Aby Itty Jacob vs The State Of Kerala, Represented ...
2023 Latest Caselaw 10773 Ker

WP(C) NO. 32012 OF 2023
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                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
    THURSDAY, THE 19TH DAY OF OCTOBER 2023 / 27TH ASWINA, 1945
                        WP(C) NO. 32012 OF 2023
PETITIONER/S:

          ABY ITTY JACOB
          AGED 68 YEARS
          RESIDING AT C.C.36/629-A, KANIANKULAM HOUSE, CHAMMANY
          ROAD, KALOOR, ERNAKULAM., PIN - 682017
          BY ADVS.
          P.HARIDAS
          BIJU HARIHARAN
          SHIJIMOL M.MATHEW
          P.C.SHIJIN
          RAJASREE T.R.
          ROSHIN MARIAM JACOB


RESPONDENT/S:

    1     THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY
          DEPARTMENT OF LOCAL SELF GOVERNMENT, STATE SECRETARIAT,
          THIRUVANANTHAPURAM., PIN - 695001
    2     MUNICIPAL CORPORATION
          KOCHI REPRESENTED BY ITS SECRETARY, CANNON SHED ROAD,
          MARINE DRIVE, ERNAKULAM, PIN - 682011
    3     SECRETARY, MUNICIPAL CORPORATION KOCHI
          CANNON SHED ROAD, MARINE DRIVE, ERNAKULAM,, PIN -
          682011
    4     REEMA BEJOY
          W/O. BEJOY VARGHESE, RESIDING AT PUTHENPURACKAL HOUSE,
          SHENOY ROAD, KALOOR, ERNAKULAM., PIN - 682017
    5     BEJOY VARGHESE
          RESIDING AT PUTHENPURACKAL HOUSE, SHENOY ROAD, KALOOR,
          ERNAKULAM., PIN - 682017
    6     ROHIT VARGHESE
          S/O. BEJOY VARGHESE, RESIDING AT PUTHENPURACKAL HOUSE,
          SHENOY ROAD, KALOOR, ERNAKULAM., PIN - 682017
    7     POORNIMA MARIYA KURIEN
          D/O. BEJOY VARGHESE, PUTHENPURACKAL HOUSE, SHENOY ROAD,
          KALOOR, ERNAKULAM., PIN - 682017
          BY ADVS.
 WP(C) NO. 32012 OF 2023
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          K. JANARDHANA SHENOY
          K.SUJAI SATHIAN
          PREETHI. P.V.(K/1819/1999)
          M.V.BALAGOPAL(K/707/2009)
          MARY LIYA SABU(K/001533/2018)
          GOURI MEEMPAT(K/001516/2021)
          SANGEETHA SREEKUMAR(K/2099/2022)
          T.SETHUMADHAVAN (SR.)(S-310)


OTHER PRESENT:

          SRI.T.SETHUMADHAVAN, (SR)


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
19.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 32012 OF 2023
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                   BECHU KURIAN THOMAS, J.
             ========================
                    W.P.(C)No.32012 of 2023
             ------------------------------------------------
                     Dated this the 19th day of October 2023


                                JUDGMENT

Petitioner seeks for a direction to the 3rd respondent to invoke

the powers under Section 406 and 408 of the Kerala Municipality

Act,1994 ('the Act' for short) to demolish an unauthorised construction

allegedly carried out by respondents 4 to 7.

2. The learned Standing Counsel for respondents 2 and 3

has filed a memo producing a copy of the provisional order dated

16.10.2023 issued by the Assistant Executive Engineer, directing the

4th respondent to demolish the alleged unauthorised construction in

exercise of the powers under Section 406 of the Act.

3. Having heard Sri.P.Haridas, learned Counsel for the

petitioner, Sri.K.Janardhana Shenoy, learned Standing Counsel,

Smt.K.Amminikutty, learned Government Pleader as well as

Sri.T.Sethumadhavan, Learned Senior Counsel appearing for

respondents 4 to 7, I am of the view that since a provisional order

under Section 406 of the Act, has already been issued, the

contentions raised in this writ petition need not be considered, as the

parties can be relegated to pursue their statutory remedies as per

law statutory remedies, as per law.

WP(C) NO. 32012 OF 2023

4. The order dated 16.10.2023 issued under Section 406 of

the Act was served on the said respondents only on 18.10.2023. By

virtue of provisions of the Statute they have seven days time to

respond, to the said order which is only provisional in nature. The

order can be made absolute only if there is failure to respond

Therefore, the parties have the liberty to pursue their statutory

remedies by filing appropriate response.

5. In view of the above, if respondents 4 to 7 file any

objection within two weeks to the provisional order dated

16.10.2023, the proceedings initiated shall be concluded, as

expeditiously as possible at any rate, within a period of 60 days from

the date of receipt of a copy of this judgment.

The writ petition is disposed of accordingly.

BECHU KURIAN THOMAS JUDGE jm/ WP(C) NO. 32012 OF 2023

APPENDIX OF WP(C) 32012/2023

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SALE DEED NO. 4088/1997 OF ERNAKULAM, SUB REGISTRY WHICH IS TITLE DEED OF PART OF THE PROPERTY, DATED 29.10.1997 Exhibit P2 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY, KOCHI MUNICIPAL CORPORATION DATED 01/09/2023 RESPONDENT EXHIBITS Exhibit R4(a) A. true copy of the sale deed No.4088/1997 dated 29.10.1997 Exhibit R4(b) A. true copy of the approved plan of the building dated 11.08.1992 Exhibit R4(c) A. rue copy of the photograph showing the present stage of the stair case