Pravin Kumar B. v. Kalamassery Municipality

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI FRIDAY, THE 18TH DAY OF MARCH 2022 / 27TH PHALGUNA, 1943 WP(C) NO. 30355 OF 2021 PETITIONER: PRAVIN KUMAR B., AGED 43 YEARS S/O. BALAKRISHNAN NAIR, MANAGING PARTNER, EMMA EXPORTS, INDUSTRIAL DEVELOPMENT AREA, KALAMASSERY-683 104. BY ADVS. R.RENJITH M.T.SURESHKUMAR P.R.JAYASANKAR RESPONDENTS: 1 KALAMASSERY MUNICIPALITY, MUNICIPAL OFFICE, KALAMASSERY P.O., ERNAKULAM DISTRICT, REPRESENTED BY ITS SECRETARY, PIN-683 104. 2 THE SECRETARY, KALAMASSERY MUNICIPALITY, KALAMASSERY P.O., ERNAKULAM DISTRICT-683 104. 3 THE ASSISTANT ENGINEER, KALAMASSERY MUNICIPALITY, KALAMASSERY P.O., ERNAKUYLAM DISTRICT-683 104. 4 THE DISTRICT INDUSTRIES CENTRE, EACHAMUKKU, THRIKKAKARA, KAKKANAD, ERNAKULAM-682 030, REPRESENTED BY ITS DIRECTOR. SRI. B.S. SYAMANTHAK, GP. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO. 30355 OF 2021 2 T.R.RAVI, J. ---------------------------------------- WP(C) NO.30355 OF 2021 ------------------------------------------- Dated this the 18th .day of March, 2022 JUDGMENT The petitioner is the managing partner of a firm doing business in cleaning and disinfecting products. By Ext.P12 notice issued under Section 406 of Kerala Municipalities Act, the petitioner was asked as to why proceedings should not be initiated under the section for the unauthorized constructions made. On 17.12.2021, the 1st respondent had issued notice to the petitioner. It is stated therein that based on the reply submitted by the petitioner to Exts.P12 and P13 notices, they propose to conduct an inspection at 2.00 p.m, on 21.12.2021 for ascertaining about the unauthorized construction. The petitioner submitted Ext.P16 reply on 20.12.2021 undertaking to co-operate with any enquiry, provided he is given sufficient notice and requesting that the inspection scheduled may be after 30.12.2021. The petitioner thereafter approached this Court with the writ petition challenging Exts.P12, P13 and P15 on the ground that respondents 2 and 3 have no authority to issue such orders.

WP(C) NO. 30355 OF 2021 3 abeyance further proceedings pursuant to Exts.P12, P13 and P15. The Standing Counsel for the 1st respondent submits that Exts.P12 and P13 are only provisional orders and the right of the parties are not yet determined so as to warrant an interference under Article 226 of the Constitution of India. Any objection regarding Exts.P12 and P13 are still available to the petitioner. It is submitted that Exts.P12 and P13 may be allowed to be taken to their logical end so that the objection of the petitioner can be considered and final order passed. If the petitioner is still aggrieved, he can still challenge the same. I find that the above submission is fully justified. A contention is raised that the Municipality has no role since the building is in an industrial area. The counsel for the Municipality submits that the building permit has been issued by the Municipality as can be seen from Ext.P5 and it cannot hence be contended that they have no role at all. In the above circumstances, the writ petition is disposed of with the following directions; (i) The Municipality shall consider the contention of the petitioner that it is an industrial area where the Municipality has no role.

WP(C) NO. 30355 OF 2021 4 (ii) If the Municipality finds that they have juri iction they shall continue with the proceedings initiated as per Exts.P12 and P13 and carry out the inspection proposed in Ext.P15. (iii) Such inspection shall be done with prior notice to the petitioner and in his presence. (iv) If any order is passed against the petitioner as a consequence to these proceedings, the same shall not be put into effect for a period of two weeks after serving the copy of the order on the petitioner to facilitate the petitioner to move the appropriate authorities. T.R.RAVI JUDGE sn

