WP(C) NO. 27886 OF 2022 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN TUESDAY, THE 10TH DAY OF JANUARY 2023 / 20TH POUSHA, 1944 WP(C) NO. 27886 OF 2022 PETITIONERS: 1 MUHAMMED ABDUL FAZIL AGED 36 YEARS S/O. E.K KUNHAMMEDKUTTY, 3/438 ROSE VILLA, POTTANGADI RAGHAVAN ROAD, NADAKKAVU, KOZHIKODE-673 011 2 M.A AKBAR, AGED 39 YEARS, S/O. E.K KUNHAMMEDKUTTY, 3/438 ROSE VILLA, POTTANGADI RAGHAVAN ROAD, NADAKKAVU, KOZHIKODE-673 011 3 RUBY M A, AGED 31 YEARS, D/O E.K. KUNHAMMEDKUTTY, 3/438, ROSE VILLA, POTTANGADI RAGHAVAN ROAD; NADAKKAVU, CALICUT - 682018 BY ADVS. V.HARISH RAJAN VISHNURAJ RESPONDENTS: 1 KOZHIKODE MUNICIPAL CORPORATION MUNICIPAL CORPORATION OFFICE, CALICUT BEACH, NEAR AKASHVANI, KOZHIKODE - 673 032 2 THE SECRETARY, KOZHIKODE CORPORATION, MUNICIPAL CORPORATION OFFICE, CALICUT BEACH, NEAR AKASHVANI, KOZHIKODE - 673 032 3 THE TOWN SURVEYOR, MUNICIPAL CORPORATION OFFICE, KOZHIKODE-673 032 4 P.T SUBASH, DIRECTOR, EUROTECH CONSTRUCTION COMPANY LIMITED, 2ND FLOOR, CCHC SOCIETY LTD. BUILDING, YMCA CROSS ROAD, KOZHIKODE-673.001 5 EUROTECH CONSTRUCTION COMPANY LIMITED, 2ND FLOOR, CCHC SOCIETY LTD. WP(C) NO. 27886 OF 2022 2 BUILDING, YMCA CROSS ROAD, KOZHIKODE-673 001 REPRESENTED BY ITS DIRECTOR. 6 ABDUL RASHID O.M, EXECUTIVE DIRECTOR, CALICUT APOLLO BUILDERS PVT LTD, CALICUT APOLLO BUILDERS CORPORATE OFFICE, APOLLO TOWER, SWAPNA NAGARI, CALICUT-673 006 7 CALICUT APOLLO BUILDERS PVT LTD, CALICUT APOLLO BUILDERS CORPORATE OFFICE, APOLLO TOWER, SWAPNA NAGARI, CALICUT 673 006 REPRESENTED BY ITS MANAGING DIRECTOR 8 SRAC DEVELOPERS LLP, REGISTERED OFFICE AT 1ST FLOOR, 13/1035C, BLOCK D, CITY PLAZA BUILDING, MANJERI P.O, MALAPPURAM DISTRICT REPRESENTED BY ITS DESIGNATED PARTNER, SHAMSUDHEEN A.K BY ADV SHRI.V.KRISHNA MENON, SC, KOZHIKODE MUNICIPAL CORPORATION BY G.P. SRI. B.S.SYAMANTHAK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 27886 OF 2022 3 JUDGMENT The petitioners state that they are joint owners of property having an extent of 46.3 cents in Chevayur village and desom of Kozhikode Taluk. The petitioners submitted Ext.P1 representation dated 13.01.2020 before the Secretary of the Corporation against granting of building permit to respondents 4 to 8, in the adjacent property of the petitioners. Since no action was taken thereon, the petitioners approached this Court by filing W.P.(C) No. 12517 of 2020. This Court, by Ext.P2 judgment, disposed of the writ petition with a direction to the 2nd respondent to consider Ext.P1 representation (Ext.P22 therein) and pass appropriate orders. The relevant paragraphs of Ext.P2 judgment read as follows:- “5. Without getting into the merits and controversy of the matter, in any manner, it is ordered that the 1st WP(C) NO. 27886 OF 2022 4 respondentSecretary of Kozhikode Corporation will take up the matters raised in Ext.P22 representation dated 13.01.2020, and after following a fair procedure and after affording reasonable opportunity of being heard to the petitioners as well to contesting respondents 4 to 7, and should take a considered decision in the matter so as to finalise the action on the matters raised in Ext.P22, in accordance with law, without much delay preferably within a period of three months from the date of production of a certified copy of this judgment. “6. “6. Further it is open to the 1st respondent- Secretary of Kozhikode Corporation to ensure that an appropriate survey and measurement of the subject property are duly conducted by the Town Surveyor, and if such a request is made, the Town Surveyor will ensure that an effective survey and measurement should be conducted with due prior notice to the petitioners herein as well as contesting respondents 4 to 7 and the 1st respondent-Secretary of Kozhikode Corporation, and should ascertain as to whether the properties covered by Ext.P-1 and Ext.P-2, on the one hand are those covered by Exts.P6, P-7 and P-8 on the other hand, etc., and then should give a report of the Town Surveyor along with the Survey Sketch, clearly giving his expert opinion in the matter and such survey and measurement should be conducted after examining the above said title deeds of both sides as well as Re Survey records and other records, etc, and this process may be duly completed by the Town Surveyor within one month from the date of receipt of the requisition in that regard from the 1st respondent. WP(C) NO. 27886 OF 2022 5 Thereafter the 1st respondent will ensure that a copy of report of the Town Surveyor along with a copy of Survey Sketch are given to both the petitioners as well as contesting respondents 4 to 7, before a considered decision is taken in the matter on Ext.P-22 as afore directed.” 