Kerala High Court
P.Nalini vs Corporation Of Cochin on 12 March, 2021
WP(C).No.26148 OF 2014(P) -1-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942
WP(C).No.26148 OF 2014(P)
PETITIONER/S:
P.NALINI
W/O.K.C.RADHAKRISHNAN, PROPRIETRIX, DEVI
ENTERPRISES, "METALEX CORNER", NORTH RAILWAY
STATION ROAD, KOCHI-682018.
BY ADVS.
SRI.G.RAJAGOPAL
SMT.S.LEELALAKSHMI
RESPONDENT/S:
1 CORPORATION OF COCHIN
BOAT JETTY JUNCTION, ERNAKULAM, PIN-682022,
REPRESENTED BY ITS SECRETARY.
2 TOWN PLANNING OFFICER
CORPORATION OF COCHIN,BOAT JETTY JUNCTION,
ERNAKULAM, PIN-682022.
3 MS.MONO STEEL
KATTIKKARAN LANE, COCHIN-18 A PARTNERSHIP FIRM
REPRESENTED BY ITS PARTNR AND POWER OF ATTORNEY
HOLDER S.M.IMRAN, S/O.S.M.BADSHA, BEERAN KUNJU
ROAD, COCHIN-682018.
R1 BY SRI.V.E.ABDUL GAFOOR,SC,COCHIN CORPORAT
R3 BY ADV. SRI.A.A.MOHAMMED NAZIR
OTHER PRESENT:
R1 AND 2 -SRI.K.JANARDHANA SHENOY,SC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.26148 OF 2014(P) -2-
JUDGMENT
Dated this the 12th day of March, 2021
This writ petition is filed by the petitioner seeking the following
reliefs:-
"1) Direct the 1st respondent to conduct inspection
regarding the unauthorized constructions made by the 3rd
respondent on the open yards in the building belonging to the 3rd
respondent deviating from the approved plan and to submit a
report before this Honourable Court within a time limit;
2) Direct the 1st respondent to produce the entire files
maintained in the office of the 1st respondent pertaining to action
taken by the 1st respondent pursuant to Exhibit-P1 Complaint
submitted by the petitioner"
2. Brief facts for the disposal of the writ petition are as follows:-
Petitioner is a tenant of building No. 41/2600-A1 of Corporation
of Kochi, which is a room in the ground floor of a multi-storied
building namely Metalex Corner, belonging to the 3 rd respondent.
According to the petitioner, the petitioner was a tenant in an old
building belonging to the 3rd respondent situated in the very same
place where Metalex Corner is situated now. The owner of the
building approached the Rent Control Board apparently under Section
11 (4) (4) of the Kerala Building (Lease and Rent Control) Act, 1965.
On the basis of the compromise submitted by and between the parties,
an order was passed by the Rent Control Court, by which the landlord
agreed to re-induct the tenant. Evidently, after the construction of the
building, the petitioner / tenant was put in possession of the building.
A dispute arose, consequent to which the petitioner filed a
complaint before the Secretary of the Kochi Corporation stating that
the owner of the building has not provided a common toilet, which is
violative of the building rules. Taking into account Ext. P1 complaint,
the Secretary of the Corporation has passed Ext. P4 order, directing
the owner of the building to construct a common toilet. Apparently,
from Ext. P3, it is evident that the owner of the building has
undertaken before the Corporation that a toilet would be constructed
commonly for the tenants.
The case projected by the petitioner in the writ petition is that
the 3rd respondent owner of the building has not complied with the
directions contained in Ext. P4 order passed by the Town Planning
Officer of the Corporation of Kochi and therefore direction may be
issued to comply with the said order.
On an assimilation of facts, it is clear that various litigations
were pending by and between the parties, commissions were taken
out, reports have been submitted by the Advocate Commissioner as
well as technical experts, in regard to the contentions raised by the
petitioner. It is also apparent that the petitioner has approached the
Ombudsman for Local Self Government Institutions by filing a
complaint that the land lord has not provided necessary amenities, in
which the Ombudsman has passed Ext. P5 order, basically holding
that the complaint before the Ombudsman is not entertainable, since
the subject issue raised by the petitioner before the Ombudsman is
guided by the provisions of the Kerala Building (Lease and Rent
Control) Act, 1965.
Therefore, according to the petitioner, since Ext. P4 order has
become final and conclusive, the owner of the building has to
implement the directions contained therein. So also it is contended
that, a part of the complaint in relation to the setback to be provided
by the owner of the building as per the Kerala Municipality Building
Rules 1999, was not taken into consideration by the Secretary of the
Corporation / Town Planning Officer while passing Ext. P4 order, and
therefore seeks appropriate directions in terms of Ext. P4 order, and
also to reconsider the issue with respect to the violation of the building
rules in regard to the setback to be provided in accordance with the
plan and permit and the building rules constituted under the provisions
of the Kerala Municipality Act, 1994.