WP(C) NO. 30355 OF 2021 5 APPENDIX OF WP(C) 30355/2021 PETITIONER'S EXHIBITS Exhibit P1 TRUE PHOTOSTAT COPY OF THE BROCHURE DETAILING THE PRODUCTS EMMA EXPORTERS Exhibit P2 TRUE PHOTOSTAT COPY OF THE HIRE PURCHASE AGREEMENT DATED 28.11.2005 ENTERED INTO BETWEEN THE GENERAL MANAGER OF DISTRICT INDUSTRIES CENTRE, ERNAKULAM AND M/S. EMMY AUGUSTUS AND BETTY THOMAS IN THE YEAR 2005 Exhibit P3 TRUE PHOTOSTAT COPY OF HE HIRE PURCHASE AGREEMENT DATED 7.7.2010 ENTERED INTO BETWEEN THE GENERAL MANAGER , DISTRICT INDUSTRIES CENTRE, ERNAKULAM AND THE PETITIONER AND M/S EMMY AUGUSTINE AND BETTY THOMAS Exhibit P4 TRUE PHOTOSTAT COPY OF THE COMMUNICATION DATED 21.10.2009 ISSUED BY THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, ERNAKULAM TO THE 2ND RESPONDENT Exhibit P5 TRUE PHOTOSTAT COPY OF THE BUILDING PERMIT NO.BA116/09 DATED 5.6.2009 ISSUED BY THE MUNICIPALITY IN FAVOUR OF THE PETITIONER Exhibit P6 TRUE PHOTOSTAT COPY OF THE LICENSE NO.130191012100322 ISSUED BY THE MUNICIPALITY IN FAVOUR OF THE PETITIONER ON 4.6.2021 Exhibit P7 TRUE PHOTOSTAT COPY OF MSME REGISTRATION CERTIFICATE NO.UDYAM-KL-02-0000456 DATED 18.9.2009 ISSUED BY THE CENTRAL GOVERNMENT IN FAVOUR OF THE EMMA EXPORTERS Exhibit P8 TRUE PHOTOSTAT COPY OF THE TRADE MARK CERTIFICATE NO.4695052 DATED 9.10.2020 ISSUED IN FAVOUR OF THE EMMA EXPORTERS Exhibit P9 TRUE PHOTOSTAT COPY OF ISO CERTIFICATE NO.KDACQ202010036 DATED 12.10.2020 ISSUED IN FAVOUR OF THE EMMA EXPORTERS Exhibit P10 TRUE PHOTOSTAT COPY OF THE GST REGISTRATION CERTIFICATE NO.32AACFE9445P1Z1 ISSUED ON 16.7.2018 IN FAVOUR OF EMMA EXPORTERS

WP(C) NO. 30355 OF 2021 6 Exhibit P11 TRUE PHOTOSTAT COPY OF THE BUILDING TAX RECEIPT NO.01/121010100722 ISSUED IN FAVOUR OF THE PETITIONER ON 22.4.2021 BY THE RESPONDENT MUNICIPALITY Exhibit P12 TRUE PHOTOSTAT COPY OF THE NOTICE NO. TP1- 8882/21 DATED 23/06/2021 ISSUED BY THE 2ND RESPONDENT UNDER S. 406 (2) OF THE KERALA MUNICIPALITIES ACT. Exhibit P13 TRUE PHOTOSTAT COPY OF THE ORDER NO. TP8882/21 DATED 23/06/2021 ISSUED BY THE 2ND RESPONDENT. Exhibit P14OF THE REPLY DATED 28.6.2021 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT Exhibit P15 TRUE PHOTOSTAT COPY OF THE NOTICE NO. 8882/2021 DATED 17/12/2021 ISSUED BY THE 3RD RESPONDENT. Exhibit P16OF THE REPLY DATED 20.12.2021 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT Exhibit P17 PHOTOGRAPHS EVIDENCING THE SO CALLED 'UNAUTHORIZED CONSTRUCTION' CARRIED OUT BY THE PETITIONER Exhibit P18 PHOTOGRAPH EVIDENCING DISPLAY OF THE ITEMS MANUFACTURED BY THE PETITIONER Exhibit P19 TRUE PHOTOSTAT COPY OF THE REAL UNAUTHORIZED CONSTRUCTION CARRIED OUT BY THE RESPONDENT MUNICIPALITY RESPONDENT'S EXHIBITS : NIL //// PA TO JUDGE