IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 18TH OCTOBER 2010 / 26TH ASWINA 1932 RSA.No. 1042 of 2010() ---------------------- AS.344/2005 of DISTRICT COURT, ERNAKULAM OS.1327/2002 of I ADDL.M.C., ERNAKULAM .................... APPELLANT/RESPONDENT/PLAINTIFF :- --------------------------------------------------------- K.B.SIVADAS, AGED 64, S/O.LATE BAWA, PROPRIETOR, PREMIER PUBLICITIES, KOOTHAPPADY, THAMMANAM, POONITHURA VILLAGE, KOCHI-32. BY ADV. SRI.M.RAVIKUMAR RESPONDENT(S)/APPELLANTS/DEFENDANTS :- ------------------------------------------------------------------ 1. CORPORATION OF KOCHI- REPRESENTED BY THE SECRETARY, CORPORATION OFFICE, ERNAKULAM, KOCHI-11 2. REVENUE OFFICER, CORPORATION OF KOCHI, CORPORATION OFFICE, KOCHI-11. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt RSA.No. 1042 of 2010 J U D G M E N T No representation for appellant. Appeal dismissed. Sd/- S.S.SATHEESACHANDRAN, JUDGE. 18.10.2010. //True Copy// P.A. to Judge M.SASIDHARAN NAMBIAR, J ........................................... RSA No.1042 of 2010 ............................................ DATED THIS THE 10th DAY OF NOVEMBER, 2011 JUDGMENT Plaintiff in O.S.1327 of 2002 on the file of Additional Munsiff Court, Ernakulam is the appellant. Respondents are the defendants. Suit was filed seeking a decree for permanent prohibitory injunction directing the Corporation to restore the plaint schedule hoardings, which were unlawfully removed by them and for a permanent prohibitory injunction restraining the respondents from dismantling or removing the hoardings except by due process of law. The case of the appellant, the proprietor of the proprietory concern, “Premier Publicities” was that they erected advertisement hoardings in a number of locations within the Corporation of Cochin including one at Jewel Junction on the eastern side of SRV High School and Taxi car stand, Ernakulam, 15 years back with the permission of the Corporation of Cochin and they have been making use of it for advertisement purpose paying advertisement tax to the Corporation. It is contended that Rs.2,00,000/- was spent for erecting the hoardings and on RSA 1043/2010D 2 31.7.2002, appellant was informed that the hoarding was forcibly dismantled and removed by the officers of the respondent Corporation and they are not entitled to do so. A decree for restoration of the same and permanent prohibitory injunction and a damages of Rs.75,000/- was sought for. Respondents though filed a written statement, did not adduce evidence. 2. Learned Munsiff, on the evidence of PWs 1 to 3, Exts.A1, A2, C1 and C2, granted a decree for mandatory injunction directing the respondents to restore the plaint schedule hoarding and a permanent prohibitory injunction restraining the respondents from dismantling or removing the hoardings thereafter, except by due process of law. Respondents challenged the decree before District Court, Ernakulam in A.S.344 of 2005. Learned Additional District Judge on re-appreciation of the evidence, found that no evidence was adduced to prove that the hoardings were erected after obtaining permission from the Corporation and payment of advertisement tax by itself will not justify the continuation of the hoardings and as the hoardings were removed by the Corporation, based on the directions of this court in O.P.35376 of 2000, holding that appellant is not entitled RSA 1043/2010D 3 to the decree granted by the trial court set aside the decree holding that he could erect hoardings only after obtaining permission of the Corporation. The decree is challenged in the second appeal. 3. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that evidence establish that appellant was permitted to advertise the hoardings for the last 15 years and the Corporation was collecting advertisement tax and in such circumstances, the hoardings could be removed only in accordance with law and hence first appellate court was not justified in interfering with the decree. It was also argued that though first appellate court justified the action of the respondent based on the decision in O.P.35376 of 2000, that direction was not to the respondent Corporation but Corporation of Kollam and in such circumstances, based on that decision, respondents could not have removed the hoardings. 4. Even if appellant has been paying advertisement tax and was exhibiting advertisements in the hoardings, it will not enable the appellant to continue the same, unless the hoardings were erected after obtaining necessary sanction from the Corporation RSA 1043/2010D 4 as provided under the Corporation Act. Though it was contended that sanction was obtained from the Corporation, no material was produced to prove the granting of any such sanction. In such circumstances, first appellate court was fully justified in holding that appellant is not entitled to a decree for mandatory injunction directing the Corporation to restore the hoardings which were removed by the Corporation. As long as appellant did not obtain the sanction to erect the hoardings, a mandatory injunction cannot be granted. In such circumstances, no substantial question of law is involved in the appeal. Appeal is dismissed. It is made clear that by obtaining sanction from the Corporation, appellant is at liberty to place the hoardings. M.SASIDHARAN NAMBIAR, JUDGE lgk