Disposed

A.C.George v. the Corporation of Kochi

Kerala HC4 Nov 2019WP(C)/9437/2019

Case brief

AI extract

What is this about?

In connected writ petitions, the High Court, finding rival claims regarding construction violations and easement rights, directed the Corporation to complete a Taluk survey immediately to define boundaries and decide the merits within three months while warning that further construction by one party is at their own risk.

What did the court decide?

Directed the Corporation Secretary to obtain a survey of the disputed property by the Taluk Surveyor and decide the rival complaints within three months.

A.C.George Vs the Corporation of Kochi — Kerala HC (2019) — LawSathi Research

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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 DEVAN RAMACHANDRAN

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MONDAY, THE 04TH DAY OF NOVEMBER 2019 / 13TH KARTHIKA, 1941

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WP(C).No.37550 OF 2018(P)

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PETITIONER/S:

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1 A.J.JOSEPH, AGED 44 YEARS S/O. JANAVARIOS, ATHIPOZHI HOUSE, MOTHER THERESSA ROAD, MANACHERRY, RAMESHWARAM VILLAGE, KOCHI TALUK, MUNDAMVELI P.O, KOCHI 682507. 2 ASHA JOSEPH, AGED 24 YEARS W/O.A.J.JOSEPH, ATHIPOZHI HOUSE, MOTHER THERESSA ROAD, MANACHERRY, RAMESHWARAM VILLAGE, KOCHI TALUK, MUNDAMVELI P.O, KOCHI 682507. BY ADV. SRI.KARTHIK BHAVADASAN

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RESPONDENT/S:

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1	KOCHI MUNCIPAL CORP	ORATION
	CORPORATION OFFICE, PIN 682011, REPRESE	P.B NO.1061, ERNAKULAM, NTED BY ITS SECRETARY.
2	THE ASSISTANT EXECU KOCHI MUNCIPAL CORP CORPORATION OFFICE, ERNAKULAM, PIN-6820	TIVE ENGINEER, ORATION, P.B.NO.1061, 11.
3	A.C.GEORGE, ARACKAL ROAD, MANACHERRY, R	HOUSE, MOTHER THERESSA AMESHWARAM VILLAGE,
	KOCHI TALUK, MUNDAM	VELI P.O, KOCHI 682507.
4	JAIMON, S/O.GEORGE, MOTHER THERESSA ROA RAMESHWARAM VILLAGE MUNDAMVELI P.O, KOC	ARACKAL HOUSE, D, MANACHERRY, , KOCHI TALUK, HI 682507.
5	JAISON, S/O.GEORGE, THERESSA ROAD, MANA KOCHI TALUK, MUNDAM	ARACKAL HOUSE MOTHER CHERRY, RAMESHWARAM VILLAGE, VELI P.O, KOCHI 682507.

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WPC 37550/18 & 9437/19

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6 MARY ROSHNI, W/O.JAISON, ARACKAL HOUSE MOTHER THERESSA ROAD, MANACHERRY, RAMESHWARAM VILLAGE, KOCHI TALUK, MUNDAMVELI P.O, KOCHI 682507

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7 MAY MANJU, W/O.JAIMON, ARACKAL HOUSE MOTHER THERESSA ROAD, MANACHERRY, RAMESHWARAM VILLAGE, KOCHI TALUK, MUNDAMVELI P.O, KOCHI 682507

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R1-2 BY SRI.P.FAZIL,SC, COCHIN CORPORATION R3-7 BY ADV. SRI.ANIL S.RAJ R3-7 BY ADV. SRI.RADHIKA RAJASEKHARAN P. R3-7 BY ADV. SRI.K.P.SHIBU R3-7 BY ADV. SMT.P.A.SULEKHA R3-7 BY ADV. SMT.K.N.RAJANI R3-7 BY ADV. SRI.SAJEN THAMPAN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.11.2019, ALONG WITH WP(C).9437/2019(D), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC 37550/18 & 9437/19

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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 DEVAN RAMACHANDRAN

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MONDAY, THE 04TH DAY OF NOVEMBER 2019 / 13TH KARTHIKA, 1941

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WP(C).No.9437 OF 2019(D)

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PETITIONER/S:

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1 A.C.GEORGE, AGED 65 YEARS SON OF CHAKKO, ARAKKAL HOUSE, MANASSERY, MUNDAMVELI.P.O, RAMESWARAM VILLAGE, KOCHI TALUK, PIN-682507.

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2 PAULI GEORGE, AGED 63 YEARS WIFE OF SRI.A.C.GEORGE, ARAKKAL HOUSE, MANASSERY, MUNDAMVELI.P.O, RAMESWARAM VILLAGE, KOCHI TALUK, PIN-682507.

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BY ADVS. SRI.ANIL S.RAJ SRI.K.P.SHIBU SMT.P.A.SULEKHA SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SMT.ANILA PETER SRI.S.SUDHEESH 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 THE ASSISTANT EXECUTIVE ENGINEER, OFFICE OF KOCHI MUNICIPAL CORPORATION, FORT KOCHI-682001.

