B. Abbas Haji and others v. State of Kerala and Kasaragod Municipality and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE** ## **WEDNESDAY, THE 26TH MARCH 2008 / 6TH CHAITHRA 1930** ## **WP(C).No. 20960 of 2006(T)** **-------------------------------------** **PETITIONERS:** - **--------------------** **1. B. ABBAS HAJI, KUNIYA, PERIYA VILLAGE AND POST, HOSDURG TALUK, KASARAGOD.** **2. C.H. ASYA IN -DO- -DO-.** **3. B.A. ZIYAD IN -DO- -DO-.** **4. B.A. WALEED IN -DO- -DO-.** **BY ADV. SRI.S.V.BALAKRISHNA IYER SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN PSI.HARISH R. MENON SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON** **RESPONDENTS:** - **----------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM.** **3. THE KASARAGOD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, KASARAGOD MUNICIPALITY, KASARAGOD.** **4. M. BALARAJ, S/O.M.B.K. CHANDRA, GUTTA TEMPLE ROAD, ADUKKATHA BAIL, KASARAGOD.** **BY ADV. SRI.P.RAVINDRAN - R4 SRI.HARIKRISHNAN RAVINDRAN SRI.V.M.KURIAN - R3 SRI.MATHEW B. KURIAN SRI.K.T.THOMAS BY GOVERNMENT PLEADER SRI.MOHAMMED ANZAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.20960/2006** ## **APPENDIX** ## **PETITIONERS EXHIBITS** **EXT.P1:- COPY OF THE SALE DEED DOC. NO.2382/93 OF SRO KASARAGOD IN FAVOUR OF PETITIONER NO. 1 DT. 30.9.1993.** **EXT.P2:- COPY OF THE SALE DEED DOC. NO.1544/92 OF SRO KASARAGOD IN FAVOUR OF VENDORS IN EXT.P1 SALE DEED. DT. 6.5.1992.** **EXT.P3:- COPY OF THE DECREE IN OS. NO.242/1977, PASSED BY THE MUNSIFF COURT, KASARAGOD. DT. 31.8.1981.** **EXT.P4(a):- COPY OF THE ADVOCATE COMMISSIONER'S REPORT IN OS. 242/1977 ON THE FILE OF THE MUNSIFF COURT, KASARAGOD DT. 6.7.1978.** **EXT.P4(b):- COPY OF THE PLAN SUBMTITED BY THE ADVOCATE COMMISSIONER WITH HIS REPORT IN OS. 242/1977, M.C., KASARAGOD DT. 6.7.1978.** **EXT.P5:- COPY OF THE FILED SKETHC IN RESPECT OF FIELD NO.99 OF KASARAGOD TALUK.** **EXT.P6:- COPY OF THE CONSENT LETTER EXECUTED BY THE IST PETITIONER AS POWER OF ATTORNEY OF THE VENDORS IN EXT.P1 SLAE DEED, PERMITTING THE MUNICIPALITY TO USE THE LAND MEASURING 1.90 METRES FOR WATER CHANNEL DT. 23.11.1992.** **EXT.P7:- COPY OF THE SITE PLAN SUBMITTED BY THE PETITIONERS ALONG WITH THE APPLICATION FOR BUILDING PERMIT FOR THE PROPOSED CONSTRUCTION DT. 27.2.1996.** **EXT.P8:- COPY OF THE FORM OF SANCTION FOR BUILDING PERMIT ISSUED TO THE PETITIONERS BY THE 3RD RESPONDENT DT. 4.5.96.** **EXT.P9:- COPY OF THE BUILDING PERMIT NO.BA 12/96-97 ISSUED TO THE PETITIONERS BY THE 3RD RESPONDENT. DT. 4.5.96.** **EXT.P10:- COPY OF THE REVISED PLAN APPROVED BY THE 3RD RESPONDENT DT. 19.7.97.** **EXT.P11:- COPY OF THE ORDER APPROVING THE REVISED PLAN PASSED BY THE 3RD RESPONDENT DT. 19.7.97.** **EXT.P12:- COPY OF THE ORDER IN IA. NO.806/97 IN OP. NO.136/1997 PASSED BY THE MUNSIFF COURT, KASARAGOD DT. 11.4.97.** **EXT.P13:- COPY OF THE JUDGMENT IN OS. NO.136/97 PASSED BY THE MUNSIFF COURT, KASARAGOD.** **EXT.P14(a):- COPY OF THE INTERIM REPORT FILED BY THE ADVOCATE COMMISSIONER IN SO. 136/97 BEFORE THE MUNSIFF COURT, KASARAGOD** ## **WP.(C) NO.20960/2006** **EXT.P14(b):- COPY OF THE PLAN SUBMTITED BY THE ADVOCATE COMMISSIONER WITH IS INTERIM REPORT IN OS. 136/97 , M.C., KASARAGOD DT. 7.4.97.** **EXT.P14(c):- COPY OF THE FINAL REPORT FILED BY THE ADVOCATE COMMISSIONER IN OS. 136/97 BEFORE THEMUNSIFF COURT, KASARAGOD.** **EXT.P15:- COPY OF THE PROCEEDINGS OF THE APPEAL COMMITTEE OF THE KASARAGOD MUNICIPALITY DT. 31.10.97.** **EXT.P16:- COPY OF THE GOVERNMENT ORDER NO.GO(RT) 2780/99 LAD. DT. 23.9.99.** **EXT.P17:- COPY OF THE GOVERNMENT ORDER NO.GO(RT) 1063/03/LSGD.** **ET.P18:- COPY OF THE GOVERNMENT ORDER NO.GO(RT) 4458/03/LSGD DT. 15.12.03.** **EXT.P19:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC 40614/03.** **EXT.P20:- COPY OF THE NOTICE BEARING NO.BA 12/96-97 ISSUED TO THE PETITIONER BY THE KASARAGOD MUNICIPALITY.** **EXT.P.21:- COPY OF THE REPLY SUBMITTED BY THE IST PETITIONERS BEFORE THE KASARAGOD MUNICIPALITY DT. 27.4.06.** **EXT.P22:- COPY OF THE GENERAL POWER OF ATTORNEY EXECUTED IN FAVOUR OF APPLICANT NO. DT. 10.11.89.** **EXT.P23:- COPY OF THE GENERAL POWER OF ATTORNEY EXECUTED IN FAVOUR OF THE IST APPLICANT.** **EXT.P24:- COPY OF THE CONSENT LETTER EXECUTED BY THE IST APPLICANT** ## **RESPONDENT'S EXHIBITS** **EXT.R4(a):- COPY OF THE TELEGRAM .** **EXT.R4(b):- COPY OF THE ORDER DT. 15.12.03.** _**/**_ **TRUE COPY/** ## **P.S. TO JUDGE** **tss** ## **PIUS C. KURIAKOSE, J.** ----------------------------------------------W.P.