P.George Philip vs The Secretary
2022 Latest Caselaw 2533 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
            THE HONOURABLE MR. JUSTICE T.R.RAVI
   FRIDAY, THE 4TH DAY OF MARCH 2022 / 13TH PHALGUNA, 1943
                   WP(C) NO. 6075 OF 2021
PETITIONER/S:

         P.GEORGE PHILIP
         AGED 74 YEARS
         S/O PHILIPOSE, HOUSE NO 1.243, PALATHIL HOUSE, D.C
         ROAD, KOCHI, PIN-682 001.
         BY ADVS.
         ALIAS M.CHERIAN
         SRI.K.M.RAPHY
         SMT.ANJALY ELIAS
         SHRI.BRISTO S PARIYARAM


RESPONDENT/S:

    1    THE SECRETARY
         CORPORATION OF KOCHI, BOAT JETTY, ERNAKULAM, PIN-
         682 035.
    2    THE ASSISTANT EXECUTIVE ENGINEER,
         KOCHI CORPORATION OFFICE, FORT KOCHI-ZONAL OFFICE,
         KOCHI, PIN-682 001.
    3    THANSIL,
         AGED 38 YEARS
         S/O ABU, SAINA MANSIL, PANAYAPALLY DESOM,
         THOPPUMPADY VILLAGE, KOCHI TALUK, ERNAKULAM
         DISTRICT, PIN-682 002.
    4    FASEEHA,
         AGED 36 YEARS
         W/O THANSIL, SAINA MANSIL, PANAYAPALLY DESOM,
         THOPPUMPADY VILLAGE, KOCHI TALUK, ERNAKULAM
         DISTRICT, PIN-682 002.
         BY ADVS.
         SHRI.K.JANARDHANA SHENOY, SC, KOCHI MUNICIPAL
         CORPORATION
         SRI.P.SANJAY
 W.P.(C) No.6075 of 2021

                                  2

             SMT.A.PARVATHI MENON
             SRI.BIJU MEENATTOOR
             SRI.PAUL VARGHESE (PALLATH)
             SRI.P.A.MOHAMMED ASLAM
             SRI.KIRAN NARAYANAN
             SHRI.RAHUL RAJ P.



      THIS    WRIT   PETITION    (CIVIL)   HAVING   COME    UP    FOR
ADMISSION     ON   04.03.2022,   THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W.P.(C) No.6075 of 2021

                                  3



                            JUDGMENT

The writ petition has been filed challenging Ext.P8 order

issued by the first respondent. According to the petitioner, there

is a road which was being used by the petitioner as well as

respondents 3 and 4. Respondents 3 and 4 have effected a

construction on the side of the road in their property. It is the

case of the petitioner that the petitioner does not reside in the

area and when he visited the place, it was noticed that

construction has been effected by encroaching into the road. A

complaint preferred by him was directed to be considered by the

first respondent and the first respondent thereafter issued Ext.P8

order.

2. The grievance of the petitioner is that Ext.P8 neither

finds that his complaint is justified nor does it reject the complaint

and thereby he is not in a position to avail of any further statutory

remedies. The petitioner claims that the complaint has been

preferred under Section 406 of the Kerala Municipality Act.

Section 406 says that where the Secretary is satisfied that a

construction has been either commenced without obtaining proper W.P.(C) No.6075 of 2021

permission or has been completed otherwise in accordance with

the plan or is being carried on and completed in breach of

provisions of the act or any rule or by-law, he may make such

orders as are required.

3. According to the petitioner, the construction has been

effected not in accordance with the plan. In Ext.P8, the first

respondent has stated that the construction was effected on the

basis of a permit which was granted to respondents 3 and 4 after

site inspection and that, after the completion of the construction,

the site was again inspected and after assessing the property tax,

building number and occupancy certificate was assigned to the

building. Ext.P8 further says that a letter has been addressed to

the Thahasildar, for the purpose of ascertaining the boundaries of

the property of respondents 3 and 4 and in the operative portion

of the order, it is stated that it is only after the survey sketch was

obtained, the discrepancies pointed out by the petitioner can be

ascertained.

4. Having heard the learned counsel for the parties and having

gone through Ext.P8, I am of the opinion that Ext.P8 order virtually

finds that the basic requirements for issuing an order under Section 406 W.P.(C) No.6075 of 2021

are not available in the case. In such circumstances, Ext.P8 can be

only considered as a rejection of the request made by the petitioner.

The statements in the operative portion are not actually warranted

since the issue regarding the right over the road is a matter which has

to be decided between the parties. As such, this writ petition is

disposed of with liberty to the petitioner to challenge Ext.P8 in

appropriate proceedings treating it as the rejection of his complaint

under Section 406. Since the matter has been pending before this

Court, if the petitioner approaches the Tribunal for Local self

Government Institutions within two weeks from today, such application

shall be treated as having been filed within time.

With the above observation, the writ petition is disposed of.

Sd/-

T.R. RAVI JUDGE rpk W.P.(C) No.6075 of 2021

APPENDIX OF WP(C) 6075/2021

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF ROUGH SKETCH OF THE PROPERTIES PREPARED AND PRODUCED BY THE PETITIONER EXHIBIT P2 TRUE COPY OF COMPLAINT DATED 16.11.2020 SUBMITTED BY THE PETITIONER BEFORE 2ND RESPONDENT EXHIBIT P3 TRUE COPY OF ACKNOWLEDGMENT BEARING NO PEP-2593/2020 DATED 16.11.2020 ISSUED FROM KOCHI CORPORATION EXHIBIT P4 TRUE COPY OF COMPLAINT DATED 21.11.2020 TO THE 1ST RESPONDENT EXHIBIT P5 TRUE COPY OF PLAINT IN OS NO 317 OF 2020 ON THE FILE OF MUNSIFF COURT, KOCHI EXHIBIT P6 TRUE COPY OF JUDGMENT DATED 26.11.2020 IN WPC NO 26105 OF 2020, PASSED BY THIS HON'BLE COURT EXHIBIT P7 TRUE COPY OF ADDITIONAL STATEMENT DATED 17.2.2021 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXHIBIT P8 TRUE COPY OF ORDER NO FCP1-2593/2020 DATED 18.2.2021 ISSUED BY THE 1ST RESPONDENT