Kerala High Court
T. Gopi Rajan vs Saraswathy K on 12 June, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY, THE 12TH DAY OF JUNE 2020 / 22ND JYAISHTA, 1942
WP(C).No.11508 OF 2020(K)
PETITIONER:
T. GOPI RAJAN
AGED 73 YEARS, S/O.THANKAPPAN,
T.C.26/519, VANROSS JUNCTION,
THIRUVANANTHAPURAM DISTRICT, PIN-695 001.
BY ADV. SRI.S.JUSTUS
RESPONDENTS:
1 SARASWATHY K.
AGED 49 YEARS, D/O.CHELLAYYAN,
T.C.26/523, VANROSS JUNCTION,
THIRUVANANTHAPURAM DISTRICT, PIN-695 001.
2 RAJESWARI.K.
AGED 57 YEARS, D/O.CHELLAYYAN,
T.C.26/522, VANROSS JUNCTION,
THIRUVANANTHAURAM RURAL, PIN-695 001.
3 THE CORPORATION OF THIRUVANANTHAPURAM,
VIKAS BHAVAN P.O., THIRUVANANTHAPURAM,
PIN-695 033, REPRESENTED BY ITS SECRETARY.
R3 BY SRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.11508 OF 2020(K) 2
ALEXANDER THOMAS, J.
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W.P.(C)No.11508 of 2020
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Dated this the 12th day of June, 2020
JUDGMENT
The case set up in this Writ Petition (Civil) is as follows:-
The petitioner is the owner of double storeyed residential building bearing T.C. No.26/519 and residing with his family in the same building. The 1st and 2nd respondents are the residents of the adjacent properties. The 1 st and the 2nd respondents are none other than the daughters of the petitioner's sister. The petitioner's above said building is more than 30 years old and in order to protect the above said building the petitioner constructed a roof over the above said building. The 1 st and 2nd respondent made a complaint to the 3rd respondent corporation that the rain water falls on the houses of the 1st and 2nd respondents through the above said roofing and also falsely stated that there is a projection of roofing of 2.5 meters to their property. The 1 st and 2nd respondents filed also a petition as O.P. No.648/2017 before the Ombudsman for Local Self Government Institutions, WP(C).No.11508 OF 2020(K) 3 Thiruvananthapuram to remove the alleged projection of roofing. As per the Ext.P1 report of the PWD Engineer that there is an encroachment to the petitioner's property by the 1 st and 2nd respondents, there is an overflow pipe is fixed to remove the excess rain water and the alleged projection is of only 41.cm. If any rain water falls, it falls on the above said encroachment only. As per Ext.P2 order, the 3rd respondent corporation without considering the contentions of the petitioner ordered to remove the roofing on the top of the building of the petitioner. The 3 rd respondent Corporation ought to have found that there is a discrepancy in the length of projection as alleged and in the Ext.P1 report. The petitioner submitted Ext.P3 petition stating that the contentions of the 1st and 2nd respondents are false and the further proceedings may be kept in abeyance until the petitioner remove the encroachments through the Civil court.
2. It is in the light of the above factual averments and contentions that the petitioner has filed instant Writ Petition (Civil) with the following prayers:-
"i) Issue a writ of mandamus or any other appropriate writ, or order to set aside the Ext.P2 order issued by the 3rd respondent Corporation.
ii) Issue such other appropriate writs, orders or directions as this Hon'ble Court deems fit and proper to grant in the facts and circumstances of the case."WP(C).No.11508 OF 2020(K) 4
3. Heard Sri.S.Justus, learned counsel appearing for the petitioner and Sri. P.K. Manojkumar, learned Standing Counsel appearing for the 3rd respondent (Corporation of Thiruvananthapuram). In the nature of the orders proposed to be passed in this writ petition, notice to contesting respondents 1 and 2 will stand dispensed with.
4. Sri.S.Justus, the learned counsel appearing for the petitioner has made submissions in tune with the pleadings in writ petition (civil).
