Dismissed

Nandakumar v. Secretary

Kerala HC12 Jan 2023WP(C)/5864/2016

Case brief

AI extract

What is this about?

In a writ petition, petitioners seeking mandatory maintenance of a private road under Section 362 of the Kerala Municipality Act by the Corporation of Cochin were dismissed. The court held that the Municipal Corporation is prohibited from maintaining the road as ownership and title remain with the third respondent's legal heirs, and no surrender of ownership occurred.

What did the court decide?

Petition failing, dismissed.

Nandakumar Vs Secretary — Property and Title | Kerala HC (2023)

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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 SHAJI P.CHALY

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THURSDAY, THE 12TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944
WP(C) NO. 5864 OF 2016

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PETITIONER/S:

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1 NANDAKUMAR

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AGED 54 YEARS

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S/O.THE LATE SEKHARAN NAIR, ROHINI 33/3216/A, FRIENDS AVENUE, VENNALA.P.O., ERNAKULAM DISTRICT682 028.

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2 A.S.AMBIKADEVI W/O.NANDAKUMARROHINI 33/3216/A, FRIENDS AVENUE, VENNALA.P.O., ERNAKULAM DISTRICT-682 028.

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3 RADHAMANI T.W. THAREPPARAMBIL HOUSE, FRIENDS AVENUE, VENNALA.P.O., ERNAKULAM DISTRICT-682 028.

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4 LEELA V. B. THAREPPARAMBIL HOUSE, FRIENDS AVENUE, VENNALA.P.O., ERNAKULAM DISTRICT-682 028.

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5 T.R. MADHUSOODANAN THAREPPARAMBIL HOUSE, FRIENDS AVENUE, VENNALA.P.O., ERNAKULAM DISTRICT-682 028.

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6 V. B. RAJESWARI THAREPPARAMBIL HOUSE, FRIENDS AVENUE, VENNALA.P.O., ERNAKULAM DISTRICT-682 028.

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7 RIJESH RAGAM HOUSE, FRIENDS AVENUE, VENNALA.P.O., ERNAKULAM DISTRICT-682 028.

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8 BABY K.P. KANATTU HOUSE, FRIENDS AVENUE, VENNALA.P.O., ERNAKULAM DISTRICT-682 028.

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9 ROSY W/O.BABY, KANATTU HOUSE, FRIENDS AVENUE, VENNALA.P.O., ERNAKULAM DISTRICT-682 028.

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10 PETER V. G. VALIYAPARAMBIL HOUSE, FRIENDS AVENUE, VENNALA.P.O., ERNAKULAM DISTRICT-682 028.

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11 MATHEW T.V. THALIYATH HOUSE, FRIENDS AVENUE, VENNALA.P.O., ERNAKULAM DISTRICT-682 028.

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W. P. (C) No. 5864 of 2016

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12 MOHAN CHANTHURUTHIL HOUSE, FRIENDS AVENUE, VENNALA.P.O., ERNAKULAM DISTRICT-682 028.

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13 VARKEY ANTONY CHACKUMTHARA HOUSE, FRIENDS AVENUE, VENNALA.P.O., ERNAKULAM DISTRICT-682 028.

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14 PRAVEEN PRABHAKAR, PRANAVAM HOUSE, FRIENDS AVENUE, VENNALA.P.O., ERNAKULAM DISTRICT-682 028.

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15 JOHNY CHAKKATTIL HOUSE, FRIENDS AVENUE, VENNALA.P.O., ERNAKULAM DISTRICT-682 028.

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16 TOMY VARGHESE OZHUKAYIL HOUSE, FRIENDS AVENUE, VENNALA.P.O., ERNAKULAM DISTRICT-682 028.

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17 JANE MARY JOHN, W/O.TOMY VARGHESE, OZHUKAYIL HOUSE, FRIENDS AVENUE, VENNALA.P.O., ERNAKULAM DISTRICT-682 028.

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18 BABU S/O.KRISHNAN, THALIYIL PARAMBIL, FRIENDS AVENUE, VENNALA.P.O., ERNAKULAM DISTRICT-682 028.

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19 REJANI W/O.BABU, THALIYIL PARAMBIL, FRIENDS AVENUE, VENNALA.P.O., ERNAKULAM DISTRICT-682 028.

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20 JOY T..C THEREPARAMBIL HOUSE, FRIENDS AVENUE, VENNALA.P.O., ERNAKULAM DISTRICT-682 028.

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BY ADVS.

