Disposed

Mary Sebastian v. State of Kerala

Kerala HC3 Sept 2021WP(C)/10814/2021

Case brief

AI extract

What is this about?

This writ petition challenges the construction of a toilet complex allegedly blocking the petitioners' road access. The court disposed of the petition by directing the District Collector (4th respondent) to consider the petitioners' representation within two months, mandates a hearing before final orders, and continues an interim stay on construction.

What did the court decide?

Directed the 4th respondent to consider Ext.P4 representation within 2 months, ensure a hearing before final orders, and allow the interim stay to continue till final orders are passed.

Mary Sebastian Vs State of Kerala — Landlord and Tenant | Kerala HC (2021)

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WP(C) NO. 10814 OF 2021

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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 P.V.KUNHIKRISHNAN

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FRIDAY, THE 3^RD DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943

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WP(C) NO. 10814 OF 2021

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PETITIONER/S:

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1 MARY SEBASTIAN AGED 69 YEARS W/O. C.J.SEBASTIAN, CHENNETT HOUSE, ETTUMANOOR P.O., KOTTAYAM-686631.

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2 JIMMY SEBASTIAN, AGED 44 YEARS S/O. C.J.SEBASTIAN, CHENNETT HOUSE, ETTUMANOOR P.O., KOTTAYAM-686631. BY ADV PEEYUS A.KOTTAM

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, LSGD, SECRETARIAT, TRIVANDRUM-695001.

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2 KOTTAYAM DISTRICT SUCHITWA MISSION, KOTTAYAM, KANJIKUZHI, KOTTAYAM, KERALA-686004, REPRESENTED BY ITS CO-ORDINATOR.

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3 ETTUMANOOR MUNICIPALITY SHOPPING COMPLEX, PRIVATE BUS STAND, 1ST FLOOR, PRIVATE BUS STAND RD., ETTUMANOOR, KERALA-686631, REPRESENTED BY ITS SECRETARY.

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4 THE DISTRICT COLLECTOR, KOTTAYAM - KUMILY RD., COLLECTORATE, KOTTAYAM, KERALA686002. 5 THE EXECUTIVE ENGINEER, PWD, ROADS DIVISION OFFICE, KOTTAYAM-686001.

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BY ADV SHRI.SIBY CHENAPPADY, SC, ETTUMANOOR MUNICIPALITY BY SMT. DEEPA NARAYANAN, SR.GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 10814 OF 2021

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P.V.KUNHIKRISHNAN, J

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W.P.(C.) No.10814 of 2021

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Dated this the 3^rd day of September, 2021

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JUDGMENT

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The above writ petition is filed with following prayers :

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“i) Issue a writ of mandamus or any other appropriate writ, order or direction thereby command the respondents not to continue with the construction of the toilet complex in front of the petitioners' property at Kizhakumbhagam Kara in Ettumanoor Village under the scheme 'take a break' without considering the grievance focused by the petitioners before the authorities.

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ii) Issue a writ of mandamus or any other appropriate writ, order or direction thereby command the respondents 2 to 4 take a decision on Ext-P4 and P5 representations submitted by the petitioners and direct not to carry on the construction of the public latrine in front of the petitioners property until the petitioners' grievance is redressed by the authorities.

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iii) Grant such other reliefs, which are just and necessary in the interest of justice and deem fit, just and proper.”

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The 2^nd petitioner is the son of the 1^st petitioner. The

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1^st petitioner is the owner in possession of 16 ares of property in

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re-survey No.28/12 of Ettumanoor Village abutting Mannarkad-

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Pattithanam by-pass. According to the petitioners, the 2^nd

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WP(C) NO. 10814 OF 2021

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petitioner and his brother acquired 11 ares of property each adjacent to the 1^st petitioner's property in same survey No. 28/6 of Ettumanoor Village abutting Mannarkad-Pattithanam bypass. These properties are abutting the Mannarkad-Pattithanam by-pass road and for the purpose of formation of this road, the petitioners' properties were acquired. The petitioners are residing in the two residential houses in the aforesaid properties. The properties for formation of this by-pass road were acquired in the year 2013. It is the case of the petitioners that on 23.4.2021, the respondents started to excavate earth immediately on the eastern boundary of the petitioners' property and on enquiry, it is informed that a toilet complex is going to be constructed on the side of the MannarkadPattithanam by-pass road, just in front of the petitioners' residential house, that too, in such a way to block their right of entry to the by-pass road. After 15 metres from the petitioners' property, this by-pass road is going through the middle of a padasekharam and there are adequate suitable spacious area on the side of the by-pass for construction of the toilet complex, the petitioners submit. The grievance of the petitioners is that, without constructing the toilet complex in that vacant available

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WP(C) NO. 10814 OF 2021

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space, the construction is proposed in front of the petitioners' property and that also blocking the access to the road from the

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petitioners' house. The petitioners produced Ext.P6 photographs showing that excavation work is going on. The petitioners submitted Exts.P4 and P5 before the District Collector, Kottayam and Executive Engineer, PWD, Kottayam. There is no response. In such circumstances, this writ petition is filed.

