2021 Supreme(Online)(KER) 47297
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942 RP.No.135 OF 2021 IN WP(C). 23274/2020 AGAINST THE ORDER/JUDGMENT IN WP(C) 23274/2020(H) OF HIGH COURT OF KERALA REVIEW PETITIONER/RESPONDENT NO.3 IN WPC:
A.K.NAZAR, AGED 55 YEARS SON OF LATE A.M.KADAR PILLAI, 30/142, ANJIKKATH HOUSE, VMB ROAD, PATHADIPALAM, ERNAKULAM, KOCHI-682 033.
BY ADVS.
SRI.P.B.KRISHNAN SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN SRI.MANU VYASAN PETER RESPONDENTS/PETITIONERS AND RESPONDENTS 1,2 AND 4 IN WPC:
1 K.H.ABDUL MAJEED, AGED 54 YEARS SON OF LATE HASSAN, ILLIKKAL HOUSE, KAVUNGAPADATH, VMB ROAD, PATHADIPALAM, KOCHI-682 033.
2 K.H.ABDUL SALAM, AGED 50 YEARS SON OF LATE HASSAN, ILLIKKAL HOUSE, KAVUNGAPADATH, VMB ROAD, PATHADIPALAM, KOCHI-682 033.
3 THE KALAMASSERY MUNICIPALITY , KALAMASSERY-682 033, REPRESENTED BY ITS SECRETARY.
4 THE SECRETARY, KALAMASSERY MUNICIPALITY, KALAMASSERY-682 033.
5 THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, VANCHIYOOR, THIRUVANANTHAPURAM-695 033, REPRESENTED ITS SECRETARY.
SRI. M.K. ABOOBACKER SC BY GOVERNMENT PLEADER SRI. K.J. MANURAJ THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON
17.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
P.B.SURESH KUMAR, J.
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Review Petition No.135 of 2021 in W.P.(C) No.23274 of 2020 -------------------------------------------------
Dated this the 17th day of March, 2021
['P B KRISHNAN', '', 'SRI SABU GEORGE', 'SRI P B SUBRAMANYAN', 'SRI MANU VYASAN PETER']
O R D E R
The third respondent in the writ petition seeks review of the judgment. The parties and documents are referred to in this order, as they appear in the writ petition.
2. The petitioners obtained building permit B.A.No.755/2011 during 2012 from the first respondent Municipality for construction of a building in a land stated to be owned and possessed by them measuring 31.59 cents. The mother of the third respondent challenged the building permit before the Tribunal in Appeal No.225 of 2011 on the ground mainly that the petitioners do not have title to the land over which the building is proposed by them. The case set out by the mother of the third respondent in the appeal was that the building is proposed by the petitioners in a portion of her land also, which is situated on the southern side of the land of the petitioners. It was pointed out by the mother of the third respondent in the appeal that she had already filed a suit for recovery of possession of her land from the petitioners as O.S.No.293 of 2010 before the Sub Court, Ernakulam, and the said suit is pending. The Tribunal allowed Appeal No.225 of 2011 and directed the second respondent to reconsider the application for building permit submitted by the petitioners. The petitioners challenged the decision of the Tribunal before this Court in W.P.(C)No.21526 of 2013. Later, the mother of the third respondent filed a writ petition as W.P.(C)No.19911 of 2015 before this Court, alleging that the petitioners have fraudulently obtained transfer of registry in respect of lands which do not belong to them. In the meanwhile, the third respondent had instituted W.P.(C)No.19733 of 2014 seeking directions to the Director of Vigilance and Anti-Corruption Bureau to consider a complaint preferred by him concerning the alleged illegalities committed by the revenue officials in the matter of effecting mutation in respect of lands belonging to his mother in favour of the petitioners. The aforesaid writ petitions were disposed of by this Court as per Ext.P4 judgment. In Ext.P4 judgment, having regard to the facts and circumstances of the case, this Court took the view that it may not be appropriate to interdict the construction proposed by the petitioners till the final disposal of O.S.No.293 of 2010 and consequently, permitted the petitioners to file a fresh application for construction and directed the second respondent, the Secretary of the Municipality to consider and pass appropriate orders on that application. Though Ext.P4 judgment has been challenged by the third respondent in W.A.Nos.246 of 2018, 2427 of 2017 and 1934 of 2017, there was no interim order in the said matters. The petitioners, in the circumstances, preferred an application for renewal of building permit, B.A.No.755 of 2011, and the second respondent renewed the said building permit in the light of Ext.P4 judgment, as per Ext.P6 order subject to a few conditions, including the condition that there shall not be any construction in the disputed land and that if it is later found by the court that any construction has been carried out in the land owned by the mother of the third respondent, the same is liable to be removed. Ext.P6 renewed permit issued on 28.10.2017 was valid only till 04.12.2018. On 30.11.2018, the petitioners preferred an application for renewal of Ext.P6. By Ext.P13 order, the second respondent renewed Ext.P6 permit for the period upto 04.12.2021. The third respondent thereupon filed Ext.P18 appeal before the Tribunal challenging Ext.P13 order. Along with Ext.P18 appeal, third respondent preferred Ext.P19 application for appointment of an Advocate Commissioner for conducting a local inspection and Ext.P20 application seeking stay of the operation of Ext.P13 renewed building permit. The petitioners were issued Ext.P22 notice initially by the Tribunal in Ext.P18 appeal calling upon them to appear before the Tribunal on 17.11.2020. While so, the petitioners received Ext.P23 notice from the Adv