Dismissed

Mary Vincent, v. Kochi Corporation

Kerala HC20 Jun 2019WP(C)/3934/2019

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ petition by Mary Vincent. The petitioner sought rights to conduct a hotel business and collect tax over a shed built on land surrendered to the Corporation for road widening. The Court held that surrendering the land deprived the petitioner of any right to retain possession, construct structures, or conduct business thereon.

What did the court decide?

Petitioner is not entitled to any declaration or reliefs sought regarding the right to conduct business on surrendered land.

Mary Vincent, Vs Kochi Corporation — Property and Title | Kerala HC (2019)

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N THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THURSDAY, THE 20TH DAY OF JUNE 2019 / 30TH JYAISHTA, 1941

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WP(C).No.3934 of 2019

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PETITIONER :

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MARY VINCENT, AGED 64 YEARS

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W/O. VINCENT, RESIDING AT THYPPARAMBIL HOUSE, PONNURUNNI, VYTTILA, KOCHI-602819.

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BY ADVS.

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SRI.T.B.THANKAPPAN SRI.ASHISH VIDYADHARAN DIPIN DILEEP SRI.T.T.HARIKUMAR SRI.T.U.SUJITH KUMAR

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RESPONDENTS:

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1 KOCHI CORPORATION, REPRESENTED BY ITS SECRETARY, ERNAKULAM - 682011.

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2 THE EXECUTIVE ENGINEER, CORPORATION OF KOCHI ZONAL OFFICE, VYTTILA, KOCHI - 682019.

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BY ADV. SRI.SHIBU JOSEPH,SC, COCHIN CORPORATION

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.3934 of 2019

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JUDGMENT

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The petitioner was the owner in possession and enjoyment of 9.830 cents of land comprised in Sy.No.539/1 and 539/3 of Elamkulam Village. Out of the said extent of land, she surrendered 1.10 Ares in Sy.No.539/3 of Elamkulam Village for the widening of Sahodharan Ayyappan Road, in exchange of an extent of 1.62 Ares in Sy.No.547. She has also surrendered 58m² land for widening of Sahodharan Ayyappan Road and the Royal Lane. On the western side of the surrendered land, the petitioner has been conducting a fast food business. According to the petitioner, no effective steps have been taken by the 1^st respondent to implement the widening of Royal Lane. The petitioner constructed a building in the balance property after the surrender of 1.10 Ares in Sy.No.539/3. When she applied for numbering that building, the same was refused by the 2^nd respondent informing that the application for numbering the newly

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constructed building will be considered only on demolition of the building for fast food business put up on 58m² of land surrendered for widening of the Royal Lane. Thereafter, the respondent Corporation stopped the collection of tax for the building put up for fast food business. In such circumstances, the petitioner could not renew the license. Later in July 2018, the officers of the respondent Corporation forcefully entered into the building put up by the petitioner for fast food business alleging that fast food business is conducted without renewing the license and sealed the business. In such circumstances, the petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a declaration that she has the absolute right to conduct hotel business in the property until the land acquisition proceedings for developing the road, 'Royal Lane', has been initiated. The petitioner has also sought for a writ of mandamus commanding the respondents to collect the tax of the building bearing number 37/604B of the

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WP(C).No.3934 of 2019

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1^st respondent Corporation and also directing the respondents to consider the application for renewing the license for conducting hotel in the aforesaid building or to consider the fresh application for license to conduct hotel business in her property, if filed.

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The interim relief sought for in this writ petition is an order directing the 1^st respondent to collect tax of building bearing No.37/604B and to consider the application for renewing the licence for conducting the hotel in that building.

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On 11.02.2019, when this writ petition came up for admission, the learned Standing Counsel for the respondent Corporation sought time to get instructions.

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A statement has been filed on behalf of the respondents, opposing the reliefs sought for in this writ petition. Paragraphs 3 to 6 of the said statement read thus;

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“3. It is submitted that the petitioner was the owner of 9.830 cents of property comprised in Sy.No.539/3, 539/1 of Elamkulam village. Out of

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the said property an extent of 1.10 Ares of property in Sy No.539/3 of Elamkulam Village was given by the petitioner for widening the S.A Road. The said property was given as exchange with an extent of 1.62 Ares (4 Cents) in Sy No 547. She had also surrendered 58 m² of property for widening S.A. Road and the Royal lane. The application for relinquishment of land executed by the petition dated 04-02-1998 is marked as Exhibit R1(a) .

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4. For the free surrender of 58 M2 of property, the petitioner had constructed a building having the benefit of exemption in the Building Rules. Thereafter the petitioner had constructed a shed in the property which was freely surrendered by her and started a hotel business. The shed was allotted with a temporary number as No.37/604/BU/A. When the respondents demanded the petitioner to remove the shed constructed by her she executed an agreement dated 13-07-2013. The agreement executed between the petitioner and the corporation is marked as Exhibit R1(b) . In Exhibit R1(b), the petitioner has agreed that she will remove the temporary building as and when demanded by the respondent. But the petitioner has not removed the shed even after the demand made by the respondent.

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5. It is further submitted that now the petitioner wanted to conduct the hotel business in the temporary shed constructed in the property

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WP(C).No.3934 of 2019

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surrendered to the corporation, which cannot be allowed. For the surrender of the land she had availed the benefit of exemption of the Building Rules. She had suppressed these facts from this Hon'ble Court. Hence it is submitted that the petitioner is not entitled to conduct the hotel business in the surrendered property.

