Kerala High Court
Aysha Gopalan vs The Maradu Municipality on 5 December, 2017
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
WEDNESDAY, THE 7TH DAY OF MARCH 2018 / 16TH PHALGUNA, 1939
WP(C).No. 35938 of 2017
PETITIONER(S):
AYSHA GOPALAN
AGED 67 YEARS, WIFE OF LATE K.A GOPALAN,
KOCHUTHARAPARAMBIL HOUSE, CANAL ROAD, MARADU P.O,
MARADU VILLAGE, ERNAKULAM,
KOCHI - 682 304.
BY ADVS.SRI.C.N.SREEKUMAR
SMT.MANJU PAUL
SRI.SABU P.JOSEPH
SRI.ANIL PRASAD
SRI.JOSEPH MATHEW (VALUMMEL)
RESPONDENT(S):
1. THE MARADU MUNICIPALITY
REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE,
MARADU, ERNAKULAM, - 682 304.
2. THE SECRETARY,
MARADU MUNICIPALITY,
MUNICIPAL OFFICE,
MARADU, ERNAKULAM, - 682 304.
Addl.R3:
3. NAMITHA.D, AGED 38 YEARS,
D/O K.A.DAVIS, MALIAKKAL HOUSE, TLRA-100,
CANAL ROAD, MARADU PO, ERNAKULAM
DISTRICT-682304.
ADDL.R3 IS IMPLEADED AS PER ORDER DATED 5.12.2017 IN
I.A.NO.19495/2017.
R3 BY ADV. SRI.S.SHANAVAS KHAN
R BY SRI.T.R.RAJAN SC,MARADU MUNICIPALITY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-03-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
prp/
WP(C).No. 35938 of 2017 (N)
APPENDIX
PETITIONER(S)' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PARTITION DEED NO.4108/1985 OF
THRIPUNITHARA SUB REGISTRY OFFICE DATED 30.09.1985.
EXHIBIT P2 TRUE COPY OF RESIDENTIAL/OWNERSHIP CERTIFICATE
1985.
EXHIBIT P3 TRUE COPY OF APPLICATION DATED 27.01.2015
SUBMITTED BY PETITIONER BEFORE THE REVENUE ADALATH.
EXHIBIT P4 TRUE COPY OF RECEIPT DATED 27.01.2015 OF THE
APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE REVENUE ADALATH.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 28.02.2014 ISSUED BY
THE 2ND RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 28.07.2017 BY
THE HON'BLE HIGH COURT OF KERALA IN W.P(C) NO.6803/2014 AND 25815/2015.
EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 21.10.2017 ISSUED BY THE
SECRETARY, MARADU MUNICIPALITY.
RESPONDENTS EXHIBITS: NIL.
//TRUE COPY//
P.S. TO JUDGE
prp/
A.K.JAYASANKARAN NAMBIAR, J.
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W.P.(C).NO.35938 OF 2017 (N)
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Dated this the 7th day of March, 2018
JUDGMENT
The petitioner has approached this Court aggrieved by Ext.P7 notice issued by the respondent Municipality, whereby, the petitioner has been asked to demolish a construction put up by her on the ground that it is an unauthorised construction. It is the case of the petitioner that, while she was served with an earlier notice, proposing a similar demolition of the compound wall, which was allegedly constructed encroaching a pathway and enclosing a drain, she had approached this Court through a writ petition, which was disposed by Ext.P6 judgment dated 28.7.2017, directing the respondent Municipality to proceed with the action initiated against the petitioner with proper notice, and also after ensuring that a survey is conducted before any encroachment is sought to be evicted. The petitioner and others were also permitted to raise their objections and claims before the respondent Municipality as and when the survey was taken up. It is the specific case of the petitioner that, before issuing Ext.P7 notice, no such survey was conducted by the Municipality, and at any rate, W.P.(C).No.35938/2017 2 the petitioner was not put to notice of any survey report, on the basis of which the action could have been taken by the respondent Municipality.
2. A counter affidavit has been filed on behalf of the 3 rd respondent, who is a neighboring property owner, and who says that on account of an encroachment by the petitioner into the public property, the width of the way used by the said respondent and other neighbouring property owners has been significantly reduced.
3. I have heard the learned counsel for the petitioner, the learned Standing counsel for the respondent Municipality as also the learned counsel for the 3rd respondent.
4. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that inasmuch as Ext.P7 notice has been issued without complying with the specific directions in Ext.P6 judgment, the same cannot be legally sustained. I therefore quash Ext.P7 notice, and direct the respondent Municipality to take a fresh decision in the matter, after conducting a survey with W.P.(C).No.35938/2017 3 the assistance of a Taluk Surveyor concerned, and hearing the petitioner and the 3rd respondent, after giving them copies of the survey reports. It is made clear that, on the respondent Municipality approaching the Taluk Surveyor for assistance in connection with the survey, the Taluk Surveyor shall promptly render his assistance for the said survey so as to enable the respondent Municipality to pass final orders, as directed in the judgment, within a period of two months from the date of receipt of a copy of this judgment. The respondent Municipality shall also intimate the petitioner and the 3 rd respondent of the date on which the Taluk Surveyor proposes to visit the premises for the purposes of the survey, and thereafter hear the petitioner and the 3rd respondent before passing orders. The petitioner shall produce a copy of the writ petition together with a copy of this judgment, before the respondent Municipality, for further action.
The writ petition is disposed as above.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE prp/7/3/18