Chinnamma vs Thrissur Muncipal Corporation
2021 Latest Caselaw 14990 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
  FRIDAY, THE 16TH DAY OF JULY 2021 / 25TH ASHADHA, 1943
                        WP(C) NO. 1028 OF 2012
PETITIONERS:
    1    CHINNAMMA
         AGED 70 YEARS
         W/O. CHIRIYANKANDATH PALU, MISSION QUARTERS,
         CHEMBUKAVU VILLAGE, THRISSUR TALUK.

 ADDL P2 JOLLY JOHN
         AGED 52, W/O.JOHN, MISSION QUARTERS, THRISSUR.

 ADDL.P3 MOLLY THOMAS
         D/O.CHINNAMMA, MISSION QUARTERS, THRISSUR.

               BY ADVS.
               SRI.G.SREEKUMAR (CHELUR)
               SRI.RINU S. ASHRAF
               SRI.K.RAVI PARIYARATH


RESPONDENTS:
    1     THE STATE OF KERALA
          REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,
          LOCAL SELF GOVERNMENT, DEPARTMENT,
          GOVERNMENT SECRETARIAT, THRUVANANTHAPURAM.

    2          THE THRISSUR MUNICIPAL CORPORATION
               REPRESENTED BY ITS SECRETARY, M.O.ROAD,
               THRISSUR- 680001

    3          MS. MAJALA TRADERS AND QUEEN KURIES
               PALAKKAL ANGADI, REPRESENTED BY ITS MANAGER,
               THRISSUR.

               R1- SRI.SURIN GEORGE IPE,SENIOR GP
               R2- SRI.SANTHOSH.P.PODUVAL
               R3- SRI.MAHESH V.MENON


        THIS     WRIT   PETITION    (CIVIL)     HAVING    COME    UP    FOR
ADMISSION       ON   16.07.2021,     THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) NO. 1028 OF 2012
                                     -2-



                                JUDGMENT

This writ petition is filed by the petitioner

seeking the following reliefs:-

"i)Issue an appropriate writ of mandamus or any other appropriate writ, order or direction commanding the second respondent to take into consideration Exts.P1 to P10 and to complete the proceedings as evidence by Ext.P10 and to demolish the unauthorised and illegal construction effected by the third respondent within such time as may be fixed by this Hon'ble court in the interest of justice.

ii) Issue an appropriate writ, order or direction commanding the second respondent to take into consideration Ext.P11 and may be pleased to decide the same on merits after affording an opportunity of being heard within such time as may be fixed by this Hon'ble court, in the interest of justice."

2. The paramount contention advanced by the

petitioner is that, encroaching into the property

owned by the petitioner a construction is put up

by the 3rd respondent i.e. M/s. Manjala Traders and

Queen Kuries, Palakkal Angadi, Thrissur. It is

also stated that, the constructions are put up in

violation of the Kerala Municipality Act, 1994

(hereinafter referred to as the Act, 1994) and the

Kerala Municipality Building Rules, 1999 WP(C) NO. 1028 OF 2012

(hereinafter referred to as the Rules, 1999).

Apparently being aggrieved petitioner has filed a

complaint before the Secretary of the Municipality

and consequent to which Ext.P10 notice dated

19.02.2011 was issued to the 3rd respondent

pointing out that the constructions were carried

out by the petitioner in violation of the Rules,

1999, and the 3rd respondent was directed to be

present before the Municipal Office to conduct

hearing.

3. According to the learned counsel for the

petitioner, the 3rd respondent appeared before the

Secretary of the Corporation, however no orders

were passed by the Secretary. It is also pointed

out that, petitioner has submitted Ext.P11

complaint before the Secretary acknowledged as per

receipt dated 16.09.2011 and inspite of the same,

no action was initiated, which persuaded the

petitioner to file this writ petition.

4. Eventhough the 3rd respondent has entered WP(C) NO. 1028 OF 2012

appearance, no counter affidavit is filed. The

Corporation has not filed any counter affidavit.