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SRI.C.S.MANU
SRI.S.K.PREMRAJ

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RESPONDENT/S:

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1 SECRETARY

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CORPORATION OF COCHIN, ERNAKULAM DISTRICT, PIN-
682 011.

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2 CORPORATION OF COCHIN ERNAKULAM DISTRICT, COCHIN, PIN-682 011, REPRESENTED BY ITS SECRETARY.

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3 STEPHENSON S/O.GEORGE, MALOTH HOUSE, FRIENDS AVENUE, VENNALA PO., ERNAKULAM DISTRICT - 682 028.

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4 SEEMA AUGUSTINE AGED 49, HOUSE WIFE, RESIDING AT MALOTH HOUSE, VENNALA, KOCHI-682 028.

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W. P. (C) No. 5864 of 2016

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5 MARY BENET M.S. AGED 52 YEARS, D/O.STEPHENSON M.G., @ STEPHEN & W/O.KURIAN MATHEW, WORKING AS HEADMISTRESS, OLAKKENGAL HOUSE, LOURDEPURAM, THRISSUR-680 005.

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6 SUDHA STEPHEN AGED 48 YEARS, D/O.STEPHENSON @ STEPHEN, W/O.JOHN J.VELIYATH, VELIYATH HOUSE, MANIMALA ROAD, EDAPPALLY P.O., KOCHI-682 024.

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7 SUNIL STEPHEN M.S. AGED 47 YEARS, ELECTRICIAN, S/O.STEPHENSON M.G. @ STEPHEN, MALOTH HOUSE, VENNALA JANATHA ROAD, NEAR CENTURY CLUB, KOCHI-682 028. ADDL. R4 TO R7 ARE IMPLEADED AS PER ORDER DATED 05-11-2021 IN IA 1/2021.

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BY ADVS.

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SRI.K.ANAND, SC,
SRI. N.C.JOSEPH

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 12.01.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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W. P. (C) No. 5864 of 2016

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J U D G M E N T

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This writ petition is filed by the petitioners seeking the following

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reliefs:-

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“(i) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1^st respondent to take up, consider and pass orders on Ext.P-4 forthwith;

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(i)(a) Issue a writ of declaration or any other appropriate writ, order or direction declaring that Ext.P-6 judgment does not deter or stand in any way stand in the way of the 1^st respondent Secretary to the Corporation of Cochin in exercising his statutory powers under section 362 of the Kerala Municipality Act, 1994 in respect of the road as sought for by the petitioners in Ext.P-4 application.”

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Petitioners are owners of lands and buildings abutting either side of a private street which starts from Vennala – Janatha Road at south and proceeds towards north up to a stretch of 79.1 meters and then turns and proceeds towards east up to a stretch of appropriately 7.7 meters and then proceeds towards north up to a stretch of appropriately 50 meters within the limits of the Corporation of Kochi. The properties were purchased by the petitioners from the predecessor

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W. P. (C) No. 5864 of 2016

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in title of the property of the 3^rd respondent with easement rights for using the aforesaid private street. Later, the 3^rd respondent purchased the property. The 3^rd respondent during the pendency of the writ petition died, consequently, respondents 4 to 7, his children, are impleaded as the additional respondents. The case of the petitioner is that consequent to the right of easement granted to all the property owners on either side of the private road, the private road has become a public road liable to be maintained by the Corporation of Kochi.

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In my considered opinion, it is a far fetched submission for the basic reason that the ownership remains with the owner of the property and what is parted is only the easement right on the basis of the properties sold by the owner of the property to the petitioners and others. There is no case for the petitioners that the private way was surrendered by the owner of the property to the Municipal Corporation so as to enable the Municipal Corporation to utilize funds for the development of the private way. It is also the case of the petitioners that the 3^rd respondent or his legal heirs are not maintaining the private way and therefore the Municipal Corporation is duty bound to take over the same and maintain the road which is a statutory duty

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W. P. (C) No. 5864 of 2016

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conferred on the Municipal Corporation as per the provisions of the Kerala Municipality Act, 1994. It is thus seeking the reliefs mentioned above, the writ petition is filed.

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The 3^rd respondent has filed a detailed counter affidavit and along with the same the title documents are also produced. It is basically contended that the ownership right of the private way was remaining with the 3^rd respondent and later with the additional respondents 4 to 7. A reply affidavit is filed by the petitioners reiterating the stand adopted in the writ petition.

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I have heard learned counsel for the petitioners Sri. C. S.

