M.A.Joseph vs Corporation Of Kochi
2021 Latest Caselaw 11447 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.13703 OF 2017(K)


PETITIONER::

               M.A.JOSEPH
               AGED 45 YEARS
               S/O.M.C.ANTONY, MATHIRIPPILLY HOUSE,
               PUSHPAKA ROAD, VADUTHALA, KOCHI 23.

               BY ADV. SMT.M.R.JAYALATHA

RESPONDENTS:

      1        CORPORATION OF KOCHI
               REPRESENTED BY ITS SECRETARY,
               CORPORATION OFFICE, PARK AVENUE,
               P.B.NO. 1016, KOCHI 682 011.

      2        THE SECRETARY
               CORPORATION OF COCHIN, CORPORATION OFFICE,
               PARK AVENUE, P.B.NO. 1016, KOCHI 682 011.

      3        ASSISTANT EXECUTIVE ENGINEER
               TOWN PLANNING SECTION,
               CORPORATION OFFICE, PARK AVENUE,
               P.B.NO.1016, KOCHI 682 011.


               R1 SRI.R.HARISHANKAR,SC

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD        ON
08.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                -2-

WP(C).No.13703 OF 2017(K)




                           JUDGMENT

Dated this the 8th day of April 2021

This writ petition is filed by the petitioner

challenging Ext.P2 notice and Ext.P4 order dated

06.03.2017 and 15.03.2017 respectively.

Apparently, Ext.P4 is an order passed by the Kochi

Municipal Corporation under Section 406(1) and (2)

of the Kerala Municipality Act,1994 (hereinafter

referred to as the Act,1994). In my considered

view, Section 406 of Act, 1994 by itself is a

Scheme, by which whenever an unauthorised or

illegal construction is located, the Secretary or

the authorised officer of the Municipality is duty

bound to issue notice under Section 406(1), along

with an order under Section 406(2), secure an

objection from the aggrieved person and finalise

WP(C).No.13703 OF 2017(K)

the proceedings under Section 406(3) of Act, 1994.

2. Here is a case where, the petitioner has

rushed to this Court when a provisional order

under Section 406(2) of Act, 1994 is received. In

my considered opinion, it is a premature writ

petition filed. Anyhow, an interim order was

granted by this Court against further proceedings

in Ext.P4. However, it was also directed that, if

any regularization application is submitted by the

petitioner, that will be considered by the

Secretary of the Corporation, in accordance with

law.

3. Today when the matter was taken up,

learned counsel for the petitioner submitted that,

a regularization application was submitted by the

petitioner, the construction was regularised and

building is numbered. In that view of the matter I

think it is only appropriate that, the writ

petition is disposed of with suitable direction.

WP(C).No.13703 OF 2017(K)

4. After having heard learned counsel for the

petitioner Smt.M.R.Jayalatha and the learned

Standing Counsel for the Corporation

Sri.R.Harishankar, this writ petition is disposed

of directing the Secretary of the Corporation or

any authorised officer to finalise the proceedings

pertaining to Ext.P4 provisional order under

Section 406(2) of Act, 1994, if it is still

remaining to be considered under law.

However, I make it clear that if the

construction is regularised on the basis of

application submitted by the petitioner, under no

circumstance the proceedings shall be re-opened

and if that is the situation the direction

contained above would stand vacated.

Sd/-

SHAJI P.CHALY

JUDGE hmh

WP(C).No.13703 OF 2017(K)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE BUILDING TAX RECEIPT DATED 20.10.2016

EXHIBIT P2 A TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT DATED 6.3.2017

EXHIBIT P3 A TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 16.3.2017

EXHIBIT P4 A TRUE COPY OF THE PROCEEDINGS DATED 15.3.2017

EXHIBIT P5 A TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT/REGULARIZATION OF THE CONSTRUCTION OF THE RESIDENTIAL BUILDING

RESPONDENT'S/S EXHIBITS: NIL