Kerala High Court
Mariamma Mathew vs Corporation Of Cochin on 27 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 27TH DAY OF JUNE 2024 / 6TH ASHADHA, 1946
WP(C) NO. 11217 OF 2015
PETITIONER/S:
BENNY CHERIAN,
AGED 57 YEARS
PUTHUKKUNNATH, GREENS ROAD, M.A COLLEGE JUNCTION,
KOTHAMANGALAM, PIN-686691
BY ADVS.
ABRAHAM VAKKANAL (SR.)
ABY ABRAHAM
DIJO SEBASTIAN
PAUL ABRAHAM VAKKANAL
VINEETHA SUSAN THOMAS
RESPONDENT/S:
1 THE SECRETARY,
MUNICIPALITY, KOTHAMANGALAM, PIN-686691
2 SMT.ANNAMMA THOMAS, MALIYIL AISWARYA NAGAR
KOTHAMANGALAM -
PIN-686991
3 SMT. PRAMEELA SUNNY,
COUNCILOR OF WARD NO.30, KOTHAMANGALAM MUNICIPALITY, RESIDING
AT MALIYIL HOUSE, ATHRASSERY NAGAR, VENDUVAZHY, KOTHAMANGALAM,
PIN-686691
4 DIRECTOR OF URBAN AFFAIRS,
URBAN AFFAIRS DIRECTORATE, SWARAJ BHAVAN, NANTHANCODE, KOWDIAR
P.O., THIRUVANANTHAPURAM, PIN-695003
OTHER PRESENT:
SRI.BIMAL K NATH-SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)NO.11217 of 2015
2
JUDGMENT
1. The petitioner has filed this writ petition challenging
Ext.P14 notice issued by the first respondent - Municipality.
According to the petitioner, the dispute is between the petitioner
and the second respondent with respect to encroachment of
property and the same is to be resolved in a properly instituted
civil court and the Municipality has no jurisdiction to interfere
into the matter.
2. Though notices were issued to respondents 1 to 4, nobody
has appeared and opposed the writ petition. The service of notice
to the first respondent was declared complete since the postal
article and the acknowledgment card did not return.
3. I heard the learned counsel for the petitioner.
4. The learned counsel for the petitioner invited my attention
to Ext.P1 approved plan, in which a pond inside his property is
seen close to the southern boundary wall. According to the
W.P.(C)NO.11217 of 2015
petitioner, when he attempted to repair and beautify the said
pond after the collapse of the retaining wall, the second
respondent submitted a complaint to the first respondent and
accordingly, the first respondent initiated proceedings against
the petitioner, alleging unauthorized construction encroaching
into the property of the 2nd respondent.
5. The first notice, Ext.P3 is dated 15.06.2013. After several
proceedings, this Court passed Ext.P12 judgment in a writ
petition filed by the petitioner directing the Taluk Surveyor to
make the necessary measurements to find out the alleged
encroachment with notice to the petitioner and the second
respondent. The petitioner has produced Ext.P13 sketch
prepared by the Taluk Surveyor, Kothamangalam, dated
23.02.2015. According to the learned counsel for the petitioner,
at the portion where the pond is situated, the second respondent
has encroached into his property and the same can be seen from
Ext.P13 sketch. The grievance of the petitioner is that
immediately after the issuance of Ext.P13 survey sketch, the first
respondent issued Ext.P14 notice alleging encroachment and
unauthorized construction and hence the writ petition is filed
challenging Ext.P14 notice as the same was issued without
W.P.(C)NO.11217 of 2015
jurisdiction on the ground that the Municipality has no right or
authority to interfere in a private boundary dispute between the
petitioner and the second respondent.
6. It is seen from the pleadings and the documents produced in
the writ petition that the dispute is between the petitioner and
the second respondent with regard to the boundary separating
their property. It is seen from Ext.P13 that at the portion where
the pond is situated, the second respondent has encroached into
the property of the petitioner. The correctness of the said sketch
is a matter to be decided in an appropriate civil proceeding
instituted by the parties. The alleged encroached area does not
abut any public property or public way. In such a situation, the
Municipality has no right or authority to interfere with the
dispute between the petitioner and the second respondent. In
that view of the matter, I dispose of this writ petition setting
aside Ext.P14 notice, leaving open all the contentions of the
parties to be agitated in appropriate proceedings.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
Shg
W.P.(C)NO.11217 of 2015
APPENDIX OF WP(C) 11217/2015
PETITIONER EXHIBITS
EXHIBIT P1: TRUE COPY OF THE APPROVED PLAN
EXHIBIT P2: TRUE COPY OF THE COMPAINT, TAKEN UNDER
THE RTIACT, WITH ENGLISH TRANSLATION
EXHIBIT P3:TRUE COPY OF THE NOTICE NO. PW2-5890/13
WITH ENGLISH TRANSLATION.
EXHIBIT P4: TRUE COPY OF THE APPLICATION WITH ENGLISH
TRANSLATION
EXHIBIT P4(A): TRUE COPY OF THE REPLY FROM THE
PETITIONER WITH ENGLISH TRANSLATION
EXHIBIT P5: TRUE COPY OF THE NOTICE NO.A7 5085/13
WITH ENGLISH TRANSLATION
EXHIBIT P6:TRUE COPY OF THE REPORT GIVEN BY THE TALUK
SURVEYOR, OBTAINED UNDER THE R.T.I.ACT, WITH ENGLISH
TRANSLATION
EXHIBIT P7:TRUE COPY OF THE NOTICE NO. PW2-
5890/13WITH ENGLISH TRANSLATION
EXHIBIT P8: TRUE COPY OF THE FIELD MEASUREMENT BOOK
IN RESPECT OF SY.NO.1271/7C
EXHIBIT P9:TRUE COPY OF THE REPLY FROM THE 4TH
RESPONDENT WITH ENGLISH TRANSLATION
EXHIBIT P10:TRUE COPY OF THE PETITION FROM THE
PETITIONER WITH ENGLISH TRANSLATION
EXHIBIT P11:TRUE COPY OF APPLICATION WITHOUT
ANNEXURES WITH ENGLISH TRANSLATION
EXHIBIT P12:TRUE COPY OF JUDGMENT IN W.P.(C).
EXHIBIT P13: TRUE COPY OF THE REPORT OF ADDITIONAL
TAHASILDAR WITH SURVEY SKETCH OF TALUK SURVEYOR WITH
MEASUREMNTS, GIVEN TO THE PETITIONER, WITH ENGLISH
TRANSLATION
W.P.(C)NO.11217 of 2015
EXHIBIT P14: TRUE COPY OF NOTICE FOR DEMOLITION BY R1
WITH ENGLISH TRANSLATION
EXHIBIT P15: TRUE COPY OF REPLY BY THE PETITIONER TO
R1
EXHIBIT P15(A): TRUE COPY OF THE RECEIPT BY OFFICE OF
R1, WITH ENGLISH TRANSLATION
