N.A. Johnson v. Cherthala Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY,THE 27TH DAY OF FEBRUARY 2019 / 8TH PHALGUNA, 1940 WP(C).No. 3694 of 2019** ## **PETITIONER/S:** **N.A. JOHNSON, AGED 54 YEARS, NEDUMPARAMBIL(H), AYAMKUDY.P.O.,VAIKOM, KOTTAYAM-686 613.** **BY ADVS. SRI.BECHU KURIAN THOMAS (SR.) SMT.SUZANNE KURIAN SRI.ENOCH DAVID SIMON JOEL** ## **RESPONDENT/S:** **1 CHERTHALA MUNICIPALITY, NEAR KSRTC BUS STAND, CHERTHALA, ALAPPUZHA-688 524, REPRESENTED BY ITS SECRETARY.** **2 SECRETARY, CHERTHALA MUNICIPALITY, NEAR KSRTC BUS STAND, CHERTHALA, ALAPPUZHA-688 524.** ***ADDL. ADV. GEETHA S. NAIR, R3 AGED 60 YEARS, W/O.LATE B.SOMASEKHARAN, RESIDING AT MITHILA, CMC XI, CHERTHALA NORTH VILLAGE, CHERTHALA P.O., ALAPPUZHA DISTRICT, PIN- 688 524.** ***ADDL.R3 IS IMPLEADED AS PER ORDER DATED 19/2/2019 IN IA 1/19.** **R1 & R2 BY ADV. SRI.JOBY CYRIAC, STANDING COUNSEL ADDL.R3- ADV.GEETHA S.NAIR,(PARTY IN PERSON)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.3694 of 2019 2 ## _**C.R.**_ ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P6 notice issued by the Secretary of the 1[st] respondent Municipality dated 29.01.2019, suspending the permit granted to the petitioner for construction of a building, and for other consequential reliefs. Brief material facts for the disposal of the writ petition are as follows: 2. Petitioner has secured Ext.P1 building permit and Ext.P1(a) approved plan from the 2[nd] respondent, i.e., the Secretary of the 1[st] respondent Municipality. While the construction was being carried on, Ext.P2 stop memo was issued, alleging violation of certain provisions of the Kerala Municipality Building Rules, 1999 (hereinafter referred to as 'the Rules, 1999'). Thereupon, Exts.P3 and P5 letters were submitted explaining the circumstances. However, Ext.P6 order is passed, suspending the building permit under Rule 16 of the Rules, 1999, without assigning any reason, and according to the petitioner, it is a non-speaking order also, except stating that the explanation offered is not satisfactory. Therefore, the case of the petitioner is that, Ext.P6 suffers from the vice of arbitrariness W.P.(C) No.3694 of 2019 3 and illegality, susceptible to be interfered with by this Court exercising the power of judicial review under Article 226 of the Constitution of India. Learned counsel for the petitioner has also invited my attention to the judgment of this Court in _**'Mukundan Menon** v_ _**. State of Kerala**_ ' [2012 (4) KLT 640]. 3. The additional 3[rd] respondent has filed a counter affidavit, justifying the stand adopted by the 2[nd] respondent. Among other contentions, it is stated that, petitioner started construction as per the said plan, leaving set back required as per the above mentioned permit. However, after the structural construction was over, petitioner applied for revised permit, i.e., for an area of 827.60 square metres. On 19.06.2018, Ext.P1 revised permit was issued by the respondent. The case of the 3[rd] respondent is that, Exts.P1 and P1(a) were issued without looking into the set back required for construction of building as a whole. The sum and substance of the contention put forth by the 3[rd] respondent is that, as per the revised plan, petitioner is bound to leave set back as envisaged under the Rules, 1999. The proposed building is facing a public road on the west having 8.5 metres width as it is a three way intersection joining three W.P.(C) No.3694 of 2019 4 roads. The pathway on the northern side is not a public way as stated in Ext.P5. It is a private road set apart for four persons in a Partition Deed. At present the said pathway is used by four persons including the petitioner. 4. It is also stated that, 3[rd] respondent submitted an application on 24.03.2018 for issuance of copy of approved plan and then it was noticed that petitioner has constructed basement parking of the building with access to the private pathway on the north. There is an opening made by the petitioner having 8 metres length on the southern side of the lane abutting the pathway which curtails the user of pathway. The Public Information Officer of the 1[st] respondent as per Ext.R3(1) informed that permit was not approved or granted till that date for the reason that petitioner has not made available the Fire NOC. It was further informed that the copy of the approved plan can be given only after it is approved. Other contentions are also raised by the 3[rd] respondent, enumerating various aspects including the height of the building and the set back to be provided in accordance with Rule 24 of Rules, 1999 etc. etc. In fact, the Municipality has not filed a counter affidavit. W.P.(C) No.3694 of 2019 5 5. I have heard learned Senior Counsel for the petitioner, learned Standing Counsel appearing for respondents 1 and 2 and the additional 3[rd] respondent appearing in person. Perused the pleadings and the documents on record. 