Joseph vs Thodupuzha Muncipality
2021 Latest Caselaw 11376 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

                 THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

       THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

                         WP(C).No.30233 OF 2011(D)


PETITIONER/S:

                JOSEPH
                NADACKAL HOUSE, RAJAKKAD VILLAGE, RAJAKKAD,,
                REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, M.L.GEORGE,
                S/O.LUKA, AGED 65 YEARS,, MALIACKAL HOUSE, KOODARANJI.

                BY ADV. SRI.GEORGE CHERIAN (SR.)

RESPONDENT/S:

       1        THODUPUZHA MUNCIPALITY,
                THODUPUZHA, REPRESENTED BY ITS SECRETARY,, PIN-685 584.

       2        ASSISTANT EXECUTIVE ENIGNEER
                THODUPUZHA MUNCIPALITY,, MUNCIPAL OFFICE,
                THODUPUZHA,PIN-685 584.

       3        K.H.SHOUKATALI SO.HASSAN KHAN
                AGED 46 YEARS,, KAVANAL HOUSE, THALAMATTAM,
                THODUPUZHA-685 584.

       4        K.A.JOSEPH SO.ANTONY AGED 44 YEARS
                KALATHIPARAMBIL HOUSE, THODUPUZHA-685 584.

                R1 BY SHRI.UNNIKRISHNAN V.ALAPPATT, SC, THODUPUZHA
                MUNICIPALITY
                R3 BY ADV. SRI.JOICE GEORGE




     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.04.2021,
     THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 30233/2011        :2:




               Dated this the 8th day of April, 2021.

                             JUDGMENT

This writ petition is filed by the petitioner seeking to quash

Ext.P7 intimation dated 22.10.2011 issued by the Assistant Executive

Engineer, Thodupuzha Municipality directing him to produce a new plan

marking the nearby private pathway, since a complaint was received

by the Assistant Executive Engineer. It is submitted that the

construction in accordance with Ext.P3 building permit dated

30.11.2010 was carried out by the petitioner without encroaching into

the said private pathway.

2. Anyhow, the learned counsel appearing for respondents 3 and

4 i.e., Sri. K.H. Shoukatali and Sri. K. A Joseph, submitted that though

the construction is complete, a second appeal is pending consideration

before this Court with regard to certain civil disputes by and between

the parties and that the disposal of the writ petition may not affect the

consideration of the said second appeal in accordance with law and on

merits.

3. I have heard the learned counsel for the petitioner Sri.

George Cherian, the learned Standing Counsel for the Municipality Sri.

Unnikrishnan V. Alappat and the learned counsel appearing for

respondents 3 and 4 Sri.Joice George and perused the pleadings and

materials on record.

4. The discussion of facts made above would make it clear that

at this distance of time, the consideration of the matter on the merits

is not required, in view of the subsequent developments that have

taken place during the pendency of the writ petition and the

construction of the building apparently seems to be complete.

Therefore, I do not think, anything survives to be adjudicated in this

writ petition.

Accordingly, this writ petition is disposed of recording that the

construction of the building is complete, however, making it clear that

if any proceeding is pending before the Municipality in respect of the

occupancy of the building or others or any civil disputes pending by

and between the petitioner and respondents 3 and 4, all those aspects

shall be left open to be considered by the Secretary of the Municipality

and the respective civil court.

sd/-

SHAJI P. CHALY, JUDGE.

Rv

APPENDIX

PETITIONER'S EXHIBITS:

EXT. P1: TRUE COPY OF THE DOCUMENT NO.1126/1987 OF THODUPUZHA SRO.

EXT.P2: TRUE COPY OF THE FINAL DECREE IN O.S NO. 45/83 OF MUNSIFF'S COURT, THODUPUZHA.

EXT.P2(a): TRUE COPY OF THE REPORT OF THE COMMISSIONER IN FINAL DECREE PROCEEDINGS IN O.S. NO. 45/83 OF MUNSIFF'S COURT, THODUPUZHA.

EXT.P2(b): TRUE COPY OF THE SKETCH PREPARED AS PER THE COMMISSION ORDER IN O.S. NO. 45/83.

EXT.P3: TRUE COPY OF THE PERMIT ISSUED BY SECOND REPSONDENT DATED 30.11.2010 TO THE PETITIONER.

EXT.P4: TRUE COPY OF THE PLAINT IN O.S. NO. 226/2011 OF MUNSIFF'S COURT, THODUPUZHA.

EXT.P5: TRUE COPY OF THE OBJECTION TO THE INJUNCTION APPLICATION FILED BY THE PETITIONER.

EXT.P6: TRUE COPY OF O.S. NO. 236/2011 BEFORE MUNSIFF'S COURT, THODUPUZHA.

EXT.P7: TRUE COPY OF THE COMMUNICATION DATED 22.10.2011.

RESPONDENTS' EXHIBITS: NIL

/True Copy/

PS to Judge.

rv