✦ High Court of India · 26 Mar 2025

BY AD vs DINESH R.SHENOY

Case Details High Court of India · 26 Mar 2025
Court
High Court of India
Decided
26 Mar 2025
Bench
BECHU KURIAN THOMAS
Length
2,108 words

5. I have heard Sri. Dinesh R. Shenoy, the learned counsel for the petitioners as well as Sri. K. S. Arunkumar, the learned Standing W.P.(C). No.12365 of 2021 -:5:- Counsel for the respondents.

6. In Exhibit-P11 judgment dated 04.06.2020, a specific direction was issued to reconsider the matter by issuing notice to the petitioners through speed post or through other modes and to take a decision thereafter. Exhibit-P21 order issued pursuant to the said direction does not indicate any such notice having been issued to the petitioners. Therefore, on the ground of violation of principles of natural justice, Exhibit-P21 has to be interfered with.

7. Apart from the above, the assertion of the petitioners, which does not seem to be wholly denied, is that the canopy or lean-to constructed by the petitioners for the purpose of protecting loading and unloading works from rain and sun are only temporary structures, which cannot be regarded as unauthorised constructions. The further contention of the petitioners is that the said structure does not even enclose any portion of the building and hence is not included in the plinth area as per the Building Rules.

8. Reference to the definition of the term ‘plinth area’ in Section 2(ce) of the Kerala Municipality Building Rules, 2019 and Section 2(bf) of the Kerala Municipality Building Rules, 1999 are relevant in this context. It is also pertinent to mention that if there are any additional unauthorised constructions made to an existing authorised building, the former cannot render the latter to be regarded as unauthorised in its entirety. Only the additional construction alone W.P.(C). No.12365 of 2021 -:6:- could be treated as unauthorised, and appropriate proceedings can be initiated for such construction. Therefore, the cancellation of building numbers to the authorised structures of the petitioners as per Exhibit- P21 is perverse and cannot be legally justified. The demand notices issued to the petitioners treating all four authorised structures also as unauthorised constructions are liable to be interfered with.

9. In the result, Exhibit-P21 order is hereby set aside, and the second respondent is directed to reconsider the matter, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of the judgment, after granting an opportunity of hearing to the petitioners. If, in case any site inspection is proposed to be done, the same shall be done with minimum of 24 hours notice to the petitioners.

