IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 WP(C).No. 33359 of 2007(U) ---------------------------------------- PETITIONER: ------------------- SUNIL AZEEZ, S/O.ABDUL AZEEZ, T.C.49/1060, ATTAKULANGARA, MANACAUD P.O., THIRUVANANTHAPURAM. BY ADV. SRI.M.SREEKUMAR RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVT., LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SENIOR TOWN PLANNER (VIGILANCE), LOCAL ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, PALAYAM, THIRUVANANTHAPURAM. 4. THE SECRETARY, CORPORATION OF THIRUVANANTHAPURAM, CORPORATION OFFICE, PALAYAM, THIRUVANANTHAPURAM. 5. JUBARI, W/O.LATE ABDUL RASHEED, T.C.49/1476, ATTAKULANGARA, MANACAUD P.O., THIRUVANANTHAPURAM. 6. THE ASSISTANT COMMISSIONER OF POLICE, FORT, THIRUVANANTHAPURAM. 7. THE CIRCLE INSPECTOR OF POLICE, FORT POLICE STATION, THIRUVANANTHAPURAM. R1,R2,R6 & R7 BY SR.GOVT.PLEADER SRI. K.J.MOHAMMED ANZAR R4 BY SRI. N. NANDAKUMARA MENON, SC R5 BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SMT.KAVITHA GANGADHARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.33359/2007 U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SALE DEED NO.2882/06 OF SRO, THIRUVANANTHAPURAM DTD. 2/08/06. EXT.P2: COPY OF STOP MEMO NO.TP5/BA/1648/07 DTD. 16/10/07 ISSUED BY THE 3RD RESPONDENT. EXT.P3: COPY OF THE LETTER NO.TP5/BA/1648/07 DTD. 5/11/07. EXT.P4: COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DTD. 7/11/07. EXT.P5: COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 7/11/07. EXT.P6: COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DTD. 7/11/07. 5TH RESPONDENT'S EXHIBITS: EXT.R5(A): COPY OF SALE DEED NO.997/1987 OF THE PRINCIPAL SUB REGISTRY, TRIVANDRUM. EXT.R5(B): COPY OF SALE DEED NO.1003/87 OF SUB REGISTRY, TRIVANDRUM. EXT.R5(C): PHOTOGRAPHS SHOWING THE CONSTRUCTIONS EFFECTED BY THE ADJACENT PROPERTY OWNERS ON THE SIDE OF LMS-ATTAKULANGARA ROAD. EXT.R5(D): COPY OF RECEIPT ISSUED BY THE 3RD RESPONDENT EVIDENCING RECEIPT OF APPLICATION FEE. EXT.R5(E): COPY OF COMPLAINT DTD.22/09/2007 SUBMITTED BEFORE THE HONOURABLE CHIEF MINISTER OF KERALA. EXT.R5(F): COPY OF REPORT PUBLISHED IN 'MADHYAMAM' DAILY NEWSPAPER DTD. 25/10/2007 AND 31/07/2007. EXT.R5(G): COPY OF THE ROUGH SKETCH SHOWING THE LIE OF THE PROPERTY. EXT.R5(H): COPY OF NOTICE ISSUED BY THE 4TH RESPONDENT. EXT.R5(I): COPY OF ROUGH SKETCH SHOWING THE ACTUAL LIE OF OUR PROPERTY. EXT.R5(J): COPY OF DOCUMENTS ENUMERATED IN THE LIST. /TRUE COPY/ Kss P.A.TO JUDGE PIUS C. KURIAKOSE, J. ---------------------------------- W.P.(C) NO. 33359 of 2007 ---------------------------------- Dated this the 20th day of February , 2008 JUDGMENT Heard Sri.M.Sreekumar, the learned counsel for the petitioner, Sri.George Varghese, the learned counsel for the 5th respondent and Sri.N.Nandakumara Menon the learned Standing counsel for the 4th respondent Corporation. 2. Sri.George Varaghese would submit , by referring to Ext.R5(a), that the basic premise on which the petitioner instituted this writ petition is that the petitioner has got properties adjacent to the 5th respondent's property in Sy.No.39/22/2 and any constructions on the property of the 5th respondent will have the effect of obstructing the petitioner's easement rights for light and air. The learned counsel would submit that the construction presently put up by the 5th respondent in her property are temporary constructions and the apprehension of the petitioner cannot have anything to do with any construction put up by the 5th respondent in her other WPC No.33359/2007 2 property. He, therefore, wanted permission to put up construction in Survey No.39/40/2 on the basis of the Civil Court's order which has already been attained finality subject to the undertaking by the 5th respondent that all constructions presently put up in Survey No.39/22/2 will be removed by him if so directed. 3. The prayers in this Writ Petition are (i). a direction to the Corporation authorities to enforce Ext.P2 order as requested in Ext.P3 (ii). a writ of mandamus commanding the 4th respondent to demolish the unauthrosied construction put up by the 5th respondent. Granting the directions sought for by the counsel may be beyond the scope of the prayers in the Writ Petition and I am not presently inclined to grant those directions. As submitted by the learned Senior Counsel for the Corporation and as agreed by Sri.Sreekumar and Sri.George Varghese, the first prayer i.e. the stop memo should be enforced is no longer necessary since stop memo has actually been enforced. As for the second prayer, it is not disputed that the Secretary of the Corporation has already heard the parties. It is for the Secretary of the Corporation to pass orders on the basis of the hearing WPC No.33359/2007 3 already conducted. The hearing was over on 28.11.2007 and considering the delay which has been occasioned in the matter of passage of orders, I permit the petitioner as well as the 5th respondent to submit written arguments before the 4th respondent reiterating the oral arguments already addressed by them in the hearing conducted. If written arguments are submitted by the petitioner and the 5th respondent within one week from today, the 4th respondent will consider those arguments and also the oral arguments already addressed and pass orders as to whether the stop memo should be finalized and final orders of demolition should be passed. Orders will be passed in any event within 10 days of the petitioner and the 5th respondent submitting written arguments. Till such time as orders are passed and communicated to the petitioner and the 5th respondent, the Secretary of the Corporation will ensure that stop memo continues to be obeyed. PIUS C. KURIAKOSE, JUDGE. dpk WPC No.33359/2007 4