(C)No.20960 OF 2006 ----------------------------------------------Dated this the 26th day of March, 2008 ## **J U D G M E N T** The first petitioner, who is the owner of 20 cents of land in Sy.No.99/2C of Kasaragod Village by virtue of Ext.P1 sale document No.2382 of 1993, has filed this writ petition along with his wife second petitioner and children petitioners 3 and 4 challenging Ext.P15 proceedings dated 31.10.1997 of the 3[rd] respondent Kasaragod Municipality deciding to revoke a building permit which had been issued to the first petitioner and also Ext.P17 order dated 24.3.2003 of the Government endorsing the stand of the Municipality in Ext.P15 and also Ext.P20 notice dated 14.2.2006 issued by the Municipality to the petitioners demanding implementation of Ext.P17 order and directing demolition of a portion of the building constructed by the petitioners. The State of Kerala is the first respondent, Chief Town Planner is the 2[nd] respondent and one Sri.M.Balaraj. Is the 4[th] respondent. Ext.P1, as already stated, is a copy of sale deed No. 2382/1993 by which the first petitioner came to have WP(C)N0.20960/06 -2- ownership over 20 cents of land. Ext.P2 is a copy of document No.1544/1002 which is the document of tittle under which the first petitioner's vendors were having title and the executants in Ext.P2 trace their title to the decree in O.S. No.242/1977 on the files of the Munsiff court Kasaragod. Ext.P3 is a copy of the above decree which has attained finality by decree of this court in second appeal. The petitioners submit that the property purchased by the first petitioner under Ext.P1 is the same as decree A schedule property in Ext.P3. The petitioners point out that the 4[th] respondent is the 3[rd] judgment debtor in Ext.P3 and that the judgment debtors 1 and 2 in Ext.P3 were his mother and brother respectively and that Ext.P3 is the result of highly contentious suit which was finally disposed of in favour of the plaintiffs accepting their contention that the defendants are having leasehold rights only over 35 cents exclusive of the suit property. The petitioners submit that after the disposal of the suit (O.S.242/1977) the 35 cents of the property, which was found to be covered by lease deed in favour of the defendants, was partitioned amongst the 3[rd] respondent, his brother and WP(C)N0.20960/06 -3- sister and a substantial portion of the same was alloted in partition to the 3[rd] respondent, who it is alleged was consistently harassing the decree holders and their assignees like the first petitioner in their peaceful enjoyment of the property delivered in execution of Ext.P3 decree. They submit that it was on account of the various actions taken by the 3[rd] respondent to thwart putting up construction upon Ext.P1 property that the first petitioner's vendors became compelled to sell the property to the first petitioner though the first petitioner was not aware of this at the time when he purchased the property. Ext.P4 (a) and Ext.P4 (b) produced by the petitioners are copies of the reports submitted by the Commissioner, who had been deputed to demarcate the property, in O.S. No. 242/1977 as well as the plan drawn in accordance with the Survey measurements. The petitioners claim that the property covered by Ext.P2 conforms exactly to the side measurements shown in Ext.P4(b). It is submitted that Ext.P5 is a copy of the Field Sketch of Field No. 99 of Kasaragod Taluk and that the first petitioner's property having 20 cents shown in Ext.P5 is the same as the property WP(C)N0.20960/06 -4- shown in red colour in Ext.P4(b). Referring to Ext.P4(b) and also to the boundaries of the red shaded property shown therein, the petitioners point out that though the western boundary line in RS 99/2C3A has a length of 25 meters from the northern boundary towards south up to which the plaintiffs could have claimed title, there is a physical boundary in the form of a water channel demarcated as “C” (shaded in blue) running in the east-west direction which reduces the length of the western boundary line marginally and that length of 25 meters shown in Ext.P4 (b) and Ext.P5 Survey Field Plan correspond to 123 links and the length of the western boundary line as shown in Ext.P2 title deed is only 115 links and the difference is an indication of the fact that the property conveyed, is the property bounded by the thodu on the south. In short, the claim is that the property, which was taken delivery of in O.S. No.242/1977, was an extent of 20 cents in R.S. No. 99/2C 3A (red shaded portion in Ext.P4 plan) and the same is bounded on the south by a water channel (blue shaded in Ext.P4 