5. I have heard learned counsel for the

petitioner Sri.Sreekumar G.(Chelur) represented

through advocate Rinu S. Ashraf, learned Senior

Government Pleader Sri.Surin George Ipe, learned

counsel appearing for the 3rd respondent Sri.Mahesh

V.Menon and the learned Standing Counsel appearing

for the Thrissur Municipal Corporation

Sri.Santhosh P.Poduval and perused the pleadings

and materials on record.

6. It is an admitted fact that on the basis

of the complaint submitted by the petitioner,

proceedings were initiated by the Executive

Engineer, Corporation of Thrissur Municipality

probably as per the provisions of Section 406 of

the Act, 1994.

7. According to the learned counsel

appearing for the 3rd respondent he has no

instruction as to whether the 3rd respondent has WP(C) NO. 1028 OF 2012

appeared on the basis of Ext.P10 notice. Anyhow,

learned counsel for the 3rd respondent submitted

that he has no objection in the Secretary of the

Corporation considering Ext.P11 complaint filed by

the petitioner specified above.

8. In my considered view, if and when a

proceeding is initiated under Section 406 of Act,

1994 in regard to an illegal construction carried

out by any person within the limits of the

Corporation, necessarily a notice has to be

issued as is contemplated under Section 406(1) and

a provisional order under Section 406(2) to the

person who has violated the provisions of Act,

1994 and the Rules 1999. It is evident from

Ext.P10 that a notice was issued, however it is

not having the characteristics the provisions of

Section 406.

In that view of the matter, there will be a

direction to the Secretary of the Corporation to

act upon Ext.P11 complaint and proceed in WP(C) NO. 1028 OF 2012

accordance with the provisions of Section 406 of

Act, 1994, after providing a notice of hearing to

the petitioner and the 3rd respondent, a decision

shall be taken at the earliest, and at any rate,

within two months from the date of receipt of a

copy of this judgment. Petitioner is directed to

produce copy of the writ petition along with the

documents before the Secretary within two weeks

from today.

Sd/-

SHAJI P.CHALY JUDGE hmh WP(C) NO. 1028 OF 2012

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE DOCUMENT BEARING NO.1090/77 OF THE THRISSUR SRO DATED 25.03.1977

EXHIBIT P2 A TRUE COPY OF THE COMPLAINT OF THE PETITIONER BEFORE THE SECOND RESPONDENT DATED 19.11.2009

EXHIBIT P3 A TRUE COPY OF THE RECEIPT ISSUED BY THE SECOND RESPONDENT DATED 19.11.2009

EXHIBIT P4 A TRUE COPY OF THE COMMUNICATION BY THE PETITIONER DATED 17.02.2010

EXHIBIT P5 A TRUE COPY OF THE RECEIPT ISSUING BY THE SECOND RESPONDENT DATED 17.02.2010

EXHIBIT P6 A TRUE COPY OF THE COMMUNICATION DATED 27.02.2010

EXHIBIT P7 A TRUE COPY OF THE COMMUNICATION DATED 13.07.2010

EXHIBIT P8 A TRUE COPY OF THE COMMUNICATION BY THE SECOND RESPONDENT DATED 13.11.2009

EXHIBIT P9 A TRUE COPY OF THE COMMUNICATION OF THE SECOND RESPONDENT DTAED 07.10.2010

EXHIBIT P10 A TRUE COPY OF THE COMMUNICATION OF THE SECOND RESPONDENT DTAED 19.02.2011

EXHIBIT P11 A TRUE COPY OF THE REPRESENTATION OF THE PETITIONER BEFORE THE SECOND RESPONDENT DATED 16.09.2011 WP(C) NO. 1028 OF 2012

EXHIBIT P12 A TRUE COPY OF THE RECEIPT EVIDENCING RECEPTION OF EXT.P11 DATED 16.09.2011

RESPONDENTS'S/S EXHIBITS: NIL