IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC SATURDAY, THE 30TH JANUARY 2010 / 10TH MAGHA 1931 WP(C).No. 2056 of 2010(F) ------------------------- PETITIONER(S): ------------------ DR.SARAUMMA, W/O.ABDUL KALAM, AGED 49 YEARS,NEDUNGATTUKUDY HOUSE, OKKAL, ERNAKULAM DISTRICT, REP.BY HER POWER OF ATTORNEY HOLDER SRI.K.M.SALIM, S/O.MUHAMMED KUNJU AGED 42 YEARS, KEEPATH HOUSE, VATTAKKATTUPADY, PERUMBAVOOR PO. ERNAKULAM DISTRICT. BY ADV. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS RESPONDENT(S): -------------------- 1. CORPORATION OF KOCHI, CORPORATION BUILDING, KOCHI, REPRESENTED BY ITS SECRETARY. 2. SRI.P.KRISHNANKUTTY @ P.K.KUTTY, KRISHNAKRIPA, 30/12731, TEMPLE ROAD, VYTTILA, ERNAKULAM. 3. SMT.BHAGYALAKSHMI, W/O.P.KRISHNANKUTTY, KRISHNAKRIPA, 30/12731, TEMPLE ROAD, VYTTILA ERNAKULAM. ADV. SRI.K.ANAND, SC, COCHIN CORPN. FOR R1 SRI.S.SREEKUMAR FOR R2 & R3 SRI.S.RAMESH BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.2056/2010 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE BUILDING PERMIT DT 24.2.2009 ISSUED BY CORPORATION OF KOCHI. EXT.P2: TRUE COPY OF ORDER DT 8.12.09 IN I.A.NO.8475/09 IN OS NO.880/2009 OF SUB COURT. EXT.P3: TRUE COPY OF NOTICE DATED 10.12.2009. EXT.P4: TRUE COPY OF THE LETTER DT 18.12.2009. EXT.P5: TRUE COPY OF THE REPORT DATED 4.1.2010 SUBMITTED BY THE ASSOCIATE STRUCTURAL CONSTRUCTION. EXTS. OF R2 EXT.R2(a): TRUE COPY OF THE PLAINT IN OS NO.880/09. EXT.R2(b): TRUE COPY OF THE COMMISSION REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER IN OS NO.880/09. EXT.R2(c): TRUE COPY OF THE PROSECUTION PETITION FILED BY RESPONDENTS. EXT.R2(d): TRUE COPY OF 2ND COMMISSION REPORT FILED BY THE ADVOCATE COMMISSIONER. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 2056 OF 2010 (F) ===================== Dated this the 30th day of January, 2010 J U D G M E N T Petitioner states that she was granted Ext.P1 permit for construction of a building. It is stated that soon after obtaining permit, she commenced construction, based on an agreement with respondents 2 and 3 agreeing to rectify any damage that may be caused to their building in the process of construction. It is stated that despite that, a suit a was filed by the respondents, in which Ext.P2 interlocutory order was passed by the Civil Court. Although the petitioner claims to have complied with the conditions imposed by the Civil Court in Ext.P2 order, she complains that the party respondents continued to make complaints to the Corporation which led to an inspection by the Corporation officials. It is stated that, thereafter, Ext.P3 order was issued suggesting certain rectifications, which also she was willing to carry out. 2. According to the petitioner, inspite of her willingness to carry out the rectification, the respondent did not permit her to do the work. Thereupon she issued Ext.P4 notice informing the party WPC 2056/10 :2 : respondents her willingness to comply with Ext.P3, but there was no response. It is stated that, while so, respondents 2 and 3 made another complaint to the Corporation. According to the petitioner, on receipt of the complaint, parties were heard and thereafter Corporation deputed a Structural Engineer to inspect and submit a report to the Corporation. It is stated that this resulted in Ext.P5 inspection report, in which also certain suggestions were made. While the petitioner asserts her willingness to comply with those suggestions also, she complains that respondents 2 and 3 are not co-operating. It is stated that at the same time, since the rectifications are not carried out, the Corporation is not permitting her to proceed with the construction. It is in these circumstances, the writ petition is filed praying for orders enabling her to continue construction. 3. Party respondents have filed a counter affidavit. They have explained the damages that have been caused to their residential building on account of the construction work undertaken by the petitioner. It is stated that even Exts.P3 and P5 report do not reflect the actual state of affairs and they WPC 2056/10 :3 : complain that Ext.P5 report was submitted even without an inspection. They also say that apart from the promises made by the petitioner to rectify the defects, there was no effort from her side in that behalf. 4. Therefore, while on the one hand, the fact that damages have been caused is not disputed, petitioner asserts her willingness to rectify those damages complying with Exts.P3 and P5, respondents 2 and 3 canvass for the position that the damage is much more than what is reflected in Exts.P3 and P5 and that petitioner has also not attempted to carry out the promise to rectify the damages. In the background of such disputed questions of facts involved in the writ petition, I do not think it proper for this Court to grant relief to the petitioner, one of the parties to the dispute, enabling her to continue the construction ignoring the complaints made by respondents 2 and 3. 5. In my view, the proper course to be adopted is that the Secretary of the Corporation, who has issued Ext.P3 should make an attempt to resolve these issues. Therefore, I direct the WPC 2056/10 :4 : Secretary of the Corporation to issue notice to the petitioner and respondents 2 and 3, hear them and pass appropriate order remedying the grievance of both the parties and direct the parties to abide by such decision of the Secretary. In view of the complaint of the learned counsel for the petitioner that in view of the uncertainty, the construction remains suspended for more than 2 months, it is directed that the Secretary shall hear the parties and decide the issue as expeditiously as possible, at any rate within 4 weeks of production of a copy of this judgment. ANTONY DOMINIC, JUDGE Rp