Disposed

Johnson K.P., v. Eloor Municipality

Kerala HC17 Nov 2020WP(C)/20402/2020

Case brief

AI extract

What is this about?

This common judgment disposed of two writ petitions involving a dispute over alleged obstructions and unauthorized structures erected by one brother on joint family property. The Court held that the Municipality is empowered to issue notices and that removal of the structure must follow the procedure under Section 406 of the Kerala Municipality Act.

What did the court decide?

The writ petitions were disposed of with a direction that the structure be removed only in accordance with Section 406 of the Kerala Municipality Act.

Johnson K.P., Vs Eloor Municipality — Property and Title | Kerala HC (2020)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

¶4

TUESDAY, THE 17TH DAY OF NOVEMBER 2020 / 26TH KARTHIKA, 1942

¶5

WP(C).No.20402 OF 2020(A)

¶6

PETITIONER/S:

¶7

1 JOHNSON K.P., AGED 57 YEARS, S/O.LATE PAILEE, KOIMAKKAD HOUSE, MANJUMMEL P.O., PIN-683501. 2 SHIBU K.P., AGED 50 YEARS, S/O.LATE PAILEE, KOIMAKKAD HOUSE, MANJUMMEL P.O., PIN-683501. 3 SHIJU K.P., AGED 42 YEARS, S/O.LATE PAILEE, KOIMAKKAD HOUSE, MANJUMMEL P.O., PIN-683501.

¶8

BY ADV. SRI.G.KRISHNAKUMAR

¶9

RESPONDENT/S:

¶10

1 ELOOR MUNICIPALITY REPRESENTED BY ITS SECRETARY, ELOOR, UDYOGAMANDAL P.O., ERNAKULAM, PIN-683501. 2 STATION HOUSE OFFICER, ELOOR POLICE STATION, ELOOR, ERNAKULAM, PIN-683501. 3 THE DISTRICT COLLECTOR, CIVIL STATION, ERNAKULAM-682030.

¶11

W.P.(C)Nos.20402 and 22542 of 2020

¶12

¶13

4 JOSE K.P., AGED 56 YEARS, S/O.LATE PAILEE, KOIMAKKAD HOUSE, MANJUMMEL P.O., PIN-683501.

¶14

R1 BY ADVS. SRI.K.S.ARUN KUMAR SRI.JUSTINE JACOB

¶15

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-11-2020, ALONG WITH WP(C).22542/2020(P), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶16

W.P.(C)Nos.20402 and 22542 of 2020

¶17

¶18

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶19

PRESENT

¶20

THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

¶21

TUESDAY, THE 17TH DAY OF NOVEMBER 2020 / 26TH KARTHIKA, 1942

¶22

WP(C).No.22542 OF 2020(P)

¶23

PETITIONER/S:

¶24

JOSE K.P., S/O LATE PYLEE, KOIMAKKATT HOUSE, KOTTODIMUKKU, MANJUMMAL, 683 501.

¶25

BY ADVS. SRI.V.M.SYAM KUMAR SMT.P.F.ROSY SMT.SNEHA RAJIV

¶26

RESPONDENT/S:

¶27

1 ELOOR MUNICIPALITY REPRESENTED BY THE SECRETARY, ELOOR, KALMASERRY, ERNAKULAM, PIN-683 501.

¶28

2 THE SECRETARY, ELOOR MUNICIPALITY, ELOOR, KALMASERRY, ERNAKULAM, PIN-683 501.

¶29

3 HEALTH INSPECTOR, ELOOR MUNICIPALITY, ELOOR, KALMASERRY, ERNAKULAM, PIN-683 501.

¶30

4 JOHNSON.K.P, S/O LATE PYLEE, KOIMAKKAATT HOUSE, KOTTODIMUKKU, MANJUMMAL-683 501.

¶31

W.P.(C)Nos.20402 and 22542 of 2020

¶32

¶33

5 SHIBU K.P., S/O LATE PYLEE, KOIMAKKAATT HOUSE, KOTTODIMUKKU, MANJUMMAL-683 501. 6 SHIJU K.P., S/O LATE PYLEE, KOIMAKKAATT HOUSE, KOTTODIMUKKU, MANJUMMAL-683 501. R1&R2 BY ADVS. SRI.K.S.ARUN KUMAR SRI.JUSTINE JACOB