10. In view of the above, the demand notices issued as Exhibit-P22 to Exhibit-29 and Exhibit-P36 are hereby quashed. After fresh orders are passed, the second respondent will be at liberty to issue fresh demand notices in accordance with law. The writ petition is allowed as above. Jka/26.03.25. JUDGE Sd/- BECHU KURIAN THOMAS W.P.(C). No.12365 of 2021 -:7:- APPENDIX OF WP(C) 12365/2021 PETITIONERS’ EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 Exhibit P9 TRUE COPY OF THE DEMAND NOTICE DATED 12- 03-2019 ISSUED BY THE SECOND RESPONDENT RAGARDING BUILDING BEARING NUMBER 11/205 TRUE COPY OF THE DEMAND NOTICE DATED 12.03.2019 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING NUMBER 11/206 TRUE COPY OF THE DEMAND NOTICE DATED 12.03.2019 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING NUMBER 11/207 TRUE COPY OF THE DEMAND NOTICE DATED 12.03.2019 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING NUMBER 11/208 TRUE COPY OF THE NOTICE DATED 19.12.2019 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING NUMBER 11/205 TRUE COPY OF THE NOTICE DATED 19.12.2019 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING NUMBER 11/206 TRUE COPY OF THE NOTICE DATED 19.12.2019 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING NUMBER 11/207 TRUE COPY OF THE NOTICE DATED 19.12.2019 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING NUMBER 11/208 TRUE COPY OF THE RECEIPT DATED 07-01-2020 TOWARDS THE BUILDING TAX OF THE BUILDING NO.11/205 Exhibit P10 TRUE COPY OF THE RECEIPT DATED 15-01-2020 TOWARDS THE BUILDING TAX OF THE BUILDING NO.11/206 Exhibit P11 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 04.06.2020 IN WRIT W.P.(C). No.12365 of 2021 -:8:- Exhibit P12 Exhibit P13 Exhibit P14 Exhibit P15 Exhibit P16 Exhibit P17 Exhibit P18 Exhibit P19 PETITION NO.10956 OF 2020 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 02.07.2020 WRIT PETITION NO.13040 OF 2020 TRUE COPY OF THE NOTICE DATED 27.07.2020 SERVED TO THE PETITIONER ON 12.08.2020 REGARDING REASSESSMENT OF TAX AND DIRECTING PETITIONER TO SUBMIT RETURNS WITH IN 7 DAYS TRUE COPY OF THE RETURN SUBMITTED BY PETITIONER DATED 19.08.2020 IN FORM 2 OF RULE 2011 REGARDING BUILDING DOR NUMBERS 11/205,11/206,11/207 AND 11/208 ALONG WITH RECEIPT ISSUED BY THE SECOND RESOPNDENT TRUE COPY OF THE INTIMATION DATED 06.10.2020 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER CITING INSPECTION WILL BE CONDUCTED IN THE PREMISES ON THE BASIS OF EXHIBIT P11 JUDGMENT. TRUE COPY OF THE NOTICE DIRECTING PETITIONER TO DEMOLISH ALLEGED SHED CONSTRUCTED DATED 16.10.2020 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER TRUE COPY OF THE APPLICATION DATED 19.10.2020 SUBMITTED BY THE PETTIONERS BEFORE THE SECOND RESPONDENT ALONG WITH RECEIPT ISSUED BY THE SECOND RESPONDENT REQUESTING GRANT OF BREATHING TIME. TRUE COPY OF THE NOTICE DATED 20.10.2020 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONERS GRANTING ONE MONTH TIME FOR PRODUCTION OF DOCUMENTS TRUE COPY OF THE NOTICE DATED 29.1.2021 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONERS TO PRODUCE ELEVEN ADDITIONAL DOCUMENTS. Exhibit P20 TRUE COPY OF THE APPLICATION DATED W.P.(C). No.12365 of 2021 -:9:- Exhibit P21 Exhibit P22 Exhibit P23 Exhibit P24 Exhibit P25 Exhibit P26 Exhibit P27 Exhibit P28 Exhibit P29