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6. It is further submitted that the petitioner had filed O.S.No.1406 of 2016 before the Hon'ble Munsiff's Court, Ernakulam and there is an order of injunction against demolishing the shed. Hence the shed constructed by the petitioner is not demolished by the corporation. As the petitioner has constructed the shed in the property surrendered by her to the corporation she is not entitled to conduct any business in the shed. She has no right over the surrendered property.”

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On 13.06.2019, when this writ petition came up

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for consideration, the learned counsel for the petitioner sought time to place on record the photograph of the property in question, the shed situated in that property and also the building already constructed by the petitioner, availing the benefit granted on surrender of land for the widening of Sahodharan Ayyappan Road.

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Today, when the case is taken up for

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consideration, the petitioner has placed on record Ext.P7 photographs of the shed and the building, along with I.A.No.1 of 2019, which was allowed by a separate order of this date.

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Heard the learned counsel for the petitioner and also the learned Standing Counsel for the 1^st respondent Corporation, representing respondents 1 and 2.

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The sole issue that arises for consideration in this writ petition is as to whether the petitioner is entitled for the declaration and the consequential reliefs as sought for in this writ petition.

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As can be seen from the statement filed on behalf of the respondents, the petitioner, who was the owner of 9.830 cents of property comprised in Survey No.539/3 and 539/1 of Elamkulam Village, surrendered an extent of 1.10 Ares of property in Survey No.539/3 of Elamkulam Village for widening Sahodharan Ayyappan Road. The said surrender was made in

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exchange of an extent of 1.62 Ares (4 cents) of property in Survey No.547 of Elamkulam Village. The petitioner has also surrendered 58 m² of property for the widening of Sahodharan Ayyappan Road and Royal Lane. Ext.R1(a) is the application for relinquishment of land executed by the petitioner dated 04.02.1998. On the strength of such free surrender of 58 m² of property, the petitioner constructed building in the remaining property, availing the benefit of exemption in the Building Rules. It is thereafter that the petitioner had constructed the shed, which is the subject matter of this writ petition, upon 58m² land freely surrendered by her for widening of Sahodharan Ayyappan Road and Royal Lane and started hotel business. The shed was allotted with a temporary building number 37/604/BU/A. When the respondents demanded the petitioner to remove the shed constructed by her, in the area surrendered on the strength of Ext.R1(a) application for relinquishment, the petitioner executed

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Ext.R1(b) agreement dated 13.07.2013, whereby she agreed that she will demolish the temporary structure as and when demanded by the respondents. Despite such undertaking given in Ext.R1(b), the petitioner has not chosen to demolish the construction, when demanded by the Corporation, which necessitated initiation of proceedings by the Corporation, which culminated in the closure of that building.

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The petitioner has filed O.S.No.1406 of 2016 before the Munsiff’s Court, Ernakulam seeking an order of injunction against demolition of the shed. On account of the pendency of that original suit, the Corporation has not demolished the said construction.

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Having considered the submissions made by the learned counsel on both sides and perusing the pleadings and materials on record, this Court finds that the petitioner, who has surrendered property for widening of Sahodharan Ayyappan Road and Royal Lane and constructed a commercial building on the

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remaining land, after enjoying the benefit of exemption under the Building Rules to certain extent, on the strength of such surrender, cannot have any legal right either to retain the possession of the land having an extent of 58m² covered by Ext.R1(a) application for relinquishment or make any construction, either temporary or permanent, in that property. In such circumstances, the petitioner is not entitled for any of the reliefs sought for in this writ petition and the same is accordingly dismissed.

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It is for the respondent Corporation to take necessary steps to remove the shed based on the orders to be passed by the Munsiff's Court, Ernakulam in O.S.No.1406 of 2016. However, the pendency of that suit will not enable or entitle the petitioner to conduct business in the shed in question.

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Sd/-

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ANIL K.NARENDRAN, JUDGE

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AV/20/6

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WP(C).No.3934 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE LICENSE DATED 16/05/2001 ISSUED BY THE 1ST RESPONDENT CORPORATION. EXHIBIT P2 A TRUE COPY OF THE REGISTRATION CERTIFICATE UNDER FSS ACT, 2006 DATED 03/01/2013. EXHIBIT P3 A TRUE COPY OF THE NOTICE DATED 18/03/2016 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4 A TRUE COPY OF THE LETTER DATED 29/03/2016 SENT BY THE PETITIONER TO THE 2ND RESPONDENT. EXHIBIT P5 A TRUE COPY OF THE NOTICE DATED 14/10/2016 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P6 A TRUE COPY OF THE INJUNCTION ORDER DATED 04/11/2016 IN O.S. NO.1402/2016 OF THE HON'BLE MUNSIFF'S COURT, ERNAKULAM.

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EXHIBIT P7 TRUE COPY OF PHOTOGRAPHS SHOWING SHED AND BUILDING

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RESPONDENTS' EXHIBITS:

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EXHIBIT R1(a) THE APPLICATION FOR RELINQUISHMENT OF LAND EXECUTED BY THE PETITIONER DATED 04-02-1998 EXHIBIT R1(b) THE PETITIONER HAD ALSO EXECUTED AN AGREEMENT DATED 13-07-2013 EXECUTED BETWEEN THE PETITIONER AND THE CORPORATION

Mary Vincent, v. Kochi Corporation

Case brief

What is this about?

What did the court decide?

Mary Vincent, v. Kochi Corporation

Case brief

What is this about?

What did the court decide?

What the court decided

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