plan) running in the east-west direction flowing in the very same survey sub division, and in fact leaving a narrow strip WP(C)N0.20960/06 -5- of land in the same survey sub division to the south of the water channel to its entire length from east to west shown as merged with the southern property in R.S. No.99/2C 3B. 2. The petitioners submit that while so the first petitioner's vendors were approached by the 3[rd] respondent Municipality to surrender a narrow strip of land having a width of 1.90 metres along the southern margin of their property measuring 20 cents and along the northern periphery of the channel so as to widen the water channel which formed the southern boundary of their property as aforesaid. The first petitioner 's vendors were threatened that if they do not surrender the land, required extent of land will be acquired under the provisions for compulsory Acquisition. They agreed to permit the Municipality to use the required extent for widening the existing water channel on condition that the entire width of the water channel inclusive of the width of the water channel which originally existed will be treated by the Municipality as open space for purposes of putting up further constructions in the remaining property to the north. The petitioners, therefore, claim that the WP(C)N0.20960/06 -6- Municipality's demand for surrender was declined and the proposal of the first petitioner's vendors to grant permission to the Municipality subject to the above conditions was accepted. The petitioners submit that their predecessors in interest became obliged to agree for such a course since if the title was to pass to the Municipality by land acquisition proceedings, the width occupied by the original channel (i.e.0.50 metres) and the additional width sought (1.90 metres) along with the northern side of their property, development of the remaining area would not become viable at their hands since after leaving the statutory open space, there will be hardly no space for construction. Accordingly, the first petitioner's predecessors permitted the Municipality to use an area having width of 2.40 metres inclusive of the width of the existing channel along the entire southern side measuring a length of 43 meters and also along the eastern side. Ext.P6 dated 23.11.1992 is a letter issued by the first petitioner in his capacity as the power of attorney holders of his vendors under Ext.P1. Ext.P1 document was executed a little after Ext.P6 and it is claimed that under Ext.P1 the entire area of WP(C)N0.20960/06 -7- 20 cents including the area permitted to be used by the Municipality for the widened water channel as per Ext.P6 was conveyed to the first petitioner. It is contended that by virtue of Ext.P1, the first petitioner became entitled to the benefit under Ext.P6 to compel the Municipality to treat the width of 2.40 metres occupied by the widened water channel as open space in the rear side of his property for the purpose of building construction. After Ext.P1, the petitioners proposed to put up a double storied commercial building on their property having 13 rooms in the ground floor facing the National Highway on the north. Ext.P7 is a copy of the site plan dated 27.2.1996 submitted in that regard. In Ext.P7 plan open space on the rear side of the building was shown consistent with the stand of the petitioners that the entire width of 2.40 metres occupied by the water channel belongs to the petitioners and that his land in R.S. 99/2C3 lies even beyond the south of the southern ridge of the widened water channel. Ext.P7 and the building permit application was submitted before the Municipality through the Kasaragod Development Authority. After perusing the WP(C)N0.20960/06 -8- application and the site plan and on physical verification, the Kasaragod Development Authority sanctioned the development permit. Thereafter, the matter was placed before the Municipality. The Municipality on finding that the proposed construction would abut the National Highway, forwarded the building plans/site plans to the National Highway Authority for their remarks. The Executive Engineer, NH Division, Kannur, after perusing the plan, building plan and site plans and after physical verification at site, issued no objection certificate for the construction as per his letter dated 2.5.1996. Thereafter, the Municipality being satisfied with the building plan in terms of the building Rules 1984 granted the building permit, noticing that the proposed building is a commercial building for which the rear set back