K.M.Thilakan vs The Municipal Corporation Of ...
2021 Latest Caselaw 3321 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

           THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

    FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942

                     WP(C).No.12875 OF 2018(H)


PETITIONER:

               K.M.THILAKAN
               "UPASANA", G-368, PANAMPILLY NAGAR,
               ERNAKULAM 682 036.

               BY ADVS.
               SRI.ANIL SIVARAMAN
               SMT.RAJI VINCENT

RESPONDENTS:

      1        THE MUNICIPAL CORPORATION OF COCHIN
               REP. BY ITS SECRETARY., CORPORATION OFFICE, PARK
               AVENUE,ERNAKULAM 682 011.

      2        THE SECRETARY
               CORPORATION OF COCHIN, CORPORATION OFFICE, PARK
               AVENUE, EERNAKULAM 682 011

      3        THE ASST.EXECUTIVE ENGINEER
               CORPORATION OF COCHIN,(ENGINEERING & TOWN
               PLANNING)EAST ZONAL OFFICE, VYTTILA,
               COCHIN-682 019.

      *4       ADDTIONAL R4 RANIT BHUYAN,
               FLAT NO.2A, ABAD CLOUD NINE, PANAMPILLY NAGAR
               CROSS ROAD, VIDYA NAGAR, PANAMPILLY NAGAR P.O.,
               KOCHI-682036. (*ADDL.R4 IS IMPLEADED AS PER ORDER
               DATED 06/09/2018 IN IA.NO.01/2018)

               R1 BY SRI.JIBU P.THOMAS,SC,COCHIN CORPORATION
               R4 BY ADV. LAL K.JOSEPH
               R4 BY ADV. A.A. ZIYAD RAHMAN

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P. (C) No.12875 of 2018

                                      2




                       W.P.(C) No.12875 of 2018
                -----------------------------------------------

                             JUDGMENT

The daughter of the petitioner owns an apartment in an

apartment complex named Abad Cloud Nine situated within the

limits of the first respondent Corporation. The petitioner holds

power of attorney of his daughter. The apartment referred to above

is apartment bearing No.1A in the first floor of the said apartment

complex. It is seen that at the time of construction of the

apartment complex, the roof slab below apartment 1A was

projected from the building line for convenient car parking beneath

the same. It is seen that the predecessor of the daughter of the

petitioner enclosed that extended area in the roof slab to his

apartment by constructing a structure. The fourth respondent is the

owner of apartment 2A on the second floor of the apartment

complex. The fourth respondent lodged a complaint to the

Corporation alleging that the extension of the roof slab as also the

enclosure made over the same are unauthorized. On the said W.P. (C) No.12875 of 2018

complaint, Ext.P4 notice has been issued by the third respondent,

the Assistant Executive Engineer of the Corporation. Ext.P4 notice is

under challenge in the writ petition.

2. The case set out by the petitioner in the writ petition

is that if the structure referred to in Ext.P4 is an unauthorized one,

action can be taken only by the Secretary of the Corporation under

Section 406 of the Kerala Municipality Act, 1994 (the Act) and

Ext.P4 notice directing demolition/removal of the unauthorized

structure issued by the third respondent is one issued without

jurisdiction.

3. Heard the learned counsel for the petitioner, the

learned Standing Counsel for the first respondent Corporation as

also the learned counsel for the fourth respondent.

4. Ext.P4 is neither a provisional order contemplated

under Section 406(1) of the Act nor a final order contemplated

under Section 406(3) of the Act. Ext.P4 is styled only as a notice

requiring the petitioner to remove the unauthorized construction. It

has come to the notice of this court that before initiating

proceedings under Section 406 of the Act, notices in the nature of W.P. (C) No.12875 of 2018

Ext.P4 are issued to the party concerned and if only the same are

not complied with, proceedings are initiated under Section 406 of

the Act.

In the said circumstances, the writ petition is disposed

of directing the competent authority of the Corporation to initiate

and complete proceedings under Section 406 of the Act in respect

of the alleged unauthorised construction referred to in Ext.P4,

within one month from the date of receipt of a copy of this

judgment.

Sd/-

P.B.SURESH KUMAR, JUDGE.

YKB W.P. (C) No.12875 of 2018

APPENDIX OF WP(C) 12875/2018 PETITIONER'S/S EXHIBITS:

EXHIBIT P1                  TRUE COPY OF PHOTOGRAPH

EXHIBIT P1(A)               TRUE COPY OF PHOTOGRAPH

EXHIBIT P2                  TRUE COPY OF SETTLEMENT DEED DT 18-1-


EXHIBIT P3                  TRUE COPY OF OWNERSHIP CERTIFICATE DT
                            9-2-2016

EXHIBIT P4                  TRUE COPY OF NOTICE DATED 22-3-18

EXHIBIT P5                  TRUE COPY OF POSTAL COVER

EXHIBIT P6                  TRUE COPY OF REPLY DATED 4-04-2018.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R4(A)               TRUE COPY OF THE COMPLAINT DATED

03.01.2018 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT

//TRUE COPY//

PA TO JUDGE