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Heard the learned counsel for the petitioners and the learned Government Pleader. I also heard the learned Standing Counsel for the 3^rd respondent.

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The learned counsel for the petitioners reiterated his contentions. The counsel submitted that if the toilet complex is constructed in front of the petitioners' property, there will be great difficulties to them. The counsel submitted that the petitioners pointed out another convenient and vacant place for the toilet complex.

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The Government Pleader submitted that the petitioners filed this writ petition on 28.4.2021 and Exts.P4 and P5 were submitted only on 23.4.2021.

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When this writ petition came up for consideration,

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WP(C) NO. 10814 OF 2021

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this Court passed an interim order on 30.4.2021, which is

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extracted hereunder :

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“Admit. Learned Govt. Pleader takes notice on behalf of respondents 1, 2, 4 and 5. Adv.Sibly chemamppady takes notice on behalf of 3^rd respondent.

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Since the construction of the toilet complex in front of petitioners' property will affect their right of access to every point of the road where their property touches the road, there will be an interim stay as prayed for, for a period of four weeks.”

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Today, the matter came up for final hearing. After

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hearing both sides, according to me, this writ petition can be disposed, directing the 4^th respondent to consider Ext.P4 and till then, the interim order already passed by this Court can be allowed to continue. I do not want to make any observation about the merit of the case. The 4^th respondent is free to decide the matter, in accordance to law. The petitioners are free to agitate their contentions before the 4^th respondent.

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Therefore, this writ petition is disposed in the following manner :

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1. The fourth respondent is directed to consider Ext.P4 representation, as expeditously as possible, at any rate, within 2 months from the date of receipt of a copy of this judgment.

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1. Before passing final orders in Ext.P4, the 4^th respondent will give an opportunity of hearing to the petitioners.

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WP(C) NO. 10814 OF 2021

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1. Till final orders are passed by the 4^th respondent in Ext.P4

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representation, the interim order dated 30.4.2021 will

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continue.

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SD/-

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P.V.KUNHIKRISHNAN

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JUDGE

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SKS

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WP(C) NO. 10814 OF 2021

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APPENDIX OF WP(C) 10814/2021

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PETITIONER EXHIBITS

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EXHIBIT	P1	TRUE COPY OF THE TAX RECEIPT SHOWING PAYMENT OF PROPERTY TAX FOR THE 1ST PETITIONER'S 16 ARES OF PROPERTY IN SY.NO.28/12 OF ETTUMANOOR VILLAGE.
EXHIBIT	P2	TRUE COPY OF THE TAX RECEIPT SHOWING PAYMENT OF PROPERTY TAX FOR THE 2ND PETITIONER'S 11 ARES OF PROPERTY IN SY.NO.28/6 OF ETTUMANOOR VILLAGE.
EXHIBIT	P3	TRUE COPY OF THE TAX RECEIPT SHOWING PAYMENT OF PROPERTY TAX FOR THE 2ND PETITIONER'S BROTHER 16 ARES OF PROPERTY IN SY.NO.28/6-1 OF ETTUMANOOR VILLAGE.
EXHIBIT	P4	TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER DATED 23.4.2021 BEFORE THE 4TH RESPONDENT DISTRICT COLLECTOR.
EXHIBIT	P5	TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER BEFORE THE 5TH RESPONDENT EXECUTIVE ENGINEER, KOTTAYAM DATED 23.4.2021.
EXHIBIT	P6(4 NOS.)	THE PHOTOGRAPHS SHOWING THE EXCAVATION DONE IN FRONT OF THE PETITIONER'S PROPERTY FOR THE PURPOSE OF CONSTRUCTING THE PUBLIC LATRINE ON THE SIDE OF MANNARKAD- PATTITHANAM BYPASS ROAD.

Mary Sebastian v. State of Kerala

Case brief

What is this about?

What did the court decide?

Mary Sebastian v. State of Kerala

Case brief

What is this about?

What did the court decide?

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