Kerala High Court
Devis vs Thrissur Corporation on 17 January, 2025
RSA NO. 432 OF 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 17TH DAY OF JANUARY 2025 / 27TH POUSHA, 1946
RSA NO. 432 OF 2023
AGAINST THE JUDGMENT DATED 31.01.2023 IN AS NO.17 OF 2020 OF
ADDITIONAL SUB COURT - I, THRISSUR
ARISING OUT OF THE JUDGMENT DATED 14.07.2015 IN OS NO.5450 OF 2013
OF III ADDITIONAL MUNSIFF COURT, THRISSUR
APPELLANTS/APPELLANTS/PLAINTIFFS:
1 DEVIS
AGED 66 YEARS
S/O CHAKKALAKKAL PAVU, CHUNGAM DESOM, ARANATTUKARA VILLAGE,
THRISSUR TALUK, PIN - 680618
2 FRANCIS
AGED 60 YEARS
S/O CHAKKALAKKAL PAVU, CHUNGAM DESOM, ARANATTUKARA VILLAGE,
THRISSUR TALUK, PIN - 680618
3 THOMAS
AGED 53 YEARS
S/O CHAKKALAKKAL PAVU, CHUNGAM DESOM, ARANATTUKARA VILLAGE,
THRISSUR TALUK, PIN - 680618
4 JHONSON
AGED 53 YEARS
S/O CHAKKALAKKAL PAVU, CHUNGAM DESOM, ARANATTUKARA VILLAGE,
THRISSUR TALUK, PIN - 680618
5 VINCENT
AGED 50 YEARS
S/O CHAKKALAKKAL PAVU, CHUNGAM DESOM, ARANATTUKARA VILLAGE,
THRISSUR TALUK, PIN - 680618
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6 ANNA
AGED 47 YEARS
W/O LATE ANTONY & D/O CHAKKALAKKAL PAVU, CHUNGAM DESOM,
ARANATTUKARA VILLAGE, THRISSUR TALUK, PIN - 680618
7 MERY (DIED)
AGED 87 YEARS
W/O CHAKKALAKKAL PAVU, CHUNGAM DESOM, ARANATTUKARA VILLAGE,
THRISSUR TALUK, PIN - 680618,
REPRESENTED BY LEGAL HEIRS - APPELLANTS 1 TO 6.
BY ADVS.
ARUN KUMAR.P
THIYYANNOOR RAMAKRISHNAN
AMBIKA RADHAKRISHNAN
KAVYA SURESH
RESPONDENT/RESPONDENT/DEFENDANT
THRISSUR CORPORATION
REPRESENTED BY SECRETARY, THRISSUR CORPORATION, THRISSUR,
PIN - 680001
BY ADV SANTHOSH P.PODUVAL
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
17.01.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
1. The Appeal is filed by the plaintiffs in the suit. Defendant is the
Thrissur Corporation. The suit was for a permanent prohibitory
injunction restraining the defendants from trespassing into the
plaint schedule properties, obstructing the business therein,
destroying the articles kept there from demolishing the
constructions made by the plaintiffs to strengthen the building.
2. The Trial Court dismissed the suit and on appeal filed by the
plaintiffs, the same was dismissed, confirming the judgment and
decree of the Trial court.
3. I heard the learned counsel for the appellants Sri.Arun Kumar.P
and the learned counsel for the respondent
Sri. Santhosh P.Poduval.
4. The learned counsel for the appellants contended that even
though the constructions were made in the plaint schedule
property without obtaining any permit from the defendant, the
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same is liable to be regularized. Though Application for
regularization was submitted it was not properly considered by the
defendant.
5. On the other hand, the Counsel for the defendant contended that
admittedly, the construction is an unauthorized one without
obtaining Permit from the defendant and the plaintiffs have not
obtained any order for regularization till date. There is no
Application for regularization pending before the defendant. The
application submitted by them is already rejected. There is nothing
to interfere into the impugned judgments.
6. The necessary facts for disposal of this appeal are that the plaint
schedule property in which a shop building was situated originally
belonged to the father of the plaintiffs 1 to 5 and the husband of
the 7th plaintiff, Sri.Pavu. On the death of Sri.Pavu, the plaint
schedule property devolved on the plaintiffs as per Will
No.165/2003. Thereafter, the plaint schedule property was
partitioned among the plaintiffs as per Ext.A1 Partition Deed and
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they are in separate possession and enjoyment of the plaint
schedule item Nos. 1 to 6 shop rooms. The house of the plaintiffs
and the staircase, well etc., to the plaint schedule shop rooms are
situated in that property. The defendants Corporation acquired half
of the plaint schedule property and hence the half portion of the
building was demolished. As per the plaint allegations, the
remaining half portion could not be maintained on account of its
old-age and dilapidated condition. On approaching the defendant,
the plaintiffs were told that there was no bar in making
constructions for the purpose of strengthening the building and
thus the plaintiffs made strengthening of the existing building.
There was no encroachment into the property acquired by the
defendant. But the officers of the defendant approached the
plaintiffs and demanded the demolition of the reconstructed
portion of the building within three days. Stating this cause of
action, the plaintiffs filed the suit for a permanent prohibitory
injunction.
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7. The defendant appeared and filed a written statement contending,
inter alia, that the suit is not maintainable in view of Section 563 of
the Kerala Municipality Act and in view of the alternate remedy
available to the plaintiffs under Section 509 of the Municipality Act
against the proceedings initiated under Sectio 406 of the Kerala
Municipality Act. The plaintiffs did not issue Notice to the defendant
as required under Section 544 of the Municipality Act. The suit is
not maintainable in view of the bar under Section 41(h) of the
Specific Relief Act. The defendant did not grant any permission
for reconstruction of the building. The plaintiffs demolished the old
construction and made new construction without obtaining any
building permit from the defendant. Though Ext.B1 Application for
regularization was submitted by the plaintiffs, the same was
rejected by Ext.B3.
8. The Trial Court found that the suit is not maintainable in view of
Section 563 of the Kerala Municipality Act and also in view of
Section 41(h) of the Specific Relief Act. On merits, the Trial Court
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as well as the First Appellate Court has found that the plaintiffs
made construction of a new building without obtaining a Permit
from the defendant - Municipality.
9. I do not find any ground or reason to interfere into the judgments
and decrees passed by the Trial Court as well as the First
Appellate Court as admittedly the plaintiffs made construction
without obtaining a Permit from the Municipality. Reliefs could not
be granted in the suit for the reason that Application for
regularization is pending. It is clear from Section 563 of the
Municipality Act that the suit is barred with respect to the subject
matter. Section 41(h) of the Specific Relief Act provides that when
there is an efficacious remedy available to the plaintiffs, the suit is
not maintainable.
10. The learned counsel for the appellants points out that Ext.B1
Application for regularization is not rejected by the Secretary of the
defendant and hence there is no proper rejection of Ext.B1
application for regularization. The defendant has admitted receipt
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of Ext.B1 Application for regularization. True, the defendant has a
case that construction is in violation of the Kerala Municipality
Building Rules and it could not be regularized. Ext.B3 is issued
rejecting Ext.B1 by the District Town planner, Thrissur to the
Secretary of the defendant. Ext.B1 is rejected not by the
defendant. Taking note of the said fact, I am of the view that the
appellants can either prosecute Ext.B1 or file a fresh Application
for regularization and in such a case, the defendant Corporation is
free to consider the same in accordance with the law. With this
above observation, the Regular Second Appeal is dismissed.
Sd/-
M.A.ABDUL HAKHIM
Shg xx JUDGE
