Allowed

Kozhikode Corporation v. T.B.Basheer

Kerala HC18 Jul 2018WA/290/2016

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a writ appeal filed by the Kozhikode Corporation challenging an order directing them to provide openings in a compound wall. The court dismissed the writ petitioner's claim due to unreasonable delay (laches) and noted that owners from other shops had approached the court within years, implying the wall did not affect the current petitioner's access.

What did the court decide?

The writ appeal was allowed and the judgment dated 9-11-2015 in W.P.(C) No. 5113/2015 was set aside.

Kozhikode Corporation Vs T.B.Basheer — Municipal and Town Planning | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE THE ACTING CHIEF JUSTICE MR.HRISHIKESH ROY &

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THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

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WEDNESDAY, THE 18TH DAY OF JULY 2018 / 27TH ASHADHA, 1940

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WA.No. 290 of 2016 IN WPC. 5113/2015

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AGAINST THE JUDGMENT IN WP(C) 5113/2015 of HIGH COURT OF KERALA DATED 9-11-2015

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APPELLANT/RESPONDENT:

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KOZHIKODE CORPORATION REPRESENTED BY SECRETARY, CORPORATION BUILDING, KOZHIKODE.

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BY ADV.SRI.K.D.BABU, SC, KOZHIKODE CORPORATION

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RESPONDENT/PETITIONER:

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T.P.BASHEER, AGED 60 YEARS, S/O THACHARAKKAL KUNHIKOYA, KALLADI HOUSE, KOVOOR, MEDICAL COLLEGE P.O., KOZHIKODE-673 008.

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R BY SRI.NIRMAL S.

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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vpv

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Hrishikesh Roy, Ag. CJ. &

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A.K.Jayasankaran Nambiar, J.

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W.A.No.290 of 2016

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Dated this the 18^th day of July, 2018

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JUDGMENT

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Hrishikesh Roy, Ag. CJ.

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Heard Sri.K.D.Babu, the learned Standing Counsel appearing for the Kozhikode Corporation, who are the appellant before us. Also heard Sri.Nirmal S., the learned counsel appearing for the respondent/writ petitioner.

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The writ petitioner is the owner of a shop room bearing No.17/503-C at Maruthi Enterprises Shopping Complex near the Moffussil bus stand at Kozhikode where he is operating a computer business in the name of Cosmic IT Solutions. According to him, when the Kozhikode Corporation constructed a compound wall in the bus stand in front of the shop room of the petitioner, the business of the petitioner, who was dependent on the bus passengers, was impacted and thus aggrieved, he approached this Court.

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In the Writ Petition, the petitioner referred to the O.P.No.29800 of 2000 filed by three other shop keepers, who also were impacted by the construction of the wall in the bus stand and in whose favour, this Court under the judgment dated 29.11.2000 (Ext.P5), issued direction to the Corporation to provide openings at regular intervals in the compound wall. The petitioner contended that he had filed the Ext.P8 representation on 30.9.2002 before the Municipal Authorities for similar access to his shop but when the representation was not considered, he had filed the Writ Petition in the year 2015.

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W.A.No.290 of 2016

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In that proceeding to understand the actual position at site, the Court appointed an Advocate Commissioner to visit the area. The Commission in his report had noted that few shop rooms had access to the bus stand with openings in the boundary wall. Because of such report the Court felt that similar opening in the compound wall of the Moffussil bus stand in front of the petitioner's shop room, should also be made available to provide easy access. Aggrieved thus, the Corporation of Kozhikode has challenged the impugned verdict.

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The learned Standing Counsel for the appellant Corporation firstly submits that the bus stand wall was constructed in August 1999 and if that had really blocked access to the petitioner's shop, he made no complaint on this, until he approached the Court in the year 2015. It is thus argued that other access for the customers to the petitioner's shop, was available.

