Disposed

Elizabeth Mathew v. State of Kerala

Kerala HC1 Aug 2012WP(C)/5386/2005

Case brief

AI extract

What is this about?

Petitioners challenged demolition of their compound walls near the Perandoor Canal and sought removal of encroachments. The Court dismissed the plea to prevent demolition as the walls were already gone but directed the Corporation to restore the canal width and ensured compliance with statutory notice procedures for future removals.

What did the court decide?

Directed the 3rd respondent to take steps to restore the canal to its original width and directed that any future action must comply with Section 406 of the Kerala Municipality Act.

Elizabeth Mathew Vs State of Kerala — Municipal and Town Planning | Kerala HC (2012)

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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 ANTONY DOMINIC

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WEDNESDAY, THE 1ST DAY OF AUGUST 2012/10TH SRAVANA 1934

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WP(C).No. 5386 of 2005 (N)

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PETITIONERS:

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1. ELIZABETH MATHEW,

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H.NO.85, CANAL ROAD, GIRI NAGAR, KOCHI-20.

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2. C.V.CHACKO, H.NO.86, -DO- -DO-.

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3. K.K.POULOSE, H.NO.89, -DO- -DO-.

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4. MARIAMMA KURUVILA, H.NO.90, -DO- -DO-.

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5. K.RAMESH, H.NO.106, -DO- -DO-.

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6. SAROJINI AMMA, H.NO.105, -DO- -DO-.

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7. DAVIS F.MANAVALAN, H.NO.110, -DO- -DO-.

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8. P.J.JOSE, H.NO.111, -DO- -DO-.

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9. GEORGE MATHEW, H.NO.113, -DO- -DO-.

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10. MARIAMMA KURUVILA, H.NO.115, -DO- -DO-.

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11. DR.SREEKALA SURESH, H.NO.116, -DO- -DO-.

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12. V.A.CHACKO, H.NO.117, -DO- -DO-.

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W.P.(C).NO.5386/2005-N:

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13. T.K.M.UNNITHAN, H.NO.118, -DO- -DO-.

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14. DR.M.J.GEORGE,

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H.NO.120, -DO- -DO-.

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15. V.D.JOHN,

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H.NO.121, -DO- -DO-.

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16. PROF.LILLY SANKUNNY, H.NO.123, -DO- -DO-.

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17. JACOB P.PAUL, H. NO.112, -DO- -DO-.

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18. ELIYAMMA MARKOSE, H.NO.91, -DO- -DO-.

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19. ELIYAS GEORGE, H.NO.109, -DO- -DO-.

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20. RAMAKRISHNAN, H.NO. 119, -DO- -DO-.

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BY ADVS.DR.K.P.SATHEESAN, SRI.K.K.GOPINATHAN NAIR, SRI.M.R.JAYAPRASAD.

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RESPONDENTS:

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVT.SECRETARIAT,THIRUVANANTHAPURAM.

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2. THE DISTRICT COLLECTOR, ERNAKULAM.

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3. CORPORATION OF KOCHI, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, KOCHI-11.

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4. TOWN PLANNING OFFICER, CORPORATION OF KOCHI, KOCHI-11.

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5. MR.MUHAMMED HANEESH, DISTRICT COLLECTOR, ERNAKULAM.

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6. SUDARSANAN,

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SECRETARY, CORPORATION OF KOCHI, KOCHI-11.

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W.P.(C).NO.5386/2005-N:

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7. K.D.VINCENT, CHAIRMAN, TOWN PLANNING COMMITTEE CORPORATION OF KOCHI, KOCHI-11.

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R1 & R2 BY SR.GOVERNMENT PLEADER SRI. M. MUHAMMED SHAFI, R3 & R4 BY SRI.N.N.SUGUNAPALAN, S.C, ADV. SRI.M.K.CHANDRAMOHAN DAS,S.C, ADV. SRI.B.HARISH KUMAR, ADV. COMMISSIONER.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C).NO.5386/2005-N:

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXT.P.1: COPY OF THE INTIMATION OF ALLOTMENT DTD. 10/01/1967. EXT.P.2: COPY OF THE INSPECTION REPORT OF EXECUTIVE ENGINEER. EXT.P.3: COPY OF THE PHOTOGRAPH. EXT.P.4: COPY OF THE PHOTOGRAPH. EXT.P.5: COPY OF THE PHOTOGRAPH. EXT.P.6: COPY OF THE JUDGMENT DTD. 15/10/03 IN O.P.NO.28312/2000. EXT.P.7: COPY OF THE COMPUTER PRINT GIVEN BY THE ENQUIRY COUNTER OF THE HIGH COURT OF KERALA.