2. According to the petitioners, pursuant to Ext.P2 judgment, instead of conducting a survey and measurement, the 3rd respondent conducted a site inspection and filed Ext.P4 report before the 2nd respondent stating that there is no encroachment and the 2nd respondent based on Ext.P4 report rejected Ext.P1 representation of the petitioners vide Ext.P7 order. 3. Heard Sri. Harish Vasudevan, the learned counsel for the petitioners, Sri. V. Krishna Menon, the learned Standing Counsel for respondents 1 and 2 and Sri. B.S. Symanthak, the learned Government Pleader for the 3rd respondent. Though notice was WP(C) NO. 27886 OF 2022 6 served on respondents 4 to 7, there is no appearance. In the nature of the directions I propose to issue, service of notice to the 8th respondent is dispensed with. 4. According to Sri.Harish, in terms of the directions in Ext.P2 judgment, the 3rd respondent ought to have conducted survey and measurement in accordance with the provisions of the Kerala Survey and Boundaries Act, 1961. Instead, what has been done by the 3rd respondent is only an examination of the available documents. 5. Since this Court has in Ext.P2 judgment directed the 3rd respondent to ensure that an effective survey and measurement is conducted and since no survey and measurement of the subject property has been conducted by the 3rd respondent, I set aside Ext.P7 and direct the 3rd respondent to conduct an effective survey and measurement of the subject WP(C) NO. 27886 OF 2022 7 property in accordance with law and with notice to the petitioners and respondents 4 to 8. This shall be done within a period of two months from the date of receipt of a copy of the judgment. The parties are free to submit work memo before the 3rd respondent. Once the 3rd respondent submits the measurement and report before the 2nd respondent, further proceedings shall be taken by the 2nd respondent in terms of such report and in accordance with the directions of this Court in Ext.P2 judgment and after hearing the petitioners and respondents 4 to 8. The writ petition is disposed of as above. Sd/- MURALI PURUSHOTHAMAN JUDGE al/- WP(C) NO. 27886 OF 2022 8 APPENDIX OF WP(C) 27886/2022 PETITIONER EXHIBITS Exhibit P1 A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 13.01.2020 PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. Exhibit P2 A TRUE PHOTOCOPY OF THE JUDGMENT IN WP[C].NO.12517 OF 2020 DATED 25.06.2020 Exhibit P2(a) A TRUE PHOTOCOPY OF THE RTI REPLY DATED 03.12.2020 FROM THE STATE PUBLIC INFORMATION OFFICER OF THE 1ST RESPONDENT Exhibit P3 A TRUE PHOTOCOPY OF THE INTIMATION ISSUED BY THE 2ND RESPONDENT ON 05.01.2022 (TP4/15520/2020) Exhibit P4 A TRUE PHOTOCOPY OF THE SITE INSPECTION REPORT PREPARED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT ALONG WITH A PLAN Exhibit P5 A TRUE PHOTOCOPY OF THE NOTICE ISSUED BY THE PETITIONERS ON 26.11.2021 Exhibit P5(a) A TRUE COPY OF THE POSTAL RECEIPT OF THE NOTICE ISSUED BY THE PETITIONER. Exhibit P6 A TRUE PHOTOCOPY OF THE LETTER DATED 07.02.2022 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT. Exhibit P6(a) A TRUE PHOTOCOPY OF THE ACKNOWLEDGEMENT MADE BY THE 2ND RESPONDENT ON 09.02.2022. Exhibit P7 A TRUE PHOTOCOPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT ON 04.08.2022 WHICH WAS RECEIVED TO THE PETITIONER ON 16.08.2022 Exhibit P8 A TRUE PHOTOCOPY OF THE ORDER ISSUED BY THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT- I, KOZHIKODE IN CMP.NO.1612 OF 2020 DATED 08.08.2020