L.Arunkumar vs The City Corporation
2021 Latest Caselaw 10491 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

    MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943

                    WP(C).No.25515 OF 2012(L)


PETITIONERS :

      1      L.ARUNKUMAR,
             RESIDING AT T.C.13/1365(1), SHALOM,
             BURMA ROAD, KUMARAPURAM,
             MEDICAL COLLEGE P.O.,
             THIRUVANANTHAPURAM.

      2      SUSEELA LAWRENCE,
             RESIDING AT T.C.13/1365(1),
             SHALOM, BURMA ROAD, KUMARAPURAM,
             MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM.

             BY ADVS.
             SRI.M.R.ANANDAKUTTAN
             SMT.M.A.ZOHRA

RESPONDENTS :

      1      THE CITY CORPORATION,
             OF THIRUVANANTHAPURAM - 695 003

      2      THE CITY CORPORATION OF THIRUVANANTHAPURAM,
             REPRESENTED BY ITS SECRETARY - 695 003.

      3      SURENDRAN,
             SUBHAGAM, T.C.13/1364(1), BURMA ROAD,
             KUMARAPURAM, THIRUVANANTHAPURM - 695 011.

             R1 BY ADVS. SRI.P.K.MANOJKUMAR
                         SRI.P.V.ANIL
                         SRI.R.CHANDRAPRAVEEN
                         SRI.N.NANDAKUMARA MENON (SR).

             R3 BY ADVS. SRI.A.RAJASIMHAN
                         SMT.P.USHAKUMARI
                         SC BY SRI.P.K.MANOJ KUMAR

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.25515 OF 2012(L)

                                 2


                            JUDGMENT

Dated this the 29th day of March 2021

A work area having a size of 6.9 X 3.1 X 2 meters

along with a toilet having a size of 1.2 X 1.5 meters with a

concrete roofing was directed to be demolished by Ext.P6 order.

Ext.P6 was challenged by the writ petitioner before the Tribunal

for Local Self Government Department, but by the impugned

order dated 25.09.2012, produced as Ext.P8, the Tribunal

dismissed the appeal, thereby confirming Ext.P6 order of

demolition.

2. Adv.M.A.Zohra appearing for the writ petitioner

vehemently contends that the Tribunal went on a wrong tangent

in dismissing the appeal even after noticing the inspection report

contained in the files of the Corporation, mentioning that the

work area, the staircase and the toilet have been in existence

for years. In spite of such notings, according to the counsel, the

Tribunal wrongly confirmed the order directing demolition. The

learned counsel for the petitioner further pointed out that the

constructions now directed to be demolished have been in WP(C).No.25515 OF 2012(L)

existence for more than several decades and that the Tribunal

has committed an error in confirming the order of demolition.

3. The Standing Counsel for the Corporation

Sri.P.K.Manoj Kumar referring to the statement filed on behalf of

the Corporation submits that, based on the complaint filed by

the 3rd respondent, the Corporation initiated appropriate action

in accordance with law and after issuing a provisional order

under Section 406 of the Municipalities Act (the Act for short),

on 05.07.2011, the final order confirming the provisional order

was issued under Section 406(3) of the Act. It was submitted

that the procedure adopted by the Corporation was in

compliance with the statutory requirements and the same

warrants no interference.

4. Adv.A.Rajasimhan, the learned counsel for the 3 rd

respondent contends that the main house was constructed after

obtaining a building permit and was allotted the building

No.T.C.13/1365/1 in the name of the writ petitioner. Inviting my

attention to the findings of the Tribunal in Ext.P8 that, at the

time when the building plan was submitted and the completion WP(C).No.25515 OF 2012(L)

certificate obtained, the part of the buildings now referred to as

unauthorised constructions, was not shown either in the plan for

obtaining the building permit or for obtaining the completion

certificate and hence the same according to the counsel is

without doubt an unauthorised construction, constructed

certainly after completion of construction of the main building.

He sought for dismissal of the writ petition.

5. I have considered the rival contentions and have

perused the records produced along with the writ petition.

6. The jurisdiction of this Court to interfere with the

order of the Tribunal is limited, and is generally confined to

irregularity, perversity or irrationality in arriving at the

conclusion. This Court in exercise of the power of judicial review

is not concerned with the findings of fact on the basis of which

the orders are made so long as those findings are reasonable

and supported by evidence as held in Lieutenant General

Manomoy Ganguly v. Union of India & Others [(2018) 18

SCC 83].

