Nandakumar vs Secretary
2023 Latest Caselaw 620 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
         THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 12TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944
                  WP(C) NO. 5864 OF 2016
PETITIONER/S:

    1    NANDAKUMAR
         AGED 54 YEARS
         S/O.THE LATE SEKHARAN NAIR, ROHINI 33/3216/A,
         FRIENDS AVENUE, VENNALA.P.O., ERNAKULAM DISTRICT-
         682 028.
    2    A.S.AMBIKADEVI
         W/O.NANDAKUMARROHINI 33/3216/A, FRIENDS AVENUE,
         VENNALA.P.O., ERNAKULAM DISTRICT-682 028.
    3    RADHAMANI T.W.
         THAREPPARAMBIL HOUSE, FRIENDS AVENUE,
         VENNALA.P.O., ERNAKULAM DISTRICT-682 028.
    4    LEELA V. B.
         THAREPPARAMBIL HOUSE, FRIENDS AVENUE,
         VENNALA.P.O., ERNAKULAM DISTRICT-682 028.
    5    T.R. MADHUSOODANAN
         THAREPPARAMBIL HOUSE, FRIENDS AVENUE,
         VENNALA.P.O., ERNAKULAM DISTRICT-682 028.
    6    V. B. RAJESWARI
         THAREPPARAMBIL HOUSE, FRIENDS AVENUE,
         VENNALA.P.O., ERNAKULAM DISTRICT-682 028.
    7    RIJESH
         RAGAM HOUSE, FRIENDS AVENUE, VENNALA.P.O.,
         ERNAKULAM DISTRICT-682 028.
    8    BABY K.P.
         KANATTU HOUSE, FRIENDS AVENUE, VENNALA.P.O.,
         ERNAKULAM DISTRICT-682 028.
    9    ROSY
         W/O.BABY, KANATTU HOUSE, FRIENDS AVENUE,
         VENNALA.P.O., ERNAKULAM DISTRICT-682 028.
   10    PETER V. G.
         VALIYAPARAMBIL HOUSE, FRIENDS AVENUE,
         VENNALA.P.O., ERNAKULAM DISTRICT-682 028.
   11    MATHEW T.V.
         THALIYATH HOUSE, FRIENDS AVENUE, VENNALA.P.O.,
         ERNAKULAM DISTRICT-682 028.
 W. P. (C) No. 5864 of 2016
                                -2-


     12      MOHAN
             CHANTHURUTHIL HOUSE, FRIENDS AVENUE,
             VENNALA.P.O., ERNAKULAM DISTRICT-682 028.
     13      VARKEY ANTONY
             CHACKUMTHARA HOUSE, FRIENDS AVENUE, VENNALA.P.O.,
             ERNAKULAM DISTRICT-682 028.
     14      PRAVEEN PRABHAKAR,
             PRANAVAM HOUSE, FRIENDS AVENUE, VENNALA.P.O.,
             ERNAKULAM DISTRICT-682 028.
     15      JOHNY
             CHAKKATTIL HOUSE, FRIENDS AVENUE, VENNALA.P.O.,
             ERNAKULAM DISTRICT-682 028.
     16      TOMY VARGHESE
             OZHUKAYIL HOUSE, FRIENDS AVENUE, VENNALA.P.O.,
             ERNAKULAM DISTRICT-682 028.
     17      JANE MARY JOHN,
             W/O.TOMY VARGHESE, OZHUKAYIL HOUSE, FRIENDS
             AVENUE, VENNALA.P.O., ERNAKULAM DISTRICT-682 028.
     18      BABU
             S/O.KRISHNAN, THALIYIL PARAMBIL, FRIENDS AVENUE,
             VENNALA.P.O., ERNAKULAM DISTRICT-682 028.
     19      REJANI
             W/O.BABU, THALIYIL PARAMBIL, FRIENDS AVENUE,
             VENNALA.P.O., ERNAKULAM DISTRICT-682 028.
     20      JOY T..C
             THEREPARAMBIL HOUSE, FRIENDS AVENUE,
             VENNALA.P.O., ERNAKULAM DISTRICT-682 028.
             BY ADVS.
             SRI.C.S.MANU
             SRI.S.K.PREMRAJ


RESPONDENT/S:

