Reneesh Ashraf vs Alappuzha Municipality

W.P.(C) No. 19427/2014 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943 ## WP(C).No.19427 OF 2014(C) ## PETITIONER/S: RENEESH ASHRAF AGED 25 YEARS S/O.V.M.ASHRAFF, RESIDING AT VALIYAKATH HOUSE, KARUKAMADU POST, CHAVAKKAD TALUK, THRISSUR DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER V.A.BASHEER, S/O.V.M.AHAMMED, AGED 45 YEARS, VELLAZHATH HOUSE, THAJ VILLA, ARYAPADAM LANE, LFC ROAD, KALOOR, COCHIN 17. BY ADV. SHRI.V.N.RAMESAN NAMBISAN ## RESPONDENT/S: 1 ALAPPUZHA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, ALAPPUZHA, PIN: 688 001. 2 THE SECRETARY ALAPPUZHA MUNICIPALITY ALAPPUZHA, PIN: 688 001. R1 BY SRI.AZAD BABU, SC, ALAPPUZHA MUNICIPALITY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 19427/2014 : 2 : Dated this the 8[th] day of April, 2021. ## JUDGMENT This writ petition is filed by the petitioner basically challenging Ext. P8 order dated 09.07.2014 passed by the Tribunal for Local Self Government Institutions in Appeal No. 947 of 2013. The findings and directions issued by the Tribunal read thus: ## "6. Point It is admitted by the appellant that the tenant has constructed on the top floor a prayer room, store, dressing room, rest room for the beneficial enjoyment of 80 employees of the tenant, though according to him it has been done by the tenant and he has nothing to do with it. In this context the file note based on the site inspection seen in page No.1 of the site prepared by the Building Inspector is relevant wherein it has been stated that in the top floor of the Seemas Textile building in the place which was not enclosed with truss work has been modified by constructing with plywood a room for preparation of food and residence, a prayer room, kitchen and 5 toilets as per permanent construction. On examining one room by opening it is seen that it has been arranged in such a way with six shelves for lying six persons. So it was found to be an unauthorised construction. The learned counsel for the appellant in this context took my attention to the copy of the approval plan which is produced as document No.1 attached with the renewed permit which would show that there are 6 toilets permitted in the top floor. So the construction of the toilet on the rooftop cannot be said as unauthorised. But there is no partition of any rooms like kitchen, prayer hall, bed rooms etc. are seen in the approved plan. So the contention of the respondent that after issuing the occupancy W.P.(C) No. 19427/2014 : 3 : certificate the unauthorised modification of the top floor as kitchen, prayer hall, bed room etc. has been made without obtaining any permit is seems to be correct. It is also admitted by the appellant in the appeal memorandum that the said arrangements have been made for the beneficial enjoyment of the tenant since the tenant has around 80 employees. So as rightly contended by the learned counsel for the respondent it appears that the attempt of the appellant is to change the top floor for occupation of the employees of the tenant. Even though it has been alleged by the learned counsel for the appellant that it has been made only for taking rest for the employees during interval, the modification of room as kitchen, prayer hall and separation of rooms in the style of bed rooms for bedding six persons in each room etc. would make an appearance for occupation. Without making any change of occupancy the appellant cannot transform the roof top portion of the building so as to use it as place of occupation for the employees of the tenant. It is true that the learned counsel for the appellant contended that only partition has been made using card board and plywood and for which a permit is not required. But, Rule 10 of Kerala Municipality Building Rules which deals with the construction which does no require permit does not provide any such construction. So on evaluating the nature of construction and partition made in the top floor I am of the view that the partition and transformation of the top floor definitely require a permit. That is more so, because the intention of the tenant is appears to be as using the premises for lodging purposes of the employees. Page No.11 contains the provisional order issued by the respondent to the Manager of Seemas Textiles, Alapuzha and page No. 13 is the copy of the show cause notice issued to the Manager of Seemas Textiles. Thereafter, both parties were heard. Page No.21 contains the hearing note of the power of attorney holder of the appellant wherein it has been stated that for the truss work of the roof building permit has been obtained and no unauthorised construction has been made. But, I have already found that the partition and transformation made to the roof top amounts to a construction which require permit. So after issuing the provisional order and show cause W.P.(C) No. 19427/2014 : 4 : notice the impugned final order has been issued. So all the statutory formalities have been complied with by the respondent. But as rightly contended by the learned counsel for the appellant the notice of 7 days given in the impugned order is not seems to be sufficient notice as has been held in _**Kuriakose v. Municipal Council**_ [1981 KLT 122]. So the impugned order suffers from that infirmity alone. Appellant can also be given an option to file an application for regularisation and respondent can be directed to dispose the same in accordance with law. In the result, appeal allowed and the impugned order is set aside. Appellant is directed to file an application for regularisation within a period of 15 days starting from the date and thereafter respondent is directed to dispose the application within one month from the date of receipt of the application in accordance with law.” 2. The basic facts for the disposal of the writ petition are as follows: The petitioner is the owner of the 5[th] floor and rooftop of the building bearing No. 25/2044 B and 2044 C (New Nos. 25/1156 and 1157) of Ward No. 25 of the Alappuzha Municipality. The above building consists of 5 floors and upto fourth floor, mother and brother of the petitioner are the owners and as per the registered gift deed No. 2677/2012, the mother had gifted the fifth floor of the building to the petitioner. According to the petitioner, a permit was secured to put up a temporary roof on the terrace of the building. However, the Municipality has issued Ext. P6 provisional order dated 13.02.2013 under Sections 406(1) and 406(2) of the Kerala Municipality Act, 1994 W.P.