¶34

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-11-2020, ALONG WITH WP(C).20402/2020(A), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶35

W.P.(C)Nos.20402 and 22542 of 2020

¶36

¶37

P.B.SURESH KUMAR, J.

¶38

W.P.(C)Nos.20402 and 22542 of 2020

¶39

Dated this the 17^th day of November, 2020.

¶40

JUDGMENT

¶41

These writ petitions being instituted in respect of the same subject matter, they are disposed of by this common judgment. The parties and documents are referred to in the judgment, unless otherwise mentioned, as they appear in W.P.(C)No.20402 of 2020.

¶42

2 . Petitioners and the fourth respondent are siblings. They own a property with a residential building. The property was inherited by them from their deceased father. Petitioners 1 and 2 are residing with their families in the property. The third petitioner who is a bachelor is also residing with petitioners 1 and 2 in the property. The fourth respondent is residing separately. It is alleged by the petitioners that the fourth respondent has recently put up a temporary structure in the front yard of the residential building existing in the property and started selling vegetables, fruits, coconuts etc. The case of the petitioners is that on account of the temporary structure and the activity undertaken by the fourth respondent therein, their access to the residential building from the road is affected. According to the

¶43

W.P.(C)Nos.20402 and 22542 of 2020

¶44

¶45

petitioners, the conduct of the fourth respondent would amount to nuisance. It is alleged by the petitioners that though they have sent several complaints to the first respondent, the Municipality concerned, seeking appropriate action against the fourth respondent, no action is taken on their complaints. The petitioners, therefore, seek appropriate directions to respondents 1 to 3 to remove the obstructions caused to them by the fourth respondent.

¶46

3 . It is seen that on receipt of the complaints from the petitioners, the Health Inspector of the first respondent has issued a notice to the fourth respondent on 23.09.2020, informing him that licence under the Kerala Municipality Act, 1994 (the Act) is required for the activity undertaken by him in the property and that if he does not obtain licence for the activity, action would be taken against him. Later, the Secretary of the first respondent has issued another notice to the fourth respondent informing him that the structure put up by him in the property is an unauthorised one, and called upon him to remove the same. The said notice was issued on 08.10.2020. W.P. (C)No.22542 of 2020 is instituted by the fourth respondent challenging the aforesaid notices. The notices dated 23.9.2020 and 8.10.2020 are produced in W.P.C No.22542 of 2020 as Exts. P3 and P5 respectively. The case set out by the fourth respondent in W.P.(C)No.22542 of 2020 is that he preferred an application for licence immediately on receipt of Ext.P3 notice therein, and in so far as the said application is pending consideration, further action pursuant to the said notice is not justified. It is also the case of the fourth respondent in W.P.

¶47

W.P.(C)Nos.20402 and 22542 of 2020

¶48

¶49

(C)No.22542 of 2020 that the structure put up by him is a temporary structure for which permission is not required and therefore, the same cannot be regarded as an unauthorised structure and action contemplated in respect of the said structure is without jurisdiction.

¶50

4 . Heard the learned counsel for the petitioners in the writ petitions as also the learned Standing Counsel for the first respondent Municipality.

¶51

5 . As noted, the allegation in Ext.P3 notice in W.P. (C)No.22542 of 2020 is that a licence is required for the activity undertaken by the fourth respondent and therefore he has to obtain licence for the same. The fourth respondent does not dispute his obligation under the Act to obtain licence for the activity undertaken by him. When the statute provides for licence for an activity, licence will have to be obtained before the commencement of the activity and he cannot approach this court for permission to continue the activity on the premise that the application for the licence is pending. The fourth respondent is, therefore, not entitled to any relief in respect of Ext.P3 notice in W.P.(C) No.22542 of 2020.

