Pradeepkumar vs. Maradu Municipality - Kerala High Court, 04 June 2020

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS THUR AY, THE 04TH DAY OF JUNE 2020 / 14TH JYAISHTA, 1942 WP(C).No.4535 OF 2020(N) PETITIONER/S: 1 PRADEEPKUMAR, AGED 54 YEARS SON OF RAGHAVA MENON, THEKKEDATH HOUSE, NETTOOOR P.O. ERNAKULAM DISTRICT 682 304. 2 INDULEKHA, AGED 48 YEARS WIFE OF PRADEEPKUMAR, THEKKEDATH HOUSE, NETTOOOR P.O. ERNAKULAM DISTRICT 682 304. BY ADVS. SRI.S.VINOD BHAT KUM.ANAGHA LAKSHMY RAMAN SMT.MINI V.MENON RESPONDENT/S: 1 MARADU MUNICIPALITY REPRESENTED BY ITS SECRETARY, MARADU 682 304, ERNAKULAM DISTRICT. 2 MUNICIPAL ENGINEER, MARADU MUNICIPALITY, MARADU 682 304, ERNAKULAM DISTRICT. 3 REGIONAL TOWN PLANNING OFFICER, OFFICE OF THE REGIONAL TOWN PLANNING OFFICER, KADAVANTHARA, ERNAKULAM - 682 020 IMPLEADED AS ADDITIONAL R3 AS PER ORDER DATED 29- 05-2020 IN I.A. 01/2020 R1-2 BY SRI.T.R.RAJAN SC,MARADU MUNICIPALITY R3 BY GOVERNMENT PLEADER OTHER PRESENT: SRI.K.J.MANU RAJ, GOVT.PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.06.2020, ALONG WITH WP(C).10561/2020(U), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

::2:: W.P(C).Nos.4535 & 10561 Of 2020 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS THUR AY, THE 04TH DAY OF JUNE 2020 / 14TH JYAISHTA, 1942 WP(C).No.10561 OF 2020(U) PETITIONER/S: SAHIR. V, S/O.IBRAHIM CC, BEETHAS (OWNER OF STANZA CERAMICS), CHETTAMKUNNU,THALASSERY P.O., THALASSERY (MU), THALASSERY,KANNUR, PIN- 670 101, REPRESENTED BY AUTHORISED REPRESENTATIVE ABDEEN V.A., AGED 57 YEARS, SON OF FATHIMA K.A, MANAGER, STANZA CERAMICS, THEKKEPANDARAKKATTIL, CHANDIROOR, AROOR, EZHUPUNNA ED, ALAPUZHA,PIN-688 537 BY ADVS. SRI.S.VINOD BHAT KUM.ANAGHA LAKSHMY RAMAN RESPONDENT/S: 1 THE SECRETARY MARADU MUNICIPALITY, MARADU, ERNAKULAM DISTRICT, PIN-682 304 2 MARADU MUNICIPALITY REPRESENTED BY ITS SECRETARY,M MARADU, ERNAKULAM DISTRICT, PIN-682 304 3 PRADEEPKUMAR, AGED 54 YEARS SON OF RAGHAVAN MENON, THEKKEDATH HOUSE NETOOR P.O., ERNAKULAM DISTRICT, PIN-682 304 4 INDULEKHA, AGED 48 YEARS WIFE OF PRADEEPKUMAR, THEKKEDATH HOUSE NETOOR P.O., ERNAKULAM DISTRICT, PIN-682 304 R3-4 BY ADV. SRI.LEGITH T.KOTTAKKAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.06.2020, ALONG WITH WP(C).4535/2020(N), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

::3:: W.P(C).Nos.4535 & 10561 Of 2020 ALEXANDER THOMAS, J. ----------------------------- W.P(C).Nos.4535 & 10561 Of 2020 --------------------------------- Dated this the 4th day of June, 2020. J U D G M E N T The prayers in W.P(C).No.4535/2020 are as follows: “i. To issue a writ of mandamus or such other writ directing the 1st respondent to pass appropriate orders on the regularization application submitted by the petitioners; ii. To issue a writ of mandamus or such other writ directing the respondents not to take any coercive action against the petitioners till appropriate orders are passed on the regularization application submitted by the petitioners; iii. Grant such other order or direction, as this Hon'ble Court may deem fit and proper in the facts and circumstances.”

The prayers in W.P.(C).No.10561/2020 are as follows: “i. To issue a writ of certiorari or other writ or order quashing Ext.P6 order; ii. To issue such other writ or order or direction as this Hon'ble Court may be pleased to issue or pass in the interest of justice.”