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EXT.P.8: COPY OF THE NEWS PUBLISHED IN MALAYALA MANORAMA DAILY DTD. 12/02/05.

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EXT.P.9: COPY OF THE REPORT PUBLISHED IN METRO MALAYALA MANORAMA DAILY NEWS PAPER DTD. 11/02/2005.

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RESPONDENTS' EXHIBITS: NIL.

//TRUE COPY//

P.S. TO JUDGE.

Prv.

ANTONY DOMINIC, J.

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W.P.(C) NO.5386 OF 2005-N

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--------------------------------------------------

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Dated this the Ist day of August, 2012

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J U D G M E N T

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Petitioners are residents of Girinagar Colony. Their houses are situated on the eastern side of the Thevara-Perandoor Canal.

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Petitioners submit that the land in question was acquired by

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the Government, reclaimed and was allotted to the Girinagar Housing Society, which in turn allotted the plots to the petitioners. On that basis they constructed compound walls and the residential houses and are staying in their respective houses.

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Petitioners submit that in 2002 a public interest litigation was filed as O.P.No.28312/2000 seeking a direction against the respondent Corporation, to evict the unauthorized occupants on the side of the Perandoor canal. When the writ petition was taken up for consideration, it was submitted on behalf of the respondents in the Original Petition that steps in accordance with law, to remove the encroachments and pollution of the canal shall be taken. This was recorded and the Original Petition was disposed of by Ext.P6 judgment rendered on 15^th October, 2003.

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WPC.5386/05

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/2/

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It appears that subsequently, complaining of wilful W.P(c). 5386/05 disobedience of the undertaking, which was recorded in Ext.P6 judgment, Contempt of Court case No.842/04 was filed by the petitioner in the Original Petition. According to the petitioners, in spite fo the fact that the Perandoor Canal has 15 meter width at its 2^nd reach, without issuing any notice or other intimation to any one of the parties, the Corporation demolished the compound walls constructed by the petitioners. It was at this stage the petitioners filed this writ petition seeking not to demolish the compound wall or buildings on the eastern side of the canal and also to direct the respondents 2 to 7 to remove the unauthorised constructions in reaches 3 to 6 of the canal. Further directions for restoration of the compound wall and for payment of compensation are also sought for.

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I heard the counsel for the petitioner and also considered the submissions made.

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Even according to the petitioners, compound walls are already demolished. Therefore, the first prayer requiring the respondents not to demolish the compound wall does not now survive for consideration.

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/3/

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WPC.5386/05

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The 2^nd prayer is to direct the respondents 2 to 7 to remove the unauthorised constructions and obstructions in reaches 3 to 6 of the canal. According to the petitioners in reaches 3 to 6 there are several unauthorized constructions and as a result W.P(c).5386/05 of which width of the canal has been reduced to 8 to 10 meters. If as stated by the petitioners there are encroachments in the Perandoor canal it is the primary duty of the Corporation to remove such encroachment. However, the Corporation has not even chosen to file counter affidavit in this case. This indifference and irresponsibility shown by the corporation is a matter of shame and I strongly condemn this attitude. Be that as it may, I direct that the 3^rd respondent will take steps for restoration of the canal in question to its original width. Steps in that direction shall be taken in accordance with law and as expeditiously as possible.

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Petitioners primary concern now is that they want to reconstruct the compound walls. The compound walls in question were demolished on the allegation that they were constructed encroaching into the canal area. If the compound walls are to be reconstructed, necessarily the petitioners will have to obtain building permits from the Corporation. Therefore, it is for the petitioners to

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WPC.5386/05

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/4/

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approach the Corporation for building permits and if such W.P(c). 5386/05 applications are made, Corporation shall consider the applications and pass orders thereon without any delay in the matter.

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Yet another grievance of the petitioners is that in case the Corporation takes further action in the matter against them, such action shall be only after giving them notice and opportunity to raise objections. Removal of unauthorised construction can only be in terms of Section 406 of the Kerala Municipality Act. Therefore, I direct that, any further action in the matter shall be only in compliance with Section 406, which also contemplates of an opportunity to file objections in the matter.

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The other contentions of the petitioners for compensation are left open to be adjudicated in appropriate proceedings.

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Writ Petition is disposed of as above.

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(ANTONY DOMINIC) JUDGE

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vi/

Elizabeth Mathew v. State of Kerala

Case brief

What is this about?

What did the court decide?

Elizabeth Mathew v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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