Kerala High Court
Thadevoos vs Kochi Corporation on 9 April, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943
WP(C).No.27134 OF 2018(N)
PETITIONER/S:
THADEVOOS,
AGED 52 YEARS, S/O.OUSEPH,PUTHANPURAKKAL
HOUSE,MUNDAMVELI DESOM,RAMESWARAM VILLAGE,
KOCHI TALUK, ERNAKULAM DISTRICT.
BY ADV. SRI.V.VENUGOPALAN NAIR
RESPONDENT/S:
1 KOCHI CORPORATION,
REPRESENTED BY SECRETARY,OFFICE OF THE KOCHI
CORPORATION,KOCHI-682 001.
2 THE ASSISTANT EXECUTIVE ENGINEER,
KOCHI CORPORATION, OFFICE OF THE KOCHI
CORPORATION,KOCHI-682 001.
3 ADDL.R3 & R4 IMPLEADED:
GEORGE K.J.,
AGED 81 YEARS
S/O.JACOB, KATTIPARAMBIL HOUSE, MUNDAMVELI P.O.,
KOCHI-682 507.
[ADDL.R3 IS IMPLEADED AS PER ORDER DATED 21/2/2019 IN IA
4/2019]
4 MAXY FARIA,
AGED 54 YEARS
S/O.FRANCIS FARIA, RESIDING AT PATHARASSERI HOUSE
NO.22/1739(A), MUNDAMVELI P.O., KOCHI-682 507.
[ADDL.R4 IS IMPLEADED AS PER ORDER DATED 21/2/2019 IN IA
3/2019]
R1-2 BY ADV. SRI.C.N.PRABHAKARAN
R1-2 BY SRI.P.K.SOYUZ,SC,COCHIN CORPORATION
R3-4 BY ADV. SASTHAMANGALAM S. AJITHKUMAR
R3-4 BY ADV. SRI.RAYJITH MARK
R1 AND 2- SRI.C.N.PRABHAKARAN,SC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.04.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 27134/2018 :2:
Dated this the 9th day of April, 2021.
JUDGMENT
This writ petition is filed basically challenging Ext.P7 order dated
06.07.2018 passed by the Secretary of the Corporation of Kochi under
Section 406(3) of the Kerala Municipality Act, 1994 ('Act, 1994' for
short). On a reading of Ext.P7, it is quite clear and evident that a
notice under Section 406(1) of Act, 1994 accompanied by an order
under Section 406(2) of Act, 1994 was forwarded to the petitioner and
even though the petitioner received a copy of the notice and the order,
he has not cared to appear before the Secretary, consequent to which
the Secretary of the Corporation has affirmed the order passed under
Section 406(2) of Act, 1994. The issue relates to the encroachment
made by the petitioner to a stream belonging to the Kochi Corporation
and the constructions carried out.
2. In the counter affidavit filed by the Secretary of the
Corporation, Ext.R1(a) dated 07.10.2017 is produced, from where it is
clear that the petitioner has encroached into the survey No. 359/1 and
carried out certain constructions as shown in the sketch produced
along with the said order. According to the petitioner, the final order
was passed by the statutory authority without providing sufficient
opportunity to the petitioner to participate in the proceedings and
therefore, the same is liable to be quashed and he may be given an
opportunity to participate in the proceedings.
3. I have heard the learned counsel for the petitioner and the
learned Standing Counsel appearing for the Kochi Corporation, Sri.
C.N. Prabhakaran, and perused the pleadings and documents on
record.
4. Ultimately, the question revolves around Ext.P7 order passed
by the Secretary of the Corporation, whereby it was found that the
petitioner has encroached into a stream owned by the Kochi
Corporation and has carried out the construction. In my considered
opinion, it is a factual circumstance, which can only be deciphered by a
fact finding body. Apparently, when the issue has come to the notice
of the Secretary, a notice under Section 406(1) and an order under
Section 406(2) of Act, 1994 was passed by the Secretary, which is the
statutory prescription to be followed by the Secretary against a person
who has carried out any unauthorised construction in any property.