20.2.2021 ALONG WITH RECEIPT ISSUED BY THE SECOND RESPONDENT REQUESTING OF 90 DAYS ADDITIONAL TIME TRUE COPY OF THE NOTICE DATED 17.3.2021 ISSUED BY THE SECOND RESPONDENT CANCELLING BUILDING NUMBERS AND IMPOSING TAX. TRUE COPY OF THE NOTICE DATED 17.3.2021 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING DOOR NO.11/205 UA UNDER SECTION 242 OF KM ACT TRUE COPY OF THE NOTICE DATED 17.3.2021 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING DOOR NO.11/206 UA UNDER SECTION 242 OF KM ACT TRUE COPY OF THE NOTICE DATED 17.3.2021 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING DOOR NO.11/207 UA UNDER SECTION 242 OF KM ACT TRUE COPY OF THE NOTICE DATED 17.3.2021 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING DOOR NO.11/208 UA UNDER SECTION 242 OF KM ACT TRUE COPY OF THE ARREAR DEMAND NOTICE DATED 19.3.2021 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING DOOR NO.11/205 UA TRUE COPY OF THE ARREAR DEMAND NOTICE DATED 17.3.2021 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING DOOR NO.11/206 UA TRUE COPY OF THE ARREAR DEMAND NOTICE DATED17.3.2021 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING DOOR NO.11/207 UA TRUE COPY OF THE ARREAR DEMAND NOTICE DATED 19.3.2021 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING DOOR W.P.(C). No.12365 of 2021 Exhibit P30 Exhibit P31 Exhibit P32 Exhibit P33 Exhibit P34 Exhibit P35 Exhibit P36 Exhibit P37 Exhibit P38 -:10:- NO.11/208 UA TRUE COPY OF THE REPRESENTATION DATED 23.3.2021 SUBMITTED BY THE PETITIONERS BEFORE THE SECOND RESPONDENT TRUE COPY OF THE REPRESENTATION DATED 23.2.2020 SUBMITTED BY THE FIRST PETITIONER BEFORE THE SECOND RESPONDENT REGARDING BUILDING BEARING DOOR NO.11/205 TRUE COPY OF THE REPRESENTATION DATED 23.3.2020 SUBMITTED BY THE FIRST PETITIONER BEFORE THE SECOND RESPONDENT REGARDING BUILDING BEARING DOOR NO.11/206 TRUE COPY OF THE REPRESENTATION DATED 23.3.2020 SUBMITTED BY THE FIRST PETITIONER BEFORE THE SECOND RESPONDENT REGARDING BUILDING BEARING DOOR NO.11/207 TRUE COPY OF THE REPRESENTATION DATED 23.3.2020 SUBMITTED BY THE FIRST PETITIONER BEFORE THE SECOND RESPONDENT REGARDING BUILDING BEARING DOOR NO.11/208 TRUE COPY OF THE APPLICATION DATED 27.4.2021 SUBMITTED BY THE FIRST PETITIONER BEFORE THE SECOND RESPONDENT. TRUE COPY OF THE NOTICE DATED 03.06.2021 ISSUED BY THE SECOND RESPONDENT TO REMIT TAX. TRUE PHOTOCOPY OF ORDER DATED 3/12/2004 ISSUED BY THE SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT (H) DEPARTMENT. TRUE PHOTOCOPY OF PHOTOGRAPHS OF THE OPEN PORTCH/CANOPIES IN FRONT OF THE PETITIONER'S BUILDING AND THE BATHROOMS

5. I have heard Sri. Dinesh R. Shenoy, the learned counsel for the petitioners as well as Sri. K. S. Arunkumar, the learned Standing W.P.(C). No.12365 of 2021 -:5:- Counsel for the respondents.

6. In Exhibit-P11 judgment dated 04.06.2020, a specific direction was issued to reconsider the matter by issuing notice to the petitioners through speed post or through other modes and to take a decision thereafter. Exhibit-P21 order issued pursuant to the said direction does not indicate any such notice having been issued to the petitioners. Therefore, on the ground of violation of principles of natural justice, Exhibit-P21 has to be interfered with.

7. Apart from the above, the assertion of the petitioners, which does not seem to be wholly denied, is that the canopy or lean-to constructed by the petitioners for the purpose of protecting loading and unloading works from rain and sun are only temporary structures, which cannot be regarded as unauthorised constructions. The further contention of the petitioners is that the said structure does not even enclose any portion of the building and hence is not included in the plinth area as per the Building Rules.

8. Reference to the definition of the term ‘plinth area’ in Section 2(ce) of the Kerala Municipality Building Rules, 2019 and Section 2(bf) of the Kerala Municipality Building Rules, 1999 are relevant in this context. It is also pertinent to mention that if there are any additional unauthorised constructions made to an existing authorised building, the former cannot render the latter to be regarded as unauthorised in its entirety. Only the additional construction alone W.P.(C). No.12365 of 2021 -:6:- could be treated as unauthorised, and appropriate proceedings can be initiated for such construction. Therefore, the cancellation of building numbers to the authorised structures of the petitioners as per Exhibit- P21 is perverse and cannot be legally justified. The demand notices issued to the petitioners treating all four authorised structures also as unauthorised constructions are liable to be interfered with.