need have an open space of only 1.5 meters as per Rule 35 (3) and that there is open space of 0.60 metres and further width of 2.4 metres occupied by the water channel covered by concrete slabs and that in terms of Ext.P6 accepted by the Municipality, there was clear compliance with the statutory provision. Ext.P8 is a copy of the form of Sanction for building WP(C)N0.20960/06 -9- permit dated 4.5.1996 and Ext.P9 is a copy of the building permit issued pursuant to Ext.P8 sanction. In Exts.P8 and P9 sufficient conditions were incorporated so as to ensure that the flow of dirt water through the drains will not be obstructed and the Municipality will always be able to keep clean and maintain the drain for the disposal of dirt water as and when required. Before the commencement of the constructions a revised plan without change of the external alignment of the proposed building was submitted along with the application and the revised plan was approved by the Municipality. Ext.P10 is a copy of the revised plan and Ext.P11 is a copy of the order dated 19.7.1997 of the Municipality approving the revised plan. 3. The petitioners submit that when the petitioners commenced digging of pits for putting up concrete walls on the basis of Ext.P9 original permit, the 4[th] respondent attempted to block the construction by filing O.S. No.136/1997 on the files of the Munsifff Court Kasaragod. The contention raised in the suit was that the building proposed by the petitioners did not have sufficient rear set back and that the statutory requirement is that WP(C)N0.20960/06 -10- there must be three meters open space in the rear side. It was also alleged that pit dug for erecting 13 pillars along the southern side of the property is almost touching the northern wall of the water channel and therefore, the construction will be in violation of the Kerala Building Rules. Along with the suit an interim injunction application was also filed seeking to restrain the first petitioner from putting up the construction. The learned Munisff dismissed the I.A. Vide Ext.P12 dated 11.4.1997 inter alia it is held in Ext.P5 that there is enough evidence to show that the building is constructed strictly in terms of form of sanction and permit marked as Exts.P8 and P9. C.M.A. No. 14/1997 preferred against the order of the 4[th] respondent was dismissed on 13.6.1997 and the said order has become final. Ultimately when Ext.P10 revised plan was approved by Ext.P11, the suit itself was got dismissed as withdrawn by Ext.P13 judgment. After Ext.P13, the 4th respondent started persuing his remedies under the Municipalities Act 1994 leading to the present writ petition. The petitioners point out that the 4th respondent has no case any where when that extra width of land utilized by the 3[rd] WP(C)N0.20960/06 -11- respondent Municipality for widening the water channel was taken from his holding, or that it was taken from the southern side of the original water channel, which had roughly a width of 0.50 meters. In this context, the petitioners rely on the unobjected Commission reports of the Advocate Commissioner and plan in O.S. No. 136/1997, which are marked as Ext.P14 (a) and Ext.P14 (b) respectively. Ext.P14(c) is the final report of the Advocate Commissioner. It is submitted on the basis of Ext.P14 (a), (b) and (c) that extent of the property in the possession of the first petitioner, exclusive of the width of the widened water channel is only 17.5 cents. The length of the western boundary line (exclusive of water channel) is indicated as 19 meters corresponding to 95 links. The length of the eastern boundary line is indicated as 9.16 meters corresponding to links. On the above basis, it is contended that there is no room for doubt that it was on the petitioners' property that the Municipality was permitted to possess the required width of land for widening the water channel. The writ petition goes on to describe details of other materials including admissions which would show that it is WP(C)N0.20960/06 -12- the petitioners' property which is being used by the Municipality as the widened water channel. Even before the passing of the adverse injunction order, the 4[th] respondent filed a petition before the 3[rd] respondent Municipality on 29.3.1997 complaining that Ext.P9 permit is irregular and is obtained by misleading the Municipality about the correct lie of the southern boundary of the petitioner's property. Though stop memo was issued agaisnt the petitioners, later after inspection and fixation of the boundaries of the property