V.Giyap vs Ombudsman For Local Self ...
2022 Latest Caselaw 9079 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE MR.JUSTICE N.NAGARESH
     WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
                      WP(C) NO. 21906 OF 2022
PETITIONER:

             V.GIYAP
             AGED 49 YEARS
             S/O RAMAKRISHNA VIKRAMA, SECRETARY,
             ADVISORY COMMITTEE,
             KAVINKULANGARA SREE BHAGAVATHY TEMPLE,
             KARIKKAKAM.P.O.,
             THIRUVANANTHAPURAM DISTRICT., PIN - 695007
             BY ADVS.
             P.ANOOP (MULAVANA)
             B.THARIF


RESPONDENTS:

      1      OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTION
             SAPHALLYAM COMPLEX, PALAYAM,
             UNIVERSITY P.O.,THIRUVANANTHAPURAM., PIN - 695034
      2      THE SECRETARY
             CORPORATION OF THIRUVANANTHAPURAM,
             KADAKAMPALLY AREA OFFICE, ANAYARA.P.O.,
             THIRUVANANTHAPURAM., PIN - 695029
      3      SHANMUGHAM CHETTIAR
             S/O KOCHU VELU CHETTIAR, SARITHALAYAM,
             TC 91/1453, KARIKKAKAM.P.O.,
             THIRUVANANTHAPURAM DISTRICT., PIN - 695007

             BY ADV N.NANDAKUMARA MENON (SR.)
             SRI.P.K MANOJKUMAR
       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   27.07.2022,   THE   COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 21906 OF 2022

                                  2


                              JUDGMENT

Dated this the 27th day of July, 2022

The petitioner, who is the Secretary of the Advisory

Committee of the Kavinkulangara Sree Bhagavathy Temple,

has approached this Court seeking to set aside Ext.P5 and to

direct the 2nd respondent not to act on Ext.P5 order passed by

the 1st respondent-Ombudsman.

2. The petitioner states that the 3 rd respondent and

certain others have filed a suit against the petitioner and the

Temple Administrative Committee Members, for a mandatory

injunction to demolish the unauthorised construction of the

compound wall of the Temple. The said suit was dismissed as

per Ext.P1 judgment.

3. The petitioner states that subsequently, the

3rd respondent filed a complaint before the 1 st respondent-

Ombudsman. The Ombudsman found that there is

unauthorised construction of a shed and directed that the shed

be demolished within seven days.

WP(C) NO. 21906 OF 2022

4. The petitioner states that the petitioner has preferred

an application for regularisation of the shed on 14.07.2022 as

evidenced by Ext.P10. If the temporary structure is removed

before considering their application for regularisation, it will

cause undue hardship.

5. Standing Counsel representing the 2nd respondent

entered appearance and resisted the writ petition. The

Standing Counsel submitted that if the petitioner has preferred

an application for regularisation of the building construction, the

2nd respondent has no objection in considering it in accordance

with law.

6. Heard the learned counsel for the petitioner and the

learned Standing Counsel representing the 2nd respondent. In

view of the nature of the relief to be granted in the writ petition,

notice to the 3rd respondent is dispensed with.

7. The petitioner has made certain construction, which

is said to be illegal and unauthorised. The petitioner therefore

has submitted an application for regularisation of the

construction as evidenced by Ext.P10 dated 14.07.2022. As WP(C) NO. 21906 OF 2022

the application for regularisation of unauthorised construction is

of a statutory nature, it is only just and proper that the

competent authority decide such application in accordance with

law. In the meanwhile, if the 2 nd respondent proceeds to

demolish the unauthorised construction pursuant to Ext.P5, that

will affect the statutory right of the petitioner to invoke a remedy

of regularisation.

In the circumstances, the writ petition is disposed of

directing the 2nd respondent to consider Ext.P10 application for

regularisation and take appropriate decision thereon in

accordance with law, within a period of six weeks, after giving

an opportunity of hearing to the petitioner as well as the

3rd respondent. Till a decision is taken on Ext.P10, coercive

proceedings pursuant to Ext.P5 shall stand deferred.

Sd/-

N.NAGARESH JUDGE spk WP(C) NO. 21906 OF 2022

APPENDIX OF WP(C) 21906/2022

PETITIONER EXHIBITS Exhibit P1 COPY OF THE JUDGMENT IN OS NO 1243/2014 OF THE ADDITIONAL MUNSIFF COURT-III, THIRUVANANTHAPURAM DATED 30-06-2018. Exhibit P2 COPY OF DECREE IN OS NO 1243/2014 OF THE ADDITIONAL MUNSIFF COURT-III, THIRUVANANTHAPURAM DATED 30-06-2018 Exhibit P3 COPY OF THE COMPLAINT IN OP 08/2022 DATED 03-01-2022 BEFORE THE 1ST RESPONDENT Exhibit P4 COPY OF THE OBJECTION DATED 20-01-2022. Exhibit P5 COPY OF THE ORDER IN COMPLAINT NO 08/2022 DATED 14-02-2022.

Exhibit P6 COPY OF THE NOTICE DATED 09-08-2019 ISSUED BY THE 2ND RESPONDENT.

Exhibit P7 COPY OF THE REPRESENTATION DATED 11-03-

2022 FORWARDED TO THE 2ND RESPONDENT Exhibit P8 COPY OF THE REPRESENTATION DATED 19-03-

2022 FORWARDED TO THE 2ND RESPONDENT Exhibit P9 COPY OF THE NOTICE DATED 18-05-2022 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER Exhibit P10 A TRUE COPY APPLICATION FOR REGULARISATION DATED 14.07.2022 FORWARDED TO THE 2ND RESPONDENT Exhibit P11 A TRUE COPY OF RECEIPT NO.2458 DATED 14.07.2022

RESPONDENT'S/S EXHIBITS : NIL