Muhammad Rafeeque S/o Abdul Rahman v. Irinjalakuda Municipality

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 16TH DAY OF JULY 2019 / 25TH ASHADHA, 1941** **WP(C).No.14875 of 2019** ## **PETITIONER/S:** **MUHAMMAD RAFEEQUE S/O. ABDUL RAHMAN, POTTATHUPARAMBIL HOUSE, PADIYOOR P.O., MUKUNDAPURAM TALUK, MANAVALASSERUY, TRICHUR DISTRICT,REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MUHAMMED ASHRAF,S/O. ABDUL PAHMAN, AGED 49, POTTATHUPARAMBIL HOUSE, PADIYOOR P.O., MUKUNDAPURAM TALUK, MANAVALASSERUY, TRICHUR DISTRICT,PIN-680 733** **BY ADV. SRI.K.B.PRADEEP** ## **RESPONDENT/S:** **IRINJALAKUDA MUNICIPALITY IRINJALAKUDA P.O., TRISSUR-680 121, REPRESENTED BY ITS SECRETARY** **BY ADVS. SRI.K.K.CHANDRAN PILLAI (SR.) SMT.S.AMBILY, SC, IRINJALAKUDA MUNICIPALITY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- W.P.(C). No. 14875 of 2019 ## **CR** ## **JUDGMENT** The petitioner, who is stated to be the owner in possession of 8.29 Ares of land in Sy.No.677/3 of Manavalassery Village, covered by sale deed No.767/2014 of Sub Registrar Office, Irinjalakkuda, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the Secretary of the respondent Municipality to issue building permit in physical form by allowing Ext.P4 application dated 26.02.2019 for renewal of Ext.P2 building permit, in view of the statutory fiction contained in the Kerala Municipality Building Rules, 1999 and Kerala Municipality Act, 1994. 2. On 30.05.2019, when this writ petition came up for admission, the learned Standing Counsel for the Municipality sought time to get instructions. 3. A statement has been filed by the respondent, opposing the relief sought for in this writ petition. Along with the statement, a copy of the complaint dated 24.02.2019 -3- W.P.(C). No. 14875 of 2019 received from the Councilor of Ward No.26 of the first respondent Municipality is placed on record as Annexure 1. 4. Heard the learned counsel for the petitioner and also the learned Standing Counsel for the respondent Municipality. 5. Going by the averments in the writ petition, the petitioner obtained Ext.P1 building permit for the purpose of construction of a compound wall for the property covered by Ext.P1 sale deed. Ext.P2 building permit dated 05.06.2015 is one issued under Rule 96, read with Rule 97 of the Kerala Municipality Building Rules, which was valid for a period of one year. The validity of Ext.P2 building permit expired on 04.06.2016. Without a valid building permit, the petitioner had undertaken the constructions of compound wall, which resulted in Ext.P3 provisional order dated 24.02.2019 issued by the Secretary of the Municipality, invoking the provisions under sub-section (1) of Section 406 of the Kerala Municipality Act. On receipt of Ext.P3 provisional order, the petitioner submitted Ext.P4 application for renewal of Ext.P2 building -4- W.P.(C). No. 14875 of 2019 permit. He has also submitted Ext.P5 reply to Ext.P3 stop memo. 6. Chapter XIV of the Kerala Municipality Building Rules, 1999 deals with wall and fence. Rule 96 deals with prohibition of commencement of work. As per Rule 96, the construction or reconstruction of any wall or fence of whatever height bounding or abutting on any public street or public property or public water course shall not be begun unless and until the Secretary has granted permission for execution of the work. As per the proviso to Rule 96, any gate or grill or door or other structure shall not open or project into the adjacent property or street. 7. Rule 97 deals with submission and disposal of application to construct or reconstruct a wall or fence. As per sub-rule (1) of Rule 97 an application to construct or reconstruct a wall or fence shall be submitted in white paper, typed or written in ink and affixed with necessary court fee stamp. As per sub-rule (2), application shall contain documents to prove ownership and a site plan. As per sub-rule (3), the -5- W.P.(C). No. 14875 of 2019 site plan shall clearly show all the streets, paths, lanes abutting or leading to the plot and also description of the materials used for the work. As per sub-rule (4), application fee shall be paid as in Schedule -I. As per sub-rule (5), the Secretary shall, if convinced of the plan and genuineness of the ownership, issue permit not later than 30 days from the date of receipt of the application. As per sub-rule (5a), a wall or fence abutting a street junction shall be sufficiently splayed. As per sub-rule (6), the permit fee shall be as in Schedule - II. 8. Rule 98, which deals with period of permit and its renewal. As per sub-rule (1) of Rule 98, the permit shall be valid for one year from the date of issue and may be renewed for further one year by filing an application in white paper, typed or written in ink and affixed with necessary court fee stamp. As per sub-rule (2) of Rule 98, the application for renewal shall be submitted within the valid period of the permit and the renewal fee shall be 50% of the permit fee. 9. In the instant case, the validity of Ext.P2 permit -6- ## W.P.