Koshi George vs The Adoor Municipality, Repby ...
2022 Latest Caselaw 9211 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
    WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
                         WP(C) NO. 6249 OF 2013
PETITIONER:

          KOSHI GEORGE,
          S/O.GEORGE, BUSINESS, KINARUVILAYIL HOUSE,
          ANANDAPPALLI P.O., PATHANAMTHITTA DISTRICT,
          PIN - 691 525.

          BY ADVS.
          SRI.SHIJU VARGHEESE
          SRIPRAMOJ ABRAHAM


RESPONDENTS:

    1     THE ADOOR MUNICIPALITY,
          REPRESEBTED BY ITS MUNCIPAL SECRETARY,
          ADOOR MUNICIPALITY, ADOOR, PATHANAMTHITTA DISTRICT,
          PIN - 691 523.

    2     DISTRICT COLLECTOR,
          OFFICE OF THE DISTRICT COLLECTOR, PATHANAMTHITTA,
          PATHANAMTHITTA P.O., PIN - 691 523.

    3     DISTRICT POLICE CHIEF,
          PATHANAMTHITTA, PATHANAMTHITTA DISTRICT,
          PATHANAMTHITTA P.O., PIN - 691 523.

    4     SUB INSPECTOR OF POLICE,
          KODUMON POLICE STATION, KODUMON P.O.,
          PATHANAMTHITTA DISTRICT, PIN - 691 523.

    5     PENTECOST MISSION,
          ANANDAPALLI P.O., ADOOR, PATHANAMTHITTA DISTRICT,
          PIN - 691 525, REPRESENTED BY PASTOR IN CHARGE,
          SRI.A.G.SHAJI ALIAS A.G. JOHN AGED ABOUT 35.

          BY ADVS.
          SRI.K.SHAJI, SC
          SRI.LAL K.JOSEPH
          SRI.V.S.SHIRAZ BAVA
 WP(C) Nos.6249 & 18658/2013
                              -2-



     THIS   WRIT   PETITION   (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 10.08.2022, ALONG WITH WP(C).18658/2013, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) Nos.6249 & 18658/2013
                               -3-




          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
 WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA,
                              1944
                     WP(C) NO. 18658 OF 2013
PETITIONER:

          THE PENTECOSTAL MISSION,
          ANANDAPALLY P.O., ADOOR, PATHANAMTHITTA
          DISTRICT, PIN - 891 523, REP. BY ITS PASTOR
          P.K.VARGHESE.

          BY ADVS.
          SRI.LAL K.JOSEPH
          SRI.V.S.SHIRAZ BAVA


RESPONDENTS:

    1     THE ADOOR MUNICIPALITY,
          OFFICE OF THE MUNICIPALITY, ADOOR P.O.,
          PIN 691 523, REP. BY ITS SECRETARY.

    2     PANTHALAM THEKKEKARA PANCHAYATH,
          THATTAYIL P.O., REP. BY ITS SECRETARY,
          THATTAYIL - 591 525.

    3     KOSHY GEORGE,
          AGED 45 YEARS,
          S/O.GEORGE, BUSINESS, KINARUVILAYIL HOUSE,
          ANANDAPALLY P.O., PATHAMTHITTA DISTRICT,
          PIN - 691 523.

          BY ADVS.
 WP(C) Nos.6249 & 18658/2013
                              -4-



         SRI.SAJJU.S
         SRI.GRASHIOUS KURIAKOSE (SR.)
         SRI.GEORGE MATHEWS
         SRI.PRAMOJ ABRAHAM
         SRI.SHIJU VARGHESE
         SRI.K.SHAJI,SC


     THIS   WRIT   PETITION   (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 10.08.2022, ALONG WITH WP(C).6249/2013, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) Nos.6249 & 18658/2013
                              -5-



                          JUDGMENT

[WP(C) Nos.6249/2013, 18658/2013]

These two writ petitions are connected and

therefore I will dispose of these two writ petitions by a

common judgment. I will narrate the facts in W.P.(c)

No.18658 of 2013 first.

2. The petitioner in that writ petition is

challenging Ext.P5 order passed by the first respondent

Municipality to demolish the arch situated in the

pathway covered by Ext.P2. According to the petitioner

Ext.P5 order is passed without giving an opportunity of

hearing to the petitioner. It is also the case of the

petitioner that the arch is situated in a private property

covered by Exts.P1 and P2. The third respondent in this

writ petition filed W.P.(C) No.6249 of 2013 to implement

the orders passed by the Municipality.