3. Corporation has filed a statement basically stating that it has
passed Ext. P4 order, and the owner of the building has removed the
objectionable installations, and further that a common toilet is
constructed.
4. The 3rd respondent has filed a detailed counter affidavit before
this Court wherein the complaint filed by the petitioner, Ext. P4 order
passed by the Town Planner of the Corporation etc. are admitted.
However, it is also seen from the counter affidavit that the 3 rd
respondent has constructed the common toilet, which is in all respects,
in accordance with the directions issued by the Town Planner as per
Ext. P4 order. So the subject matter of consideration boils down to one
issue as to whether actually Ext. P4 order is complied with by the 3 rd
respondent / owner of the building.
5. I have heard the learned counsel for the petitioner Sri. G.
Rajagopal, learned counsel for the 3 rd respondent Sri. Mohammed
Nazir, and learned Standing Counsel for the Corporation Sri. K.
Janardhana Shenoy, and perused the pleadings and materials on
record.
6. The fact discussions made above would make it clear that Ext.
P4 order passed by the Town Planner has become final since it is not
challenged by anyone. It is true the petitioner has a case that in Ext. P4
order, only a part of the complaint raised by the petitioner was
considered by the Town Planner, and the aspect with respect to the
violation of the building rules in regard to the set back was not
considered. Anyhow, in the statement filed by the Corporation, it is
stated that whatever objectionable installations, it is removed by the
building owner.
7. In view of the fact that an affidavit is placed before this Court
by the owner of the building that already Ext. P4 order is implemented
by the building owner, I am of the considered opinion that the
Secretary of the Corporation, or any other officer designated by the
Secretary, is at liberty to verify as to whether Ext. P4 order is
complied with by the owner of the building and it is in a usable
condition. It is also evident from the statement filed by the Standing
counsel for and on behalf of the Corporation that the objectionable
installations are said to be removed by the building owner. The said
aspect also can be considered by the officer deputed by the Secretary.
Therefore, the writ petition is disposed of directing the Secretary
of the Kochi Municipal Corporation to find out by deputing a suitable
officer, as to whether Ext. P4 order is implemented by the building
owner, and also to verify whether the objectionable installations are
removed by the building owner as stated in the statement of the
Corporation. The said exercise shall be undertaken by the Secretary
within one month from the date of receipt of a copy of this judgment,
with due notice to all concerned and if it is found that what is stated
by the building owner and the corporation in regard to Ext. P4 order
and the objectionable installation are not correct, steps shall be taken
to ensure compliance at the earliest and at any rate within a month
thereafter .
Accordingly, the writ petition is disposed of.
Sd/-
SHAJI P.CHALY
JUDGE
Eb
///TRUE COPY///
P. A. TO JUDGE
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 COPY OF THE COMPLAINT DATED
10/06/2009 SUBMITTED BY THE
PETITIONER TO THE 1ST RESPONDENT.
EXHIBIT P2 COPY OF THE RECEIPT NO.30225 DATED
15/06/2009 ISSUED BY THE 1ST
RESPONDENT.
EXHIBIT P3 COPY OF THE MINUTES OF THE HEARING
CONDUCTED BY THE SECRETARY OF THE 1ST
RESPONDENT ON 7/1/2010.
EXHIBIT P4 COPY OF THE ORDER NO.M.O.P-3-59044/09
DATED 3/8/2010 ISSUED BY THE 2ND
RESPONDENT.
EXHIBIT P5 COPY OF THE ORDER DATED 23/2/2012 IN
OP NO.1855 OF 2010 ON THE FILES OF
THE OMBUDSMAN FOR LOCAL SELF
GOVERNMENT INSTITUTIONS.
EXHIBIT P6 COPY OF THE REPRESENTATION DATED
18/07/2012 SUBMITTED BY THE
PETITIONER TO THE 1ST RESPONDENT.
EXHIBIT P7 COPY OF THE COMPLAINT DATED 1/8/2013
SUBMITTED BY THE PETITIONER TO THE
CHIEF MINISTER.
EXHIBIT P8 COPY OF THE EXPLANATORY NOTE DATED
10/10/2013 SUBMITTED BY THE FIRST
RESPONDENT IN THE COMPLAINT SUBMITTED
BY THE PETITIONER TO THE CHIEF
MINISTER.
EXHIBIT P9 COPY OF THE NOTICE DATED 7/9/2013
ISSUED BY THE ASSISTANT ENGINEER OF
THE 1ST RESPONDENT TO THE 3RD
RESPONDENT.
EXHIBIT P10 COPY OF THE NOTICE DATED 3/10/2013
ISSUED BY THE ASSISTANT ENGINEER OF
THE 1ST RESPONDENT TO THE 3RD
RESPONDENT.