(C). No. 14875 of 2019 expired on 04.06.2016, much before the submission of Ext.P4 application dated 26.02.2019. Moreover, Ext.P4 application is not one submitted in the manner prescribed in sub-rule (1) of Rule 98, inasmuch as the requisite court fee stamp is not seen affixed on that application. When Ext.P4 application is not one filed within the period of validity of Ext.P2 building permit, that application cannot be directed to be considered by this Court, since any such direction would be contrary to the mandate of sub-rule (2) of Rule 98. 10. **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145]** a ThreeJudge Bench of the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions with in the limit of their jurisdiction. Paragraph 15 of the said decision reads -7- ## W.P.(C). No. 14875 of 2019 ## thus; " **15.** .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions with in the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute to enforce its performance. (See Lekhraj Satramdas Lalvani v. Deputy Custodian-cum-Managing Officer [1966 (1) SCR 120 : AIR 1966 SC 334], Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College [1962 Supp (2) SCR 144 : AIR 1962 SC 1210] and Dr. Umakant Saran v. State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964]. In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to -8- W.P.(C). No. 14875 of 2019 apply for grant of a writ of mandamus under Art.226 of the Constitution and the High Court was not competent to issue the same." (underline supplied) 11. In **Oriental Bank of Commerce v. Sunder Lal** **Jain [(2008) 2 SCC 280]** the Apex Court held that, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed the principles on which a writ of mandamus can be issued have been stated as under in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. Paragraphs 11 and 12 of the said decision read thus; " **11.** The principles on which a writ of mandamus can be issued have been stated as under in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. : Note 187.- Mandamus, at common law, is a -9- W.P.(C). No. 14875 of 2019 highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duly to which the party applying for the writ is entitled of legal right to have performed. Note 192.- Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and Tribunals exercising public functions within their jurisdictions. It is not necessary, -10- W.P.(C). No. 14875 of 2019 however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty. Note 196.- Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the Court, subject always to the well settled principles which have been established by the Courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and Judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the Court may, and should, look to the larger public interest which may be concerned - an interest which private litigants are apt to over look when striving for private ends. The Court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances. Note 206.- .......... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion -11- W.P.(C). No. 14875 of 2019 reasonably and within his jurisdiction, that is, upon facts sufficient to support his action. **12.** These very principles have been adopted in our country. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145 : AIR 1977 SC 2149]** , after referring to the earlier decisions in **Lekhraj Satramdas Lalvani v. N.M. Shah [AIR 1966 SC 334]** , **Dr. Rai Shivendra Bahadur v. Nalanda College [AIR 1962 SC 1210]** and **Dr. Umakant Saran v. State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964]** , this Court observed as follows in paragraph 15 of the reports: "15. .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of the officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate Tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right -12- W.P.