The provisions of Section 406 of Act, 1994 is a scheme by itself and it
delineates the proceedings that are to be undertaken by the Secretary,
if an unauthorised construction is carried out. Going by Ext.P7 order
and Ext.R1(a) order specified above, it is quite clear and evident that
the statutory requirements are complied with by the Secretary before
passing the final order under Section 406(3) of the Act, 1994.
5. In fact, taking into account various factual circumstances, this
Court has passed an order dated 10.06.2019 in I.A. No. 2 of 2019, the
relevant portion of which reads thus:
" Having perused the pleadings and documents on record and
hearing the counsel appearing for the respondents, respondent Nos. 1
and 2 are given the liberty to carry out demolition of any unauthorised
constructions made by the petitioner in the writ petition protruding to
any public property."
6. In that view of the matter, since the findings rendered are on
factual aspects, I do not think, the petitioner is entitled to secure any
relief in a petition under Article 226 of the Constitution of India. Even
though the petitioner had a remedy to approach the statutory
authority in terms of the provisions of the Act, 1994, the petitioner has
not cared to do the same. I also find that since the statutory
requirements are followed by the Secretary, it can never be said that
the Secretary has committed any arbitrariness or illegality liable to be
interfered with by this Court in a proceeding under Article 226 of the
Constitution of India.
That being the situation, the writ petition has no sustenance and
accordingly, it is dismissed.
SHAJI P. CHALY,
JUDGE.
Rv
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE SAID DECREE AND JUDGMENT IN
OS NO.478/2009 OF THE HON'BLE MUNSIFF COURT,
KOCHI DATED 31ST DAY OF OCTOBER,2012.
EXHIBIT P2 A TRUE COPY OF THE DECREE IN AS NO.4/2013 OF THE
HON'BLE SUB COURT KOCHI DATED 18-6-2014.
EXHIBIT P3 A TRUE COPY OF THE NOTICE ISSUED BY THE 2ND
RESPONDENT DATED 4-1-18.
EXHIBIT P4 A TRUE COPY OF THE REPLY DATED 24-2-18 SUBMITTED
BY THE PETITIONER TO EXT P-3 NOTICE.
EXHIBIT P5 A TRUE COPY OF THE NOTICE ISSUED BY THE 2ND
RESPONDENT DATED 17/3/18.
EXHIBIT P6 A TRUE COPY OF THE RECEIPT DATED 24-5-18 ISSUED
BY THE OFFICE OF THE RESPONDENTS.
EXHIBIT P7 A TRUE COPY OF THE NOTICE ISSUED BY THE 2ND
RESPONDENT DATED 6-7-18.
RESPONDENT'S/S EXHIBITS:
EXHIBIT-R3(A) A TRUE COPY OF THE PROHIBITORY INJUNCTION SUIT
BEARING OS NO. 478/2009
EXHIBIT-R3(B) A TRUE COPY OF THE WRITTEN STATEMENT FILED BY
ONE K.J.JACOB (1ST DEFENDANT ) IN OS NO. 478/2009
EXHIBIT-R3(C) A TRUE COPY OF THE WRITTEN STATEMENT FILED BY
THE 3RD DEFENDANT IN OS NO. 478/2009
EXHIBIT-R3(D) A TRUE COPY OF THE WRITTEN STATEMENT FILED BY
1ST AND 2ND RESPONDENTS [5TH AND 6TH
DEFENDANTS) IN OS NO. 478/2009
EXHIBIT-R3(E) -A TRUE COPY OF THE MASS PETITION DATED
28/1/2019
EXHIBIT-R4(A) A TRUE COPY OF THE MASS PETITION DATED 28/1/2019
EXHIBIT R1(a): TRUE COPY OF THE REPORT OF THE ADDITIONAL TAHSILDAR,
KOCHI TALUK DATED 07.10.2017 ALONG WITH THE SKETCH PREPARED BY THE
TALUK SURVEYOUR, KOCHI TALUK.
