HAMSA HAJI Vs. STATE OF KERALA

JUDGEMENT

(1.) The very same petitioner has filed both these Writ Petitions challenging the action of the Municipality which found violation of building rules in construction of a building which is presently functioning as an Auditorium in the name and style of Taj Convention Centre in Tirurangadi Municipality. The parties and documents referred to herein are as described in W.P.(C). No. 19368 of 2012, unless otherwise specified. Ms.Kaki who is the additional 6th respondent in both these cases, and her son, who is the 4th respondent in W.P(c) No.19368 of 2012, allege that the lateral support of their residential property is lost due to the construction of the building in violation of rules.

(2.) Sri Hamsa Haji, who is the petitioner along with 7 others including Sri U.P.Ahamedkutty Haji, constructed a building within the limits of Tirurangadi Grama Panchayat, which is presently under the Tirurangadi Municipality. In the year 2009, when the construction was going on, the Panchayat had issued an order on 30.01.2009 alleging violation of the provisions contained in the Kerala Panchayat Raj Act read with the Kerala Municipal Building Rules, 1999 ('KMBR' for short). Thereupon, the owners of the building submitted an application for regularisation of the construction under the rules then in force, as the construction was already completed. Orders were issued on 27.10.2009 regularising the construction.

(3.) Thereafter, the Panchayat issued Ext.P5 stop memo on 14.07.2010, directing to stop all the construction works in respect of the Auditorium and in the premises, saying that the construction was being carried out contrary to Rules. The stop memo was stated to be issued, on the basis of a direction of the Government in its letter dated 1.7.2010. Sri Ahamedkutty Haji challenged the same filing Appeal No.613 of 2010 before the Tribunal for Local Self Government Institutions ('Tribunal' for short) and by Ext.P6 order, the Tribunal stayed the action of the Panchayat. The additional 6th respondent Smt.Kaki challenged the order passed by the Tribunal in W.P(c) No.26120 of 2010 alleging that the construction was being carried out without providing a lateral support to her property by providing a new retaining wall. The Government had issued directions to the Panchayat to stop the construction, based on her complaint. This Court, after hearing the parties, directed the Tribunal to dispose of the matter and directed the parties to maintain status quo till then. Thereafter by Ext.P8 order dated 14.10.2010, the Tribunal allowed the appeal as it was found that permit was already issued for the construction of the Auditorium; it was not suspended or revoked; either the nature of violation or the provisions which were violated were not stated in Ext.P5 stop memo dated 14.7.2010, which only stated that it was issued on the basis of the order of the Government, directing to stop the construction of the Auditorium. The Tribunal found it unsustainable under Rule 16 of the KMBR as well as Section 235 (X)(1) of the Kerala Panchayat Raj Act. However the Secretary of the Panchayat was directed to conduct proper local inspection with reference to records and to verify whether there were any grounds for initiating proceedings under Rule 16 of the KMBR and under Section 235 X(1) and 235W of the Kerala Panchayat Raj Act and to prepare a detailed report to initiate such proper proceedings, if any, as per law.