The High Court of Kerala held that a dispute regarding alleged illegal construction and non-maintenance of permissible distance between private properties is a private suit under Section 9 CPC and not maintainable as a writ petition under Article 226 of the Constitution. The writ petition was consequently dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
MONDAY, THE 03RD DAY OF FEBRUARY 2020 / 14TH MAGHA, 1941
WP(C).No.367 OF 2020(U)
PETITIONERS:
1 SANATH K.P., AGED 25 YEARS, S/O.ASHOKAN, KIZHAKKEDATHIL, MAYANAD P.O., KOZHIKODE- 673008.
2 SAHADEVAN K.P., AGED 58 YEARS, S/O.GOPALAN, KUZHIPUNATHIL, MAYANAD P.O., KOZHIKODE- 673008.
BY ADVS. SRI.SAIJO HASSAN SRI.BENOJ C AUGUSTIN SRI.RAFEEK. V.K. SRI.U.M.HASSAN SMT.P.PARVATHY SMT.SURYA P SHAJI SHRI.MANAS P HAMEED SHRI.GAUTHAM MOHAN H. SMT.AATHIRA SUNNY
RESPONDENTS:
1 KOZHIKODE MUNICIPAL CORPORATION, REPRESENTED BY ITS SECRETARY, BEACH ROAD, MANANCHIRA, KOZHIKODE- 673032.
2 THE SECRETARY, KOZHIKODE MUNICIPAL CORPORATION, BEACH ROAD, MANANCHIRA, KOZHIKODE- 673032.
3 ASSISTANT EXECUTIVE ENGINEER, KSEB, GOVERNMENT MEDICAL COLLEGE CAMPUS, KOZHIKODE- 673008.
4 T.K.MEHAROOF, AGE NOT KNOWN, S/O.ABDUL AZEEZ, SAKKEENAS HOUSE, MARIKUNNU P.O., KOZHIKODE- 673012.
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5 RAFEEK, AGE NOW KNOWN, S/O.CHEKKUNHI, KARAPPOYIL HOUSE, MARIKUNNU P.O., KOZHIKODE- 673012.
R1 BY ADV. SRI.B.S.SYAMANTHAK ADV.SRI.SUDHIR GANESH KUMAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
On the date of hearing, the matter was
adjourned to enable the petitioners to produce the site plan, which has been included in the affidavit dated 29.01.2020 as Exhibit P7. The contention of the learned counsel for the petitioners is that the house of the 2nd petitioner is situated in the north-eastern side of Exhibit P7 Map whereas the alleged illegal construction of respondent Nos.4 and 5, on the southern side of the Map. Though cannot be termed as illegal, no permissible distance has been maintained and in this regard, the petitioners have already submitted Exts.P5 and P6 representations to the 3rd respondent.
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the petitioners and the party respondents and the remedy, if any, for alleged occurrence of any cause of action lies under Section 9 of the Code of Civil Procedure, but not under Article 226 of the Constitution of India.
With the aforementi oned observation, this
wri t petition stands dismissed.
Sd/-
AMIT RAWAL
JUDGE
vv
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF LAND TAX RECEIPT DATED 08.11.2019 ISSUED BY THE VILLAGE OFFICER, MAYANAD WITH REGARD TO SY.NO.109/19 AND SY.NO.96/37 OF MAYANAD VILLAGE ALONG WITH ITS ENGLISH TRANSLATION.
EXHIBIT P2 TRUE COPY OF LAND TAX RECEIPT DATED 18.5.2018 ISSUED BY THE VILLAGE OFFICER, MAYANAD WITH REGARD TO SY.NO.96/10 OF MAYANAD VILLAGE ALONG WITH ITS ENGLISH TRANSLATION. EXHIBIT P3 TRUE PHOTOGRAPHS SHOWING THE ILLEGAL CONSTRUCTION OF WELL. EXHIBIT P3(A) TRUE PHOTOGRAPHS SHOWING THE ILLEGAL CONSTRUCTION OF WELL. EXHIBIT P4 TRUE COPY OF THE COMPLAINT DATED 18.12.2019 SUBMITTED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT ALONG WITH ITS ENGLISH TRANSLATION. EXHIBIT P5 TRUE COPY OF COMPLAINT DATED 31.12.2019 SUBMITTED BY THE PETITIONERS BEFORE THE 3RD RESPONDENT. EXHIBIT P6 TRUE COPY OF COMPLAINT DATED 30.12.2019 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P7 MAP SHOWING THE PROPERTIES OF THE PETITIONERS AND RESPONDENTS NO.4 AND 5
//TRUE COPY// PA TO JUDGE
2 issues framed by the court
Whether the dispute between the petitioners and Respondents regarding alleged illegal construction and lack of permissible distance is maintainable under Article 226 of the Constitution.
Whether the Court ought to exercise writ jurisdiction when the alleged violation concerns a private dispute over property boundaries.
Sanath K.P.
Sahadevan K.P.
Kozhikode Municipal Corporation
T.K. Meharoof
Rafeek
Amit Rawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