Heard Sri.S.Vinod Bhat, learned counsel for the petitioners in these 2 cases, Sri.T.R.Rajan, learned Standing Counsel appearing for the respondent Municipal authorities in these 2 cases and Sri.K.J.Manuraj, learned Government Pleader appearing for the 3rd respondent-Regional Town Planner in W.P(C).No.4535/2020. 4. The 2 petitioners in W.P.(C).No.4535/2020 are the owners of the building in question whereas the sole petitioner in

::4:: W.P(C).Nos.4535 & 10561 Of 2020 W.P.(C).No.10561/2020 is the tenant, who is now said to be in occupation of the said building. The petitioners in W.P.(C). No.4535/2020 preferred application for constructing godown building within the territorial limits of the respondent- Municipality and according to them despite the submission of the application for building permit, the respondent-Municipal authorities do not take any action thereon and that therefore they were constrained to proceed further with the construction and that their application for building permit and regularization are still pending consideration. Later, during the pendency of this Writ Petition, the Secretary of the 1st respondent-Maradu Municipality has issued the impugned Ext.P-7 stop memo dated 24.2.2019 stating therein that the said godown building is being used as a tile godown without getting the requisite licence from the respondent- Municipality and that all the movable and other items in the said building should be immediately moved within 7 days from the date of receipt of the notice. The specific case of the petitioner is that the application of the petitioner for regularisation of the construction was also duly submitted before the respondent- Municipal authorities and respondents 1 & 2 have duly forwarded

::5:: W.P(C).Nos.4535 & 10561 Of 2020 the said application for regularization to the Regional Town Planner as per Ext.P-6 letter dated 17.5.2019 issued by the 1st respondent-Secretary of the Municipality to the 3rd respondent- Regional Town Planner. Ext.P-6 letter dated 17.5.2019 produced in W.P.(C).No.4535/2020 reads as follows: “0484 -2706514 0484 -2706544 മരടട് മുൻസസിപപ്പാലസിറസി മരടട്-682 304 , എറണപ്പാകുളള ജസില E3-BANo.140/18 തതീയതസി: 17.05.2019 പപ്രേഷകൻ സസക്രട്ടറസി മരടട് നഗരസഭ സസതീകർതപ്പാവട് റതീജസിയണൽ ടടൗൺ പപ്പാനർ റതീജസിയണൽ ടടൗൺ പപ്പാനസിങട് ഓഫതീസട് എറണപ്പാകുളള സർ വസിഷയള : മരടട് നഗരസഭ -സകപ്പാപമർഷഷ്യൽ സകട്ടസിട നസിർമപ്പാണള സക്രമവതട്കരസിചട്

നൽകുന്നതട് സളബനസിചട് :- സൂചന: ശതീ. പ്രേദതീപട്കുമപ്പാർ & ഇന്ദുപലഖ സതപക്കേടതട് നൽകസിയ അപപക. മരടട് നഗരസഭ ഡസിവസിഷൻ -28, മരടട് വസിപലജട് റതീസർപവ 141/2 -ൽ ഉൾസപടുന്ന 26.73 ആർ സ്ഥലത പസപ്പാണൽ മപ്പാപട് സപ്രേകപ്പാരള സറസസിഡൻഷഷ്യൽ പസപ്പാണസിൽ നസിർമപ്പാണള പൂർതതീകരസിചസിട്ടുള 1408.17 ചതുരശ മതീറർ വസിസട് തതീർണമുള സകപ്പാപമർഷഷ്യൽ സകട്ടസിടള സക്രമവൽക്കേരസിക്കുന്നതസിനപ്പാണട് സൂചന പ്രേകപ്പാരള ശതീ. പ്രേദതീപട്കുമപ്പാർ & ഇന്ദുപലഖ, സതപക്കേടതട് സനട്ടൂർ, സമർപസിച അപപകയള പപ്പാനുകളള അനുബനങ്ങളള ലഭഷ്യമപ്പാക്കേസിയസിരസിക്കുന്നതട്. സകട്ടസിടതസിസന പസിനട് ഏരസിയ 300 ചതുരശ മതീററസിൽ അധസികരസിചസിട്ടുളതസിനപ്പാൽ, അപപകയസിപന്മേൽ സക്രമവൽക്കേരണതസിനുള അനുമതസിക്കുള നസിർപദ്ദേശങ്ങൾക്കുമപ്പായസി ടസി അപപകയള അനുബന പരഖകളള ഇപതപ്പാസടപ്പാപള അയച്ചുസകപ്പാള്ളുന. വസിശസസ്തതപയപ്പാസട സസക്രട്ടറസി മരടട് നഗരസഭ"

::6:: W.P(C).Nos.4535 & 10561 Of 2020 Whereas the sole petitioner in W.P.(C).No.10561/2020 would also submit that he has been inducted as a tenant in the said godown building with due permission of the abovesaid building owners and he has been served with Ext.P-6 notice dated 20.5.2020 to immediately stop the activities in the said godown and to remove all the movable articles kept by him in the said building, in view of the pendency of the proceedings against the building owners, etc.

This Court has passed interim orders in both these cases directing to keep in abeyance further coercive steps in pursuance of the impugned Ext.P-6 notice dated 20.5.2020 as produced in the latter Writ Petition. When the matter had come up for consideration on the previous occasion, this Court had requested the learned Standing Counsel for the Maradu Municipality as well as the learned Government Pleader appearing for the Regional Town Planner to ascertain as to whether the application for regularization of the petitioner is pending consideration before the said Regional Town Planner and about its stage and the minimum time frame required for taking a final decision thereon.