(C). No. 14875 of 2019 under the statute to enforce its performance. ......... In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Art.226 of the Constitution and the High Court was not competent to issue the same." Therefore, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. The respondents have not been able to show that there is any statute or rule having the force of law which casts a duty on the appellant bank to declare their account as NPA from 31[st] March, 2000 and apply RBI guidelines to their case." 12. In **State of U.P. v. Harish Chandra [(1996) 9** **SCC 309]** the Apex Court held that, under the Constitution a mandamus can be issued by the Court when the applicant -13- W.P.(C). No. 14875 of 2019 establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. Paragraph 10 of the said decision reads thus; " **10.** Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the court came to hold that the list does not expire after a period of one year which on the face of its erroneous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the Writ Petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or -14- W.P.(C). No. 14875 of 2019 orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.87 and the list no longer survived after one year and the rights, if any, of persons included in the list did not subsist. ......." 13. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. Vide: **State of Punjab v. Renuka Singla [(1996) 8 SCC 90]** , **State of U.P. v. Harish Chandra [1996 (9) SCC 309]** , **Union of India v. Kirloskar Pneumatic Co. Ltd. [(1996) 4 SCC 453]** , **University of Allahabad v. Dr. Anand Prakash Mishra [(1997) 10 SCC 264]** and **Karnataka SRTC v.** -15- W.P.(C). No. 14875 of 2019 ## **Ashrafulla Khan [(2002) 2 SCC 560]** . 14. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that no writ of mandamus can be issued to the Secretary of the respondent Municipality to consider Ext.P4 application for renewal of Ext.P2 building permit, since that application for renewal is not one filed within the period of validity of the building permit, and any direction to consider that application would be contrary to the mandate of sub-rule (2) of Rule 98 of the Kerala Municipality Building Rules. Therefore, the petitioner is not entitled for a writ of mandamus, as sought for in this writ petition. 15. The learned counsel for the petitioner would submit that the petitioner shall make a fresh application for building permit, in accordance with the provisions under Chapter XIV of the Kerala Municipality Building Rules, within a period of one week from the date of receipt of a certified copy of the judgment and that he shall construct the compound wall of the property in question, only after getting necessary building -16- W.P.(C). No. 14875 of 2019 permit. 16. The learned Standing Counsel for the respondent Municipality would submit that, if any such application is received along with the required documents and the requisite application fee, the Secretary of the Municipality shall consider the same and pass appropriate orders thereon, without any delay. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of as follows: (1) Since Ext.P4 application made by the petitioner for renewal of Ext.P2 building permit is not one submitted during the period of validity of that building permit, as per the mandate of subrule(2) of Rule 98 of the Kerala Municipality Building Rules, 1999, the petitioner is not entitled for a writ of mandamus commanding the Secretary of the respondent Municipality to consider that application. -17- W.P.(C). No. 14875 of 2019 (2) Within one week from the date of receipt of a certified copy of this judgment, the petitioner shall make a fresh application for building permit, in accordance with the provisions under Chapter XIV of the Kerala Municipality Building Rules, as per the mandate of Rule 97 of the said Rules. If any such application is received and the same is in order, the Secretary of the respondent Municipality shall consider that application and pass appropriate orders thereon, strictly in accordance with law, with notice to the petitioner and after affording him an opportunity of being heard, as expeditiously as possible at any rate within a period of one month from the date of receipt of such application, along with a certified copy of this judgment. **Sd/ANIL K.NARENDRAN JUDGE** das -18- W.P.(C). No. 14875 of 2019 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REGISTERED POWER OF ATTORNEY DATED 06.08.2018** **EXHIBIT P2 TRUE COPY OF THE BUILDING [PERMIT ALONG WITH APPROVED PLAN** **EXHIBIT P3 TRUE COPY OF THE STOP MEMO ON 24.02.2019** **EXHIBIT P4 TRUE COPY OF THE APPLICATION DT.26.2.2019 FOR RENEWAL OF BUILDING PERMIT ALONG WITH ITS ACKNOWLEDGMENT ISSUED BY THE RESPONDENT** **EXHIBIT P5 TRUE COPY OF THE SAID REPLY DATED 24.02.2019 IN RESPONDENT OT EXHIBIT P3 NOTICE** **EXHIBIT P6 TRUE COPY OF LETTER DATED 03.05.2019**