5. Sri.P.K.Manojkumar, learned Standing Counsel, appearing for the 3rd respondent (Corporation of Thiruvananthapuram) would submit that he does not have factual instructions in this case, especially about the subsequent factual developments and that an adverse decision in the nature of Ext.P2 order dated 12.05.2020, issued by the Secretary of the 3 rd respondent Thiruvananthapuram Corporation is appealable before the Tribunal constituted for Local Self Government Institutions in terms of Section 509 of the Kerala Municipality Act, 1994, etc. and that since the petitioner has a statutory appellate remedy, it is for the petitioner to pursue the same instead of agitating the issues in judicial review proceedings WP(C).No.11508 OF 2020(K) 5 before this Court.
6. Having heard both sides, it is seen that a statutory appellalte remedy is afforded to the petitioner, it is for the petitioner to file the statutory appeal before the said Tribunal constituted for Local Self Goverment Institutions.
7. Sri.S.Justus, learned counsel appearing for the petitioner would submit that petitioner would immediately file the said statutory appeal within two weeks from the date of receipt of a certified copy of this judgment before the said Tribunal and that this Court may order that the impugned Ext.P2 order may be kept in abeyance until the conclusion of the appellate proceedings, etc. status-quo as regards
8. After having heard both sides, it is ordered and that it is for the petitioner to immediately file statutory appeal as aginst Ext.P2 before the Tribunal concerned, without much delay, at any rate, within an outer time limit of two weeks from the date of receipt of a certified copy of this judgment. If such an appeal is filed by the petitioner before the Tribunal, within the said time limit, then the Tribunal should treat as if the appeal has been filed within time, and the appeal will have to be, then considered on merits. This Court would order in view of the COVID-19 WP(C).No.11508 OF 2020(K) 6 pandemic scenario, the Apex Court has also issued directions in the case reported in 2020(2) KHC 524 (judgment in W.P.(C) No.3 of 2020 dated 23.03.2020) that the period of currency of the lockdown could be excluded for the purpose of reckoning the period of limitation for pursuing legal proceedings before the competent Forum, concerned, etc. In case petitioner files the statutory appeal within the said outer time limit of two weeks from the date notified for receiving the certified copy of this judgment, then the Tribunal will consider the said appeal on merits and after affording reasonable opportunity of being heard to the petitioner and respondents 2 and 3 will take a considered decision in the said appeal filed as against Ext.P2, without much delay, preferably within a period of three months from the date of production of a certified copy of this judgment.
9. It is for the petitioner to also file appropriate stay application in the said appeal and if so, the Tribunal to pass orders on the said stay application after hearing both sides. It is solely for the purpose of preservation of the subject matter of this lis, it is ordered that status-quo as on today as regards the subject property covered by the impugned Ext.P2 order be maintained for a period of one month. Thereafter the matter will be regulated in WP(C).No.11508 OF 2020(K) 7 terms of the order to be passed by the Tribunal on the above said stay application for a period of one month or till orders are passed in the stay application by the Tribunal, whichever is earlier.
10. Petitioner will file the said appeal along with a certified copy of this judgment. Petitioner will forward certified copy of this judgment along with a copy of the memorandum of this writ petition (civil) with all exhibits to the 3 rd respondent- Secretary of the Corporation of Thiruvananthapuram, for necessary information and further action.
11. Registry will forward certified copy of this judgment to contesting respondents 1 and 2, at the cost of the petitioner.
12. It is made clear that the aove said direction regarding status-quo shall not be construed as an expression on the part of this Court regarding the merits and controversy of this case, in any manner, which will fall within the exclusive domain of the Tribunal.
With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE Skk//16062020 WP(C).No.11508 OF 2020(K) 8 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE REPORT SUBMITTED BY THE EXECUTIVE ENGINEER OF THE KERALA P.W.D. DATED 30.06.2018.
EXHIBIT P2 THE TRUE COPY OF THE ORDER DATED
12.05.2020 ISSUED BY THE 3RD
RESPONDENT CORPORATION.
EXHIBIT P3 THE TRUE COPY OF THE PETITION
SUBMITTED BY THE PETITIONER TO THE
3RD RESPONDENT DATED 20.05.2020.
RESPONDENTS' EXHIBITS: NIL