JOHNSON Vs. CHERTHALA MUNICIPALITY

JUDGEMENT

(1.) This Writ Petition is filed by the petitioner seeking to quash Ext. P6 notice issued by the Secretary of the 1st respondent Municipality dated 29.01.2019, suspending the permit granted to the petitioner for construction of a building, and for other consequential reliefs. Brief material facts for the disposal of the Writ Petition are as follows:

(2.) Petitioner has secured Ext. P1 building permit and Ext. P1(a) approved plan from the 2nd respondent, i.e., the Secretary of the 1st respondent Municipality. While the construction was being carried on, Ext. P2 stop memo was issued, alleging violation of certain provisions of the Kerala Municipality Building Rules, 1999 (hereinafter referred to as 'the Rules, 1999'). Thereupon, Exts. P3 and P5 letters were submitted explaining the circumstances. However, Ext. P6 order is passed, suspending the building permit under Rule 16 of the Rules, 1999, without assigning any reason, and according to the petitioner, it is a non-speaking order also, except stating that the explanation offered is not satisfactory. Therefore, the case of the petitioner is that, Ext. P6 suffers from the vice of arbitrariness and illegality, susceptible to be interfered with by this Court exercising the power of judicial review under Art. 226 of the Constitution of India. Learned counsel for the petitioner has also invited my attention to the judgment of this Court in 'Mukundan Menon v. State of Kerala' (2012 (4) KLT 640).

(3.) The additional 3rd respondent has filed a counter affidavit, justifying the stand adopted by the 2nd respondent. Among other contentions, it is stated that, petitioner started construction as per the said plan, leaving set back required as per the above mentioned permit. However, after the structural construction was over, petitioner applied for revised permit, i.e., for an area of 827.60 square metres. On 19.06.2018, Ext. P1 revised permit was is sued by the respondent. The case of the 3rd respondent is that, Exts. P1 and P1(a) were issued without looking into the set back required for construction of building as a whole. The sum and substance of the contention put forth by the 3rd respondent is that, as per the revised plan, petitioner is bound to leave set back as envisaged under the Rules, 1999. The proposed building is facing a public road on the west having 8.5 metres width as it is a three way intersection joining three roads. The pathway on the northern side is not a public way as stated in Ext. P5. It is a private road set apart for four persons in a Partition Deed. At present the said pathway is used by four persons including the petitioner.