with reference to the title document, sketch, etc. it was found that there was no substance in the complaint and the petitioners were permitted to continue the construction and stop memo was withdrawn. Aggrieved by the rejection of the complaint, the 4[th] respondent preferred appeal before the Municipal Council and he rushed to this court for early disposal of the appeal. Though the petitioners were made parties in the writ petition, they were got deleted and this court directed the Municipality to dispose of the appeal within one month. The appeal committee of the Municipality, which consisted of three members namely, K.Sundar Rao, K.Ravi and Koppal Abdulla, WP(C)N0.20960/06 -13- allowed the appeal vide Ext.P15 by majority. The petitioners point out that the reason which weighed the majority is that it was the first petitioner not having title over the canal (having the width of 3 metres) through which the water channel passes and therefore, the same cannot be treated as open space and the open space left is only 0.60 metres. The other reason was the compound wall having a height of 2 ½ feet built by the 4[th] respondent is exactly along the southern boundary of the channel and that the plan submitted indicating the presence of some land belonging to petitioner No. 1 measuring 1 to 1.53 metres in width, left as open space to the further south of the channel is irregular. The petitioners complain that all other relevant materials including Ext.P6 consent letter were ignored by the appeal committee. The petitioners took up the matter in revision before the Government. The Government, after hearing both sides, having obtained the report of the Chief Town Planner and on satisfying that the rear open space which is available ranges between three metres to 3.15 metres as against the legal requirement of 1.5. metres, allowed the revision vide Ext.P16 WP(C)N0.20960/06 -14- order dated 23.9.1999. These two points found favour with the learned judgment who considered the original petition, who accordingly set aside Ext.P16 and remitted the matter to the Government for fresh consideration. After remand, the Government passed Ext.P17 order dismissing the revision filed by the petitioners and confirming the appellate order Ext.P15 of the Municipality. 4. The petitioners submit that Ext.P17 order of the Government is vitiated by errors apparent and was passed without considering relevant aspects and ignoring positions which were evident and admitted. Against Ext.P17, the petitioner preferred a review petition before the Government. The Government allowed the review petition by Ext.P18 order dated 15.12.2003 and permitted the petitioners to complete the construction of the building after setting aside Ext.P17 order. Under Ext.P18 the Government has taken note of the Taluk Surveyor's report that the width occupied by the widened water channel is held by the first petitioner in his own name and that the same has not been surrendered to the Municipality by virtue WP(C)N0.20960/06 -15- of any document. The Government also noticed that the Municipality does not have a case that the title over the widened channel vest in it and accordingly found that more than three metres space is available as rear open space as against the legal requirement to leave 1.50 metres. Against Ext.P18 the 4[th] respondent approached this court again by filing W.P.(C) No.40614/2003. The only ground of attack against Ext.P18 was that the Government exercising powers under Section 509 of the Municipalities Act as a statutory authority, did not have power for review since such a power had not been conferred on the Government under the statute. This court accordingly quashed Ext.P18 by Ext.P19 judgment. Copy of Ext.P19 is obtained by the petitioners only on 1.8.2006. In the meanwhile, the Municipality has issued Ext.P20 notice asking the petitioners to demolish the portion of the construction already made so as to have open width of 1.50 metres to the north of the width occupied by the water channel. In view of Ext.P19 judgment, Ext.P17 order has become operative and partial demolition of the building is mandatory. To Ext.P20 notice the petitioners have WP(C)N0.20960/06 -16- submitted Ext.P21 reply. Ext.P20, the petitioners allege has been issued at the instance of the 4[th] respondent who was successful party in Ext.P19 judgment . Since Ext.P18 order of review is no longer in force, in view of Ext.P19, life is breathed into Ext.P17 order and it has become compulsive for the petitioners to challenge Ext.P19. The vigor of Ext.P17 order