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WPC 37550/18 & 9437/19

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4 A.J.JOSEPH, AGED 48 YEARS SON OF JEROME, ATHIPOZHI HOUSE, MUNDAMVELI.P.O, RAMESWARAM VILLAGE, KOCHI TALUK, PIN-682507.

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5 ASHA JOSEPH, AGED 38 YEARS WIFE OF A.J.JOSEPH, ATHIPOZHI HOUSE, MUNDAMVELI.P.O, RAMESWARAM VILLAGE, KOCHI TALUK, PIN-682507.

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6 ERNAKULAM DISTRICT LEGAL SERVICE AUTHORITY, REPRESENTED BY IT'S SECRETARY, KOCHI-682011.

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R1-2 BY SMT.P.Y.SHEHEERA, SC, KOCHI MUNICIPAL CORPORATION

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R4-5 BY ADV. SRI.KARTHIK BHAVADASAN SRI. P. FAZIL- SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.11.2019, ALONG WITH WP(C).37550/2018(P), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC 37550/18 & 9437/19

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JUDGMENT

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These two Writ Petitions have been heard

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together on account of the analogous

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circumstances presented and because grant of reliefs in one will certainly depend upon the reliefs to be granted in the other.

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WP(C)No.37550/2018 has been filed by

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Sri.A.J.Joseph and another, alleging that a

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construction being carried on by respondents 3

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to 7 (who will hereinafter be referred to as 'Sri.A.C.George and others' for convenience) is

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in violation of the building permit and approved plan and that certain constructions made by them

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are encroaching into a pathway, over which they have right of easement.

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Sri.A.J.Joseph and another allege that

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Sri.A.C.George and others have constructed a bathroom and staircase in such a manner so as to interfere with their right of easement over the passage and that certain constructions made by

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WPC 37550/18 & 9437/19

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them, which include a bathroom, encroach into their property on the southern boundary. They also allege that, to their best information, these constructions have been made without any permit and plan. Sri.A.J.Joseph and another, therefore, pray that the Corporation be directed to take appropriate action under the provisions of the Kerala Municipality Building Rules (KMB Rules for short) and the Kerala Panchayath Raj Act against Sri.A.C.George and others and direct them to stop the construction forthwith. They further submit that they have preferred O.S.No.20/2017 before Sub Court, Kochi, wherein similar prayers have been sought and that the said suit is still pending.

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While so, Sri.A.C.George and others have filed WP(C)No.9437/2019 impugning Ext.P2

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stop memo issued by Kochi Corporation, asserting

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that the same has been issued without any

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authority and based solely on an unholy

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WPC 37550/18 & 9437/19

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settlement entered into with Sri.A.J.Joseph and

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another, before the Pre-litigation Adalath conducted under the aegis of the District Legal Services Authority, Ernakulam, wherein they appear to have agreed that they will issue a stop memo to them. They say that this agreement

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is available on record as Ext.P3 and contend that the same is untenable, since it has been entered into without giving them an opportunity of being heard. They, therefore, pray that Ext.P2 be set aside and the construction be allowed to continue.

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I have heard Sri.Anil S. Raj, learned

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counsel appearing for the petitioners in WP(C)No.9437/2019; Sri.Karthik Bhavadasan, learned counsel appearing for the petitioners in WP(C)No.37550/2018 and Sri.P.Fazil, learned Standing Counsel appearing on behalf of Kochi Corporation.

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In answer to the afore narration, the

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WPC 37550/18 & 9437/19

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learned Standing Counsel for Kochi Corporation

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submits that his client has conducted necessary inspections and found that minor variations from

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the building permit have been made by Sri.A.C.George and others while making their

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construction. He says that the Corporation has,

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therefore, now sought for a survey of the

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property since the internecine disputes between the parties also relate to a small passage, the

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boundaries of which are not clear; and consequently, that this Court may permit the Secretary of the Corporation to await such measurement and report. He adds that once such report is available, all necessary action, required with respect to the construction in question made by Sri.A.C.George and others, will be taken to its logical conclusion.

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When I consider the afore submissions

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and examine the pleadings on record, it is

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without doubt that the contentions of the

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WPC 37550/18 & 9437/19

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parties are exclusively with respect to the

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construction being carried on by Sri.A.C.George

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and others. There is no doubt that this

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construction is being carried on by them on the strength of a valid building permit and approved plan. The germane question, therefore, is whether there are any violations and if there are any such, whether they are entitled to regularisation of the same under the provisions of the Building Rules and the Municipality Act.

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Of course, added to the above, an issue regarding the violation of easement right, over a common passageway is being asserted by

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Sri.A.J.Joseph and another. I am certain, therefore, that these issues will be required to be considered by the Secretary of the Corporation in terms of law and after affording necessary opportunity of being heard to the parties, without any further delay.

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Since the learned Standing Counsel for

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WPC 37550/18 & 9437/19

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the Corporation asserts that an effective resolution of the disputes between the parties can be found only through a proper survey to be conducted by the Taluk Surveyor, I am of the view that such process should be completed at the earliest, so that the Secretary of the Corporation can then take an apposite decision on the rival complaints of the parties, taking note of all the relevant and necessary inputs.

