IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933 WP(C).No. 16296 of 2009(S) -------------------------- PETITIONER(S): --------------- SOMAN PLAPPALLIL, AGED 46 YEARS, S/O.P.G.RAMAN PILLAI, PLAPPALLIL VEEDU, THITTAMEL, CHENGANNUR P.O. BY ADV. SRI.N.ASHOK KUMAR RESPONDENT(S): --------------- 1. THE CHENGANNUR MUNICIPALITY, REPRESENTED BY THE SECRETARY, CHENGANNUR P.O. 2. SMT.ANU R.S., SECRETARY, CHENGANNUR MUNICIPALITY, CHENGANNUR P.O. 3. RAJAN KANNATT, CHAIRMAN, CHENGANNUR MUNICIPALITY, KANNATT HOUSE, CHENGANNUR P.O. 4. A.C.MOHAN, M/S.MANGALYA GOLD PALACE, CHENGANNUR, RESIDING AT KOLLAMURIYIL VEEDU, ANAPARAMBAL, THALAVADI, THIRUVALLA. 5. ADDITIONAL CHIEF SECRETARY (VIGILANCE) SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.S.HARIKRISHNAN,SC,CHENGANNUR MUNICI FOR R SRI.TONY GEORGE KANNANTHANAM FOR R4 SRI.JIJI THOMAS FOR R3 SMT.N.N.GIRIJA (ADV.COMMISSIONER) SR. GOVERNMENT PLEADER SMT.MEERA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & ANTONY DOMINIC, J. ````````````````````````````````````````````````````````````` W.P.(C) No. 16296 of 2009 S ````````````````````````````````````````````````````````````` Dated this the 26th day of May, 2011 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Antony Dominic, J. Petitioner has approached this Court styling himself as a Public Interest Litigant. The allegation raised in the writ petition is that, respondents 3 and 4, who are the licensees of shop room Nos.17 and 18 of Sasthampuram market of the Chengannur Municipality, have constructed a wall across the parking area obstructing the free movement of vehicles and general public. According to the petitioner, on a previous occasion, he had approached this Court and filed W.P.(C) No.4862/2009. It is stated that the said writ petition was disposed of by Ext.P2 judgment, recording a statement of the Municipality that, pursuant to a settlement in Lok Adalat between the Municipality and the licensees, the objectionable construction was removed. It is stated W.P.(C) No.16296/2009 : 2 : that the Municipality and the licensees misled this Court to pass the order and that, even after the judgment has been rendered, the objectionable construction remains at the site. It is with this allegation, the present writ petition has been filed with the following prayers:- “ (i) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1st and 2nd respondents to demolish the encroachment made by respondents 3 and 4 in front of shop room Nos.17 and 18 of Sasthampuram market- cum-shopping complex, Chengannur; (ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing respondent No.5 to conduct an enquiry and take a decision on Ext.P4 complaint.” 2. The Municipality has filed a statement. According to the Municipality, earlier, there was a construction as complained by the petitioner. It is stated that thereupon the Municipality issued notice requiring the fourth respondent W.P.(C) No.16296/2009 : 3 : licensee to remove the said wall, which was constructed across the parking area. It is stated that, when the final notice was issued rejecting the explanation offered by the licensee, the licensee filed O.S.No.331/2007 before the Munsiff's Court, Chengannur. Subsequently, the dispute was settled in Lok Adalat pursuant to which the objectionable construction was removed. It is stated that the petitioner again pursued his claim and thereafter, the Municipality issued further notice to the licensee. In paragraphs 15 and 16 of the statement, the Municipality has stated about a subsequent decision that it has taken, which is extracted below for reference:- “ 15. It is respectfully submitted that now, in response to the request of a licensee of Hall No.5 in the Municipal Shopping Complex, namely, Sri.Rahim Rawuther, M.D., M/s.Falcon Pvt. Ltd., Chengannur, the Municipal Council, Chengannur vide its Resolution No.10 dt.10.06.2009 has decided to permit all licensees of the Sasthampuram W.P.(C) No.16296/2009 : 4 : Shopping Complex to erect chain fencing to their respective shop parking yards utilizing their own resources, at the earliest. The municipality is constrained to adopt the above resolution as a promotion drive to license out the remaining vacant shop rooms in the Sasthampuram complex constructed under loan assistance from the Kerala Urban and Rural Development Finance Corporation. The outstanding loan dues to the corporation as on now is Rs.57,32,90/-. 16. In the light of the above resolution, 4th respondent, who is granted with exclusive privilege of use over the licensed shop rooms, its premises and the parking yard as per the Deed of License, is legally permitted to erect a parking yard fence for the restricted use of himself and his jewellery customers in a municipal shopping complex standing adjacent to the town vegetable and fish market. The Municipality was constrained to adopt the above resolution due to the repeated complaints of space constraints expressed by various W.P.(C) No.16296/2009 : 5 : licensees of shop rooms in the Sasthampuram Market-cum-Shopping complex, Chengannur. This respondent shall produce a true copy of the above Council resolution dt.10.6.2009 as and when directed by this Hon'ble Court.” 3. First of all, if the petitioner has a case that this Court was misled to pass Ext.P2 judgment, remedy of the petitioner was not to file a second writ petition. On that ground itself, this writ petition deserves only to be dismissed. Even otherwise, from paragraphs 15 and 16 of the statement filed on behalf of the Municipality, it can be seen that the Municipality itself has resolved to permit the licensees to enclose the respective portion of the parking area for their benefit. Nothing has been placed on record by the petitioner to indicate that the said averment of the Municipality is factually incorrect. If that be so, that statement of the Municipality also disentitles the petitioner for asking any relief in this writ petition. W.P.(C) No.16296/2009 : 6 : 4. Even apart from all these, we also notice from the affidavit filed by the third respondent, the previous Chairman of the Municipality, that several other persons also have trespassed into the parking area of the market in question. Petitioner has not raised any complaint against such persons. This indicates that it is only in furtherance of the petitioner's certain private vested interest that he has chosen to single out the fourth respondent herein and filed this writ petition against him alone. That shows the lack of bona fides on the part of the petitioner. 5. Therefore, for the aforesaid reasons, we are not inclined to issue any direction sought for by the petitioner. Writ petition fails and accordingly it is dismissed. Sd/- (J.CHELAMESWAR, CHIEF JUSTICE) Sd/- (ANTONY DOMINIC, JUDGE) aks/27.05 // True Copy // P.A. To Judge