9. In the result, Exhibit-P21 order is hereby set aside, and the second respondent is directed to reconsider the matter, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of the judgment, after granting an opportunity of hearing to the petitioners. If, in case any site inspection is proposed to be done, the same shall be done with minimum of 24 hours notice to the petitioners.

10. In view of the above, the demand notices issued as Exhibit-P22 to Exhibit-29 and Exhibit-P36 are hereby quashed. After fresh orders are passed, the second respondent will be at liberty to issue fresh demand notices in accordance with law. The writ petition is allowed as above. Jka/26.03.25. JUDGE Sd/- BECHU KURIAN THOMAS W.P.(C). No.12365 of 2021 -:7:- APPENDIX OF WP(C) 12365/2021 PETITIONERS’ EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 Exhibit P9 TRUE COPY OF THE DEMAND NOTICE DATED 12- 03-2019 ISSUED BY THE SECOND RESPONDENT RAGARDING BUILDING BEARING NUMBER 11/205 TRUE COPY OF THE DEMAND NOTICE DATED 12.03.2019 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING NUMBER 11/206 TRUE COPY OF THE DEMAND NOTICE DATED 12.03.2019 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING NUMBER 11/207 TRUE COPY OF THE DEMAND NOTICE DATED 12.03.2019 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING NUMBER 11/208 TRUE COPY OF THE NOTICE DATED 19.12.2019 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING NUMBER 11/205 TRUE COPY OF THE NOTICE DATED 19.12.2019 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING NUMBER 11/206 TRUE COPY OF THE NOTICE DATED 19.12.2019 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING NUMBER 11/207 TRUE COPY OF THE NOTICE DATED 19.12.2019 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING NUMBER 11/208 TRUE COPY OF THE RECEIPT DATED 07-01-2020 TOWARDS THE BUILDING TAX OF THE BUILDING NO.11/205 Exhibit P10 TRUE COPY OF THE RECEIPT DATED 15-01-2020 TOWARDS THE BUILDING TAX OF THE BUILDING NO.11/206 Exhibit P11 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 04.06.2020 IN WRIT W.P.(C). No.12365 of 2021 -:8:- Exhibit P12 Exhibit P13 Exhibit P14 Exhibit P15 Exhibit P16 Exhibit P17 Exhibit P18 Exhibit P19 PETITION NO.10956 OF 2020 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 02.07.2020 WRIT PETITION NO.13040 OF 2020 TRUE COPY OF THE NOTICE DATED 27.07.2020 SERVED TO THE PETITIONER ON 12.08.2020 REGARDING REASSESSMENT OF TAX AND DIRECTING PETITIONER TO SUBMIT RETURNS WITH IN 7 DAYS TRUE COPY OF THE RETURN SUBMITTED BY PETITIONER DATED 19.08.2020 IN FORM 2 OF RULE 2011 REGARDING BUILDING DOR NUMBERS 11/205,11/206,11/207 AND 11/208 ALONG WITH RECEIPT ISSUED BY THE SECOND RESOPNDENT TRUE COPY OF THE INTIMATION DATED 06.10.2020 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER CITING INSPECTION WILL BE CONDUCTED IN THE PREMISES ON THE BASIS OF EXHIBIT P11 JUDGMENT. TRUE COPY OF THE NOTICE DIRECTING PETITIONER TO DEMOLISH ALLEGED SHED CONSTRUCTED DATED 16.10.2020 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER TRUE COPY OF THE APPLICATION DATED 19.10.2020 SUBMITTED BY THE PETTIONERS BEFORE THE SECOND RESPONDENT ALONG WITH RECEIPT ISSUED BY THE SECOND RESPONDENT REQUESTING GRANT OF BREATHING TIME. TRUE COPY OF THE NOTICE DATED 20.10.2020 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONERS GRANTING ONE MONTH TIME FOR PRODUCTION OF DOCUMENTS TRUE COPY OF THE NOTICE DATED 29.1.2021 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONERS TO PRODUCE ELEVEN ADDITIONAL DOCUMENTS. Exhibit P20 TRUE COPY OF THE APPLICATION DATED W.P.(C). No.12365 of 2021 -:9:- Exhibit P21 Exhibit P22 Exhibit P23 Exhibit P24 Exhibit P25 Exhibit P26 Exhibit P27 Exhibit P28 Exhibit P29

