Smitha Jacob vs The Secretary
2021 Latest Caselaw 9294 Ker

W.P.(C) No. 7901/2011                     :1:

                     IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                        PRESENT

                        THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

              FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942

                                WP(C).No.7901 OF 2011(K)


PETITIONER:

                  SMITHA JACOB, aged 30 years,
                  W/O.MELVIN JACOB, OOTTUPARAMBU HOUSE,,
                  CC.17/1315,RAMESWARAM VILLAGE,KOCHI TALUK

                  BY ADVS.
                  SRI.K.R.MICHAEL
                  SRI.FRANCIS JOSEPH KURISUNKAL

RESPONDENT/S:

        1         THE SECRETARY, CORPORATION OF COCHIN,
                  ERNAKULAM,PIN-682 011.

        2         OFFICER IN CHARGE,
                  SMA,RAMESWARAM, MAHAVIR ENCLAVE(NAVY NAGAR),
                  MUNDALVELI,THOPPUMPADY, KOCHI-682 018

        3         MANAGER, H D F C BANK LTD., ERNAKULAM
                  2ND FLOOR, SL PLAZA, KOCHI-682 025.

        4         VILLAGE OFFICER RAMESWARAM VILLAGE
                  PALLURUTHY,KOCHI, PIN-682 005.

        5         DISTRICT COLLECTOR,
                  CIVIL STATION, KAKKANAD-PIN-682 030.

        6         FLAG OFFICER COMMANDING - IN - CHIEF
                  SOUTHERN NAVAL COMMAND, HEAD QUARTERS,, KOCHI-682 004

                  R1 BY SRI.K.P.JUSTINE(KARIPAT)SC,COCHIN CORPN
                  R1-2 BY ASSISTANT SOLICITOR GENERAL
                  R1 BY ADV. SRI.V.V.JOSHISCCOCHIN CORPORATION

                  R6 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
 W.P.(C) No. 7901/2011                 :2:



                 R4 & R5 BY SRI.SURIN GEORGE IPE, SENIOR GOVERNMENT PLEADER
                 SRI.K.JANARDHANA SHENOY,SC
                 R2 & R6 BY SRI.P.VIJAYAKUMAR,ASSISTANT SOLICITOR GENERAL OF
                 INDIA

      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-03-2021, THE
      COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 7901/2011                  :3:



                        Dated this the 19th day of March, 2021.

                                        JUDGMENT

This writ petition is filed by the petitioner seeking the following reliefs:

1. Issue a writ of mandamus or any other writ or order or direction direcing the 1st respondent to take further action in furtherance of Ext.P3.

2. To declare that the building constructed by the 2 nd respondent for the 3rd respondent in front of the petitioner's property is in the puramboke land and construction is done without getting the proper permission from the appropriate authorities.

3. Issue a writ of mandamus or any other writ, order or direction directing the respondents to demolish the unauthorised building constructed in fron of the property of the petitioner preventing her egress and ingress through her gate.

2. The subject issue relates to the construction carried out by a Flag

Officer Commanding-in-Chief, Southern Naval Command, in order to start an

ATM counter. The claim raised by the petitioner is that the construction was

carried out by the said Officer in a public property without securing

permission from the Kochi Corporation or the State Government.

3. A counter affidavit is filed by the Secretary of the Corporation

basically stating that a provisional order was issued to demolish the

unauthorised construction to the HDFC Bank. However, the HDFC Bank

replied that it is only running the ATM; but, the construction was carried out

by the Indian Navy. Therefore, in effect, in the counter affidavit, what is

submitted by the Secretary of the Corporation is that it is prepared to abide

by the directions issued by this Court in the writ petition.

4. On the other hand, for and on behalf of the Flag Officer

Commanding-in-Chief, Southern Naval Command, an affidavit is placed

before this Court narrating the facts and circumstances of the case and also

pointing out that the construction is carried out within the property in its

possession in order to benefit not only the Officers of the Indian Navy, but

also the public at large, since permission is given to the public to access the

ATM counter. Certain photographs have also been produced along with the

counter affidavit, from where I am satisfied that the property is under the

absolute control of the Flag Officer Commanding-in-Chief, Southern Naval

Command.

5. Moreover, on a perusal of the proceeding sheet, it is clear that on

many of the occasions, the petitioner was not present before this Court and

consequently appropriate orders were passed. Anyhow, it was found that

steps were not taken appropriately by the petitioner against the HDFC Bank,

third respondent, and accordingly, on 12.03.2020, a direction was issued to

the petitioner to take steps to serve notice on the third respondent within 10

days, failing which the writ petition would stand dismissed. In spite of the

said direction, no steps are taken by the petitioner.

Taking into account the above said aspect and in view of the order

passed by this Court on 12.03.2020, I make it clear that the writ petition

would stand dismissed.

sd/-

SHAJI P. CHALY, JUDGE.

Rv