IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS WEDNESDAY, THE 26TH DAY OF AUGUST 2020 / 4TH BHADRA, 1942 WP(C).No.17101 OF 2020(K)

PETITIONER:

P.V. SREEDHARAN AGED 76 YEARS S/O. LATE KUNHIKKANNAN NAIR, SREENILAYAM, KUNNOTH (PARA)

THALASSERY AMSOM, KUNNOTH DESOM, P.O, NETTUR 670 105, KANNUR DISTRICT.

BY ADVS.

SRI.M.SASINDRAN SRI.V.VENUGOPAL RESPONDENTS:

1 THE THALASSERY MUNICIPALITY REPRESENTED BY ITS SECRETARY, THALASSERY- 670 307 KANNUR DISTRICT.

2 THE SECRETARY, THALASSERY MUNICIPALITY, THALASSERY 670 307, KANNUR DISTRICT.

3 THE ASSISTANT ENGINEER, LSGD, THALASSERY MUNICIPALITY (KODIYERI SECTION)

KANNUR 670 001 BY ADVS.

SRI.I.V.PRAMOD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

ALEXANDER THOMAS, J.

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W.P(C) No. 17101 of 2020 ------------------------------------

Dated this the 26^th day of August, 2020

JUDGMENT

The case set up in this writ petition (C) is as follows:

That the petitioner is the absolute owner in possession and enjoyment of 6.07 ares of property in Sy.No. 25/8A of Thalassery Village by virtue of document No. 1620 of 2014 of Thalassery S.R.O. Based on Exhibit P1 approved plan, the petitioner constructed residential building and a well in the property. The petitioner submitted an application as E3-BA-457/15-16 to the 1^st respondent Municipality along with Exhibit P2 plan for construction of a compound wall on the eastern side of the property. Further that the Municipality conducted the inspection through town surveyor and submitted a plan and report to the Municipality. Based on the report of the town surveyor, earmarked the place for construction of the compound wall abutting the road and that the petitioner constructed the compound wall in the line earmarked by the town surveyor. The petitioner effected the construction of the compound wall in the year 2016. That Exhibit P3 notice dated 3.6.2020 has been issued by the 3^rd respondent stating that a complaint has been received regarding the construction of the compound wall and if any permit is obtained for construction, the same shall be produced within 3 days to which petitioner submitted Exhibit P4 reply seeking copy of the complaint and other documents. Without supplying the copy of the complaint and documents sought for in Exhibit P4, the Municipality has issued Exhibit P5 provisional order and Exhibit P5(a) show cause notice under section 406(1) of the Municipality Act directing to show cause as to why the order should not be confirmed. Since the construction of the compound wall does not contravene any of the provisions and specifications mentioned in the Kerala Municipality Act and the Building Rules thereunder except the fact that permit has not been obtained, the petitioner submitted Exhibit P6 application for regularisation of the construction of the compound wall as is provided under 2^nd proviso to Section 406(1)(iii) of the Municipality Act and Rule 90(3) of the Municipality Building Rules, 2019. Now without considering the Exhibit P6 application for regularisation of the construction of the compound wall, the respondents are taking hasty steps to demolish the compound wall pursuant to Exhibit P5 and Exhibit P5(a) which is absolutely illegal, arbitrary and unsustainable. When an application for regularisation as is provided under 2^nd proviso to Section 406(1)(iii) of the Municipality Act and Rule 90(3) of the Building Rules, is pending consideration, the respondents have no manner of right to take steps for demolition of the compound wall.

It is in the light of these averments and contentions, that the petitioner has filed the instant Writ Petition (C) seeking the following prayers:

“i) issue a writ of mandamus any other writ order or direction commanding the 2^nd respondent to consider the Ext.P6 application for regularisation of the compound wall constructed in Sy.No.25/8A of Thalassery Village; before any furt