Jomon Joseph vs Corporation Of Kochi
2021 Latest Caselaw 10275 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

     FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943

                      WP(C).No.26861 OF 2014(G)


PETITIONER:

               JOMON JOSEPH
               AGED 39 YEARS
               S/O.P.C.JOSEPH, POLAPPARAMBIL HOUSE,
               S.D.CONVENT ROAD, KONTHURUTHY,
               THEVARA P.O., KOCHI - 682 013.

               BY ADVS.
               SHRI.C.S.AJITH PRAKASH
               SRI.PAUL C THOMAS
               SRI.P.S.SYAMKUTTAN

RESPONDENTS:

      1        CORPORATION OF KOCHI
               OFFICE OF THE CORPORATION OF KOCHI,
               NEAR BOAT JETTY, ERNAKULAM, KOCHI - 682 011,
               REPRESENTED BY ITS SECRETARY.

      2        THE SECRETARY
               CORPORATION OF KOCHI,
               OFFICE OF THE CORPORATION OF KOCHI,
               NEAR BOAT JETTY, ERNAKULAM, KOCHI - 682 011

      3        ASSISTANT ENGINEER
               TOWN PLANNING SECTION,
               CORPORATION OF KOCHI - 682 011.

               R1 BY SMT.SAREENA GEORGE,SC,COCHIN CORPORATION
               R1 BY ADV. SRI.K.J.MANU RAJ,SC,COCHIN CORPORATION
               R1-3 BY ADV. SRI.ARUN ANTONY,SC

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD          ON
26.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.26861 of 2014-G
                                     2


                                JUDGMENT

Dated this the 26th day of March, 2021

This writ petition is filed by the petitioner challenging Ext.P15 order

passed by the Tribunal for Local Self Government Institutions dated

28.5.2014 in Appeal No.769 of 2013. The subject issue relates to a ramp

constructed by the petitioner to access petitioner's property which was

found to be illegal by the Secretary of the Kochi Corporation. Accordingly,

Ext.P5 provisional order was passed under Section 406(1) of the Kerala

Municipalities Act, 1994 clearly specifying the illegal construction carried

out by the petitioner which was found to be violative of Rule 62(2) of the

Kerala Municipality Building Rules, 1999. Anyhow, after providing

sufficient opportunity to the petitioner, Ext.P9 order was passed under

Section 406(3) of Act 1994 whereby the petitioner was directed to

remove the construction of ramp and the gate opening outwards which

were violative of the relevant provisions of Rules 1999. Consequently

Ext.P8 direction dated 11.9.2012 was also issued directing the petitioner

to remove the objectionable constructions. Being aggrieved, the

petitioner has preferred Appeal before the Tribunal. However, the

Tribunal also affirmed the order passed by the Secretary of the

Corporation as is specified above. It is thus challenging the legality and W.P.(C)No.26861 of 2014-G

correctness of Ext.P15 order of the Tribunal, this writ petition is

preferred.

2. I have heard learned counsel for the petitioner Sri.C.S.Ajith

Prakash and learned standing counsel for the Corporation Sri.Arun

Antony and perused the pleadings and the materials on record.

3. The sole question to be considered is whether any manner of

interference is warranted to the order passed by the Tribunal. On a

perusal of Ext.P9 order passed by the Corporation one thing is clear that

the Corporation, after assimilating the factual and legal circumstances,

had found that there was an illegal construction carried out by the

petitioner protruding into the public road and a gate was put up opening

outwards, which were found to be clearly against the provisions of the

Kerala Municipality Building Rules, 1999. In my considered opinion,

those aspects which were considered by the Secretary were clearly

surrounded by facts. Anyhow, in the Appeal preferred before the

statutory authority the Tribunal has clearly re-appreciated the evidence

and the factual circumstances and has arrived at the clear-cut conclusion

that the constructions were carried out by the petitioner violative of the

provisions of Rules 1999.

4. Eventhough various grounds are raised in this writ petition I do

not think that the petitioner has established the case before this court so W.P.(C)No.26861 of 2014-G

as to interfere with the factual findings rendered by the two fact finding

bodies in a proceeding under Article 226 of the Constitution of India. It

thus means that the interference with the orders passed by the statutory

authorities is bleak and beyond comprehension.

However, learned counsel for the petitioner submitted that the

counsel could not locate the petitioner and do not know whether the

petitioner has complied with the directions contained in Ext.P9 order

affirmed by the Tribunal in Ext.P15 order. Be that as it may, in my

considered opinion since no interference is required to Ext.P15 order of

the Tribunal, the petitioner if has not already complied with the directions

contained in Ext.P9 order of the Secretary of the Corporation, some time

can be granted to comply with the same. Therefore, when I decline the

relief sought for in the writ petition, one month time is granted to the

petitioner to remove the objectionable constructions, if not already done.

Sd/-

Shaji P.Chaly Judge

vpv W.P.(C)No.26861 of 2014-G

APPENDIX

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.1597/2010 DATED 10/5/2010 OF THE ERNAKULAM SRO.

EXHIBIT P2 TRUE COPY OF THE SALE DEED NO.1431/1994 DATED 19/3/1994 OF THE ERNAKULAM SRO.

EXHIBIT P3 TRUE COPY OF THE NOTICE BEARING REF:

NO.MOP2-5537/11 ISSUED BY THE 2ND RESPONDENT DATED 10/3/2011.

EXHIBIT P4 TRUE COPY OF THE REPLY NOTICE DATED 23/3/2011 SUBMITTED BY THE PETITIONER.

EXHIBIT P5 TRUE COPY OF THE PROVISIONAL ORDER NO.MOP2-5537/11 DATED 30/04/2011 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE REPLY NOTICE DATED 8/6/2012 TO THE 1ST RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE NOTICE NO.MOP2-5537/11, ISSUED BY THE TOWN PLANNING OFFICER, CORPORATION OF COCHIN.

EXHIBIT P8 TRUE COPY OF THE ORDER NO.MOP2-5537/11 DATED 11/9/2012 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P9 TRUE COPY OF THE ORDER NO.MOP2-5537/11 OF THE 1ST RESPONDENT CORPORATION DATED 2/5/2013.

EXHIBIT P10 TRUE COPY OF THE RECENT PHOTOGRAPH OF THE RAMP.

EXHIBIT P11 TRUE COPY OF THE COMPLAINT DATED 10/11/2010 SUBMITTED BY MR.K.J.TOMY BEFORE THE RESPONDENT CORPORATION.

EXHIBIT P12 TRUE COPY OF THE RECENT PHOTOGRAPH OF THE RAMP CONSTRUCTED BY MR.K.J.TOMY RIGHT IN FRONT OF HIS GATE W.P.(C)No.26861 of 2014-G

EXHIBIT P13 TRUE COPY OF THE TAX RECEIPTS DATED 3/7/2013 FOR THE PERIOD 2013-2014 ARE COLLECTIVELY.

EXHIBIT P14 TRUE COPY OF THE ORDER DATED 13/8/2013 IN WPC NO.20049/2013.

EXHIBIT P15 TRUE COPY OF THE ORDER IN APPEAL NO.769/2013 DATED 28/5/2014 PASSED BY THE HON'BLE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.

EXHIBIT P16 TRUE COPY OF THE LETTER NO.MOP2/8506/14 DATED 22/4/2014 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P17 TRUE COPY OF THE RECEIPT BEARING REFERENCE NO.030082 DATED 09/10/2014 ISSUED BY THE CORPORATION OF COCHIN.

/TRUE COPY/

P.A. TO JUDGE