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Resultantly, I order these writ petitions and direct the Secretary of the Corporation to immediately take a decision on these matters, after affording an opportunity of being heard to both sides, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment.

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The Secretary will be at liberty to make a requisition to the Taluk Surveyor and to have

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the properties measured in terms of law; for which purpose, I direct the Taluk Surveyor to

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WPC 37550/18 & 9437/19

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render assistance to the Secretary forthwith as

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and when such requisition is made and to complete the requisite survey without any delay, so that the said Authority can then take a decision in terms of law within the time frame fixed in this judgment.

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Needless to say, any further construction being carried on by Sri.A.C.George and others will be at their risk; and consequently, if the Secretary issues any orders to their detriment after the afore exercise is completed, they will

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be obligated to demolish the offending constructions, subject to their right to challenge the said orders.

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Sd/-

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DEVAN RAMACHANDRAN

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JUDGE

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WPC 37550/18 & 9437/19

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APPENDIX OF WP(C) 37550/2018

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PETITIONER'S/S EXHIBITS:

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EXHIBIT	P1 TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT ON 17.12.2016.
EXHIBIT	P2 TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 23.2.2017.
EXHIBIT	P3 TRUE COPY OF THE LETTER SEND BY THE 2ND RESPONDENT ON 17.5.2017 TO THE TALUK SURVEYOR, KOCHI.
EXHIBIT	P4 TRUE COPY OF THE PLAINT IN O.S.NO.20/2017 PENDING BEFORE THE SUB COURT, KOCHI.
EXHIBIT	P5 TRUE COPY OF THE APPLICATION SUBMITTED BY THE 2ND PETITIONER BEFORE THE 1ST RESPONDENT DATED 7.8.2018.
EXHIBIT	P6 TRUE COPY OF THE RECEIPT ISSUED BY THE OFFICE OF THE 1ST RESPONDENT DATED 8.8.2018.
EXHIBIT	P7 TRUE COPY OF APPLICATION SUBMITTED BY THE GENERAL SECRETARY OF KERALA BHINNASHESHI SUMYUKTHA KOOTTAYMA ON 16.10.2018.
EXHIBIT	P8 TRUE COPY OF THE RECEIPT ISSUED BY THE OFFICE OF THE 1ST RESPONDENT DATED 17.10.2018.
EXHIBIT	P9 TRUE COPY OF THE APPLICATION SUBMITTED BY THE GENERAL SECRETARY OF KERALA BHINNASHESHI SUMYUKTHA KOOTTAYMA ON 16.10.2018 BEFORE THE DISTRICT COLLECTOR.
EXHIBIT	P10 TRUE COPY OF APPLICATION SUBMITTED BY THE 2ND PETITIONER ON 4.9.2018 BEFORE THE 1ST RESPONDENT.

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WPC 37550/18 & 9437/19

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT R4(1)	TRUE COPY OF THE PLAN NO.517/2009 RESPONDENT TO THE RESPONDENTS DATED	APPROVED ORIGINAL ISSUED BY THE 1ST 4TH AND 7TH 29.8.2009.
EXHIBIT R4(2)	TRUE COPY REVISED THE 4TH AND 7TH R 1ST RESPONDENT DA	PLAN SUBMITTED BY ESPONDENTS TO THE TED NIL.
EXHIBIT R4(3)	TRUE COPY CONSENT P.J.XAVIER TO THE DATED 14.10.2016.	ISSUED BY SRI. 4TH RESPONDENT
EXHIBIT R4(4)	TRUE COPY OF RECE BY 1ST RESPONDENT RESPONDENT DATED	IPT NO.5171 ISSUED TO THE 7TH 3.3.2017.

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WPC 37550/18 & 9437/19

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APPENDIX OF WP(C) 9437/2019

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE PERMIT ISSUED BY THE 2ND RESPONDENT DATED 12.2.2018.

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EXHIBIT P2	TRUE COPY OF THE COMMUNICATION ISSUED BY THE 3RD RESPONDENT DATE 1.3.2019
EXHIBIT P3	TRUE COPY OF THE AWARD IN PLP 454 OF 2019
EXHIBIT P4	THE COPY OF THE IMPLEADING APPLICATION IN O.S.NO.20/2017 OF THE HON'BLE SUB COURT, KOCHI DATED 20.08.2018
EXHIBIT P5	TRUE COPY OF THE APPLICATION FOR MEASUREMENT IN O.S.NO.20/2017 OF THE HON'BLE SUB COURT, KOCHI DATED 13.12.2016.
EXHIBIT P6	TRUE COPY OF THE RECORD OF PROCEEDINGS IN OS 20 OF 2017 OF THE HONOURABLE SUB COURT, KOCHI.

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RESPONDENTS' EXHIBITS

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EXT.R5A TRUE COPY OF THE NOTICE DATED 26.10.2018 FROM THE KOCHIN CORPORATION EXT.R5B TRUE COPY OF THE POLICE COMPLAINT BEFORE THE SI OF POLICE, THOPPUMPADY

A.C.George v. the Corporation of Kochi

Case brief

What is this about?

What did the court decide?

A.C.George v. the Corporation of Kochi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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