has resurfaced only on 3.8.2005 when Ext.P19 judgment was rendered and the petitioners claim that the present writ petition is filed within a reasonable time after obtaining copy of Ext.P19 judgment. The writ petition contains averments explaining the apparent delay on the part of the petitioners in filing the writ petition challenging Ext.P17 order. Various grounds have been raised by the writ petitioners challenging Ext.P17 order and pray for the following reliefs in the writ petition. i). call for the records relating to Ext.P16 and quash Ext.P15 proceedings, Ext.P17 order and Ext.P 20 notice by a writ of certiorari. ii). Declare that the petitioners are entitled to build in terms of Ext.P10 revised plan and Ext.P11 permit and direct WP(C)N0.20960/06 **==> picture [21 x 9] intentionally omitted <==** respondent No. 3 to renew the said permit enabling the petitioners to complete the constructions. iii). Declare that Ext.P10 revised plan and Ext.P11 revised permit are valid and direct respondents 1 to 3 not to entertain any further complaint from the 4[th] respondent and extend the aid of the 3[rd] respondent to complete the construction. iv). In the event of the court finding that the Ext.P10 revised plan and Ext.P11 revised permit are not legal, direct the 3[rd] respondent to put the petitioners back in possession of the entire width of the water channel in R.S. No. 99/2C3A having width of 2.40 metres occupied by the water channel. 5. The 3[rd] respondent Municipality has filed a counter affidavit. It is contended therein that Exts.P10 and P11 building permits were issued to the petitioners for construction of a two storied commercial building in the property purchased by the first petitioner as per Ext.P1 sale deed. The extent conveyed as per Ext.P1 sale deed is 20 cents with its eastern and southern boundary as thodu in the same Sy.No.99/2C3. The first petitioner who was holding power of attorney from his vendors WP(C)N0.20960/06 -18- Sri.T.K.Ibrahim and others executed Ext.P6 document dated 23.11.1992 granting consent to the Municipality to construct concrete drain (for disposal of waste water) for a length of 43 M along the southern side and for a length of 50 M along the eastern side of the property to a width of 2.4 M. Ext.P6 consent was given subject to the condition that 2.4 metres width of land shall be considered as open space for the construction of any building in future on the property covered by Ext.P1. The further condition was that the owner or successor in interest will not obstruct the Municipality from maintaining the drainage on the condition aforementioned. While granting the building permit, the land covered by the drain was treated as land belonging to the petitioners taking into consideration availability of the said land also. The position of the Municipality was brought to the notice of this court through the counter affidavit filed by the Municipality in O.P. No. 25790/1999 . The 4[th] respondent initiated series of litigation challenging the building permits and filed O.S. No. 136/1997 before the Munisff Court, Kasaragod, which was dismissed as withdrawn. Thereafter, the 4th WP(C)N0.20960/06 -19- respondent persued his statutory remedies which resulted in Ext.P17 order which directed the Municipality to allow the completion of construction leaving clear set back of 1.5 M excluding the drain of 2.4M width. Against Ext.P17 the petitioners filed a review petition before the Government and the Government by Ext.P18 order cancelled Ext.P17. It is observed in ext.P18 that the Taluk Surveyor has reported that the drain forms part of the property purchased by the 1[st] petitioner and there is already three mtrs. set back on the rear side of the building while what is required is 1.5 mtrs. Ext.P19 judgment resulted in revival of Ext.P17 order and the Municipality issued Ext.P20 notice. 6. The 4[th] respondent has filed a counter affidavit on 15.8.2006. It is contended therein that the writ petition is not maintainable. The appellate committee of the Municipal Council allowed the appeal against the order of the Secretary granting permission to effect construction in the commercial building and the said order was confirmed by the Government by Ext.P17 order. The first respondent taking advantage of his clout with WP(C)N0.20960/06 -20- the then Minister for Local Administration attempted to set at naught the Government order through review petition. The 4th respondent was informed that hearing is being conducted by the Minister on 4.11.2003 on a petition filed by the