Kerala High Court
Sreekumar vs Secretary, Kochi Corporation on 15 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 15TH DAY OF JULY 2021 / 24TH ASHADHA, 1943
WP(C) NO. 10420 OF 2011
PETITIONER:
SREEKUMAR, AGED 47 YEARS,
METRO PLAZA,MARKET ROAD,COCHIN-18.
BY ADV SRI.C.P.MOHAMMED NIAS
RESPONDENTS:
1 KOCHI CORPORATION
ERNAKULAM, REP. BY ITS SECRETARY, PIN - 682 011.
2 SENIOR SECTION ENGINEER - WORKS
SOUTHERN RAILWAY,ERNAKULAM 682 016.
3 OMANA BAHULEYAN, PULITHARA HOUSE
KSN MENON ROAD,COCHIN-16.
SHIBU K. ABRAHAM S/O.K.K.ABRAHAM, AGED 46 YEARS,
KUNNATH HOUSE, EDAKKATTUVAYAL.P.O., ARAKKUNNAM
ADDL.R4
ADDL.R4 IS IMPLEADED AS PER ORDER DATED 21.6.2011 IN
I.A.NO.9456/2011
R1 BY ADV.SRI.SOBHAN GEORGE,STANDING COUNSEL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) NO.10420/2011 2
JUDGMENT
This writ petition is filed by the petitioner seeking the following reliefs:
a) Issue a writ of mandamus and or any other appropriate writ,
direction or order directing the respondents to take appropriate steps
to implement the decision in Exhibits P8 and P9 by removing the
hoardings put up in the structure bearing No.XXXIX/P 2794A, KSN
Menon Road, Ernakulam.
b) Such other and appropriate reliefs as may be prayed for from time
to time and which this Hon'ble Court deems fit and proper in the
interest of justice to grant.
2. Basic contention advanced by the petitioner is that there was an
agreement executed by and between the petitioner and the 3 rd respondent to
put up a hoarding in the property belongs to the 3 rd respondent. According to
the petitioner, the agreement entered into by and between the petitioner and
the 3rd respondent was over. It is also submitted that consequent to the
agreement entered into by and between the petitioner and the 3 rd
respondent, the lease hold right secured by the petitioner was transferred to
the 4th respondent viz., Shibu K.Abraham.
3. The sum and substance of the contention put forth by the petitioner is
that petitioner has no manner of liability thereafter. Anyhow the Southern
Railway has issued Exhibit P9 notice dated 29.1.2011 to the 3 rd respondent to
remove the framework of the hoarding which is standing dangerously near the
railway track adjacent to the South Railway Overbridge at km 107/300-400. It is
also pointed out that Exhibit P10 was issued by the Executive Engineer, PWD
Roads Division, Thrikkakara, Ernakulam stating that the South Overbridge and
the connecting Sahodaran Ayyappan Road are not belonging to PWD at present,
and the Corporation of Kochi is the custodian of the said road and therefore,
requested the District Collector to take appropriate action in accordance with
law.
4. The paramount contention advanced by the petitioner is that no action
is initiated by the Corporation to remove the dangerous hoarding situated in the
property in question. However, since the petitioner has no manner of liability as
of now, no liability can be mulcted on the petitioner, if any damage is occurred
consequent to the breakage of the structure put up when the agreement
executed by and between the petitioner and the 3rd respondent was in force.
5. Fourth respondent has filed a detailed counter affidavit producing
various documents and also submitting that there is no bonafides on the part of
the petitioner in filing the writ petition and the seeking the reliefs.
6. Anyhow whatever be the contentions raised by the 4 th respondent, the
Southern Railway has expressed an apprehension that the structure is situated in
a dangerous condition and PWD, Roads Division, Ernakulam has reported that
South Overbridge is in the custody of the Cochin Corporation and therefore, it is
for the Cochin Corporation to take a decision at the earliest.
7. After having heard learned counsel for petitioner Sri.Muhammed Nias
C.P., learned standing counsel appearing for the Cochin Corporation Sri. Sobhan
George and erstwhile learned standing counsel for the Southern Railway, who
submitted that he is no more the standing counsel of the Southern Railway, and
perusing the pleadings and materials on record, this writ petition is disposed of
with the following directions:
Petitioner shall produce a copy of the writ petition along with the documents
especially Exhibits P9 and P10 before the Secretary of the Corporation of Kochi
within three weeks from today and the Secretary shall issue notice to all
concerned including the petitioner, 3rd and 4th respondents, the Southern
Railway and P.W.D and take appropriate decision in accordance with law,
within one month thereafter. The parties will be guided by the orders so
passed by the Secretary of the Corporation of Kochi, as directed above.
Sd/-
SHAJI P.CHALY
smv JUDGE
APPENDIX
Exhibit P1 - True copy of the judgment in O.S.No 933/2005 dated 30.08.2008 on the
file of the II additional Munsiff Court, Ernakulam
Exhibit P2 - True copies of the memo dated 23.12.2010 filed by the petitioner in
C.M.A.No. 30/2010 before the District Court, Ernakulam.
Exhibit P3 - True copies of the memo dated 23.12.2010 filed by the 3 rd respondent in
A.S.No 380/2008
Exhibit P4 - True copy of the representation dated 10.01.2011 submitted by the
petitioner before the 1st respondent.
Exhibit P5 - True copy of the representation dated 10.01.2011 submitted by the
petitioner before the 2nd respondent.
Exhibit P6 - True copy of the representation dated 10.01.2011 submitted by the
petitioner before the District collector
Exhibit P7 - True copy of the letter dated 03.01.2011 sent by the petitioner before the
1st respondent.
Exhibit P8 - True copies of the communication dated 10.01.2011sent by the Senior
Section Engineer, Works.
Exhibit P9 - True copies of the communications dated 29.01.2011 sent by the Senior
Section Engineer, Works.
Exhibit P10 - True copy of the letter dated 29.01.2011 issued by the Executive
Engineer, PWD Roads Division Ernakulam.