6. The sole question to be considered is, whether any manner of interference is warranted to Ext.P6 notice issued by the 2[nd] respondent. It is quite clear and evident that the notice is issued under Rule 16 of the kerala Municipality Building Rules, 1999, which read thus: _“_ _**16. Suspension and Revocation of permit** .-The Secretary shall suspend or revoke any permit issued under these rules if it is satisfied that the permit was issued by mistake or that a patent error has crept in it or that the permit was happened to be issued on misrepresentation or fact or law or that the construction if carried on will be a threat to life or property:_ _Provided that before revoking permit, the owner of the permit shall be given sufficient opportunity to explain and the explanation shall be duly considered by the Secretary.”_ 7. On a reading of the said rule, it is evident that the Secretary is vested with powers to suspend or revoke any permit issued under the Rules, if it is satisfied that: (1) the permit was issued by mistake or; (2) a patent error has crept in it or; (3) that the permit was happened to be issued on misrepresentation W.P.(C) No.3694 of 2019 6 of fact or law or; (4) that the construction if carried on will be a threat to life or property. Proviso to Rule 16 stipulates that before revoking permit, the owner of the permit shall be given sufficient opportunity to explain and the explanation shall be duly considered by the Secretary. Therefore, on a reading of the proviso, what is discernible is that, a hearing need be provided before any permit is revoked. From Ext.P6, it is quite clear that, it is a notice issued suspending the permit issued to the petitioner. However, on an appreciation of Ext.P6 notice, it is explicit that no reasons are assigned as is contemplated under Rule 16 for suspending the permit, because the provision makes it clear that, even for a suspension, the reasons provided thereunder are required. 8. On an analysis of Ext.P6, I find force in the contention advanced by learned Senior Counsel for the petitioner that the notice is bad for want of requisite details as are contemplated under Rule 16. It is true, the additional 3rd respondent has filed a counter affidavit assigning various reasons to support the stand adopted in Ext.P6. But, fact remains, Ext.P6 notice suspending the permit cannot be sustained under 7 W.P.(C) No.3694 of 2019 law. The issue was considered by this Court in the judgment in 'Mukundan Menon' ( _supra_ ), and held that, even for suspending a licence, the reasons for suspension should be made clear in the notice issued under Rule 16. 9. Taking into account all these aspects, I am of the considered opinion that, Ext.P6 suffers from the vice of arbitrariness and illegality, liable to be interfered with under Article 226 of the Constitution of India. Accordingly, I quash Ext.P6. However, I make it clear that, it will not stand in the way of the 2[nd] respondent, to initiate appropriate action against the petitioner, in accordance with law. The writ petition is allowed to the above extent. ## **Sd/-** ## **SHAJI P.CHALY** ## **JUDGE** W.P.(C) No.3694 of 2019 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE BUILDING PERMIT(REVISED) DATED 19.06.2018 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P1(A) TRUE COPY OF THE BUILDING PLAN ON THE BASIS OF WHICH EXT.P1 PERMIT. EXHIBIT P2 TRUE COPY OF THE STOP MEMO DATED 29.12.2018 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P3 TRUE COPY OF THE LETTER DT.07.01.2019 ALONG WITH THE UNDERTAKING SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P3(A) TRUE COPY OF THE LETTER OF CONSENT DTD.02.01.2019 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 28.12.2018 ISSUED BY THE 2ND RESPONDENT TO THE REGISTERED LICENSEE. EXHIBIT P5 TRUE COPY OF THE LETTER DATED 07.01.2019 SUBMITTED BY THE REGISTERED LICENSEE TO THE 2ND RESPONDENT. EXHIBIT P5(A) TRUE COPY OF THE PLAN SUBMITTED BY THE REGISTERED LICENSEE ALONG WITH THE OBJECTION. EXHIBIT P6 TRUE COPY OF THE NOTICE DATED 29.01.2019 WITH NO.B.A.316/16 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S/S EXHIBITS: EXHIBIT-R3(1) TRUE COPY OF THE LETTER NO. T.P.(G4) 1832/18 DATED 18/4/2018 ISSUED BY THE PUBLIC INFORMATION OFFICER OF THE 1ST RESPONDENT. EXHIBIT-R3(2) TRUE COPY OF THE FIRE SAFETY CLEARANCE FOR SITE DATED 28/4/2018 ISSUED BY THE ASSISTANT DIVISIONAL OFFICER, FIRE & RESCUE SERVICES, KOTTAYAM.** W.P.(C) No.3694 of 2019 9 |**EXHIBIT-R3(3)**|**TRUE COPY OF THE COMPLAINT SUBMITTED BY**| |---|---| ||**THIS RESPONDENT BEFORE THE TOWN PLANER**| ||**LSGD, (VIGILANCE) ON 18/9/2018.**| |**EXHIBIT-R3(4)**|**TRUE COPY OF THE REPORT OF THE CHIEF TOWN**| ||**PLANNER LSGD, (VIGILANCE) DATED 22/10/2018.**| |**EXHIBIT-R3(5)**|**TRUE COPY OF THE REPORT OF 2ND RESPONDENT**| ||**SUBMITTED BEFORE THE TALUK LEGAL SERVICE**| ||**AUTHORITY, CHERTHALA.**| //TRUE COPY// P.S. TO JUDGE St/-