     1       SECRETARY
             CORPORATION OF COCHIN, ERNAKULAM DISTRICT, PIN-
             682 011.
     2       CORPORATION OF COCHIN
             ERNAKULAM DISTRICT, COCHIN, PIN-682 011,
             REPRESENTED BY ITS SECRETARY.
     3       STEPHENSON
             S/O.GEORGE, MALOTH HOUSE, FRIENDS AVENUE, VENNALA
             PO., ERNAKULAM DISTRICT - 682 028.
     4       SEEMA AUGUSTINE
             AGED 49, HOUSE WIFE, RESIDING AT MALOTH HOUSE,
             VENNALA, KOCHI-682 028.
 W. P. (C) No. 5864 of 2016
                                    -3-


     5        MARY BENET M.S.
              AGED 52 YEARS, D/O.STEPHENSON M.G., @ STEPHEN &
              W/O.KURIAN MATHEW, WORKING AS HEADMISTRESS,
              OLAKKENGAL HOUSE, LOURDEPURAM, THRISSUR-680 005.
     6        SUDHA STEPHEN
              AGED 48 YEARS, D/O.STEPHENSON @ STEPHEN, W/O.JOHN
              J.VELIYATH, VELIYATH HOUSE, MANIMALA ROAD,
              EDAPPALLY P.O., KOCHI-682 024.
     7        SUNIL STEPHEN M.S.
              AGED 47 YEARS, ELECTRICIAN, S/O.STEPHENSON M.G. @
              STEPHEN, MALOTH HOUSE, VENNALA JANATHA ROAD, NEAR
              CENTURY CLUB, KOCHI-682 028. ADDL. R4 TO R7 ARE
              IMPLEADED AS PER ORDER DATED 05-11-2021 IN IA
              1/2021.
              BY ADVS.
              SRI.K.ANAND, SC,
              SRI. N.C.JOSEPH


       THIS     WRIT     PETITION   (CIVIL)   HAVING   COME    UP    FOR
ADMISSION      ON    12.01.2023,    THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W. P. (C) No. 5864 of 2016
                                      -4-




                             JUDGMENT

This writ petition is filed by the petitioners seeking the following

reliefs:-

"(i) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1 st respondent to take up, consider and pass orders on Ext.P-4 forthwith;

(i)(a) Issue a writ of declaration or any other appropriate writ, order or direction declaring that Ext.P-6 judgment does not deter or stand in any way stand in the way of the 1 st respondent Secretary to the Corporation of Cochin in exercising his statutory powers under section 362 of the Kerala Municipality Act, 1994 in respect of the road as sought for by the petitioners in Ext.P-4 application."

2. Petitioners are owners of lands and buildings abutting either

side of a private street which starts from Vennala - Janatha Road at

south and proceeds towards north up to a stretch of 79.1 meters and

then turns and proceeds towards east up to a stretch of appropriately

7.7 meters and then proceeds towards north up to a stretch of

appropriately 50 meters within the limits of the Corporation of Kochi.

The properties were purchased by the petitioners from the predecessor W. P. (C) No. 5864 of 2016

in title of the property of the 3 rd respondent with easement rights for

using the aforesaid private street. Later, the 3 rd respondent purchased

the property. The 3rd respondent during the pendency of the writ

petition died, consequently, respondents 4 to 7, his children, are

impleaded as the additional respondents. The case of the petitioner is

that consequent to the right of easement granted to all the property

owners on either side of the private road, the private road has become a

public road liable to be maintained by the Corporation of Kochi.

3. In my considered opinion, it is a far fetched submission for the

basic reason that the ownership remains with the owner of the property

and what is parted is only the easement right on the basis of the

properties sold by the owner of the property to the petitioners and

others. There is no case for the petitioners that the private way was

surrendered by the owner of the property to the Municipal Corporation

so as to enable the Municipal Corporation to utilize funds for the

development of the private way. It is also the case of the petitioners

that the 3rd respondent or his legal heirs are not maintaining the private

way and therefore the Municipal Corporation is duty bound to take

over the same and maintain the road which is a statutory duty W. P. (C) No. 5864 of 2016

conferred on the Municipal Corporation as per the provisions of the

Kerala Municipality Act, 1994. It is thus seeking the reliefs mentioned

above, the writ petition is filed.

4. The 3rd respondent has filed a detailed counter affidavit and

along with the same the title documents are also produced. It is

basically contended that the ownership right of the private way was

remaining with the 3rd respondent and later with the additional

respondents 4 to 7. A reply affidavit is filed by the petitioners

reiterating the stand adopted in the writ petition.

