Tom C.Thayyil vs State Of Kerala
2022 Latest Caselaw 3357 Ker

W. P. (C) No. 6807 of 2022    -1-


           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                &
           THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
 TUESDAY, THE 22ND DAY OF MARCH 2022 / 1ST CHAITHRA, 1944
                    WP(C) NO. 6807 OF 2022
PETITIONER/S:

    1      TOM C.THAYYIL,
           AGED 48 YEARS
           S/O. CHERIYAN, THAYYIL HOUSE, KANJIRAM P.O.,
           KOTTAYAM-686020.
    2      MATHEW NINAN,
           AGED 49 YEARS
           S/O. V.P. NINAN, CHIRATHILATTU HOUSE, CHALUKUNNU,
           KOTTAYAM-686001.
    3      MARY GEORGE,
           AGED 66 YEARS
           W/O. GEORGE JOSEPH, KOYIKKAL HOUSE, PUTHUPALLY,
           KOTTAYAM-686002.
           BY ADVS.
           VINOD RAVINDRANATH
           MEENA.A.
           K.C.KIRAN
           MINI M.R.
           M.DEVESH
           ASHWIN SATHYANATH
           ANISH ANTONY ANATHAZHATH
           THAREEQ ANVER K.


RESPONDENT/S:

    1      STATE OF KERALA,
           REPRESENTED BY CHIEF SECRETARY, SECRETARIAT,
           THIRUVANANTHAPURAM-695001.
    2      THE DISTRICT COLLECTOR,
           COLLECTORATE, KOTTAYAM-KUMILY ROAD, KOTTAYAM-
           686002.
    3      KOTTAYAM MUNICIPALITY,
           REPRESENTED BY ITS SECRETARY, TIRUNAKKARA SOUTH
           ROAD, TIRUNAKKARA, KOTTAYAM-686001.
 W. P. (C) No. 6807 of 2022      -2-


    4       THE SECRETARY,
            KOTTAYAM MUNICIPALITY, TIRUNAKKARA SOUTH ROAD,
            TIRUNAKKARA, KOTTAYAM-686001.
            BY ADVS
            SRI.T.KRISHNAN UNNI (SR) FOR PETITIONER
            SHRI.SIBY CHENAPPADY, SC, KOTTAYAM MUNICIPALITY
            SHRI. V. TEKCHAND, SR. GP




     THIS    WRIT   PETITION    (CIVIL)   HAVING   COME    UP    FOR
ADMISSION    ON   22.03.2022,   THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W. P. (C) No. 6807 of 2022        -3-



                          JUDGMENT

Shaji P. Chaly, J.

This writ petition is filed by some of the tenants occupying

rooms in the municipal bus stand complex owned by the Kottayam

Municipality.

2. In fact the instant writ petition was directed to be placed

before us by the learned Single Judge, since W. P. (C) No. 21823 of

2020, a public interest writ petition, and yet another writ petition,

namely W. P. (C) No. 3784 of 2022 filed by some of the tenants were

considered and disposed of by us in relation to the same building

complex.

3. The public interest writ petition was in respect of the

dilapidated condition of the bus stand building complex and seeking

direction to demolish the structure standing dangerous to the public

visiting the bus stand and the general public.

4. After taking into account the report submitted by the College

of Engineering, Thiruvananthapuram dated 08.03.2019, we have

disposed of W. P. (C) No. 21823 of 2020 with the following directions

since Code of Conduct of the elections was in force, and the

Municipality was directed to file a report before this Court on or

before 31.03.2021:-

"1) Kottayam Municipality shall make a request to the Kerala State Election Commission with necessary documents and Ext P4 report, at the earliest possible and at any rate within 10 days from the date of receipt of a copy of this judgment, seeking permission to start repair work in respect of the Municipality bus stand shopping complex on account of the plan fund of Rs.50 lakhs allotted during the financial year 2020- 2021.

2) If and when the request is received by the Kerala State Election Commission, the State Election Commission shall take into account the urgency of the matter and take a decision at the earliest and at any rate within a week from the date of receipt of the request.

3) On receipt of the permission from the Kerala State Election Commission by the Municipality, the Municipality shall seek administrative sanction from the State Government, at the earliest and at any rate within a week thereafter.

4) The State Government, on receipt of the request for administrative sanction, shall consider and take a decision at the earliest and at any rate within a week thereafter.

5) Municipality, on receipt of the administrative sanction from the Government as directed above, shall take immediate steps to issue the work order by complying with the procedures

under the Act, 1994 and Rules thereto and any attendant Government Orders in that regard and complete the repair works within three months from the date of receipt of the administrative sanction from the State Government as directed above and file a report before this Court on or before 31.3.2021.

6) Municipality shall strictly abide by the suggestions made in the expert report and take all precautions including a decision as to whether the shop rooms remaining vacant need be let out."

