Kerala High Court
Pushpan @ Pushparajan vs State Of Kerala on 23 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
THURSDAY, THE 23RD DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943
WP(C) NO. 22432 OF 2013
PETITIONER:
PUSHPAN @ PUSHPARAJAN
SREE BHAGAVATHY, MCRA -A-15/1,
MULLAN CHANI, VATTIYOORKAVU, KODNGANOOR P.O.,
THIRUVANANTHAPURAM - 695 013.
REPRESENTED BY POWER OF ATTORNEY HOLDER,
SREEJISH N.S., S/O. NADARAJAN,
NEDIYAVILAVEEDU, VATTIYOORKAVU P.O.,
THIRUVANANTHAPURAM - 693 013.
BY ADV SRI.JINU JOSEPH
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF LOCAL SELF GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM -695 001.
2 THE THIRUVANANTHAPURAM CORPORATION
REPRESENTED BY ITS SECRETARY,
THIRUVANANTHAPURAM - 695 001.
3 NATESAN ASARI
SHAJI NIVAS, KODUNGANOOR P.O.,
THIRUVANANTAPURAM - 695 013.
BY ADVS.
SRI.P.BIJIMON
SRI.P.K.MANOJKUMAR
SRI.N.NANDAKUMARA MENON SR.
SRI.R.T.PRADEEP
BY SR.GOVERNMENT PLEADER SRI.PREMCHAND R. NAIR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 10.09.2021, THE COURT ON 23.09.2021 DELIVERED THE
FOLLOWING:
W.P. C.No. 22432 of 2013
2
MOHAMMED NIAS C.P. J
..............................................................
W.P. C.No. 22432 of 2013
................................................................
Dated this the 23rd day of September, 2021
JUDGMENT
The above writ petition is filed challenging the
order of the Tribunal for Local Self Government
Institutions, Thiruvananthapuram (for short 'Tribunal'),
which dismissed the appeal preferred by the writ
petition challenging the order of demolition passed by
the Corporation.
2. The petitioner submits that he is residing in
building No. MCRA-15/1 of Vattiyoorkavu,
Thiruvananthapuram Corporation and his house is
situated in a small plot having an extent of 2.98 cents
which he purchased along with the house in the year
2011 and that he has not made any alteration or addition
to the building existing then.
W.P. C.No. 22432 of 2013
3. The 2nd respondent-Corporation issued a notice
dated dated 14.10.2011 directing to demolish the toilet
attached to the petitioner's house.
4. Though, the petitioner submitted a reply to the
said notice denying the allegation, the provisional order
was confirmed, and the same was challenged before the
Tribunal.
5. The 2nd respondent-Corporation filed a written
statement stating that on a complaint given by the 3 rd
respondent herein, a site inspection was conducted,
wherein, it was found that the petitioner had constructed
a toilet abutting the compound wall of the 3 rd
respondent's property and the same was in violation of
Rule 88(5) and 104(4) of the Kerala Municipality
Building Rules (for short 'KMBR). They further submit
that the structure is not an old one and in view of the
unauthorised construction there is no illegality in the
proposed action.
W.P. C.No. 22432 of 2013
6. The 3rd respondent herein got himself
impleaded before the Tribunal and contended that the
petitioner had demolished the existing toilet and
constructed a new toilet illegally, adjoining to the
compound wall of his property which could lead to the
water in the well getting contaminated and prayed for
dismissal of the appeal.
7. The Tribunal found that the toilet is on the
north eastern corner of the property belonging to the 3 rd
respondent herein and further that the septic tank in the
petitioner's property is located almost at the eastern side
of the property of the 3rd respondent herein and from
there the distance to the well in the said property is
more than 7.50 meters and that it appears that there
cannot be any violation of Rule 104(4) of the KMBR.
However, the Tribunal confirmed the order passed by the
Corporation and directed the petitioner to demolish the
unauthorised construction of the toilet also with a
W.P. C.No. 22432 of 2013
direction to the Corporation to make an enquiry with
respect to the sock pit, leach pit etc. in the property of the
petitioner and also to see whether Rule 104(4) would be
attracted to the said construction, and if so, take other
appropriate action against the petitioner.
8. Before me, learned counsel for the petitioner
would submit that the Tribunal having found that there
cannot be a violation of Rule 104(4) of the KMBR, which
finding was entered after holding that the distance of the
septic tank would be more than 7.5 meters from the
neighbouring property and thus a further direction to find
out whether there is any violation of Rule 104(4) is clearly
unnecessary. It is his specific case that he has not made
any additional construction/structure after his purchase
and that at that point of time, the area was a Panchayat
area to which the provisions of the KMBR did not apply.
He also submits that though KMBR was made applicable
to the area in question much later, and thereafter, the
said area was brought within the limits of Corporation
W.P. C.No. 22432 of 2013
itself. Thus, he assailed the order passed by the Tribunal
which directed him to demolish the construction. He
further submits that the property belonging to petitioner
comes within the definition of a 'small plot' coming under
Chapter VIII of the KMBR, and therefore, he is entitled
for the protections available therein.
9. The learned counsel for the 3rd respondent,
however contended that the construction of the toilet is in
violation of the KMBR and that the well in his property is
contaminated due to the existence of the septic tank
adjacent to it.
10. On admission of the above writ petition, an
interim order was granted on 09.09.2013, and which was
extended from time to time. Obviously, the Corporation
could not have taken any decision as directed by the
Tribunal on account of the interim order passed in the
writ petition.
11. It has to be noted that there is a specific
contention of the petitioner that this is the only toilet
W.P. C.No. 22432 of 2013
which he has in his house.
12. Interest of justice will suffice if the Corporation
takes a look into the entire facts and circumstances
namely, whether the toilet in existence is the only one in
the petitioner's house as alleged or whether the petitioner
is entitled to the benefit of Chapter VIII of the KMBR
since his property comes within the ambit of the said
Rules dealing with 'small plots' and also whether any
contamination/pollution is caused to the water in the well
of the 3rd respondent herein, as the petitioner and his
family has been using the toilet allegedly put up later, all
these years at least from 2011.
13. In these matters the Corporation should take a
practical view of the situation, taking into account the
humanitarian consideration as well, of course, without
doing violence to the applicable provisions of the KMBR.
The Corporation will also hear the petitioner as well as
the 3rd respondent before taking a final decision as
aforesaid. The Corporation will also give a chance to the
W.P. C.No. 22432 of 2013
petitioner to rectify/cure any defects in the construction,
so as to make it regular, before taking a final decision.
The Corporation will be free to take the help of any
person/authority so as to check the
pollution/contamination, if any, caused to the water in the
well of the 3rd respondent due to the alleged illegal
construction of the toilet.
In the result, there will be a direction, in
modification of the order of the Tribunal, to the 2 nd
respondent-Corporation to do the aforesaid exercise
within a period of three months from today and
communicate the decision taken to the petitioner.
The writ petition is disposed of as above.
Sd/-
MOHAMMED NIAS C.P. JUDGE
dlk/17.09.2021
W.P. C.No. 22432 of 2013
APPENDIX OF WP(C) 22432/2013
PETITIONER EXHIBITS
EXHIBIT-P1-TRUE COPY OF THE ORDER DATED 16/07/2013 IN
APPEAL NO. 516.2012 OF THE TRIBUNAL FOR LOCAL SELF
GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.