3. Heard learned counsel for the petitioners and WP(C) Nos.6249 & 18658/2013

the learned Standing Counsel appearing for the

Municipality.

4. The main contention of the petitioner in W.P.

(C) 18658 of 2013 is that Ext.P5 order is passed without

giving an opportunity of hearing to the petitioner. There

is nothing in Ext.P5 to show that it is an order passed

after giving an opportunity of hearing to the petitioner. It

is stated that the notice is issued based on the direction

of this Court in a writ petition. Even then a notice should

be given to the affected parties and hear their contention

before passing final orders. Here is a case where the

petitioner has got a case that the arches is not situated

in the public road. That is the matter to be decided by

the Panchayat before proceeding further. Therefore this

writ petition can be disposed of by setting aside Ext.P5

and directing Municipality to reconsider the matter

within a time frame.

In the light of the fact that this Court is going to set WP(C) Nos.6249 & 18658/2013

aside Ext.P5, no further orders are necessary in W.P.(C)

6249 of 2013. Therefore these two writ petitions are

disposed of with the following directions:

Ext.P5 in W.P.(C) 18658 of 2013 is set aside. The

first respondent Municipality is directed to consider the

matter afresh after giving an opportunity of hearing to

the petitioner and the third respondent in the writ

petition as expeditiously as possible at any rate within six

weeks from the date of receipt of a copy of the judgment.

Sd/-

P.V.KUNHIKRISHNAN JUDGE vv WP(C) Nos.6249 & 18658/2013

APPENDIX OF WP(C) 18658/2013

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.396/2011 OF S.R.O ADOOR.

EXHIBIT P2 TRUE COPY OF THE AGREEMENT DATED 17/12/2011.

EXHIBIT P3 THE TRUE COPY OF THE NOTICE DATED 18/1/2013.

EXHIBIT P4 TRUE COPY OF THE REPLY.

EXHIBIT P5 TRUE COPY OF THE NOTICE DATED 22/7/2013.

EXHIBIT P6 TRUE COPIES OF THE PHOTOGRAPH.

EXHIBIT P7 TRUE COPY OF THE CERTICATE DATED 28/6/2012.

RESPONDENTS EXHIBITS

EXHIBIT R3(a) TRUE COPY OF THE NOTICE DATED 22.12.2012

EXHIBIT R3(b) TRUE COPY OF THE LETTER DATED 18.1.2013 SENT BY THE 1ST RESPONDENT TO THE DISTRICT COLLECTOR WP(C) Nos.6249 & 18658/2013

APPENDIX OF WP(C) 6249/2013

PETITIONER EXHIBITS

EXHIBIT P1 PHOTOGRAPH OF THE ARCH CONSTRUCTED BY THE 5TH RESPONDENT

EXHIBIT P2 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER TO THE 1ST RESPONDENT DATED 18.12.2012

EXHIBIT P3 TRUE COPY OF THE ORDER DATED 24.12.2012 ISSUED BY THE 1ST RESPONDENT

EXHIBIT P4 TRUE COPY OF THE COMMUNICATION SENT BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT DATED 18.01.2013

EXHIBIT P5 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT TO THE 5TH RESPONDENT DATED 18.1.2013.

EXHIBIT P6 TRUE COPIES OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE RDO, ADOOR DATED 11.2.2013

RESPONDENTS EXHIBITS

EXHIBIT R1(a) COPY OF THE REPRESENTATION PREFERRED BY THE R5

EXHIBIT R1(b) COPY OF MINUTES DATED 29.12.2012

EXHIBIT R1(C) COPY OF LETTER DATED 19.2.2013 WP(C) Nos.6249 & 18658/2013

EXHIBIT R(a) TRUE COPY OF THE SALE DEED NO.396/11 OF S.R.O, ADOOR

EXHIBIT R(b) TRUE COPY OF THE SALE DEED NO.3483/1973 OF S.R.O, ADOOR

EXHIBIT R(c) TRUE COPY OF THE ASSET REGISTER OF THE THEKKARA GRAMA PANCHAYATH

EXHIBIT R(d) TRUE COPY OF THE ASSET REGISTER OF THE 1ST RESPONDENT

EXHIBIT R(e) TRUE COPY OF THE AGREEMENT DATED 17-12-

EXHIBIT R(f) TRUE COPY OF THE REPLY TO EXT.P4 SUBMITTED BEFORE THE 1ST RESPONDENT

EXHIBIT R(g) TRUE COPY OF THE CERTIFICATE DATED 28-

6-2012 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER