CORPORATION OF TRIVANDRUM vs SUBAIDA ABDUL RASHEED - 2024-02-07

O R D E R

1. Delay condoned.

2. Leave granted.

3. Heard Mr. Ramesh Babu, the learned counsel appearing for the appellant. The respondent nos.1 and 2 are represented by Mr. C.N.

Sreekumar, the learned senior counsel.

4. The respondents had allegedly raised unauthorized construction on Survey No.680/2 of Vanchiyur Village under the Thiruvananthapuram Municipal Corporation (for short, "the Corporation"). Accordingly, notice for provisional demolition was issued to the occupants, under Section 406(1) and (2) of the Kerala Municipal Corporation Act, 1994. Personal hearing was also afforded to the respondents through subsequent notices dated 25.05.2009, 18.09.2009 and 05.10.2009 respectively.

5. Possibly because the occupants had also applied for assignment of the occupied government land, they did not respond to the notice(s) issued by the Corporation and they were pursuing their land assignment application. However, the District Collector, Thiruvananthapuram, under his order dated 20.10.2012, rejected the assignment sought by the applicants by describing the occupied land as road puramboke. It was also noted that a pipeline is passing beneath the land.

6. In the meantime, Thiruvananthapuram Citizens Protection Forum instituted proceedings before the Ombudsman for local self government, where certain orders were passed on 04.06.2013.

7. Under the impugned judgment dated 11.11.2015, the Division Bench observed that due opportunity was not afforded to the occupants while ordering demolition of their dwelling structures. The review petition filed by the aggrieved Corporation was then dismissed under the subsequent order dated 25.05.2018.

8. According to the Division Bench the manner of proceedings by the Corporation are capricious and arbitrary where under the demolition of the homestead of the respondents were carried out. Accordingly, to set right the alleged injustice done to the occupants, the Court ordered for restoration of the demolished structure or alternatively to pay to the respondents a sum of Rs.2,00,000/- (Rupees two lakhs only) for restoration of the demolished portion of the structure. Further sum of Rs.1,00,000/- (Rupees one lakh only) by way of cost was also imposed against the Corporation.

9. The submission made by the learned counsel for the parties are considered with due regard to the proceedings initiated by the Corporation against the unauthorized construction. The very fact that the respondents had applied for assignment of land would indicate that this was a puramboke land.

10. The proceedings initiated under the Kerala Municipal Corporation Act, 1994 would suggest that notice(s) and opportunity of hearing was afforded to the respondents but as they were pursuing their claim for assignment of the land, they omitted to avail the opportunity or present themselves in the personal hearing offered to them.

11. In the above circumstances, the Division Bench, in our opinion, should not have held that the Corporation had acted capriciously in demolishing the unauthorized structure constructed over government land. Consequently, the restoration of the unauthorized structure or in the alternative payment of cost to the respondents are found to be unmerited. The impugned judgment against the Corporation rendered by the Division Bench are therefore found to be unmerited. The same are set aside. The appeals stand allowed with this order.

......................J.

[HRISHIKESH ROY]

......................J.

[PRASHANT KUMAR MISHRA]

NEW DELHI;

FEBRUARY 07, 2024.

ITEM NO.25 COURT NO.6 SECTION XI-A S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS SPECIAL LEAVE PETITION (CIVIL) Diary No(s). 42430/2018

(Arising out of impugned final judgment(s) and order(s) dated 11.11.2015 in WA No. 1265/2014 and 25.05.2018 in RP No. 1200/2015 passed by the High Court of Kerala at Ernakulam)

CORPORATION OF TRIVANDRUM Petitioner(s)

VERSUS SUBAIDA ABDUL RASHEED & ORS. Respondent(s)

(IA No. 171201/2018 - CONDONATION OF DELAY IN FILING)

Date : 07-02-2024 These matters were called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE HRISHIKESH ROY HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA For Petitioner(s) Mr. Ramesh Babu M. R., AOR Mr. Vijay Kumar, Adv.

For Respondent(s) Mr. C N Sreekumar, Sr. Adv.

Ms. Anupama Kumar, Adv.

Mr. Prakash Ranjan Nayak, AOR Mr. C. K. Sasi, AOR Ms. Meena K. Poulose, Adv.

UPON hearing the counsel the Court made the following

O R D E R

Delay condoned.

Leave granted.

The appeals stand allowed in terms of the signed order.

Pending applications, if any, also stand disposed of.

(NEETU KHAJURIA) (KAMLESH RAWAT)

ASTT. REGISTRAR-cum-PS ASSISTANT REGISTRAR

(Signed order is placed on the file.)