THANUMALAYAN Vs. CITY MUNICIPAL CORPORATION TRIVANDRUM

JUDGEMENT

(1.) THE petitioner K. Thanumalayan, prays that the proceedings taken by the counter Petitioners (1) City Municipal Corporation, Trivandrum, and (2) Sri. A. Kunjukrishna Pillai, Commissioner, City Municipal Corporation, Trivandrum, for the demolition of the petitioner's building be quashed, that further demolition be prohibited and that such further order in the form of writs be passed securing the rights of the petitioner over his building and preventing any further damage or infringement of his rights.

(2.) THE application was presented before this Court on 12. 10. 1950 along with which was also presented C. M. P. 1648/50 praying that the counter-petitioners (respondents in the O. P.) be restrained by an injunction from causing any further demolition of the building put up by the petitioner in survey Nos. 2705 and 2537 of Chengazhassery Pakuthy on the eastern side of the srikumar THEatre at Thampanoor, Trivadrum. This application was urgently moved and the court ordered on that very date:- "notice returnable in 7 days. Pay urgent process. THE counter petitioners are restrained from demolishing the building any further. " Notice of the O. P. as also of the said CMP were served upon the respondents on 17. 10. 1950 and in answer the respondents presented a counter-affidavit bearing date 6. 11. 1950 sworn to by the 2nd respondent with an application dated the next day (C. M. P. 1898/50) both of which were presented in Court on 11. 11. 1950. THE petitioner filed an affidavit dated 25. 11. 1950 in reply to the said counter-affidavit on 27. 11. 1950. In c. M. P. 1898/50 the prayer of the respondents is that for the reasons stated in the affidavit of the Commissioner, the O. P. may be dismissed with costs.

(3.) THE petitioner is a tax-payer in the City of trivandrum. That city is being governed by a Corporation under the Travancore act, IV of 1116 called the Trivandrum City Municipal Act. On 23. 4. 1950 the petitioner made an application to the Commissioner for permission to erect a building under S. 237 of the Act. On 25. 5. 1950 a communication was sent to him intimating a truism that the building ought not to be constructed without a licence from the Corporation. On 11. 7. 1950 the petitioner applied to the standing Committee for the said permission, it is not having been granted by the commissioner, under S. 242 (1 ). A notice dated 26. 7. 1950 was issued by the corporation to the petitioner asking him to show cause why he should not be prosecuted under S. 380 of the Act for having started construction without the permission of the Corporation. To this notice, the petitioner alleges, he sent a reply on 31. 7. 1950 repudiating the statement contained in the notice that he had started construction and mentioning that there was no ground for any prosecution. THE Corporation denies having received any such reply. By order dated 12. 8. 1950 the provisional order to prosecute the petitioner was made final and intimation thereof was given to him to which he replied on 28. 8. 1950 saying that there was no ground for the proposed prosecution. THE petitioner says that there is as yet no prosecution against him. Learned counsel for the respondents is not in a position to say one way or the other on this point. On 28. 9. 1950 a notice under S. 259 (1) of the Act was issued to the petitioner. A copy of the said notice was returned to the office of the Corporation purporting to contain the petitioner's signature at its foot with an endorsement of the peon entrusted with the service of the notice on its back to the effect that service has been effected. This paper is noted as No. 13 in the list furnished on behalf of the respondents. It has not been proved. THE receipt of that notice is denied by the petitioner in this affidavit. In paragraph 5 of the petitioner's affidavit in reply he says that he purchased the ticket for a trip to Madras the previous day, i. e. , on 27. 9. 1950 and that he left Trivandrum by the Express train early morning on 28. 9. 1950. He swears also that he was in Madras until the 10th October 1950 on which date he returned to Trivandrum. In paragraph 5 of his affidavit filed along with the o. P. he had mentioned that he learned while at Madras that a copy of the said notice had been taken to his residence on the morning of 29. 9. 1950. THE answer to this is contained in paragraph 7 of the counter affidavit filed by the commissioner wherein he says that "copy of the order No. P. W. 4702 appeared prima facie to have been accepted by the petitioner on 28. 9. 1950. If the petitioner did not sign it, somebody signed on his behalf or by his direction". On 29. 9. 1950 Ganesh & Co. sent a letter to the Corporation stating that their proprietor, the petitioner was away at Madras (giving his address at Madras at the foot) and that an order left at his residence was being therewith returned to them, in his absence. It was requested therein that the notice may be sent to the petitioner at Madras. THE notice discloses on its face that the petitioner was directed to demolish the construction. "he is also required to show cause within 24 hours why the above order should not be confirmed". THE above order is to the effect that: "whereas I am satisfied that Mr. K. Thanumalayan, t. C. No. 79, Pettah Division has constructed a building without obtaining the requisite licence under S. 237 of the City Municipal Act and that he has not complied with the instructions of the notice No. PW. 1372 dated 25. 5. 1950 and subsequent notices issued from this office, he is hereby required under S. 259 (1) of the City Municipal Act to demolish the construction". THE notice proceeds to say that:- "failure to comply with the instruction will entail further action being taken against him and the building demolished departmentally".