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2020 DIGILAW 706 (KER)

Jibi Thomas v. Aluva Municipality

2020-08-14

N.NAGARESH

body2020
ORDER : N. Nagaresh, J. 1. The petitioner, who is owner of a commercial building in Aluva West Village, is before this Court seeking to quash Ext. P13. 2. The petitioner constructed a building in the property in his possession in Aluva West Village. The 1st respondent-Municipality assigned Door No. XVII/506(4). The petitioner has been paying property tax in respect of the building. The petitioner is conducting a showroom for Honda Two-wheelers in the building. With a view to protect the building from the vagaries of weather, the petitioner provided trusswork over the roof of the first floor. The petitioner intimated to the 2nd respondent in advance about his intention to provide trusswork over the roof of the existing building. The petitioner was thereupon issued with a building permit. The petitioner made the roof work as per the approved plan. 3. In 2015 when the petitioner submitted an application before the 2nd respondent to issue building permits to construct two additional floors, the 2nd respondent issued Ext. P7 show-cause notice alleging that the petitioner has illegally constructed trusswork over the roof of the first floor. The petitioner was informed that if his reply is not satisfactory, the Municipality will be confirming Ext. P7 order and steps will be taken to demolish the alleged illegal construction. The petitioner submitted Ext. P8 reply pointing out that the trusswork was done after obtaining Ext. P3 permit and the basement was in existence from the time of original construction of the building and property tax is being remitted in respect of the same. 4. However, the petitioner was served with Ext. P9 Demand Notice calling upon him to remit property tax. The 2nd respondent apparently categorised the trusswork portion of the roof of the building as an unauthorised construction. Since Ext. P9 was issued without granting an opportunity of hearing to the petitioner, the petitioner filed W.P.(C) No. 18116/2016. This Court disposed of the said writ petition directing the Municipality to treat Ext. P9 Demand Notice as show-cause notice and hear the objections of the petitioner. The petitioner filed Ext. P11 objections. The petitioner was called for hearing by the 2nd respondent on 26.02.2018. However, the 2nd respondent, without considering the objections of the petitioner, confirmed Ext. P9 demand as per Ext. P13 order. The petitioner challenges Exts. P9 and P13 orders on various grounds. 5. The petitioner filed Ext. P11 objections. The petitioner was called for hearing by the 2nd respondent on 26.02.2018. However, the 2nd respondent, without considering the objections of the petitioner, confirmed Ext. P9 demand as per Ext. P13 order. The petitioner challenges Exts. P9 and P13 orders on various grounds. 5. Respondents 1 and 2 filed detailed counter affidavit denying the averments in the requisition. Respondents 1 and 2 contended that after obtaining building number for the original building, in the year 2010, the petitioner sought building permit for construction of weather roofing using sheet over the terrace portion of the building and the Municipality granted Ext. P3 building permit. According to the respondents, the construction of the roof was made violating the approved plan. The petitioner has covered all the sides of the terrace portion with brick and iron grill, and the roof with the trusswork and sheet roofing. 6. The petitioner is using the covered area for other purposes. Respondents 1 and 2 also alleged that the petitioner has converted the basement floor permitted for parking into an unauthorised garage. It is further alleged that the petitioner has also made unauthorised construction in the open yard including an open lift. Ext. P13 has been passed after hearing the petitioner. There is no illegality in Ext. P13 order, contended the learned counsel for the respondents. 7. I have heard the learned counsel appearing for the petitioner and the learner counsel for respondents 1 and 2. 8. Ext. P1 would show that the two storied building was constructed after obtaining building permit. Ext. P2 would show that the petitioner has been paying property tax in respect of the building. Ext. P3 is the building permit issued by respondents 1 and 2 for construction of sheet roofing covering terrace area. Ext. P4 would show that the plan in respect of the portion what is also approved. The allegation of respondents 1 and 2 is that the petitioner has covered the terrace area, which is violative of the building plan. 9. The petitioner has produced Ext. P5 photographs in respect of the building. Ext. P5 photographs show all the four sides of the building. From Ext. P5, it is evident that no construction of a permanent nature has been made on the terrace area. True, the petitioner has put iron net on some part of the roof of the terrace. 9. The petitioner has produced Ext. P5 photographs in respect of the building. Ext. P5 photographs show all the four sides of the building. From Ext. P5, it is evident that no construction of a permanent nature has been made on the terrace area. True, the petitioner has put iron net on some part of the roof of the terrace. The petitioner submits that such iron nets are provided to ward of birds, cats and other animals from entering the terrace portion. 10. If the petitioner has constructed truss-work on the terrace of the building in order to protect the building from the onslaught of weather, then the Municipality cannot take into account the terrace area also in order to compute property tax. Admittedly, the petitioner has made the trusswork after intimating the Municipality and after obtaining a permit. The respondents though have alleged that the petitioner has made some construction work of a permanent nature, the counter affidavit filed by the respondents does not speak of any construction of a permanent nature using cement and bricks. The counsel for respondents 1 and 2 admitted that Ext. P5 series of photographs are in respect of the building of the petitioner in question. It is also not disputed that from the said photographs it is evident that there is no construction of a permanent nature. 11. If the petitioner has put up iron nets on the terrace as a preventive measure to ward of birds and animals, that by itself would not make it a permanent construction. In such circumstances, respondents 1 and 2 were not justified in categorizing the truss worked terrace portion of the building as construction of permanent nature so as to attract additional property tax. 12. In the circumstances, Ext. P13 order and any order passed in continuation of Ext. P13 by respondents 1 and 2, are liable to be set aside and it is ordered accordingly. It is made clear that if the petitioner has violated any other building rule or converted the basement floor for parking or use vehicles in public road or has made any construction in the open yard, as alleged by respondents 1 and 2 in their counter affidavit, the respondents will be free to proceed against such unauthorised constructions, if any, in accordance with law. The writ petition is disposed of as above.