IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 WP(C).No. 20079 of 2006(M) --------------------------------------- PETITIONER: ------------------- V.A.XAVIER, S/O. V.J.ANTONY, VILLANASSERIL HOUSE, SHANTHINAGAR, THEVARA, COCHIN-13. BY ADV. SRI.VARGHESE C.KURIAKOSE, ADV. SMT.THANKOM.G. RESPONDENTS: ----------------------- 1. CORPORATION OF COCHIN, REP. BY ITS SECRETARY, CORPORATION BUILDING, PARK AVENUE ROAD, ERNAKULAM. 2. THE SECRETARY, CORPORATION OF COCHIN, ERNAKULAM. *ADDL.R3 & R4 IMPLEADED: *3. V.RAJU, PRESENT SECRETARY, CORPORATION OF KOCHI, ERNAKULAM. *4. DINESAN, BUILDING INSPECTOR, CORPORATION OF KOCHI, ERNAKULAM. *ADDL.R3 AND R4 IMPLEADED AS PER THE ORDER DATED 11/08/2006 IN I.A. 11160/2006. BY ADV. SMT.ANU SIVARAMAN, S.C - R1 & R2. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.20079/2006-M: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER DTD. 03/12/2005 IN APPEAL NO. 776/2005 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, TRIVANDRUM. EXT.P.2: COPY OF THE AGREEMENT DTD. 05/05/2005. EXT.P.3: COPY OF THE STABILITY CERTIFICATE DTD. 20/06/2005 ISSUED BY THE CHARTERED ENGINEER. EXT.P.4: COPY OF THE STABILITY CERTIFICATE DTD. 20/06/2005 ISSUED BY THE CHARTERED ENGINEER. EXT.P.5: COPY OF THE ORDER DTD.1 7/08/2005. EXT.P.6: COPY OF THE LETTER ISSUED TO THE R.2. EXT.P.7: COPY OF THE NOTICE DTD. 05/06/2006 RECEIVED ON 25/07/2006. EXT.P.8: COPY OF THE POSTAL COVER DTD. 25/07/2006 OF THE R.1. ISSUED TO THE PETITIONER. EXT.P.9: COPY OF THE REPLY DTD. 25/07/2006 ISSUED TO THE R.2. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE ORDER DTD. 17/08/2005. EXT.R1.B: COPY OF THE GUIDELINES DTD. 09/09/04. //TRUE COPY// prv. ANTONY DOMINIC, J. -------------------------------------------------------- W.P.(C) 20079 of 2006 -------------------------------------------------------- Dated: JUNE 16, 2008 JUDGMENT The challenge in this writ petition is against Ext.P7, a notice issued by the Secretary of the respondent Corporation intimating the petitioner that his application dated 19.5.2006 is rejected and requiring him to demolish and remove the two hoardings put up in his property. 2. Briefly put, the facts of the case are that the petitioner is the owner of 10.1 cents of land in Sy.No.1009/2004 of Elamkulam village. According to the petitioner, in view of the commercial importance of the land, certain advertising companies approached him for leasing out the land for putting up hoardings. The offer being attractive, the petitioner wanted to avail of the opportunity and submitted an application to the Corporation for the issue of a permit for the installation of the advertisement hoardings, vide his application dated 20.6.2005. 3. According to the petitioner, on receipt of the application the site was inspected and the officials of the Corporation concluded that the permit can be issued. It is WP(C) 20079/2006 2 stated that on the basis of the above, the petitioner permitted an advertisement company to instal the hoardings. At that stage, a neighbour of the petitioner raised objection to hoardings put up in the neighbouring property of the petitioner. This resulted in Ext.P5 order dated 17.8.2005 requiring the petitioner to demolish the structures. Petitioner submits that against Ext.P5, he filed an appeal under sec.509 of the Municipalities Act before the Tribunal for Local Self Government Institutions. The Tribunal heard the parties and considering the matter, especially the contradictory reports that were available on file, disposed of the appeal by Ext.P1 order dated 3rd December, 2005, the concluding portion of which reads as under:- “In the result, Order No. MOP 3/12617/2005 dated 17.8.2005 of the Secretary, Corporation of Kochi is set aside and the Secretary is directed to make a personal inspection of the hoardings involved therein with notice to the Appellant and the 2nd respondent and pass orders on the complaint of the 2nd respondent and the application dated 20.6.2005 for permission in relation to those hoardings. Orders as above shall be passed within 15 days from getting a copy of this order or within 45 days from today which ever occurs first.” WP(C) 20079/2006 3 4. It is stated by the petitioner that after Ext.P1 order, he did not get any notice or other proceedings from the Corporation. However, he got Ext.P7 order dated 5.6.2006 informing rejection of his application dated 19.5.2006 which, in fact, was only a representation made by the petitioner for regularising the construction. By this communication, the petitioner was asked to demolish and remove the structures. Ext.P8, the cover enclosing Ext.P7, shows that he received Ext.P7 only on 25.7.2006. According to him, on receipt of Ext.P7 on 25.7.2006, on the same day itself, he filed Ext.P9 objection to Ext.P7, and he filed this writ petition on 28.7.2006, with copy served on the standing counsel for the Corporation, seeking to quash Ext.P7. 5. Though the writ petition came up for admission on 31.7.2006 and was adjourned to 8.8.2006, it is contended by the petitioner that on 1.8.2006, Ext.P7 order was implemented and the hoardings were demolished under the leadership of respondents 3 and 4. Thereupon, the petitioner got the writ petition amended seeking a declaration that the process of demolition of the hoardings is illegal and vitiated by mala fides WP(C) 20079/2006 4 and also for a direction to respondents 1 and 2 to restore the hoardings and to give him compensation of Rs.50,000/- as damages and direct respondents 3 and 4 to pay a total compensation of Rs.3 lakhs to the petitioner for the purpose of erecting new hoardings. 