7. The Tribunal had in arriving at the conclusion that WP(C).No.25515 OF 2012(L)

the order for demolition is only to be affirmed, perused the files

available with the Corporation. It had taken into reckoning the

notings in the inspection file as well as the other records relating

to the grant of building permit and the occupancy certificate.

After considering all the factual aspects in the case, the Tribunal

came to the conclusion that the order impugned before it is only

to be confirmed. I do not find any perversity or irregularity or

irrationality in the order of the Tribunal. The findings recorded

are reasonable and supported by valid reasons.

8. The contention of the learned counsel for the writ

petitioner by referring to the words "for years" noticed in the

inspection file of the Corporation, according to me, does not

advance the case of the writ petitioner since the word "for

years" is a very vague terminology capable of different

meanings, depending upon the context in which it is used. 2

years, 3 years, 5 years or 10 years could all be regarded as "for

years". It is in this context that when a question regarding

unauthorised construction is alleged, the burden falls upon the

owner of the building to disprove that it is not an unauthorised WP(C).No.25515 OF 2012(L)

construction or that the disputed building was constructed or

even before coming into force of the Building Rules. The burden

to prove the afore lies on the owner of the building.

9. The Tribunal has in fact considered even the said

aspects in the following words :

"11. Document No.5 produced by the appellants is the copy of the building plan, site plan and location plan together which were approved in 1996 and the building permit was granted. The proposed building and existing building No.T.C13/1365 are clearly shown in this site plan. It has not been stated in the site plan that annexing the existing T.C.13/1365 there is a work area on the rear side of the proposed construction or that there is a toilet on the western corner. Those constructions if were in existence in 1996 definitely would have been shown in this plan. The non-showing of the said work area and the toilet in this plan produced as document No.5 by the appellants only gives evidence that those buildings were not in existence as canvassed by the appellants at the time of the construction made in 1996. if so those buildings would have come in existence only after 1996, if such a view is permissible the burden is on the appellants to show when exactly those constructions were effected especially when they would admit the existence of those constructions".

"14. Of course there is an inspection report on page 1 of the note file wherein it is stated that the work area, the staircase and the toilet have been in existence "for years". But the site plan which I have already referred and the protographs would not permit me to accept the above version in the inspection report that these have been in existence "for years" and therefore from the said version what can be inferred is that these constructions cannot be treated as a recently made and WP(C).No.25515 OF 2012(L)

would have been made some 5 or 10 years ago. At any rate these constructions could be treated as effected after the coming in force of the Kerala Municipality Building rules 1999".

I am in complete agreement with the findings

rendered by the Tribunal in Ext.P8. As mentioned earlier, the

findings are reasonable and are supported by valid reasons.

There is no cause for interfering with the conclusion of the

Tribunal.

In the aforesaid circumstances, the writ petition is

only to be dismissed and accordingly the same is dismissed.

Sd/-

BECHU KURIAN THOMAS, JUDGE

RKM WP(C).No.25515 OF 2012(L)

APPENDIX PETITIONERS' EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE GIFT DEED NO.OF PATTOM SUB REGISTRY DATED 30.03.1989

EXHIBIT P2 TRUE COPY OF THE PERMIT NO.BAPI/3290/96 OBTAINED FROM THE 1ST RESPONDENT DATED 16.5.1996

EXHIBIT P2A TRUE COPY OF THE PERMIT NO.BAPI/3290/96 DATED 16.5.1996 ISSUED BY TRIDA.

EXHIBIT P3 TRUE COPY OF THE APPROVED BUILDING PLAN.

EXHIBIT P4 TRUE COPY OF THE EXPLANATION DATED 23.7.2011.

EXHIBIT P5 TRUE COPY OF THE ADDITIONAL STATEMENT FILED BY THE 2ND PETITIONER DATED 21.12.2011.

EXHIBIT P6 TRUE COPY OF THE ORDER NO.E11/68779/11 DATED 21/2/2012 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE APPEAL MEMORANDUM BEFORE THE HON'BLE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTION, THRIUVANANTHAPURAM DATED 13.03.2012.

EXHIBIT P8           TRUE COPY OF THE ORDER IN APPEAL
                     NO.190/2012 OF THE TRIBUNAL DATED
                     25.09.2012.