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Manu and Sri. N. C. Joseph for the additional respondents 4 to 7 and perused the pleadings and material on record.

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The case of the petitioners is that the Kochi Municipal Corporation is liable to maintain the private way taking into account Section 362 of the Kerala Municipality Act, 1994. The said provision reads thus:-

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“ 362. Power of Secretary to order work to be carried out or to carry it out himself in default.— (1) Where any private street or part thereof is not levelled, paved, metalled,

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W. P. (C) No. 5864 of 2016

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flagged, channelled, drained, conserved or lighted to the satisfaction of the Secretary, he may, by notice, require the owners or occupiers of building, or lands fronting or abutting on such street or pan thereof to carry out any work, which in his opinion may be necessary and within such time as may be specified in such notice.

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(2) Where such work is not carried out within the time specified in the notice, the Secretary may, if he thinks fit, execute it and the expenses incurred shall be paid by the owners or occupiers in default according to the frontage of their respective buildings or lands in such proportion as may be settled by the Secretary.”

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On an analysis of the said provision, it is categoric and clear

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that the Municipal Corporation is liable to maintain a private road if the ownership of the said private way or road is vested with the Municipality. True it may be able to issue directions in contemplation of Section 362; but the Corporation is prohibited from undertaking any activity in view of the decree of perpetual injunction granted as per Ext. P6 judgment and decree. In this writ petition, it is admitted that the ownership rights of the private way is still remaining with the 3^rd respondent and his legal heirs, namely respondents 4 to 7. It is also clear and evident that the owner of the property has not surrendered the

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W. P. (C) No. 5864 of 2016

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ownership rights of the private way to the Municipal Corporation.

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In that view of the matter, I do not think the petitioners are entitled to get any relief since the ownership of the private way still remains with the legal heirs of the 3^rd respondent, i.e. additional respondents 4 to 7. This is more so when the issue by and between the 3^rd respondent and Municipal Corporation is concluded as per Ext. P6 judgment passed in O. S. NO. 145 of 1996 on the files of the Principal Munsiff, Ernakulam.

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Needless to say, the writ petition fails. Accordingly, it is dismissed.

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Sd/SHAJI P. CHALY JUDGE

///TRUE COPY///

P. A. TO JUDGE

W. P. (C) No. 5864 of 2016

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APPENDIX OF WP(C) 5864/2016

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PETITIONER EXHIBITS

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EXHIBIT P1P1- TRUE COPY OF THE ROUGH SKETCH OF THE
PROPERTY PREPARED BY THE PETITIONERS FOR
EASY REFERENCE.
EXHIBIT P2P2- TRUE COPY OF THE JUDGMENT DATED
18.11.2015 IN O.P[C]NO.1523 OF 2015
PASSED BY THE HON'BLE HIGH COURT.
EXHIBIT P3P3- TRUE COPY OF THE COMMISSION REPORT
DATED 14.12.2015 IN I.A.NO.3761 OF 2014
IN O.S.NO.572 OF 2009 BEFORE THE 1ST
ADDITIONAL SUB COURT, ERNAKULAM.
EXHIBIT P4P4- TRUE COPY OF THE APPLICATION DATED
9.1.2016 SUBMITTED BY THE PETITIONERS ON
11.1.2016 TO THE 1ST RESPONDENT.
EXHIBIT P4 (A)P4(A)- TRUE COPY OF THE RECEIPT DATED
11.1.2016 ISSUED BY THE 1ST RESPONDENT
TO THE PETITIONERS FOR HAVING RECEIVED
THE APPLICATION.
EXHIBIT P5TRUE COPY OF THE PLAINT IN O.S. NO. 145
OF 1996 BEFORE THE PRINCIPAL MUNSIFF’S
COURT, ERNAKULAM
EXHIBIT P6TRUE COPY OF THE JUDGMENT DATED
22.03.1996 IN O.S. NO. 145 OF 1996
PASSED BY THE PRINCIPAL MUNSIFF’S COURT,
ERNAKULAM
EXHIBIT P7TRUE COPY OF THE LETTER BEARING NO. EY-
E1-1570/86 DATED 16.09.1987 ALONG WITH
THE APPLICATION ISSUED BY THE ASSISTANT
EXECUTIVE ENGINEER, CORPORATION OF
COCHIN, ZONAL OFFICE, EDAPPALLY TO THE
RDO, FORT KOCHI.

Nandakumar v. Secretary

Case brief

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Nandakumar v. Secretary

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