6. In sum and substance, what is now contended by the counsel for the petitioner is that while passing Ext.P7, the 1st respondent has not complied with the direction issued by the Tribunal for Local Self Government Institutions in Ext.P1 order while disposing of the appeal filed by the petitioner against Ext.P5 order. 7. The 2nd respondent alone has filed a counter affidavit. In the counter affidavit, he would submit that following Ext.P1 order of the Tribunal, the Secretary and the Building Inspector of the Corporation inspected the premises on 17.5.2006. It is stated that the site inspection was with notice to the petitioner and that the petitioner has submitted a representation on 19.5.2006 and on the said representation, the petitioner was also heard and it was thereafter that Ext.P7 order was issued on 5.6.2006. Therefore, what is contended by the 2nd respondent is WP(C) 20079/2006 5 that at the time when the inspection was held on 17.5.2006, notice was issued to the petitioner and that he was heard before the impugned order was issued. On the aforesaid basis, the 2nd respondent argues that the directions in Ext.P1 have been complied with. 8. As already noticed, the outcome of this writ petition will depend upon my finding as to whether the respondents have complied with the direction issued by the Tribunal in Ext.P1 order disposing of the appeal filed by the petitioner. Ext.P1 order requires the Secretary to make a personal inspection of the hoardings involved with notice to the appellant/petitioner and the 2nd respondent who had filed a complaint and pass orders on the complaint filed by the 2nd respondent and the application made by the petitioner on 20.6.2005 for permission to install the hoardings. Thus, the Secretary ought to have conducted the inspection with notice to the aforesaid two parties. 9. In this case, it is contended by the Secretary that inspection was conducted on 17.5.2006 by himself and the Building Inspector and that notice was issued on the petitioner. WP(C) 20079/2006 6 Though the files of the respondent is also available in court, learned counsel who entered appearance for the 2nd respondent could not point out to me anything to prove that notice was, in fact, served on the petitioner before inspection was conducted on 17.5.2006. In view of the petitioner's specific case that notice was not served and in the absence of any satisfactory document to conclude that notice was actually served, I am constrained to hold that the inspection conducted on 17.5.2006 was without notice to the petitioner. If that be so, what has been done on 17.5.2006 was in violation of the direction issued by the Tribunal in Ext.P1. 10. Yet another argument that was raised before me was that immediately after the inspection as above, the petitioner had submitted a representation on 19.5.2006. It is apparently this representation of the petitioner that is described as an application dated 19.5.2006 in Ext.P7 order issued by the Secretary. The case of the 2nd respondent is that on receipt of the representation of the petitioner, petitioner was heard and it was thereafter that Ext.P6 order was issued. Again, counsel for the 2nd respondent, despite the submission made, could not show WP(C) 20079/2006 7 me anything from the files to indicate that any such hearing was, in fact, held as claimed by the 2nd respondent. Therefore, here again, I must hold that no hearing was granted to the petitioner. Thus, Ext.P7 cannot be sustained and is liable to be quashed for non-compliance with the direction contained in Ext.P1 order. 11. The matter does not end there. As already noticed, this writ petition was filed on 28.7.2006 with copy to the standing counsel of the respondent Corporation, and the case came up before this court on 31.7.2006 and was adjourned to 8.8.2006. In the meanwhile, the Corporation demolished the structure on 1.8.2006. It was thereupon that the petitioner had got the writ petition amended incorporating the additional prayers and impleading respondents 3 and 4 in their personal capacity. Respondents 3 and 4 have not even filed any counter affidavit, although they have been impleaded in their personal capacity, they have not sworn to any affidavit satisfactorily explaining their conduct. Therefore, I must accept the pleadings in the writ petition as undisputed and conclude the issue against respondents 3 and 4. 12. In view of the high-handed action that has been WP(C) 20079/2006 8 committed by respondents 3 and 4, petitioner is entitled to be compensated. But then, that requires quantification of the loss and other damages, if any, sustained by the petitioner which cannot be quantified in a proceeding under Art.226 of the Constitution. Therefore I leave it open to the petitioner to agitate his claim in appropriate proceedings before the civil court. 13. The writ petition will therefore stand allowed. Ext.P7 order passed by the 2nd respondent will stand quashed and respondents 1 and 2 are directed to reconsider the matter as directed by the Tribunal for Local Self Government Institutions in Ext.P1 order. This shall be done as expeditiously as possible, at any rate, within six weeks of production of a copy of this judgment. The petitioner is entitled to costs which I quantify at Rs.10,000/-, which shall be paid by respondents 3 and 4. ANTONY DOMINIC, JUDGE mt/-