5. I have heard learned counsel for the petitioners Sri. C. S.

Manu and Sri. N. C. Joseph for the additional respondents 4 to 7 and

perused the pleadings and material on record.

6. The case of the petitioners is that the Kochi Municipal

Corporation is liable to maintain the private way taking into account

Section 362 of the Kerala Municipality Act, 1994. The said provision

reads thus:-

"362. Power of Secretary to order work to be carried out or to carry it out himself in default.-- (1) Where any private street or part thereof is not levelled, paved, metalled, W. P. (C) No. 5864 of 2016

flagged, channelled, drained, conserved or lighted to the satisfaction of the Secretary, he may, by notice, require the owners or occupiers of building, or lands fronting or abutting on such street or pan thereof to carry out any work, which in his opinion may be necessary and within such time as may be specified in such notice.

(2) Where such work is not carried out within the time specified in the notice, the Secretary may, if he thinks fit, execute it and the expenses incurred shall be paid by the owners or occupiers in default according to the frontage of their respective buildings or lands in such proportion as may be settled by the Secretary."

7. On an analysis of the said provision, it is categoric and clear

that the Municipal Corporation is liable to maintain a private road if

the ownership of the said private way or road is vested with the

Municipality. True it may be able to issue directions in contemplation

of Section 362; but the Corporation is prohibited from undertaking any

activity in view of the decree of perpetual injunction granted as per

Ext. P6 judgment and decree. In this writ petition, it is admitted that

the ownership rights of the private way is still remaining with the 3 rd

respondent and his legal heirs, namely respondents 4 to 7. It is also

clear and evident that the owner of the property has not surrendered the W. P. (C) No. 5864 of 2016

ownership rights of the private way to the Municipal Corporation.

In that view of the matter, I do not think the petitioners are

entitled to get any relief since the ownership of the private way still

remains with the legal heirs of the 3rd respondent, i.e. additional

respondents 4 to 7. This is more so when the issue by and between the

3rd respondent and Municipal Corporation is concluded as per Ext. P6

judgment passed in O. S. NO. 145 of 1996 on the files of the Principal

Munsiff, Ernakulam.

Needless to say, the writ petition fails. Accordingly, it is

dismissed.

Sd/-

SHAJI P. CHALY JUDGE Eb

///TRUE COPY///

P. A. TO JUDGE W. P. (C) No. 5864 of 2016

APPENDIX OF WP(C) 5864/2016

PETITIONER EXHIBITS EXHIBIT P1 P1- TRUE COPY OF THE ROUGH SKETCH OF THE PROPERTY PREPARED BY THE PETITIONERS FOR EASY REFERENCE.

EXHIBIT P2 P2- TRUE COPY OF THE JUDGMENT DATED 18.11.2015 IN O.P[C]NO.1523 OF 2015 PASSED BY THE HON'BLE HIGH COURT.

EXHIBIT P3 P3- TRUE COPY OF THE COMMISSION REPORT DATED 14.12.2015 IN I.A.NO.3761 OF 2014 IN O.S.NO.572 OF 2009 BEFORE THE 1ST ADDITIONAL SUB COURT, ERNAKULAM.

EXHIBIT P4 P4- TRUE COPY OF THE APPLICATION DATED 9.1.2016 SUBMITTED BY THE PETITIONERS ON 11.1.2016 TO THE 1ST RESPONDENT.

EXHIBIT P4 (A) P4(A)- TRUE COPY OF THE RECEIPT DATED 11.1.2016 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONERS FOR HAVING RECEIVED THE APPLICATION.

EXHIBIT P5 TRUE COPY OF THE PLAINT IN O.S. NO. 145 OF 1996 BEFORE THE PRINCIPAL MUNSIFF'S COURT, ERNAKULAM EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 22.03.1996 IN O.S. NO. 145 OF 1996 PASSED BY THE PRINCIPAL MUNSIFF'S COURT, ERNAKULAM EXHIBIT P7 TRUE COPY OF THE LETTER BEARING NO. EY-

E1-1570/86 DATED 16.09.1987 ALONG WITH THE APPLICATION ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER, CORPORATION OF COCHIN, ZONAL OFFICE, EDAPPALLY TO THE RDO, FORT KOCHI.