Disposed

M/S.Kasmisons Builders Private Limited, v. the Corporation of Kochi

Kerala HC7 Aug 2019WP(C)/4189/2019

Case brief

AI extract

What is this about?

Petitioner challenged unauthorized construction by third respondent. Court directed Corporation Secretary to decide on pending representation within two months, keeping interim construction ban in force.

What did the court decide?

Second respondent to decide petitioners representation within two months; interim order prohibiting construction by third respondent to continue.

M/S.Kasmisons Builders Private Limited… — Constitutional and Fundamental Rights | Kerala HC (2019)

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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 ANIL K.NARENDRAN

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WEDNESDAY, THE 07TH DAY OF AUGUST 2019 / 16TH SRAVANA, 1941

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WP(C).No.4189 OF 2019(W)

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PETITIONER/S:

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M/S.KASMISONS BUILDERS PRIVATE LIMITED, 29/1172F, JANATHA JUNCTION, SAHODARAN AYYAPPAN ROAD, VYTILLA, KOCHI-682019 REPRESENTED BY ITS MANAGING DIRECTOR AND CHAIRMAN, MR.K.N.MARZOOK AGED 61 YEARS, SON OF LATE SRI.C.K.KASMI.

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BY ADVS. SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SRI.SAJEN THAMPAN

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RESPONDENT/S:

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1 THE CORPORATION OF KOCHI, REPRESENTED BY IT'S SECRETARY, KOCHI-682011.

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2 THE SECRETARY, CORPORATION OF KOCHI, KOCHI-682011.

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3 K.N.ABDUL GAFOOR, AGED 54 YEARS SON OF LATE SRI.C.K.KASMI, RESIDENT OF 37/2127, RANGOON, KATHRIKKADAVU, KOCHI-682017.

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BY ADVS. SMT.P.Y.SHEHEERA, SC, KOCHI MUNICIPAL CORPORATION SRI.THOMAS JOHN AMBOOKEN SRI.B.SAJEEV KUMAR SRI.P.O.ANTONY

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.4189 OF 2019(W)

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JUDGMENT

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The petitioner, which is a company incorporated under the provisions of the Companies Act, 1956 which is stated to be the owner of 12.55 Ares of land in Survey No.173/1 of Elamkulam Village covered by Ext.P1 Sale Deed has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the second respondent Secretary of the first respondent Corporation to immediately enquire into and take preventive action against the illegal and unauthorised construction activity taking place in the property of the petitioner. The petitioner has also sought for a writ of mandamus commanding the second respondent to take action in accordance with law on Ext.P3 representation and conclude the proceedings within a fixed time limit. Going by the averments in the writ petition the third respondent, who is one of the Directors of the petitioner company is making such unauthorised constructions.

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On 12.02.2019 when this writ petition came up for

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WP(C).No.4189 OF 2019(W)

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admission this Court has passed the following interim order:

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“Smt. Sheheera P.Y, learned Standing Counsel takes notice for R1 and R2. urgent notice by speed post to R3, returnable in two weeks.

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Post immediately after service is complete. There will be an order to the 2nd respondent to ensure that no construction is carried out by 3rd respondent without securing appropriate permit and clearance from the respective statutory authorities. This order will be operative for a period of one month.”

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The said interim order, which was extended from time to time, is still in force. On 28.05.2019 when this writ petition came up for consideration, while adjourning the matter to 20.06.2019, this Court ordered that the third respondent shall not undertake any construction whatsoever in the property in question.

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The second respondent has filed a statement and the third respondent has filed a counter affidavit.

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

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The grievance of the petitioner is against certain constructions undertaken by the third respondent in the property

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WP(C).No.4189 OF 2019(W)

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having an extent of 12.55 Ares of land in survey No.173/1 of Elamkulam Village.

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Rule 2 (l) of the Kerala Municipality Building Rules, 1999 defines the term 'building' as follows:

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“(l)'building' means any structure for whatsoever purpose and of whatsoever material constructed and every part thereof whether used for human habitation or not and includes foundations, plinth, walls, floors, roofs, chimneys, plumbing and building services, verandah, balcony, cornice or projections, part of a building or anything affixed thereto or any wall enclosing or intended to enclose any land or space and signs and outdoor display structures;”

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The fact that the third respondent has not obtained

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any building permit for undertaking the constructions seen in Ext.P5 photographs is not in dispute.

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Having considered the submissions made by the learned counsel on both sides, this Court finds that Ext.P3 representation made by the petitioner is even now pending consideration before the second respondent. Therefore, it is for the second respondent to consider and take an appropriate decision, on that representation with notice to the petitioner and also to the third respondent.

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A decision in this regard shall be taken, as

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WP(C).No.4189 OF 2019(W)

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expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment.

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Till such orders are passed, the interim order granted by this Court on 28.05.2019 shall continue to be in force.

SD/-

ANIL K.NARENDRAN

shg

JUDGE

WP(C).No.4189 OF 2019(W)

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF SALE DEED NO. 3165/2008 OF ERNAKULAM SRO DATED 15/7/2008

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EXHIBIT P2 TRUE COPY OF PERMIT ISSUED ON BEHALF OF THE 2ND RESPONDENT TO THE PETITIONER DATED 9/5/2011.

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EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXHIBIT P4 TRUE COPY OF THE RECEIPT DATED 28/1/2019 EXHIBIT P5 TRUE COPY OF PHOTOGRAPHS.

M/S.Kasmisons Builders Private Limited, v. the Corporation of Kochi

Case brief

What is this about?

What did the court decide?

M/S.Kasmisons Builders Private Limited, v. the Corporation of Kochi

Case brief

What is this about?

What did the court decide?

What the court decided

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