IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 WP(C).No. 25222 of 2009(W) ------------------------------------------ PETITIONER(S): ------------------------ 1. JOSEPH PETER HOBINE, ODATACKAL HOUSE, 9/53A, VELI, KOCHI - 5. 2. O.S.BABY, VELLUTHAMMANUGAL HOUSE, 9/53 A, VELI, KOCHI - 5. 3. CELINE, ODATACKAL HOUSE, 9/53A, VELI, KOCHI - 5. 4. K.R.PETER, PRESIDENT, PARENT TEACHER ASSOCIATION, EDWARD MEMORIAL HIGHER SECONDARY SCHOOL, FORT KOCHI, RESIDING AT H.NO. 12/11, SANJO PATTAM, KOCHI - 1. BY ADV. SRI.DINESH R.SHENOY RESPONDENT(S): --------------------------- 1. HAIMA BENEDICT, W/O. BENEDICT, RESIDING AT PARAMBILOTH HOUSE, PANAMPILLY NAGAR RAILWAY GATE, ATLANTIS, ERNAKULAM. 2. BENEDICT, RESIDING AT -DO- -DO-. 3. MARY DASAMMA, W/O. LATE JOSEPH, ODATACKAL HOUSE, FORT KOCHI VELI, KOCHI - 1. 4. THE CORPORATION OF COCHIN, REPRESENTED BY THE SECRETARY, CORPORATION OF COCHIN, ERNAKULAM. 5. THE ASSISTANT EXECUTIVE ENGINEER, CORPORATION OF COCHIN, FORT KOCHI, KOCHI - 1. R4 & R5 BY ADV. SRI.C.M.SURESH BABU,SC,COCHIN CORPORATION THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 25222 OF 2009 -------------------------- Dated this the 24thday of September, 2010 J U D G M E N T Petitioners 1 to 3 and respondents 1 to 3 are near relations. Petitioners 1 to 3 have along with the fourth petitioner filed this writ petition seeking a direction to the Corporation of Cochin to enquire into the legality of the construction being made by respondents 1 to 3 and to take an appropriate action on the matter. According to the petitioners, apart from the fact that the building is being put up in violation of the Kerala Municipality Building Rules, respondents 1 to 3 are attempting to erect a mobile tower on the top of the building, which according to the petitioners will have an adverse effect on the health and well being of the neighbouring residents. 2. Respondents 1 to 3 have filed a counter affidavit contending that construction of the building started immediately after a revised building permit was issued on 13.3.2008. It is stated that the first of the complaints (Ext.P3) was made only on 24.8.2009 i.e., when the building was nearing completion and permission had been obtained from the local authority for erecting a mobile tower on the top of the building. 3. It is evident from the pleadings and materials on record that WPC No.25222/09 2 the primary authority namely the Secretary, Cochin Corporation, is yet to take a decision on the question whether the building being constructed by respondents 1 to 3 is an illegal construction. Whether the plan issued to the respondents 1 to 3 confirms to the requirements of the Kerala Municipality Building Rules is also a matter which is yet to be examined by the competent authority. It is also evident from the pleadings and materials on record that the structure of the building is complete and that what remains to be done is the finishing works. No doubt the construction of a mobile tower on top of the building remains to be done. In such circumstances, I am of the opinion that the Secretary, Cochin Corporation should consider the issue in the first instance. I accordingly dispose of this writ petition with a direction to the Secretary, Cochin Corporation to inspect the disputed building along with the town planner, with notice to the petitioners and respondents 1 to 3 and to prepare a report. He shall thereafter hear the petitioners and respondents 1 to 3 after serving a copy of the report on them and decide whether the building put up by respondents 1 to 3, which is the subject matter of this writ petition, is an illegal construction. It will be open to respondents 1 to 3 to move the WPC No.25222/09 3 Secretary, Cochin Corporation for regularization of the construction, if the violations can be regularised. He shall also decide whether the construction can be regularized by adhering to the rules by submitting a different set of plans. The Secretary shall after taking a decision in the matter, communicate a copy of the order passed by him to the petitioners and respondents 1 to 3. Since the construction of the building is complete and what remains to be done is the plastering of the walls, I am of the opinion that subject to the outcome of the enquiry to be conducted by the Secretary, the petitioners should be permitted to plaster the walls and to do the remaining finishing works at their risk and cost. They shall not however put up a mobile tower on the top of the building. Their right to put up a mobile tower on the top of the building will depend on the outcome of the enquiry to be conducted by the Secretary, Cochin Corporation. The entire exercise shall be completed within two months from today. P.N.RAVINDRAN, (JUDGE) vps WPC No.25222/09 4