Kerala High Court
Satheeshkumar vs Radhamani Amma on 13 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA,
1942
WP(C).No.23299 OF 2020(J)
PETITIONER:
SATHEESHKUMAR, AGED 62 YEARS
S/O.CHELAPPAN PILLAI,
PARAMESHWARATHU HOUSE, ELAMPALLIL PAYANALLOOR,
PATHANAMTHITTA DISTRICT, PIN-691523.
BY ADVS.
SRI.ALIAS M.CHERIAN
SRI.K.K.SETHUKUMAR
SMT.ANJALY ELIAS
RESPONDENTS:
1 RADHAMANI AMMA, AGED 60 YEARS
W/O.BHANUBHAKTHAN, MAYA BHAVANAM VEEDU,
PAYYANALLOOR P.O., PALAMEL, MAVELIKKARA,
PATHANAMTHITTA DISTRICT, PIN-691523.
2 THE SECRETARY,
PALLICKAL GRAMA PANCHAYATH, PALLICKAL P.O.,
PATHANAMTHITTA DISTRICT, PIN-690504.
R1 BY ADV. SRI.VINAY RAMDAS
R1 BY ADV. SMT.K.B.ANAMIKA
R2 BY ADV. SRI.K.SHAJ
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 11-01-2021, THE COURT ON 13-01-2021 DELIVERED THE
FOLLOWING:
W.P.(C) No.23299 of 2020 2
Writ Petition (C) No.23299 of 2020
-----------------------------------------------
JUDGMENT
Petitioner owns an item of land measuring 12 Ares in
Pallickal village. The first respondent owns the land on the western
side of the land of the petitioner. The first respondent instituted O.S.
No.174 of 2020 before the Munsiff Court, Adoor against the
petitioner alleging that the petitioner is putting up a building in his
property without leaving sufficient space from her property and that
if the petitioner is permitted to put up the said building, she may not
be able to enjoy her property beneficially. Though an application for
an order of temporary injunction was filed in the said suit, the court
did not grant that relief to the first respondent. Ext.P3 is the report of
the Advocate Commissioner appointed in O.S. No.174 of 2020.
Later, the petitioner preferred a suit as O.S. No.181 of 2020 against
the first respondent and others before the very same court seeking
a decree for fixation of the boundary between the properties of the
petitioner and the first respondent. In the meanwhile, the petitioner
preferred an application for building permit before the second
respondent, the Secretary of the Panchayat and obtained Ext.P7
building permit on 16.07.2020. The first respondent challenged
Ext.P7 building permit before the Tribunal for Local Self Government
Institutions (the Tribunal) in Appeal No.319 of 2020, after
withdrawing O.S.No.174 of 2020. Ext.P9 is the said appeal. Ext.P11
is the written statement filed by the second respondent in Ext.P9
appeal. Ext.P9 appeal has now been allowed by the Tribunal in terms
of Ext.P12 order setting aside Ext.P7 building permit and directing
the second respondent to reconsider the application for building
permit submitted by the petitioner on the basis of the outcome of
the civil suit pending between the parties. Ext.P12 order of the
Tribunal is under challenge in the writ petition.
2. A counter affidavit has been filed by the first
respondent.
3. Heard the learned counsel for the petitioner, the
learned counsel for the first respondent as also the learned counsel
for the second respondent.
4. It is seen that after the institution of this writ
petition, the petitioner has withdrawn O.S.No.181 of 2020. It is also
seen that when the petitioner withdrew O.S. No.181 of 2020
instituted for fixation of the boundary, the first respondent filed a
fresh suit as O.S.No.316 of 2020 seeking a decree for fixation of
boundary between the properties of the parties.
5. The learned counsel for the petitioner contended
that the impugned order has been passed by the Tribunal solely on
the premise that there is a boundary dispute between the petitioner
and the adjoining property owner, the first respondent and that a
building permit cannot be set aside on that ground. It was argued by
the learned counsel that a building permit issued in terms of the
relevant rules can be set aside by the Tribunal only if it is found that
the same has been issued violating the provisions of the rules. It was
pointed out by the learned counsel that the Tribunal does not find in
the impugned order that the permit issued to the petitioner violates
the provisions of the Building Rules. It was argued by the learned
counsel that if the view taken by the Tribunal is accepted, nobody
would be in a position to construct a building if there is a pending
suit as regards the boundary of the property where the building is
proposed.
6. Per contra, the learned counsel for the first
respondent contended that the petitioner has in fact started the
construction of the building referred to in the writ petition without
obtaining a building permit and the application for permit has been
submitted later when the dispute arose as to the boundary of the
properties. The learned counsel demonstrated the said fact, placing
reliance on the materials on record in the matter. According to the
learned counsel, the building constructed by the petitioner is an
unauthorised one and therefore, it does not matter as to whether the
petitioner has obtained a building permit for the same. The
argument of the learned counsel, therefore, is that the impugned
decision is not liable to be interfered with. It was also contended by
the learned counsel, placing reliance on Rule 6(4)(a)(i) of the Kerala
Panchayat Building Rules, 2019 that it was the duty of the Secretary
of the panchayat to ensure that the plot where the building is
proposed by the applicant is surrounded by well-defined boundaries
and insofar as it is found by the Tribunal that the plot where the
petitioner has put up the building does not have well-defined
boundaries especially on its west, separating the property of the first
respondent, the Tribunal cannot be found fault with for having
interfered with the building permit.
