IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 6053 of 2007(U)
1. DR.V.VENUGOPALAN,
... Petitioner
Vs
1. CORPORATION OF COCHIN, REPRESENTED BY
... Respondent
2. THE SECRETARY,
For Petitioner :SRI.PHILIP T.VARGHESE
For Respondent :SMT.M.K.PUSHPALATHA,SC,COCHIN CORPORATI
The Hon'ble MR. Justice K.M.JOSEPH
Dated :24/07/2007
O R D E R
K.M.JOSEPH, J.
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W.P.(C).No. 6053 OF 2007
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Dated this the 24th day of July, 2007
JUDGMENT
Petitioner challenges Exts.P2, P5 and P6. Case of the
petitioner in brief is as follows:
Petitioner’s mother Ammalu was the owner of 9.45 cents of
land in Survey No.1667 of Ernakulam Village. She sold 3 cents
on the southern portion of the said property. In the remaining
property, she constructed the foundation for a three storied
building and constructed the ground floor and major portion of
the first floor. She conveyed the right over the first floor of
building to her four daughters as per gift deed. She executed
sale deed transferring the right to construct the second floor to
the petitioner and additional third respondent. Petitioner’s
mother conveyed portions of the ground floor of the building to
the tenants as per separate sale deeds. Thereafter petitioner
executed sale deed conveying his entire right over the second
floor of the building to the additional third respondent. On
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06-01-1998 Petitioner’s mother executed sale deed conveying
the northern room of the ground floor having an area of 492
square feet with proportionate undivided share over the property
to the petitioner. According to the petitioner, petitioner was in
occupation and possession of the said room which is having door
No.40/5937 for many decades. Due to financial difficulty,
petitioner who is an Ayurvedic Doctor gave a portion of the room
on rent to one K.A.Siraj on 31-05-2003 for conducting cool bar.
It is the further case of the petitioner that the additional third
respondent (who was not made a party originally) become
inimical to the petitioner and filed a suit before the Munsiff Court
and he caused three sisters of the petitioner to file a suit
claiming right over the staircase room. It is stated that by
common judgment both suits were dismissed. Ext.P2 is the
provisional order which is caused to be issued to the petitioner.
Vide Ext.P3, without hearing the petitioner, final order was
passed directing to remove the unauthorisedly constructed shop
room and wall Petitioner preferred appeal which was allowed
vide Ext.P4. By Ext.P4, the Tribunal directed to pass fresh orders
under section 406(3) of the Municipality Act based on Ext.P2 and
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after rendering an opportunity of being heard to the petitioner
and after considering the possibility of regularisation of the
structure described in Ext.P2. Ext.P5 order was passed by the
Corporation without complying with Ext.P4 order. Petitioner
carried the matter in appeal before the Tribunal which passed
Ext.P6. Petitioner challenges Exts.P5 and P6.
2. Counter affidavit is filed by the additional third
respondent. Therein it is interealia stated that by Ext.R3(1) the
appellate court allowed the appeals filed by the additional third
respondent and the sisters of the petitioner. Learned counsel for
the additional third respondent took me through the judgment to
point out that it is clear on the basis of the commission reports
made available before the court that petitioner has committed
encroachment on the open space and put up the construction.
3. I heard learned counsel appearing for the parties.
4. Learned counsel for the petitioner would submit that
the third respondent has obtained a decree and that can be
executed. He would submit that counter affidavit is not filed by
the first and second respondents. He would also submit that it is
the case where construction is within the area covered by Ext.P1
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sale deed and there is some slight difference in the
measurement.
5. I find that the Tribunal has elaborately considered the
matter and has come to conclusion that the petitioner committed
encroachment on the open space. Having regard to the nature
of the construction put up, it is found that it is in violation of the
building rules. Tribunal also considered the possibility of
regularisation and found that under Rule 143 regularisation
cannot be done in violation of the building rules and as
encroachment is found in the open space, it is found that there is
no merit in the appeal. Petitioner challenges the action taken by
the local authority. The fact that the third respondent has
obtained a decree and that it can be executed cannot deprive the
statutory authority of its power to take action under the
Municipalities Act for removal of encroachment. I also note that
the conduct of the petitioner in stating that the suits have been
dismissed is something which should enter into the exercise of
my discretion against the petitioner. This is as the judgment of
the appellate court which in fact refers to the commission reports
also to note that there is encroachment committed by the
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petitioner into the open space was delivered much prior to the
filing of the writ petition namely on 16/06/2006. This means that
the petitioner has not taken the court into confidence on a matter
which was relevant.
Having regard to all facts, I do not think that the petitioner
has made out a case for interference under Article 226 of the
Constitution. Writ petition fails and it is dismissed.
(K.M.JOSEPH, JUDGE)
sv.
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