Allowed

Jolly Malayil v. the Secretary

Kerala HC11 Jan 2024WP(C)/443/2024

Case brief

AI extract

What is this about?

The High Court allowed the writ petition challenging the Tribunal's order refusing an Advocate Commissioner. The Court appointed an Advocate Commissioner to inspect the apartment complex and file a report before the Tribunal to help determine factual issues relevant to the appeal.

What did the court decide?

Appointment of Adv. Safna P.S. as Advocate Commissioner to inspect the site and file report within two weeks.

Jolly Malayil Vs the Secretary — Municipal and Town Planning | Kerala HC (2024)

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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 GOPINATH P.

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THURSDAY, THE 11^TH DAY OF JANUARY 2024 / 21ST POUSHA, 1945

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WP(C) NO. 443 OF 2024

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PETITIONER:

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JOLLY MALAYIL
AGED 59 YEARS, S/O JOSEPH ABRAHAM,
SKYLINE TOPAZ APARTMENTS, K.K. ROAD KADAVANTHARA,
KOCHI., PIN – 682 017.

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BY ADV K.R.SUNIL

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RESPONDENTS:

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1THE SECRETARY
KOCHI MUNICIPAL CORPORATION, COCHIN,
PIN – 682 011.

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2JOHNSON V GEORGE
AGED 48 YEARS, S/O VARKEY,
3G SKYLINE TOPAZ APARTMENTS, K.K. ROAD,
KADAVANTHARA, KOCHI, PIN – 682 020.
3R. BASIL
AGED 63 YEARS
3H SKYLINE TOPAZ-APARTMENTS, K.K. ROAD,
KADAVANTHARA, KOCHI, PIN – 682 020.
BY ADVS.
 SHAHUL HAMEED MOOPPAN
 Joseph E M
 K.M.VARGHESE(K/000268/1992)
 T.A.NIYAS(K/324/2003)
 ABHIJITH HARINDRAN(K/2970/2022)
 ARUN T.S.(K/1188/2021)
 SHAHEERA (FOR R1)

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C) No.443/2024

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J U D G M E N T

Petitioner has approached this Court challenging Ext.P5 order in I.A.No.1517 of 2023 in Appeal No.758 of 2022 on the file of the Tribunal for Local Self Government Institutions, Thiruvananthapuram. I.A.No.1517 of 2023 is an application filed by the writ petitioner, who is the appellant before the Tribunal, seeking the appointment of an Advocate Commissioner for the purposes of ascertaining certain issues which are stated to be relevant for the adjudication of Appeal No.758 of 2022. Appeal No.758 of 2022 has been filed against Exts.P1 and P2 proceedings of the Kochi Municipal Corporation.

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Learned counsel for the petitioner would submit that the appointment of an Advocate Commissioner is imperative for the purposes of reporting certain issues which may be relevant for the consideration of the appeal pending before the Tribunal and absolutely no prejudice will be caused to any party if an Advocate Commissioner is appointed for the purposes of conducting an inspection. It is submitted that Exts.P1 and P2 notices were issued to the petitioner on account of certain complaints raised by the 2^nd respondent and the Advocate

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W.P.(C) No.443/2024

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Commissioner can be asked to ascertain any matter which is pointed out by the 2^nd respondent as well.

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Learned counsel for the 2^nd respondent would submit that there is absolutely no necessity for appointing of an Advocate Commissioner and the filing of the interlocutory application for appointment of an Advocate Commissioner is only part of the delay tactics adopted by the petitioner.

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Learned counsel for the 3^rd respondent would submit that the 3^rd respondent is not party to any dispute between the petitioner and the 2^nd respondent and is really not interested in the outcome of the appeal pending before the Tribunal.

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Heard Adv. Sheheera appearing for the Kochi Municipal Corporation also.

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Having heard the learned counsel for the petitioner, learned counsel for the Kochi Municipal Corporation and the learned counsel for respondents 2 and 3, I am of the opinion that no prejudice will be caused to either side if an Advocate Commissioner is appointed for the purposes of ascertaining any factual issues that may help the Tribunal in arriving at a proper conclusion in the appeal pending before the Tribunal. The 2^nd respondent will not be prejudiced by the appointment of an

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W.P.(C) No.443/2024

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-:4:-

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Advocate Commissioner, as the 2^nd respondent can also be permitted to point out matters for inspection to the Advocate Commissioner to be appointed. Since the apartment complex in question, where the inspection has to be carried out, is in Cochin and since the Tribunal is situated at Thiruvananthapuram, instead of setting aside Ext.P5 order and in order to ensure that no delay is caused in the consideration and disposal of the appeal, I deem it appropriate to appoint an Advocate Commissioner from this Court, who shall file a report before the Tribunal within two weeks from today.

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Accordingly, Adv. Safna P.S is appointed as an Advocate Commissioner to carry out an inspection at the apartment complex in question and to ascertain the facts which may be pointed out by the petitioner as also by the 2^nd respondent. The Advocate Commissioner shall carry out the inspection after issuing notice to the petitioner, 2^nd respondent as also to the Kochi Municipal Corporation. The Advocate Commissioner shall issue notices to the respective parties by serving copy of the notice on the counsel appearing for the respective parties before this Court. The Advocate Commissioner shall ascertain any matter that may be required

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W.P.(C) No.443/2024

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-:5:-

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to be ascertained by the petitioner or by the 2^nd respondent. The Advocate Commissioner shall file a report before the Tribunal for Local Self Government Institutions, Thiruvananthapuram, within a period of two weeks from today. Petitioner shall pay a sum of Rs.50,000/- (Rupees Fifty Thousand only) to the Advocate Commissioner as batta, directly.

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Writ petition is ordered accordingly.

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Sd/GOPINATH P. JUDGE

ats

W.P.(C) No.443/2024

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APPENDIX OF WP(C) 443/2024

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PETITIONER’S EXHIBITS

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Exhibit P1THE TRUE COPY OF THE NOTICE DATED
01.07.2022
Exhibit P2THE TRUE COPY OF THE ORDER DATED 03.11.2022
BEARING NO KRP-2/2168/22 OF THE 1ST
RESPONDENT
Exhibit P3THE TRUE COPY OF THE MEMORANDUM OF APPEAL
NO. 758/22
Exhibit P4THE TRUE COPY OF THE I.A. NO.1517/2023 IN
APPEAL NO. 758/2022 BEFORE THE TRIBUNAL FOR
LOCAL SELF GOVERNMENT INSTITUTIONS
Exhibit P5THE TRUE COPY OF THE ORDER DATED 14.11.2023
IN I.A. NO.1517/2023 IN APPEAL NO. 758/2022
OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT
INSTITUTION

Jolly Malayil v. the Secretary

Case brief

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Jolly Malayil v. the Secretary

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