Kerala High Court
Binu George vs Corporation Of Cochin
Author: C.T.Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
WEDNESDAY, THE 27TH DAY OF AUGUST 2014/5TH BHADRA, 1936
WP(C).No. 16684 of 2014 (I)
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PETITIONER:
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BINU GEORGE, AGED 40 YEARS
S/O.GEORGE T.A., THAYANKERY HOUSE,
EDAPPALLY, ERNAKULAM.
BY ADVS.SRI.RANJITH THAMPAN (SR.)
SMT.P.R.REENA
RESPONDENTS:
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1. CORPORATION OF COCHIN
REPRESENTED BY ITS SECRETARY, CORPORATION,
ERNAKULAM, PIN - 682 011
2. ASSISTANT EXECUTIVE ENGINEER
ZONAL OFFICE, COCHIN CORPORATION, EDAPPALLY
ERNAKULAM, PIN- 682 024
3. BESTY GEORGE
THAYANKERY HOUSE, MARKET ROAD, EDAPPALLY
ERNAKULAM, PIN - 682 024
R1-R2 BY ADV. SRI.E.D.GEORGE,SC,COCHIN CORPORATION
R3 BY ADV. SRI.SABU S.KALLARAMOOLA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 16684 of 2014 (I)
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APPENDIX
PETITIONER'S EXHIBITS
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EXT P1-TRUE COPY OF THE REPRESENTATON DT. 27.3.14 FILED BY THE
PETITIONER BEFORE THE COUNCILOR.
EXT P2-TRUE COPY OF THE INTIMATION DT. 30.4.14 ISSUED BY THE 1ST
RESPONDENT TO THE 3RD RESPONDENT.
EXT P3-TRUE COPY OF THE RELEVANT NOTE FILE OF CORPORATION OBTAINED
BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT
RESPONDENTS' EXHIBITS
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EXT.R3(a): TRUE COPY OF BUILDING PERMIT DATED 20-10-12.
EXT.R3(b): TRUE COPY OF NOTICE ISSUED BY THE 2ND RESPONDENT.
EXT.R3(c): TRUE COPY OF PROVISIONAL ORDER ISSUED BY THE 1ST
RESPONDENT.
EXT.R3(d): TRUE COPY OF REPLY FILED BY THE 3RD RESPONDENT.
// TRUE COPY //
TKS
P.S. TO JUDGE
C.T.RAVIKUMAR, J.
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W.P.(C)No.16684 of 2014
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Dated 27th August, 2014
JUDGMENT
The petitioner and the 3rd respondent are brothers. The property of the petitioner lies in conterminous with the property of the 3rd respondent on its northern side. The grievance of the petitioner is against the construction of a residential building by the 3rd respondent in his property. According to the petitioner, the said construction was effected in total violation of the provisions under Rules 99, 24(3), 24(4) and 24(5) of the Kerala Municipality Building Rules. It is also stated that based on the complaint preferred by the petitioner regarding the illegal construction being effected by the 3rd respondent respondents 1 and 2 conducted a site inspection and issued Ext.P2 stop memo to the 3rd respondent. It is the further contention that despite the receipt of the stop memo the 3rd respondent continued with the construction and virtually, completed it. Since the 3rd respondent continued and completed the construction disregarding the stop memo, in violation of the aforementioned rules, ExtR3(c) notice was issued to him. A perusal of Ext.R3(c) would reveal that it is a notice issued by the Secretary of the first respondent under Section 406(1) of the Kerala Municipality Act. WP(C).No.16684/2014 2 In view of the said subsequent developments the learned Senior Counsel appearing for the petitioner submitted that respondents 1 and 2 may be directed to finalize the proceedings initiated after conducting a site inspection and subject to its outcome to take consequential actions in accordance with law. The learned standing counsel appearing for respondents 1 and 2 submitted that upon receipt of the complaint from the petitioner a site inspection was conducted and noting violations of the provisions under the Kerala Municipality Building Rules Ext.P2 stop memo was issued to the 3rd respondent. It is also submitted that despite the stop memo the 3rd respondent continued with the construction and completed it and in the said circumstances that Ext.R3(c) notice under Section 406(1) of the Kerala Municipality Act was issued.
2. A counter affidavit has been filed on behalf of the 3rd respondent and along with the counter affidavit the 3rd respondent has produced Exts.R3(a) to R3(d). A perusal of the counter affidavit filed by the 3rd respondent would undoubtedly reveal that while construction was going on the 3rd respondent was served with Ext.P2 stop memo and on its receipt the 3rd respondent submitted Ext.R3(b) dated 22.5.2014. The fact that the 3rd respondent continued with the construction despite the receipt of Ext.P2 is not in dispute. In fact, it is the continued WP(C).No.16684/2014 3 construction and its completion that constrained the Secretary to the first respondent to issue Ext.R3(c) notice. The 3rd respondent produced Ext.R3(d) which is the explanation given by him pursuant to the receipt of Ext.R3(c) notice. In the said circumstances, it is evident that against the construction in violation of the provisions under Rules 99, 24(3), 24 (4) and 24(5) of the Kerala Municipality Building Rules a stop memo was initially issued by the respondent authorities and even after its receipt the 3rd respondent continued with the construction and completed the same. It is in the said circumstances that Ext.R3(c) notice under Section 406(1) of the Kerala Municipality Act was issued by the Secretary of the first respondent. When once such a notice is issued the said authority is bound to finalize the proceedings thus initiated. Ext.R3(d) would reveal that the 3rd respondent has already given his explanation on receipt of Ext.R3(c). In the said circumstances, this writ petition is disposed of with a direction to the Secretary of the first respondent to finalize the proceedings initiated as per Ext.R3(c) in accordance with law, and pass appropriate orders. Subject to the outcome of such decision to be taken in the matter appropriate consequential steps if any, shall also be taken by the said respondent. Needless to say that before finalizing such proceedings the petitioner as also the 3rd respondent shall be put on notice. After putting them notice a decision as mentioned hereinbefore WP(C).No.16684/2014 4 shall be taken in the matter expeditiously, at any rate, within a period of one month from the date of receipt of a copy of this judgment.
Sd/-
C.T.RAVIKUMAR Judge TKS