¶52

6 . Coming to Ext.P5 notice in W.P.(C) No.22542 of 2020, the case of the fourth respondent is that the structure put up by him is not unauthorized. The question whether the structure put up by the fourth respondent is unauthorized is a matter to be considered by the Municipality. In so far as proceedings are yet to be initiated against the fourth respondent under Section 406 of the Municipality Act, the fourth

¶53

W.P.(C)Nos.20402 and 22542 of 2020

¶54

¶55

respondent would be free to raise that question in the said proceedings.

¶56

In the said view of the matter, the writ petitions are disposed of with a direction that the structure put up by the fourth respondent shall be removed only in accordance with Section 406 of the Kerala Municipality Act. It is made clear that the Municipality would be free to take further action against the fourth respondent pursuant to Ext.P3 notice in W.P.(C) No.22542 of 2020, if he does not comply with the requirements therein.

¶57

Sd/-

¶58

P.B.SURESH KUMAR,

¶59

JUDGE

¶60

rkj

¶61

W.P.(C)Nos.20402 and 22542 of 2020

¶62

¶63

¶64

PETITIONER'S/S EXHIBITS:

¶65

EXHIBIT P1 A ROUGH SKETCH SHOWING THE RESIDENTIAL BUILDING AND PROPERTY, VACANT LAND IN WHICH THE 4TH RESPONDENT HAS ILLEGALLY ERECTED SHED AND IS CONDUCTING BUSINESS.

¶66

EXHIBIT P2 PHOTOGRAPH WHICH SHOWS THE OBSTRUCTION CAUSED BY THE 4TH RESPONDENT BY BLOCKING THE ENTRANCE OF THE RESIDENTIAL BUILDING.

¶67

EXHIBIT P3 PHOTOGRAPH WHICH SHOWS THE OBSTRUCTION CAUSED BY THE 4TH RESPONDENT BY BLOCKING THE ENTRANCE OF THE RESIDENTIAL BUILDING.

¶68

EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 8.9.2020 TO THE 1ST RESPONDENT.

¶69

EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 14.9.2020 TO THE RESPONDENTS 2 & 3.

¶70

W.P.(C)Nos.20402 and 22542 of 2020

¶71

¶72

APPENDIX OF WP(C) 22542/2020

¶73

PETITIONER'S/S EXHIBITS:

¶74

EXHIBIT P1 TRUE COPY OF THE PARTITION DEED OF THE PROPERTY REGISTERED AS DOCUMENT NO 4196/1988 DATED 25.10.1988 OF SRO EDAPPALLY

¶75

EXHIBIT P2 PHOTOGRAPHS OF THE VEGETABLE SHOP RUN BY THE PETITIONER

¶76

EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 23.9.2020 BEARING NO H1-1/25/2020-21 ISSUED BY THE 3RD RESPONDENT

¶77

EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 7.10.2020 PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT

¶78

EXHIBIT P5 TRUE COPY OF THE NOTICE DATED 8.10.2020 BEARING NO PW1-7230/20 ISSUED BY THE 2ND RESPONDENT

Johnson K.P., v. Eloor Municipality

Case brief

What is this about?

What did the court decide?

Johnson K.P., v. Eloor Municipality

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

Coram

Case details

Similar cases

Joseph Antony Vs Changanassery Municipality

Sureshbabu.v.P. Vs Irinjalakkuda Municipality

Faizal K. H. Vs the Corporation of Cochin

Shahid Vs the Village Officer

Swapna Jambhekar Vs the Corporation of Cochin

P. T. Anthony Vs the Secretary, Thrissur Municipal Corporation