::7:: W.P(C).Nos.4535 & 10561 Of 2020

Today when the matter was taken up for consideration, Sri.T.R.Rajan, learned Standing Counsel for the respondent- Municipality would submit on the basis of instructions that the the respondent-Municipal authorities have duly forwarded the abovesaid application for regularization of the impugned construction to the respondent-Regional Town Planner, Ernakulam, as can be seen from Ext.P-6 letter dated 17.5.2019 produced in W.P.(C).No.4535/2020. Further it is submitted by the learned Standing Counsel that thereafter the Senior Town Planner attached to the Office of the Regional Town Planner, Ernakulam had sent letter dated 11.7.2019 to the Secretary of the Municipality seeking for certain clarification in the matter and requisite details and clarifications have been duly furnished by the Secretary of the Municipality as per letter dated 10.2.2020 addressed to the said Regional Town Planner. Sri.K.J.Manu Raj, learned Government Pleader appearing for the Regional Town Planner would submit that even from the submissions of the learned Advocate appearing for the respondent-Municipal authorities, it appears that clarification sought for by the Regional Town Planner on 11.7.2019 has been made available only on 10.2.2020 and that in view of the

::8:: W.P(C).Nos.4535 & 10561 Of 2020 crisis that has emerged due to Covid-19 pandemic this would have got delayed and that longer time may be required to examine various aspects of the matter and then to take final decision in the matter by the Regional Town Planner, etc.

Having regard to the submissions made by both sides, it is ordered that the 3rd respondent (Regional Town Planner) in W.P(C).No.4535/2020 will take up the matters raised in the abovesaid application for regularisation submitted by the abovesaid building owners as referred to in Ext.P-6 letter dated 17.5.2020 (produced in W.P.(C).No.4535/2020) and after conducting requisite inspection of the building with due prior notice to the petitioners in W.P.(C).No.4535/2020 as well as the respondent-Secretary of the Maradu Municipality and after ensuring that copies of the inspection report are furnished to both the abovesaid building owners as well as the Secretary of the respondent-Municipality and thereafter, after affording a reasonable opportunity of being heard to the said petitioners as well as he Secretary of the Municipality through their authorised representative/counsel if any and should take a final decision in the matter on the said plea for regularisation in accordance with

::9:: W.P(C).Nos.4535 & 10561 Of 2020 law, without much delay, preferably within a period of 3 months from the date of production of a certified copy of this judgment. Until orders are passed by the respondent-Regional Town Planner on the abovesaid application for regularisation as aforesaid, further coercive steps in pursuance of the impugned notices issued in these 2 cases may be kept in abeyance by the respondent-Municipal authorities. However, it is made it clear that the petitioners in W.P.(C).No.4535/2020 shall strictly maintain status quo of the said building until a decision is taken as aforesaid. The petitioners in W.P.(C).No.4535/2020 shall ensure that a certified copy of this judgment as well as a copy of the memorandum of the Writ Petition along with all exhibits are duly forwarded by them to both the respondent-Secretary of the Maradu Municipality as well as the respondent-Regional Town Planner, Ernakulam, for necessary information and further action. With these observations and directions, the above Writ Petitions (Civil) will stand finally disposed of. ALEXANDER THOMAS, Judge. bkn/-

::10:: W.P(C).Nos.4535 & 10561 Of 2020 APPENDIX OF WP(C) 4535/2020 PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF THE APPLICATION DATED 27.11.2018 ALONG WITH E FILING ON 30.11.2018. EXHIBIT P2 COPY OF THE NOTICE NO BA NO. E3- 140/18-19 DATED 18.12.2018 OF 2ND RESPONDENT. EXHIBIT P3 COPY OF THE LETTER DATED 24.01.2019. EXHIBIT P4 COPY OF THE INTIMATION NO. BA NO. E3- 140/18 B19 DATED 28.02.2019 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P5 COPY OF THE LETTER DATED 15.03.2019. EXHIBIT P6 COPY OF THE LETTER NO. E- B NO. 140/18 DATED 17/05/2019 ISSUED BY 1ST RESPONDENT. EXHIBIT P7 COPY OF NOTICE NO PH 634/20 DATED 24.2.2020 ISSUED BY THE 1ST RESPONDENT

::11:: W.P(C).Nos.4535 & 10561 Of 2020 APPENDIX OF WP(C) 10561/2020 PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY

OF PARTICULARS

OF GST REGISTRATION EXHIBIT P2 COPY OF WRIT PETITION NO.4535/2020 WITH DOCUMENTS EXHIBIT P3 COPY OF STOP MEMO NO PH 634/20 DATED 24.02.2020 ISSUED BY 1ST RESPONDENT EXHIBIT P4 COPY OF REPLY DATED 18.03.2020 SENT BY THE 3RD RESPONDENT EXHIBIT P5 COPY OF REPLY DATED 29.04.2020 SENT BY THE PETITIONER EXHIBIT P6 COPY OF THE NOTICE NO.PH 634/20 DATED 20.05.2020 ISSUED BY THE 1ST RESPONDENT EXHIBIT P7 PHOTOGRAPH EXHIBIT P7A PHOTOGRAPH