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2020 Supreme(Ker) 111
IN THE HIGH COURT OF KERALA AT ERNAKULAM
S.MANIKUMAR, SHAJI P.CHALY, JJ.
Kanakam, D/o. C.K. Kurup – Appellant
Versus
The Kozhikode Corporation Represented By Secretary – Respondent
WA.No.285 of 2020
Decided on : 17-02-2020
Advocate Appeared:
For the Appellant : SRI.V.V.SURENDRAN, SRI.P.A.HARISH
For the Appellant : SRI.B.G.HARINDRANATH, SRI.G.SANTHOSH KUMAR, SRI.SANTHOSH MATHEW
IMPORTANT POINTS
Rule of ejusdem generis applies when statute enumerates the specific words, subjects of enumeration constitute a class or category, that class or category is not exhausted by the enumeration, the general terms follow the enumeration and when there is no indication of a different legislative intent.
Headnote:
Kerala Municipality Act 1994-Section 449 - Section 408- Provision is included in Chapter XX of the Act 1994, dealing with grant of licenses to Industries, Factories, Trades, Entrepreneurship Activities and Other Services and therefore, Section 449 will not apply to the facts of this case, for the reason that the principles of ejusdem generis would apply and the interior work done to a building cannot be related to a work carried on by an industrial establishment- In the case of interior works, in the second floor of the building, no permission is required. Action has already been taken for the unauthorised construction.
Statement of facts:
Appellant/writ petitioner and 4th respondent are tenants in the building owned by 3rd respondent. Appellant is occupying a portion of the first floor of the building and the 4th respondent is occupying a room just above the room occupied by the appellant. Under the guise of renovating the room, the 4th respondent was putting up construction, which was causing great nuisance to the appellant. Following the complaint filed by the appellant, officers of the 1st respondent Corporation inspected the building and issued Ext.P1 show cause notice to the 3rd respondent to demolish the unauthorised construction-The 4th respondent undertook that the renovation work will be done only between 6 PM and 6 AM and that the work will be over by 15.7.2019. However, the 4th respondent did not complete the work. Thereafter the 2nd respondent by Ext.P4 notice dated 26.7.2019 called upon the 3rd respondent to stop the renovation activities. Though the 2nd respondent has issued Ext.P4 order, the 3rd respondent has not implemented the same and unilaterally granted a further time behind the back of the appellant. Under the said circumstances, appellant has approached this court by filing W.P.(C)No.996 of 2020 and after considering the rival submission, the writ court dismissed the writ petition.
Finding of the court:
In the case of interior works, in the second floor of the building, no permission is required. Action has already been taken for the unauthorised construction. After taking note of the inspection report submitted by the Overseer, the Secretary, Kozhikode Corporation (2nd respondent) has rejected the complaint. Though the appellant has assailed the judgment on various grounds, for the reason stated supra, we are not inclined to interfere with the same.
Result: Writ appeal dismissed.
JUDGMENT :
S.Manikumar, J.
1. Instant writ appeal is filed challenging the judgment in W.P. (C)No.996 of 2020 dated 3.2.2020, by which the writ court dismissed the writ petition filed by the appellant. The judgment reads thus:
“This court on the basis of the averments in this writ petition while issuing notice on motion on 15.01.2020 noticed that the 4th respondent, despite having undertaken to finish the renovation work within a specified period as contemplated under sub-section (2) of Section 408 of the Kerala Municipality Act 1994, did not complete so resulting into passing of the order Ext.P2 restraining the 4th respondent from carrying on further renovation.
Today learned counsel appearing on behalf of 4th respondent submits that the petitioner has very conveniently suppressed the factum of the decision on the complaint by the concerned Municipality vide order dated 09.12.2019, which has been communicated to him also. The order aforementioned has been read out in vernacular language conveying that for the purpose of renovation there is no applicability of the Municipality Building Rules.
Having heard the learned counsel for the parties, I am of the view that if at all the petitioner had any grievance, his remedy lies elsewhere and not in the present writ petition for withholding of the information and particularly when complaint has already been filed, no further cause of action arises. This writ petition is accordingly dismissed.”
2. Short facts leading to the appeal are that, appellant/writ petitioner and 4th respondent are tenants in the building owned by 3rd respondent. Appellant is occupying a portion of the first floor of the building and the 4th respondent is occupying a room just above the room occupied by the appellant. Under the guise of renovating the room, the 4th respondent was putting up construction, which was causing great nuisance to the appellant. Following the complaint filed by the appellant, officers of the 1st respondent Corporation inspected the building and issued Ext.P1 show cause notice to the 3rd respondent to demolish the unauthorised construction. The 3rd respondent gave a reply to the said notice stating that there is no violation. According to the appellant, the 1st respondent has not taken any action either to demolish the unauthorised construction or to abate nuisance. By Ext.P2 letter dated 21.6.2018, the Secretary, Kozhikode Corporation (2nd respondent) informed the appellant that the unauthorised construction has been removed by the 3rd respondent. Thereafter also, the 4th respondent continued the activity of causing nuisance to the appellant. Pursuant to a complaint filed by the appellant before the 2nd respondent to initiate proceedings against the 4th respondent, the 2nd respondent called for a meeting of the appellant and respondents 3 and 4. In the said meeting, the 4th respondent undertook that the renovation work will be done only between 6 PM and 6 AM and that the work will be over by 15.7.2019. However, the 4th respondent did not complete the work. Thereafter the 2nd respondent by Ext.P4 notice dated 26.7.2019 called upon the 3rd respondent to stop the renovation activities. Though the 2nd respondent has issued Ext.P4 order, the 3rd respondent has not implemented the same and unilaterally granted a further time behind the back of the appellant. Under the said circumstances, appellant has approached this court by filing W.P.(C)No.996 of 2020 and after considering the rival submission, the writ court dismissed the writ petition.
3. Being aggrieved, instant writ appeal is filed inter alia on the following grounds:
“[a] The learned single Judge has failed to understand and appreciate the case of the appellant in its proper perspective. Had it done so, it would have allowed the writ petition and directed the 1st and 2nd respondents to implement the order and abate the nuisance complai