petitioners. Ext.R4(a) is a copy of the telegram. It was in order to ensure that the orders sought for by the first petitioner are obtained by him that the 4[th] respondent was intimated only two days before hearing. The 4[th] respondent sought for adjournment . The request was refused and the Minister passed an order allowing the petitioner's review and annulling Ext.P17 order. Ext.R4(b) (Ext.P18) is a copy of the said order. Since Ext.R4(b) was issued without any authority of law and with mala fide intention favouring the first petitioner, the 4[th] respondent challenged the same before this court and this court allowed the writ petition on Ext.P19 judgment. Ext.P19 was delivered as early in 3.8.2005. In view of Ext.P19 judgment, Ext.P17 has achieved finality. It is more than one year after the judgment of this court that the present writ petition is filed in the guise of challenging a notice issued by the Municipality in compliance with Ext.P17 order. WP(C)N0.20960/06 -21- Ext.P20 is a notice consequent to Ext.P17 and the petitioners are attempting to indirectly challenge Ext.P18 judgment of this court, which they are not entitled to do. The coutner affidavit goes on to contend that even if it is assumed that the petitioners are entitled to challenge Ext.P17, that challenge is extremely belated. Ext.P17 passed in 2003 is challenged after 3 years and 5 months. No explanation has been attempted to be given by the petitioners for the inordinate delay in challenging Ext.P17. The averment that copy of the judgment of this court in W.P(c) No.40614/2003 was received only on 1.8.2006 is a false one. It is contended that if copy application was made in time, copy would have been received within three days from that date and it is pointed out that copy of the judgment was received by the 4[th] respondent counsel on 9.8.2004. The counter affidavit denies the averments in para 2,3 and 4, 5 and 6 and contend that there was no kind of understanding between the Municipality and the first petitioner as averred by the petitioners. It would be seen from the Municipal records as well as the village records and also from the deed produced by the petitioners that southern WP(C)N0.20960/06 -22- boundary of the petitioners' property and the northern boundary of the 4[th] respondent property is separated by the Municipal drainage canal. The case that there was an understanding arrived at between him and the Municipality is false and before the Government the Municipality's stand was that there was no such understanding. Ext.P16 consent letter is produced by the petitioners for the purpose of the present writ petition made with mala fide intention of misleading the Government as well as this court. The area presently occupied by the drainage canal has been in the possession and ownership of the Kasaragod Municipality and the petitioners had at no point of time ownership, possession or control over that area. Building rules stipulates that 1.5 meters should be left as open space in the rear yard of the plot in which building is already constructed. The sketch produced by the petitioner before the Municipality contains totally false information. In the sketch produced by the petitioners before the Municipality the 4[th] respondent's compound wall as well as the portion of his property was shown as part of his plot and thus obtained permission from the WP(C)N0.20960/06 -23- Municipality. On coming to know about the mischief played by the petitioners, the 4[th] respondent became constrained to challenge those proceedings before the various authorities. The counter affidavit points out that even the revised sketch submitted by the petitioners contained false information. It was on the basis of such misrepresentation that the revised sketch/ plan could be got approved. The Municipal council rightly cancelled the same. Neither the Commissioner's report no interim order in O.S.136/99 is relevant for deciding the issue raised in the writ petition. Ext.P17 order has attained finality. Ext.P17 order was set at naught by the Government by Ext.R4(b) order. Under Ext.P19 the petitioner was not given permission by this court to challenge Ext.P17, therefore the petitioners are estopped from challenging Ext.P17 order. At any rate Ext.P17 order of the Government does not warrant any interference under Article 226 of the Constitution. The jurisdiction of this court under Article 226 confined to a judicial review only. It is well settled by the decisions of this court that the judicial review is directed at the decision making process and not at the decision WP(C)N0.20960/06 -24- itself. The Municipal council and the Government had considered the facts in detail and on the basis of the materials available have come to their decision. This court will not be justified in interfering in exercise of the very narrow jurisdiction under Article 226. 