20.2.2021 ALONG WITH RECEIPT ISSUED BY THE SECOND RESPONDENT REQUESTING OF 90 DAYS ADDITIONAL TIME TRUE COPY OF THE NOTICE DATED 17.3.2021 ISSUED BY THE SECOND RESPONDENT CANCELLING BUILDING NUMBERS AND IMPOSING TAX. TRUE COPY OF THE NOTICE DATED 17.3.2021 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING DOOR NO.11/205 UA UNDER SECTION 242 OF KM ACT TRUE COPY OF THE NOTICE DATED 17.3.2021 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING DOOR NO.11/206 UA UNDER SECTION 242 OF KM ACT TRUE COPY OF THE NOTICE DATED 17.3.2021 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING DOOR NO.11/207 UA UNDER SECTION 242 OF KM ACT TRUE COPY OF THE NOTICE DATED 17.3.2021 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING DOOR NO.11/208 UA UNDER SECTION 242 OF KM ACT TRUE COPY OF THE ARREAR DEMAND NOTICE DATED 19.3.2021 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING DOOR NO.11/205 UA TRUE COPY OF THE ARREAR DEMAND NOTICE DATED 17.3.2021 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING DOOR NO.11/206 UA TRUE COPY OF THE ARREAR DEMAND NOTICE DATED17.3.2021 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING DOOR NO.11/207 UA TRUE COPY OF THE ARREAR DEMAND NOTICE DATED 19.3.2021 ISSUED BY THE SECOND RESPONDENT REGARDING BUILDING BEARING DOOR W.P.(C). No.12365 of 2021 Exhibit P30 Exhibit P31 Exhibit P32 Exhibit P33 Exhibit P34 Exhibit P35 Exhibit P36 Exhibit P37 Exhibit P38 -:10:- NO.11/208 UA TRUE COPY OF THE REPRESENTATION DATED 23.3.2021 SUBMITTED BY THE PETITIONERS BEFORE THE SECOND RESPONDENT TRUE COPY OF THE REPRESENTATION DATED 23.2.2020 SUBMITTED BY THE FIRST PETITIONER BEFORE THE SECOND RESPONDENT REGARDING BUILDING BEARING DOOR NO.11/205 TRUE COPY OF THE REPRESENTATION DATED 23.3.2020 SUBMITTED BY THE FIRST PETITIONER BEFORE THE SECOND RESPONDENT REGARDING BUILDING BEARING DOOR NO.11/206 TRUE COPY OF THE REPRESENTATION DATED 23.3.2020 SUBMITTED BY THE FIRST PETITIONER BEFORE THE SECOND RESPONDENT REGARDING BUILDING BEARING DOOR NO.11/207 TRUE COPY OF THE REPRESENTATION DATED 23.3.2020 SUBMITTED BY THE FIRST PETITIONER BEFORE THE SECOND RESPONDENT REGARDING BUILDING BEARING DOOR NO.11/208 TRUE COPY OF THE APPLICATION DATED 27.4.2021 SUBMITTED BY THE FIRST PETITIONER BEFORE THE SECOND RESPONDENT. TRUE COPY OF THE NOTICE DATED 03.06.2021 ISSUED BY THE SECOND RESPONDENT TO REMIT TAX. TRUE PHOTOCOPY OF ORDER DATED 3/12/2004 ISSUED BY THE SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT (H) DEPARTMENT. TRUE PHOTOCOPY OF PHOTOGRAPHS OF THE OPEN PORTCH/CANOPIES IN FRONT OF THE PETITIONER'S BUILDING AND THE BATHROOMS

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