(C) No. 19427/2014 : 5 : ('Act, 1994" for short) directing the petitioner to remove unauthorised constructions carried out apparently in the guise of putting up a roof in the terrace area. The petitioner has carried out construction enclosing terrace area and constructed toilets, lunchroom and prayer room etc., which alone persuaded the Municipality to issue the aforesaid order. Anyhow, in accordance with the provisions of Section 406(3) of the Kerala Municipality Act, 1994, Ext. P7 final order was passed affirming Ext. P6 order issued under Section 406(2) of Act, 1994 and directed the petitioner to remove the unauthorised construction. Being aggrieved, the petitioner has approached the Tribunal. It was accordingly that the Tribunal passed Ext. P8 order, however, modifying the order of the Secretary and permitting the petitioner to approach the Secretary of the Municipality with suitable application for change of occupancy and regularisation of the construction. It is the said direction that is under challenge before this Court. 3. I have heard the learned counsel for the petitioner Sri. V.N. Ramesan Nambisan, and perused the pleadings and materials on record. 4. On a reading of Ext. P7 order passed by the Secretary of the Municipality, it is categoric and clear that the petitioner was issued W.P.(C) No. 19427/2014 : 6 : with Ext. P6 order under Section 406(2), wherein the exact violation of the Kerala Municipality Building Rules was specified. It is also discernible from Ext. P6 order that without any confusion, violation of Rules is clearly specified by the Municipal Secretary. It was in the said background that Ext. P6 provisional order was confirmed in Ext. P7 final order passed under Section 406(3) of the Act, 1994. Now, the Tribunal has taken into account the facts of the situation and has modified the order, leaving open the liberty of the petitioner to approach the Secretary of the Municipality for regularisation within a period of 15 days from the date of the order. 5. Admittedly, whenever a construction is carried out by securing a permit in respect of the category of the building to be constructed, if the category is to be changed, necessary application would have to be submitted in contemplation of Rule 4(3) of the Kerala Municipality Building Rules, 1999 (Rules, 1999' for short). Apart from the same, this is a case where two fact finding authorities have found that the petitioner has carried out construction, for which no permit was secured and it was thereupon that the Tribunal directed the petitioner to seek regularisation. 6. In my considered view, the petitioner can never be said to be W.P.(C) No. 19427/2014 : 7 : aggrieved by the modified order passed by the Tribunal, since in order to carry out any construction, a permit is required from the Secretary of the Municipality in contemplation of the provisions of the Act, 1994 and the Rules, 1999. There is no case for the petitioner that a permit was secured for the construction in the terrace area enclosing the same and dividing it into rooms, prayer hall, bedrooms etc. 7. In that view of the matter, I do not think, the Tribunal has committed any error of law or facts justifying interference of this Court exercising the power of judicial review under Article 226 of the Constitution of India. Therefore, it is for the petitioner to pursue the remedy. From the record of proceedings, I find that when the matter was admitted by this Court, a stay of further proceedings pursuant to Ext.P8 was granted for a period of two weeks and later, on 19.02.2015, it was extended until further orders. 8. Accordingly, the petitioner is granted liberty to approach the statutory authority seeking regularisation of the unauthorised constructions carried out by filing suitable application within a month from the date of receipt of a copy of this judgment, and if any such application is filed, it shall be considered and finalised by the statutory authority under law, at the earliest and at any rate within a further : 8 : W.P.(C) No. 19427/2014 period of three months from the date of receipt of the application. However, I make it clear that if the petitioner is not making any application, the respondent Municipality would be at liberty to implement the order directing the petitioner to remove the unauthorised construction. Till the directions as above are complied with, the interim order granted by this Court against the implementation of the coercive order would continue to be in force. With the above observations and directions, the writ petition is disposed of. sd/- **SHAJI P. CHALY, JUDGE.** _Rv_ W.P.(C) No. 19427/2014 : 9 : ## **APPENDIX** ## PETITIONER'S EXHIBITS: - EXHIBIT P1 P1: TRUE COPY OF BUILDING PERMIT E5-B228/20062007 GRANTED BY THE RESPONDENT MUNICIPALITY. - EXHIBIT P2 P2: TRUE COPY OF PLAN OF PETITIONER'S BUILDING. EXHIBIT P3 P3: TRUE COPY OF OCCUPANCY CERTIFICATE NO.E58777/10 DATED 22/3/2011. - EXHIBIT P4 P4: TRUE COPY OF ORDER NO.72/14559/12 DATED 10/7/2012 ISSUED BY THE 2ND RESPONDENT. - EXHIBIT P5 P5: TRUE COPY OF TAX RECEIPTS NO.147238 AND 147239 DATED 3/9/2013 REMITTED BY THE PETITIONER. - EXHIBIT P6 P6: TRUE COPY OF PROVISIONAL ORDER NO.E55484/13 DATED 13/2/2013 ISSUED BY THE MUNICIPALITY UNDER SECTION 406(2) OF THE KERALA MUNICIPALITIES ACT, 1994. - EXHIBIT P7 P7: TRUE COPY OF FINAL ORDDER NO.E5-5484/13 DATED 9/10/2013 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. - EXHIBIT P8 P8: TRUE COPY OF ORDER DATED 9/7/2014 IN STATUTORY APPEAL NO.947/2013 PASSED BY THE TRIBUBAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. ## RESPONDENTS' EXHIBITS: NIL /True Copy/ rv PS To Judge.