5. When the matter was again posted before the Court for report,

it was informed by the Municipality that the Municipality could not

carry out the retrofitting / repairs of the building, since no contractor

came forward to conduct the repair, in spite of the steps taken by the

Municipality.

6. Thereupon the Municipality was directed to implement the

directions within three weeks, failing which it was observed that the

Court would be constrained to invoke the provisions of the Contempt

of Courts Act, 1971.

7. Later, when the matter was posted before this Court on

11.02.2022, it was informed that the Municipal Council had decided to

demolish the shopping complex and construct a new building without

delay.

8. Therefore the further proceedings in W. P. (C) No. 21823 of

2020 was closed; and W. P. (C) No. 3784 of 2022 filed by some of the

tenants was also disposed of, recording that the Municipality intends

to demolish the dilapidated structure and construct a new shopping

complex. Therefore the interference sought for by the tenants to the

notices issued to them to vacate the premises was declined, however it

was observed that if any request is made for re-induction in the new

building complex, the same may be considered, in accordance with

law. It was also observed that if any representation is made for

rehabilitation, pending consideration of the representation for re-

induction, the same shall also be reconsidered in accordance with law,

at the earliest.

9. Accordingly, the time for handing over possession of the

building to the Municipality by the tenants was extended by a period

of one month.

10. Even though various contentions are raised in the present

writ petition with respect to the difficulties faced by the tenants, the

condition of the building and the entitlement of the tenants to continue

in the building etc., we are not inclined to accept those contentions for

the basic reason that the building is in a dilapidated condition, as per

the report of the expert committee of the College of Engineering,

Trivandrum, referred to us, and if the tenants are permitted to continue

in the building, there is a likelihood of endangering the tenants and

other public.

11. In fact we have also taken a firm decision in W. P. (C) No.

3784 of 2022 that the tenants are not entitled as of right to continue in

the building in view of the dilapidated condition of the building.

Therefore the relief sought for by the tenants in the instant writ

petition cannot be granted in view of the dilapidated condition of the

building in question. Moreover the Municipal Council has taken a

policy decision to demolish the dilapidated building and reconstruct a

new one, which is not under challenge in the writ petition. We are also

unable to locate any arbitrariness or malafides in the policy decision

taken by the Council, in view of the deplorable condition of the

building, evident from the report of the expert technical committee,

which is extracted by us in the public interest writ petition referred to

above.

12. Therefore we are of the view that writ petition has no merit

in the facts and circumstances deliberated above, and also for the

reason that the identical issue raised by the tenants in respect of the

very same building complex was considered by this court in the writ

petition referred to above and declined relief, which is stated to have

become final.

13. Accordingly the writ petition is dismissed, however we

make it clear that the petitioners herein are also at liberty to make any

request for re-induction in the new building complex; and if any

representation is made for rehabilitation, it may also be considered by

the Municipality, in accordance with law.

Anyhow we grant two weeks time to the writ petitioners to

vacate the premises and hand over possession to the Municipality,

however at the risk and cost of the petitioners.

Sd/-

S. MANIKUMAR CHIEF JUSTICE

Sd/-

SHAJI P. CHALY JUDGE Eb

///TRUE COPY/// P. A. TO JUDGE

APPENDIX OF WP(C) 6807/2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 12/11/2020 IN WPC NO. 21823/2020.

Exhibit P2 TRUE COPY OF THE ORDER ISSUED BY THIS HON'BLE COURT ON 12/01/2022 IN WPC NO.21823/2020.

Exhibit P3 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO.3784/2022 DATED 11/02/2022.

Exhibit P4         TRUE   COPY  OF   THE   REPORT  OF   THE
                   STRUCTURAL   ENGINEERING   DIVISION   OF
                   COLLEGE         OF          ENGINEERING,
                   THIRUVANANTHAPURAM DATED 08/03/2019.
Exhibit P5         PHOTOGRAPH OF BUILDING COMPLEX.
Exhibit P5(A)      PHOTOGRAPH OF BUILDING COMPLEX.
Exhibit P5(B)      PHOTOGRAPH OF BUILDING COMPLEX.
Exhibit P5(C)      PHOTOGRAPH OF BUILDING COMPLEX.
Exhibit P5(D)      PHOTOGRAPH OF BUILDING COMPLEX.
Exhibit P6         TRUE COPY OF THE NOTICE ISSUED BY THE
                   MUNICIPALITY TO THE 1ST PETITIONER
                   DATED 05/02/2022.
Exhibit P7         TRUE COPY OF THE NOTICE ISSUED BY THE
                   MUNICIPALITY TO THE 2ND PETITIONER
                   DATED 05/02/2022.
Exhibit P8         TRUE COPY OF THE NOTICE ISSUED BY THE
                   MUNICIPALITY TO THE 3RD PETITIONER
                   DATED 05/02/2022.