 32147/2019`** |`PETITIONER EXHIBITS`|| |---|---| |`EXHIBIT P1`|`TRUE COPY OF THE PERMIT ISSUED BY THE 1ST`| ||`RESPONDENT NO.B.A.NO.267/12-13 DATED`| ||`24.12.2012.`| |`EXHIBIT P2`|`TRUE COPY OF THE OCCUPANCY CERTIFICATE`| ||`ISSUED BY THE 1ST RESPONDENT DATED`| ||`30.09.13.`| |`EXHIBIT P3`|`TRUE COPY OF THE PROVISIONAL ORDER`| ||`NO.252/12-13 DATED 25.1.2016 ISSUED BY`| ||`THE 1ST RESPONDENT.`| |`EXHIBIT P4`|`TRUE COPY OF THE STATEMENT BEFORE THE 1ST`| ||`RESPONDENT DATED 9.2.16.`| |`EXHIBIT P5`|`TRUE COPY OF THE ORDER DATED 23.2.2016`| ||`NO.B.A257/12-13 DATED 23.2.2016 ISSUED BY`| ||`THE 1ST RESPONDENT.`| |`EXHIBIT P6`|`TRUE COPY OF THE ORDER NO.B.A.267/12-13`| ||`DATED 12.8.16. ISSUED BY THE 1ST`| ||`RESPONDENT.`| |`EXHIBIT P7`|`TRUE COPY OF THE REVISION PETITION FILED`| ||`BEFORE THE 2ND RESPONDENT.`| |`EXHIBIT P8`|`TRUE COPY OF THE INTERIM ORDER DATED`| ||`7.4.2016 IN WPC 13996/16 OF THIS HON'BLE`| ||`COURT.`| |`EXHIBIT P9`|`TRUE COPY OF THE JUDGMENT DATED 29.8.2016`| ||`IN WPC 13996/16 OF THIS HON'BLE COURT.`| |`EXHIBIT P10`|`TRUE COPY OF THE NOTICE ISSUED BY THE 1ST`| ||`RESPONDENT NO.B.A. 267/12-13 DATED`| ||`15.6.16.`| |`EXHIBIT P11`|`TRUE COPY OF THE REPLY STATEMENT BEFORE`| ||`THE 1ST RESPONDENT DATED 10.2.2017.`| |`EXHIBIT P12`|`TRUE COPY OF THE REPLY DATED 8.3.2017`| ||`ISSUED BY THE 1ST RESPONDENT.`| |`EXHIBIT P13`|`TRUE COPY OF THE LETTER DATED 18.9.2017`| ||`ISSUED BY THE 2ND RESPONDENT.`| |`EXHIBIT P14`|`TRUE COPY OF THE LETTER DATED 28.12.2017`| ||`SUBMITTED BY THE PETITIONER BEFORE THE`| ||`1ST RESPONDENT .`| |`EXHIBIT P15`|`TRUE COPY OF THE LETTER BEFORE THE 1ST`| ||`RESPONDENT DATED 1.11.2019.`| |`EXHIBIT P16`|`TRUE COPY OF THE NOTICE DATED 13.11.2019`| ||`ISSUED BY THE 1ST RESPONDENT.`| |`EXHIBIT P17`|`TRUE COPY OF THE COVERING LETTER SEND`| ||`ALONG WITH THE NOTICES THREATENING`| ||`REVENUE RECOVERY DATED 04.11.2019.`| ``` WP(C)No.32147 of 2019 ``` ``` 7 ``` ``` EXHIBIT P18TRUE COPY OF THE TAX RECEIPT DATED 28.3.2016 FOR THE PERIOD OF 2015-2016 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P19TRUE COPY OF THE NOTICE NO. H1-4793/2021 DATED 7.5.2021 ISSUED BY THE 1ST RESPONDENT MUNICIPALITY EXHIBIT P20TRUE COPY OF THE PROFESSIONAL TAX RECEIPT FOR THE YEAR 2022-23 DATED 14.3.2023 TRUE TRANSLATION OFTRUE COPY OF THE PROVISIONAL ORDER NO. EXHIBIT P3252/12-13 DATED 25.01.2016 ISSUED BY THE 1ST RESPONDENT TRUE TRANSLATION OFTRUE COPY OF THE ORDER DATED 23.02.2016 EXHIBIT P5NO. B.A 257/12-13 DATED 23.02.2016 ISSUED BY THE 1ST RESPONDENT TRUE TRANSLATION OFTRUE COPY OF THE ORDER NO. B.A 267/12-13 EXHIBIT P6DATED 12.08.2016 ISSUED BY THE 1ST RESPONDENT TRUE TRANSLATION OFTRUE COPY OF THE NOTICE ISSUED BY THE 1ST EXHIBIT P10RESPONDENT NO. B.A 267/12-13 DATED 15.06.2016 TRUE TRANSLATION OFTRUE COPY OF THE REPLY STATEMENT BEFORE EXHIBIT P11THE 1ST RESPONDENT DATED 10.02.2017 TRUE TRANSLATION OFTRUE COPY OF THE NOTICE NO. R1-1147/17 EXHIBIT P12DATED 08.03.2017 ISSUED BY THE 1ST RESPONDENT TRUE TRANSLATION OFTRUE COPY OF THE COVERING LETTER SEND EXHIBIT P17ALONG WITH THE NOTICE THREATENING REVENUE RECOVERY DATED 14.11.2019 TRUE TRANSLATION OFTRUE OF THE TAX RECEIPT DATED 28.03.2016 EXHIBIT P18FOR THE PERIOD 2015-2016 ISSUED BY THE 1ST RESPONDENT TRUE TRANSLATION OFTRUE COPY OF THE LETTER DATED 18.09.2017 EXHIBIT P13ISSUED BY THE 2ND RESPONDENT TRUE TRANSLATION OFTRUE COPY OF THE LETTER DATED 28.12.2017 EXHIBIT P14SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT TRUE TRANSLATION OFTRUE COPY OF THE LETTER BEFORE THE 1ST EXHIBIT P15RESPONDENT DATED 1.11.2019 ``` ``` RESPONDENTS ANNEXURES ANNEXURE R1A TRUE COPY OF NOTICE NO.B.A.267/12-13 DATED 23.11.2015 ISSUED BY CTP VIGILANCE TO MAYINKADATH ABOOBACKER ANNEXURE R2A TRUE COPY OF THE ORDER DATED 25.01.2016 HAS BEEN ISSUED TO MAYINKADATH ABOOBACKER ANNEXURE R3A TRUE COPY OF THE ORDER DATED 12.08.2016 ``` ``` WP(C)No.32147 of 2019 ``` ``` 8 ``` ``` REJECTING THE APPLICATION DATED 30.06.2016 AS PER LETTER ANNEXURE R4A TRUE COPY OF THE LETTER NO.LSGD RB2/135/16 DATED 29.05.2017 REJECTING THE APPLICATION FOR REGULARIZATION LETTER ANNEXURE R5A TRUE COPY OF THE NOTICE NO/E2-4588/18 DATED 07-11-2018 ISSUED BY THE SECRETARY, NILESWARAM MUNICIPALITY, ANNEXURE R6A TRUE COPY OF THE REMINDER DATED 12-04- 2019 ANNEXURE R7A TRUE COPY OF PROCEEDINGS NO.BA-257/12- 13 UNDER SECTION 406 OF THE SECRETARY, NILESWARAM MUNICIPALITY, DATED 23-02-2016 ```