Sunil Jacob Jose vs The Corporation Of Cochin
2021 Latest Caselaw 21497 Ker

WPC .No.19395/21
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             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
             THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
  FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
                      WP(C) NO. 19395 OF 2021
PETITIONER:
          SUNIL JACOB JOSE,
          AGED 56 YEARS
          ADVOCATE, S/O.A.C.JOSE, AMBAT, SWAMI CHINMAYANANDA
          ROAD, COCHIN, ERNAKULAM-682 016.

             BY ADV SACHIN JACOB AMBAT


RESPONDENTS:

     1       THE CORPORATION OF COCHIN,
             PARK AVENUE, KOCHI, ERNKAULAM-682 011, REPRESENTED
             BY ITS SECRETARY.

     2       THE SECRETARY, CORPORATION OF COCHIN,
             PARK AVENUE, KOCHI, ERNAKULAM-682 011.

     3       THE GURUVAYUR DEVASWOM BOARD,
             GURUVAYUR, THRISSUR-680 101, REPRESENTED BY ITS
             ADMINISTRATOR.

             BY ADVS.
             D.G.VIPIN
             SHRI.K.JANARDHANA SHENOY, SC, KOCHI MUNICIPAL
             CORPORATION


      THIS     WRIT   PETITION    (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 8.10.2021, THE COURT ON 29.10.2021 DELIVERED
THE FOLLOWING:
 WPC .No.19395/21
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                            ANU SIVARAMAN, J.
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                          W.P.(c).No.19395 of 2021
                      = = = = = = = = = = = = = = = =
                   Dated this the 29th day of October, 2021
                                  JUDGMENT

1. This writ petition is filed with the following prayers:-

"i. Issue a writ of mandamus or order or direction or any appropriate writ to the respondents to clear the vegetation and waste dumped in the property within a time fixed by this Hon'ble Court; ii. Issue a writ of mandamus or order or direction or any appropriate writ to the respondent 1 & 2 to direct the 3 rd respondent to construct a proper boundary wall, for the property to appropriately safe guard the property from being put to waste;

iii. Direct the 1st & 2nd respondents to dispose off Ext.P1; iv. Issue a writ of mandamus or order or direction or any appropriate writ to the respondents 1 & 2 to take steps to prevent dumping of waste in future."

2. Heard the learned counsel for the petitioner and the learned

standing counsel appearing for respondents 1 and 2 as well as

the learned standing counsel appearing for the 3rd respondent.

3. It is submitted by the learned counsel for the petitioner that

next to the entrance of the pocket road which leads to the

residence of the petitioner, there is a property having an

extent of 15 cents which vests with the 3 rd respondent by WPC .No.19395/21

virtue of judgment of this Court in RFA No.271/2005 dated

3.3.2014. It is submitted that the property has been left

unattended and has become a place of wild vegetation and

waste dumping, since there is no proper fencing. Petitioner

submitted Exhibit P1 request before the 2nd respondent to

invoke his power under Sections 426, 427 and 430 of the

Kerala Municipality Act to ensure that the waste accumulated

in the unattended property is cleared and to direct the 3 rd

respondent to clean the property and to fence it to avert

further nuisance. Though Exhibit P1 as well as Exhibit P2

reminder had been received by the 2 nd respondent, no action is

taken thereof. The learned counsel for the petitioner places

reliance on judgment dated 20.12.2019 of this Court in W.P.

(C).No.30418/2019 where an identical situation was

considered and the Corporation was directed to take

appropriate steps in terms of the provisions of the Act.

4. The learned standing counsel appearing for the 3 rd respondent

Guruvayur Devaswom Board submits that the question with

regard to the title to the property is pending consideration WPC .No.19395/21

before the Apex Court and that the Devaswom is unable to do

anything with regard to the property, since the possession of

the property is not with the Devaswom at present.

5. Having considered the contentions advanced and in view of

the specific provisions of Sections 426,427 and 430 of the

Kerala Municipality Act and the judgment relied on, I am of

the opinion that the request made by the petitioner in Exhibits

P1 and P2 is liable to be considered by the 2 nd respondent and

appropriate steps have to be taken thereon in accordance with

law. There will, accordingly, be a direction to the

respondents to consider Exhibits P1 and P2 and take

appropriate steps to see that the waste is cleared from the

property in question and the noxious or wild vegetation is

removed. The expenses for such work can be recovered from

the owner of the property, who is paying the property tax in

respect of the property at present. The owner shall be

informed of the approximate expenses for the clearing of the

property, as directed above and if they do not clear the

property within a week from the date of receipt of such notice, WPC .No.19395/21

the corporation shall proceed to clear the waste and wild

vegetation in accordance with law. It is made clear that in

case the owner of the property or the 3 rd respondent, as the

case may be, refuses to pay the expenses of the clearing of

the property as demanded by the 2 nd respondent, the said

expenses shall be a charge on the property and can be

collected as is done in the case of arrears of property tax, in

accordance with law.

sd/-

Anu Sivaraman, Judge

sj WPC .No.19395/21

APPENDIX OF WP(C) 19395/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE REPRESENTATION DATED 24.01.2021.

Exhibit P2 TRUE COPY OF THE REPRESENTATION DATED 19.08.2021 BEFORE THE 2ND RESPONDENT.

Exhibit P3 PHOTOCOPY OF THE PHOTOGRAPHS.

True copy

PS to Judge