7. No doubt, the materials on record, especially
Ext.P3 report of the Advocate Commissioner appointed in O.S.No.174
of 2020, would establish beyond doubt that the petitioner has
commenced the construction of the building without obtaining
building permit and the building permit has, in fact been, applied for
after the commencement of the construction. The view taken by the
Tribunal in the impugned order, however, is that since there existed
a dispute between the petitioner and the first respondent as to the
western boundary of the property of the petitioner, building permit
ought not have been issued by the panchayat to the petitioner
before settlement of the said dispute. I am not examining the
correctness of the said stand taken by the Tribunal which was
seriously attacked by the learned counsel for the petitioner, since I
find that in the absence of any interdicting orders in O.S.No.174 of
2020 as also in Ext.P9 appeal, the petitioner has completed the
construction of the building during the pendency of Ext.P9 appeal.
The only question to be examined therefore, is as to whether the
Tribunal is justified in setting aside the building permit and directing
the competent authority to consider the application for building
permit submitted by the petitioner after the dispute between the
parties as to the western boundary of the property of the petitioner
is finally resolved by a competent court. Though the petitioner has
withdrawn O.S.No.181 of 2020 filed by him for fixation of the
boundary between the properties, as noted, the first respondent has
now filed a suit as O.S.No.316 of 2020 seeking the very same relief.
It is common knowledge that one cannot expect a civil dispute in the
nature of one raised by the first respondent in O.S.No.316 of 2020 to
be over soon. A building constructed without obtaining a building
permit is not liable demolished, if it is one that could be regularised.
At the same time, if it is found in the suit that the building is one
constructed by the petitioner without leaving sufficient open space
in between the building and the property of the first respondent, the
construction of the building cannot be regularised and the same, to
the extent it violates the requirement of the rule is liable to be
demolished. But, a decision on those aspects can be taken only if the
pending suit is finally disposed of in one way or other. In so far as
the petitioner has constructed the building in the absence of any
interdicting orders in any of the pending matters and in the absence
of any material to conclude that the construction violates any of the
provisions of the Building Rules applicable, I am of the view that it
will be inappropriate to refuse to permit the petitioner to occupy the
building till O.S.No.316 of 2020 is finally disposed of.
8. In the said view of the matter, the writ petition is
disposed of with the following directions :
(1) The second respondent is directed to number the
building of the petitioner provisionally subject to the
outcome of O.S.No.316 of 2020 so as to enable the
petitioner to occupy the building.
(2) Once the boundary between the properties is fixed
in O.S.No.316 of 2020, the second respondent shall
consider whether the construction of the building was in
accordance with the relevant provisions of the Building
Rules which were in force at the time of construction. If it
is found then that the construction was not in
accordance with the relevant rules, the second
respondent shall treat the building constructed by the
petitioner as an unauthorised one and initiate
proceedings against the petitioner for demolition of the
building to the extent it violates the rules. On the other
hand, if it is found then that the construction was in
accordance with the relevant rules, the petitioner would
be free to prefer an application for regularisation of the
construction, and in that event, the second respondent
shall regularise the construction carried out by the
petitioner.
Sd/-
P.B.SURESH KUMAR, JUDGE
ds 13.01.2021
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF SETTLEMENT DEED NO.2065
OF 1990 DATED 27.9.1990 OBTAINED BY
THE PETITIONER.
EXHIBIT P2 TRUE COPY OF PLAINT IN O.S.NO.174 OF
2020 BEFORE THE MUNSIFF COURT, ADOOR.
EXHIBIT P3 TRUE COPY OF COMMISSION REPORT DATED
25.6.2020 IN O.S.NO.174 OF 2020 BEFORE
THE MUNSIFF COURT, ADOOR.
EXHIBIT P4 TRUE COPY OF PLAINT IN O.S.NO.181 OF
2020 BEFORE THE MUNSIFF COURT, ADOOR.
EXHIBIT P5 TRUE COPY OF COMMISSIONER REPORT DATED
6.7.2020 IN O.S.NO.181 OF 2020 BEFORE
THE MUNSIFF COURT, ADOOR.
EXHIBIT P6 TRUE COPY OF COMPLAINT DATED 22.7.2020
FILED BY 1ST RESPONDENT BEFORE THE 2ND
RESPONDENT.
EXHIBIT P7 TRUE COPY OF BUILDING PERMIT NO.A3-
3741 DATED 16.7.2020 ISSUED BY 2ND
RESPONDENT.
EXHIBIT P8 TRUE COPY OF MEMO DATED NIL FILED BY
1ST RESPONDENT IN O.S.NO.174 OF 2020
BEFORE THE MUNSIFF COURT, ADOOR.
EXHIBIT P9 TRUE COPY OF APPEAL MEMORANDUM NO.319
OF 2020 BEFORE THE TRIBUNAL FOR LOCAL
SELF GOVERNMENT INSTITUTIONS,
THIRUVANANTHAPURAM.
EXHIBIT P10 TRUE COPY OF WRITTEN STATEMENT DATED
7.9.2020 FILED BY 2ND RESPONDENT IN
APPEAL NO.319 OF 2020.
EXHIBIT P11 TRUE COPY OF PARA-WISE WRITTEN
STATEMENT DATED 15.9.20 FILED BY 2ND
RESPONDENT IN APPEAL NO.319 OF 2020.
EXHIBIT P12 TRUE COPY OF ORDER DATED 14.10.2020 IN
APPEAL NO.319 OF 2020 PASSED BY
TRIBUNAL FOR LOCAL SELF GOVERNMENT
INSTITUTIONS, THIRUVANANTHAPURAM.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R1 A A TRUE COPY OF THE PLAINT DATED IN
O.S. NO.316/2020 BEFORE THE MUNSIFF
COURT, ADOOR.
