LAKSHMIKUTTY AMMA Vs. COMMISSIONER, BADAGARA MUNICIPALITY

JUDGEMENT

(1.) Two residents of Badagara Municipality of whom the second petitioner is also the Secretary of the local Powra Samithi, have filed this original petition under Art.226 of the Constitution of India for a writ of certiorari quashing Ext. P-3 order passed by the Commissioner, Badagara Municipality (first respondent) and for a writ of Mandamus to the first respondent - Commissioner for bearing the 3rd respondent, who is the Secretary, Badagara Edodi Muslim Relief Committee, from constructing mosque or any other building in R.S. No. 276/1 in Ward No. 20 of Badagara Municipality. The first respondent, the 3rd respondent as well as the Chairman of the 4th respondent, Municipal Council have sworn to counter affidavits.

(2.) Facts, as can be gathered from the pleadings and the files placed before me by the Municipality, can be summarised as follows: Third respondent submitted an application to the first respondent - Commissioner for approval of the site and for permission to construct a mosque in R. S. No. 276/1 in Ward No. 20 of the Municipality. First petitioner had also applied for permission to construct a shop building in R. S. No 223/2 in the same ward. In both the applications approval was not granted on the ground that proposed sites are set apart as residential area under the detailed town planning scheme adopted by the Municipal Council. Ext. P-1 is the order dated 14-10-1981 in relation to the 3rd respondent's application. On 20-10-1981, evidently inspired by the contents of Ext. P-1 order, the 3rd respondent submitted Ext. P-2 application to the first respondent for being forwarded to the Chief Town Planner, Trivandrum for permission to construct a mosque as latter's permission is necessary where town planning scheme is in force. Second respondents, Town Planner and Building Inspector, Badagara Municipality, processed Ext. P-2 application and put up a note to the effect that town planning scheme has not been notified and therefore the proposed scheme is not in force. He also noted that as required under R.31(c) of the Building Rules, sufficient space is not available on the front and back of the proposed building to be left vacant. On 25-11-1981 the first respondent directed the Municipal Engineer to verify if R.31(c) of the Building Rules is being observed. On the same day Municipal Engineer submitted to the first respondent that he has held a local inspection and found that there is sufficient space vacant both in the front and back as required under R.31(c). On the same day the first respondent passed another order granting permission to the 3rd respondent for construction of the mosque building. This order was passed on the basis that in refusing approval under Ext. P-1 the commissioner was guided by the impression that town planning scheme was already in force and since this impression was erroneous justice and fair play required that the matter should be reconsidered. On 20-1-1982 some local residents submitted Ext. P-4 petition to the Municipal Council objecting to the permission being granted for construction of the mosque. On 25-1-1982 petitioners filed the present original petition for appropriate reliefs. On 27-1-1982 this court passed an order of interim stay which was vacated ultimately by the dismissal of the petition on 30-3-1982. It has to be noticed that the 3rd respondent filed O. P. No. 934 of 1982 for a writ of mandamus directing the Municipal Council to forbear from taking action on the basis of Ext. P-4. O. P. No. 934 of 1982 is also taken up along with the present original petition and has been dismissed as not pressed.

(3.) The first respondent has engaged counsel and has sworn to a counter affidavit, setting out the facts as known to him. The Chairman of the Council purporting to represent the Municipal Council came on record as 4th respondent and has filed a counter affidavit challenging the legality of Ext. P-3 order as well as the propriety of the first respondent engaging a counsel and filing counter affidavit without the sanction of the Council. The learned counsel for the first respondent, in turn, would point out that the Chairman's action in representing the council and getting the council impleaded and engaging counsel and submitting counter affidavit was itself without the approval of the Municipal Council. It is not necessary for me to go into these aspects for the purpose of proper disposal of the original petition.