Disposed

K.M.Thilakan v. the Municipal Corporation of Cochin

Kerala HC29 Jan 2021WP(C)/12875/2018

Case brief

AI extract

What is this about?

The petitioner challenged a notice issued by the Assistant Executive Engineer ordering removal of an unauthorized structure. The Court held the notice was not a provisional or final order under Section 406. The writ was dismissed, directing the Corporation to initiate proceedings under that section within one month.

What did the court decide?

The writ petition is disposed of directing the competent authority of the Corporation to initiate and complete proceedings under Section 406 of the Act within one month from the date of receipt of a c

K.M.Thilakan Vs the Municipal Corporation of Cochin — Municipal and Town Planning | Kerala HC (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.B.SURESH KUMAR

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FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942

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WP(C).No.12875 OF 2018(H)

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PETITIONER:

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K.M.THILAKAN "UPASANA", G-368, PANAMPILLY NAGAR, ERNAKULAM 682 036. BY ADVS. SRI.ANIL SIVARAMAN SMT.RAJI VINCENT

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RESPONDENTS:

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1 THE MUNICIPAL CORPORATION OF COCHIN REP. BY ITS SECRETARY., CORPORATION OFFICE, PARK AVENUE,ERNAKULAM 682 011.

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2 THE SECRETARY CORPORATION OF COCHIN, CORPORATION OFFICE, PARK AVENUE, EERNAKULAM 682 011

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3 THE ASST.EXECUTIVE ENGINEER CORPORATION OF COCHIN,(ENGINEERING & TOWN PLANNING)EAST ZONAL OFFICE, VYTTILA, COCHIN-682 019.

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**4 ADDTIONAL R4 RANIT BHUYAN, FLAT NO.2A, ABAD CLOUD NINE, PANAMPILLY NAGAR CROSS ROAD, VIDYA NAGAR, PANAMPILLY NAGAR P.O., KOCHI-682036. (ADDL.R4 IS IMPLEADED AS PER ORDER DATED 06/09/2018 IN IA.NO.01/2018)

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R1 BY SRI.JIBU P.THOMAS,SC,COCHIN CORPORATION R4 BY ADV. LAL K.JOSEPH R4 BY ADV. A.A. ZIYAD RAHMAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P. (C) No.12875 of 2018

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W.P.(C) No.12875 of 2018

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J U D G M E N T

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The daughter of the petitioner owns an apartment in an apartment complex named Abad Cloud Nine situated within the limits of the first respondent Corporation. The petitioner holds power of attorney of his daughter. The apartment referred to above is apartment bearing No.1A in the first floor of the said apartment complex. It is seen that at the time of construction of the apartment complex, the roof slab below apartment 1A was projected from the building line for convenient car parking beneath the same. It is seen that the predecessor of the daughter of the petitioner enclosed that extended area in the roof slab to his apartment by constructing a structure. The fourth respondent is the owner of apartment 2A on the second floor of the apartment complex. The fourth respondent lodged a complaint to the Corporation alleging that the extension of the roof slab as also the enclosure made over the same are unauthorized. On the said

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W.P. (C) No.12875 of 2018

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complaint, Ext.P4 notice has been issued by the third respondent, the Assistant Executive Engineer of the Corporation. Ext.P4 notice is under challenge in the writ petition.

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2. The case set out by the petitioner in the writ petition is that if the structure referred to in Ext.P4 is an unauthorized one, action can be taken only by the Secretary of the Corporation under Section 406 of the Kerala Municipality Act, 1994 (the Act) and Ext.P4 notice directing demolition/removal of the unauthorized structure issued by the third respondent is one issued without jurisdiction.

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3 . Heard the learned counsel for the petitioner, the learned Standing Counsel for the first respondent Corporation as also the learned counsel for the fourth respondent.

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4 . Ext.P4 is neither a provisional order contemplated under Section 406(1) of the Act nor a final order contemplated under Section 406(3) of the Act. Ext.P4 is styled only as a notice requiring the petitioner to remove the unauthorized construction. It has come to the notice of this court that before initiating proceedings under Section 406 of the Act, notices in the nature of

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W.P. (C) No.12875 of 2018

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Ext.P4 are issued to the party concerned and if only the same are not complied with, proceedings are initiated under Section 406 of the Act.

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In the said circumstances, the writ petition is disposed of directing the competent authority of the Corporation to initiate and complete proceedings under Section 406 of the Act in respect of the alleged unauthorised construction referred to in Ext.P4, within one month from the date of receipt of a copy of this judgment.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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YKB

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W.P. (C) No.12875 of 2018

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APPENDIX OF WP(C) 12875/2018

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF PHOTOGRAPH EXHIBIT P1(A) TRUE COPY OF PHOTOGRAPH EXHIBIT P2 TRUE COPY OF SETTLEMENT DEED DT 18-12016 EXHIBIT P3 TRUE COPY OF OWNERSHIP CERTIFICATE DT 9-2-2016 EXHIBIT P4 TRUE COPY OF NOTICE DATED 22-3-18 EXHIBIT P5 TRUE COPY OF POSTAL COVER EXHIBIT P6 TRUE COPY OF REPLY DATED 4-04-2018.

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT R4(A) TRUE COPY OF THE COMPLAINT DATED

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03.01.2018 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT

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//TRUE COPY//

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PA TO JUDGE

K.M.Thilakan v. the Municipal Corporation of Cochin

Case brief

What is this about?

What did the court decide?

K.M.Thilakan v. the Municipal Corporation of Cochin

Case brief

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What did the court decide?

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