Allowed

Shelly Joseph v. Secretary,Cochin Corporation

Kerala HC2 Sept 2011WP(C)/6049/2004

Case brief

AI extract

What is this about?

Writ petition challenging demolition orders issued by the Corporation without an opportunity of hearing. The Court set aside the impugned orders holding that they were passed after finalizing the proceedings behind the petitioners without affording them a chance to be heard.

What did the court decide?

Impugned orders inviting demolition of the structure without opportunity of hearing are set aside with liberty to the Corporation to pursue the matter afresh after giving an opportunity of hearing.

Shelly Joseph Vs Secretary,Cochin Corporation — Landlord and Tenant | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON

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FRIDAY, THE 2ND SEPTEMBER 2011 / 11TH BHADRA 1933

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WP(C).No. 6049 of 2004(T)

PETITIONERS:

SHELLY JOSEPH, PARTNER, M/S. EMJAY AUTOMOBILES, BABU'S ESTATE, MADHAVA PHARMACY JUNCTION, BANERJI ROAD, ERNAKULAM, MUKADAYIL, KALOOR, KOCHI-17.

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SHRI.SUNIL, PROPRIETOR, M/S. PARIS TEXTILES, BABU'S ESTATE, MADHAVA PHARMACY JUNCTION, BANERJI ROAD, ERNAKULAM, THAROGIL HOUSE, EDAPPALLY.

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BY ADV. SRI.JOY THATTIL ITTOOP

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RESPONDENTS:

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THE SECRETARY, CORPORATION OF COCHIN, ERNAKULAM.

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V.R. VIDYASAGAR, V.G.R. TEXTILES, BABU'S ESTATE, MADHAVA PHARMACY JUNCTION, BANERJI ROAD, ERNAKULAM.

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SHIJO. P. THOMAS, MANAGER, VISION CENTER, BABU'S ESTATE, MADHAVA PHARMACY JUNCTION, BANERJI ROAD, ERNAKULAM.

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ADDL. 4. MARG THOMAS, W/O.P.C. ALEX, KULAMOOTTIL, KARIPAYKAYIL, KEEKOZHIYOOR, CHERUKOL VILLAGE, RANNI. (IMPLEADED AS PER ORDER DATED 24.03.2004 IN I.A. :3957/04)

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R1 BY SMT.ANU SIVARAMAN NAIR, SC, COCHIN CORP

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R2 & ADDL.R4 BY ADV. SRI.DINESH R.SHENOY

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 6049 of 2004(T)

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXT.P1 : TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN OP NO.11107 OF 1999 DATED 26.05.1999.

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EXT.P2 : TRUE COPY OF THE ORDER NO.MOP1 11918/99DATED 30.07.1999 PASSED BY THE FIRST RESPONDENT.

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EXT.P3 : TRUE COPY OF LATEST ORDER OF EXTENSION NO.004188/2003 DATED 03.03.2003 ISSUED BY THE FIRST RESPONDENT.

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EXT.P4 : TRUE COPY OF THE ORDER NO.MOP1/17081/01 DATED 10.02.2004 ISSUED TO THE FIRST PETITIONER.

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EXT.P5 : TRUE COPY OF THE ORDER NO.MOP1/17081/01 DATED 10.02.2004 ISSUED TO THE SECOND PETITIONER.

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/TRUE COPY/

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PA TO JUDGE

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P.R.RAMACHANDRA MENON,J

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W.P.(C)No. 6049 OF 2004

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Dated this the 2^nd day of September, 2011

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JUDGMENT

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The petitioners are stated as aggrieved by Exts.P4 and

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P5 notice and proceedings of the 1^st respondent Corporation whereby a portion of the building constructed by the petitioners was ordered to be demolished, stating that the same is unauthorised. The main contention of the petitioners is that the said orders were passed without giving an opportunity of hearing to the petitioner.

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The grievance projected in the writ petition is that the petitioners had effected the construction in accordance with the relevant provisions of law; despite which a complaint was preferred by the 2^nd respondent before the Corporation. This was directed to be considered and disposed of in accordance with law as per Ext.P1 judgment in W.P.(C) No.11197 of 1999 preferred by the 2^nd respondent.

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The case of the petitioners is that pursuant to Ext.P1, the matter was considered by the Corporation and Ext.P2

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WP(C) No.6049 of 2004

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order was passed on 30.07.1999, whereby it was held that there was absolutely no basis in the complaint preferred by the 2^nd respondent herein, who was the writ petitioner to Ext.P1. Subsequently, the 2^nd respondent herein preferred yet another writ petition as O.P.No.21934 of 2002 in respect of the very same cause of action, however, without revealing anything with regard to Exts.P1 and P2. On receipt of notice, the petitioner filed a detailed counter affidavit pointing out the sequence of events, under which circumstance, the 2^nd respondent, who was the writ petitioner in O.P.No.21934 of 2002, was constrained to withdraw the writ petition. It was accordingly dismissed as withdrawn.

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It is after the said turn of events, that the 1^st respondent issued Exts.P4 and P5 orders to the petitioners asking to demolish the unauthorised construction. With reference to the contents of the said orders, the learned counsel for the petitioner submits that the unauthorised construction as specifically referred to in the bottom of the

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WP(C) No.6049 of 2004

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said orders is with reference to the installation of some 'Board'. It is stated that no opportunity of hearing was ever afforded to the petitioners before passing the said orders and as such, the matter requires to be reconsidered.

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It is stated by the learned counsel representing the Corporation that a counter affidavit has been filed; which however is not seen as part of the files. The learned counsel for the petitioners submits that nothing is stated in the said counter affidavit to hold that the petitioners were heard before issuance of Exts.P4 and P5. Nothing is also discernible therefrom to arrive at an inference that such an opportunity of hearing was given before the said proceedings.

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In the said circumstance, this Court does not require a second thought to arrive at a finding that the proceedings have been finalised behind the petitioners and as such, the impugned proceedings are liable to be set aside on this core alone. Exts.P4 and P5 are set aside, however, with liberty to the respondent Corporation to pursue the matter

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WP(C) No.6049 of 2004

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afresh in accordance with law, if they find it necessary, of course after giving an opportunity of hearing to the petitioner.

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The Writ Petition is allowed to the said extent. No

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costs.

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P.R.RAMACHANDRA MENON, JUDGE

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ttb

Shelly Joseph v. Secretary,Cochin Corporation

Case brief

What is this about?

What did the court decide?

Shelly Joseph v. Secretary,Cochin Corporation

Case brief

What is this about?

What did the court decide?

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