IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933 WP(C).No. 13185 of 2011(W) ---------------------------------------- PETITIONER(S): ------------------------ DR.BEENA S.THAMBI, W/O.KISHORE SADANANDAN, KULTHUMKARA, T.C.44/615(1), NEAR U.P.SCHOOL, VALIYATHURA, VALLAKKADAVU.P.O., THIRUVANANTHAPURAM. BY SRI.P.SANTHALINGAM, SENIOR ADVOCATE BY ADV. SRI.S.SHARAN RESPONDENT(S): --------------------------- 1. LEENUZ VEERAN ALIAS VEERAN, RESIDING AT GROTO, OPP.CSI CHURCH, NEAR U.P.SCHOOL VALIYATHURA, VALLAKKADAVU.P.O., THIRUVANANTHAPURAM. PIN- 695 008. 2. HENTRY PRIYAN D'CRUZ, S/O.HERMAN D'CRUZ, T.C.43/592(2), NANMA, KAMALESWARAM, MANACAUD.P.O., MUTTATHARA VILLAGE, THIRUVANANTHAPURAM. PIN- 695 125. 3. CORPORATION OF THIRUVANANTHAPURAM, OFFICE OF CORPORATION OF THIRUVANANTHAPURAM, REP.BY ITS SECRETARY.PIN- 695 001. R1 & R2 BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE BY ADV. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.MATHEWS RAJU R3 BY SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE BY ADV. SRI.P.K.MANOJKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.13185 OF 2011 -------------------------------------------- Dated this the 26th day of May, 2011 JUDGMENT The petitioner is the owner in possession of 8.17 cents of property comprised in Sy.No.2891/1 of Muttathara village. O.S.No.96/2011 was filed by the petitioner before the Munsiff Court, Thiruvananthapuram alleging illegal construction by respondents 1 and 2 herein in the adjacent property ignoring the directions of the 3rd respondent-Corporation. As per Ext.P1 order in I.A.No.665/2011 in the said original suit, the counter petitioners therein viz., respondents 1 and 2 herein were restrained from making any construction over the old boundary wall in violation of the Kerala Building Rules until further orders. Later, respondents 1 and 2 entered appearance and sought for modification of Ext.P1order of injunction. Ext.P2 would reveal that after hearing the petitioner and respondents 1 and 2, Ext.P1 was modified as hereunder:- “In the result, ex parte injunction order passed on 18.1.2011 is modified as follows: Counter petitioner is restrained from making any construction except changing the roof using the same materials and other works as provided in proviso to Sn.405 of the Kerala Municipality Act and also the works provided under Rule 10 of Kerala Municipality Building Rules. No costs.” W.P.(C) NO.13185/2011 2 Aggrieved by Ext.P2, the petitioner herein has preferred C.M.A.No.15/2011 before Additional District Court, Thiruvananthapuram and it is still pending. In fact, prior to the passing of Ext.P2, Ext.P3 stop memo was issued by the third respondent Corporation. As per Ext.P3, the first respondent was directed to stop the work and to produce the licence and approved plan, if any, obtained from the office of the third respondent for verification. This Writ Petition has been filed mainly with the prayer to issue a writ of mandamus commanding the third respondent to take further action pursuant to Ext.P3 stop memo. On 13.5.2011, this Court ordered notice on admission to the respondents 1 and 2 and passed an interim order directing the third respondent to take effective steps to implement Ext.P3 stop memo. 2. I have heard the learned senior counsel for the petitioner, the learned senior counsel appearing for respondents 1 and 2 and the learned standing counsel appearing for the third respondent Corporation. Evidently, Ext.P3 stop memo was issued prior to the modification of Ext.P1 by Ext.P2. The petitioner has preferred C.M.A.No.15/2011 before the II Additional District Court, Thiruvananthapuram against Ext.P2 order. Admittedly, the C.M.A is still pending. The learned senior counsel for the respondents 1 and 2 submitted that in view of the said position, the third respondent may be refrained from taking steps to implement Ext.P3 before W.P.(C) NO.13185/2011 3 the disposal of C.M.A.No.15/2011. I am of the view that since the petitioner herself had preferred the C.M.A against Ext.P2 order, the petitioner cannot, now, insist for taking further action based on Ext.P3 memo that was issued shortly after Ext.P1 order and prior to Ext.P2 order pending disposal of C.M.A.15/2011. In the circumstances, this Writ Petition is disposed of as hereunder:- The third respondent shall not take further action based on Ext.P3 for the time being and making it clear that the requirement to take further action based on Ext.P3 will depend upon the outcome of C.M.A.15/2011 of the Additional District Court, Thiruvananthapuram. The learned senior counsel for respondents 1 and 2 submitted that respondents 1 and 2 would be prejudiced if delay is caused in the matter of disposal of C.M.A.No.15/2011. In the circumstances, there will be a direction to the Additional District Court, Thiruvananthapuram wherein C.M.A.No.15/2011 preferred against the order in I.A.665/2011 in O.S.No.96/2011 of the Additional Munsiff Court, Thiruvananthapuram is pending, to dispose of C.M.A.No.15/2011 expeditiously, at any rate, within a period of six weeks from today. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.13185/2011 4 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) NO.13185/2011 5