Francis Assisi vs Thrissur Corporation
2023 Latest Caselaw 9218 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                   THE HONOURABLE MR.JUSTICE N.NAGARESH
         WEDNESDAY, THE 23RD DAY OF AUGUST 2023 / 1ST BHADRA, 1945
                         WP(C) NO. 23444 OF 2021
PETITIONER:

              FRANCIS ASSISI
              AGED 63 YEARS
              S/O. JOSEPH, RESIDING AT THATTIL MANDY HOUSE,
              PUTHENPEEDIKA P.O, THRISSUR-680 642
              BY ADVS.
              T.C.SURESH MENON
              B.DEEPAK


RESPONDENTS:

     1        THRISSUR CORPORATION
              REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE,
              THRISSUR-680 001
     2        THE ASSISTANT ENGINEER,
              THRISSUR CORPORATION, ZONAL OFFICE, AYYANTHOLE,
              THRISSUR-680 003
     3        INFANT JESUS CONVENT,
              ARANATTUKARA, THRISSUR -680 611, REPRESENTED BY ITS
              MOTHER SUPERIOR
              BY ADVS.
              SHRI. SANTHOSH P.PODUVAL, SC, THRISSUR CORPORATION
              SRI. RAJIT-R3


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO.23444 OF 2021
                                   2




                          JUDGMENT

Dated this the 23rd day of August, 2023

The petitioner approached this Court seeking to enforce

Ext.P5 Stop Memo. The dispute in this writ petition is relating

to construction of a School building by the 3 rd respondent. The

precise allegation is that once the 3rd respondent constructs

the building, requisite statutory setback will not be available

and consequently, a pathway over which the petitioner has a

right, will be encroached. It is in such circumstances that the

petitioner seeks to direct the Corporation to enforce Ext.P5

Stop Memo.

2. I have heard the learned counsel for the petitioner,

the learned Standing Counsel representing respondents 1 and

2 and the learned counsel appearing for the 3rd respondent.

3. It is an admitted position that the construction of the

building is already over. The Corporation has not issued WP(C) NO.23444 OF 2021

Fitness Certificate to the building. It is also an admitted

position that civil dispute between the petitioner and the 3 rd

respondent is now pending consideration before the Hon'ble

Apex Court.

4. The petitioner would submit that though the civil suit

is pending, the Corporation authorities can very well conduct a

survey of the property and find out whether there is

encroahment / setback from the petitioner's building.

5. Counsel for the 3rd respondent submits that the 3rd

respondent does not have any objection in a competent

Surveyor conducting a survey of the property.

In the afore facts, the writ petition is disposed of directing

the 1st respondent-Corporation to conduct a survey of the

property with the assistance of Taluk Surveyor and take

appropriate decision in the matter, however, keeping in mind

the civil case pending before the Hon'ble Apex Court. The

survey ordered by this judgment will be only for the purpose of WP(C) NO.23444 OF 2021

considering Building Rule violations. The said survey should

not in any manner affect the civil proceedings pending before

the Hon'ble Apex Court.

Sd/-

N.NAGARESH JUDGE hmh WP(C) NO.23444 OF 2021

APPENDIX OF WP(C) 23444/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF TAX RECEIPT ISSUED BY THE VILLAGE OFFICE, ARANATTUKARA, DATED 14.9.2021 Exhibit P2 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT, DATED 26.2.2021 Exhibit P3 TRUE COPY OF THE ACKNOWLEDGMENT ISSUED BY THE 1ST RESPONDENT,DATED 26.2.2021 Exhibit P4 TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT, DATED 19.3.2021 Exhibit P5 TRUE COPY OF THE STOP MEMO NOTICE ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT DATED 17.4.2021 Exhibit P6 TRUE COPY OF THE REMINDER FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT, DATED 23.6.2021 Exhibit P7 TRUE COPY OF THE ACKNOWLEDGMENT ISSUED BY THE 2ND RESPONDENT DATED 23.6.2021

RESPONDENTS' EXHIBITS Exhibit R3(A) A TRUE COPY OF THE JUDGMENT DATED 20.02.1999 OF THE PRINCIPAL MUNSIFF'S COURT, THRISSUR IN OS NO.2295/1988 Exhibit R3(B) A TRUE COPY OF THE JUDGMENT DATED 04.12.2003 OF THE 3RD ADDITIONAL DISTRICT COURT, THRISSUR IN AS NO.280/1999 Exhibit R3(C) A TRUE COPY OF THE PROCEEDING OF THE APEX COURT IN SLP(C) 2935/2017 DATED 03.02.2017 Exhibit R3(D) A TRUE COPY OF THE REPLY SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 2ND RESPONDENT DATED 05.05.2021 Exhibit R3(E) A TRUE COPY OF THE COMMUNICATION SUBMITTED BY THE 3RD RESPONDENT BEFORE WP(C) NO.23444 OF 2021

THE 2ND RESPONDENT Exhibit R3(F) A TRUE COPY OF THE SKETCH DRAWN UP BY THE TAHSILDAR-THRISSUR Exhibit R3(G) TRUE COPY OF THE PHOTOGRAPHS SHOWING THE OLD SCHOOL BUILDING, AND THE PRESENT SCHOOL BUILDING ALONG WITH THE CLAIMED PATHWAY OF THE PETITIONER