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Next the Standing Counsel refers to paragraph 9 of the Commissioner's report to project that access to the petitioner's shop room was actually from the Mavoor Road on the northern side and the Bus stand wall was not constructed at that end. In fact the access from this entry passage was obstructed firstly, by erection of a transformer by the Kerala State Electricity Board ('the KSEB' for short) leading to loss of 4.75 meters of shop entry frontage from the Mavoor Road end. Subsequently, a gate was installed at the same spot by the management of the Amritha Hotel and Tourist Home and this iron gate considerably reduced the passage width, leading to the petitioner's shop. This considerably reduced the access to the petitioner's shop, from the Mavoor Road end.

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With the above projections, the appellants contend that the primary cause for

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W.A.No.290 of 2016

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the petitioner's sufferings is not on account of the wall of the bus stand, which was constructed in the year 1999, but it was only because of the iron gate put up by the Amritha Hotel and Tourist Home and the transformer installed by the KSEB, the access passage to the petitioner's shop was obstructed. But instead of proceeding against these two, the petitioner has opted to target the Corporation without any basis since the customers entered the shop from the north side Mavoor Road passage and not from the western end where the wall was constructed in 1999. Hence the appellants argue that the petitioner should have claimed easement right against the Hotel owner. Instead they chose a soft target with an unnecessary challenge to the wall constructed by the Corporation although this had not blocked the entry passage, from the Mavoor Road end.

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On the other hand, Sri.Nirmal S., the learned counsel for the respondent/writ petitioner contends that only in the front portion of the petitioner's shop, the bus stand wall is without any opening whereas, entry gaps have been provided in the South-East segment of the same wall for the benefit of other shop keepers. He further submits that Amritha Hotel and Tourist Home is trying to hound out the petitioner from business in order to capture the shop room and the Municipality is acting in connivance with the Hotel owner to serve the aim of the Hotel owner.

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The question to be considered here is whether the petitioner was affected by the bus stand wall constructed by the Corporation in the year 1999 or whether they were impacted, on account of the iron gate put up by the Amritha Hotel and Tourist Home as also the transformer, installed by the KSEB. If the business of the writ

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W.A.No.290 of 2016

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petitioner was impacted by the wall constructed in 1999, it would hardly be logical for them to await for 15 years to approach the Court. We say this in the context of the other similarly situated shop keepers filing cases in the year 2000 itself, through the O.P.No.29800 of 2008 for whom, relief was granted by this Court on 29.11.2000, under the Ext.P5 order. Therefore, we are persuaded to believe that the customers came to the shop from the Mavoor Road end the wall of the Bus stand did not affect the petitioner's business. Or else they would not have waited for 16 years to move the court.

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Apart from the issue of laches, we are also of the opinion that to direct the Corporation, to make an opening in the unbroken segment of the wall, would not be in public interest. Moreover the said wall is constructed at public cost and in the own land of the Corporation.

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As regards equal treatment claimed by the petitioner with those who had filed the O.P.No.29800 of 2008, it is clear enough that other shop keepers had approached the Court soon after the wall was constructed. Thereby, we can reasonably assume that their business was actually impacted by the wall constructed by the Corporation. But such does not appear to be the case for the petitioner, as he waited for 16 years, after the wall was constructed, to file the case.

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Following the above reasoning, the impugned judgment in favour of the writ petitioner, based only upon the report of the Advocate Commissioner, cannot be sustained since in the Commission report itself, the erection of the transformer and the construction of the wall by the Amritha Hotel and Tourist Home was referred to as

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W.A.No.290 of 2016

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those, having impacted the main access passage to the petitioner's shop room from the Mavoor Road end. Considered thus, the appellant according to our assessment, has made out a case for interference with the impugned judgment and accordingly, we allow the Writ Appeal by setting aside the judgment dated 9.11.2015 in W.P.(C)No.5113 of 2015. With this order, the Writ Appeal stands disposed of.

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Sd/- Hrishikesh Roy, Acting Chief Justice

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Sd/- A.K.Jayasankaran Nambiar, Judge

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/true copy/

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P.A. To Judge

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vpv

Kozhikode Corporation v. T.B.Basheer

Case brief

What is this about?

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Kozhikode Corporation v. T.B.Basheer

Case brief

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