7. A detailed reply affidavit has been filed by the petitioners, wherein the contentions raised in the counter affidavit are sought to be refuted. Explanation is sought to be offered for the delay which had been occasioned in the matter of challenging Ext.P17 order. It is submitted that petitioners wertr prosecuting the matter throughout. Ext.P19 judgment of this court was rendered on 3.8.2005. the inland letter which was sent by post informing the first petitioner about the disposal of the writ petition was not received by him. On 29.8.2005 the first petitioner had to go to United Arab Emirates in connection with his business and returned to India only on 10.9.2005. Thereafter, he had gone to Bombay frequently in connection with his business. Again on 7.3.2006 he had to go to United Arab Emirates and returned to India only on 1.3.2006. Since the first WP(C)N0.20960/06 -25- petitioner was not in Kerala for quite some time continuously, he was not able to contact his counsel at Ernakulam and enquire about the progress of the case. Ext.P20 notice dated 14.2.2006 was served on the first petitioner only on the eve of his departure to UAE on 7.3.2006. It was only then that he contacted the counsel. At that time he was told that the writ petition had been disposed of. He was also informed that certified copy of Ext.P19 judgment has been applied for and that he would be intimated once it is received. In the meanwhile, Ext.P21 reply to Ext.P20 was sent through advocate at Kasaragod. Since letter intimating disposal of the writ petition had not evoked any response from the first petitioner ( the first petitioner having not received the same), the certified copy was obtained only after the reopening of the court in May 2006 by submitting necessary stamp papers. It is submitted that by the filing of the present writ petition no right of the 4[th] respondent is adversely affected. The 4[th] respondent was impleaded only because he had filed a petition which resulted in Ext.P19. The 4[th] respondent is a busybody who is wreaking vengeance on the WP(C)N0.20960/06 -26- petitioner since he was worsted in the civil suit filed by the petitioner's predecessors in interest. Lakhs of rupees have been invested for the construction and the delay which is already explained has prejudiced the first petitioner's right only. Independent of the adverse effects of Ext.P17 order, the first petitioner is having independent cause of action against Ext.P20 which directs demolition which is not warranted even by the terms of Ext.P17. Thus the present writ petition filed within a reasonable time after filing Ext.P21 reply is perfectly maintainable. Ext.P20 goes beyond Ext.P17 which only says that the first petitioner should leave extra width for further construction. The present writ petition challenges not only Ext.P17 but also Ext.P20. The contention that the first petitioner is indirectly trying to challenge Ext.P19 is incorrect. Ext.P19 only nullifies the order passed by the Government reviewing the earlier order of the Government. Ext.P19 does not take away the petitioner's right in law to challenge and get rid of Ext.P17 which is vitiated for a number of reasons. It is then submitted that review petition was filed against Ext.P17 on legal advice. The WP(C)N0.20960/06 -27- Governments found that there was error apparent on the face of Ext.P17 and reviewed ext.P17 by passing Ext.P18. This court set aside Ext.P18 order holding that the Government had no power to review its order Ext.P17. This court did not consider the validity or otherwise of Ext.P17 on merits. Till Ext.P19 judgment was delivered, Since Ext.P18 order remained valid and operative and therefore the necessity and occasion to challenge Ext.P17 order arose only after Ext.P19 and therefore, the petitioner does not have to explain the delay from the date of Ext.P17. It is submitted that the case of the 4[th] respondent that there has been no arrangement or understanding between the petitioner and the Municipality is not based on any record. The 4[th] respondent had attempted to illegally grab the property now belonging to the first petitioner. He is trying to take out his ire on the first petitioner who is a innocent purchaser of the property which he had unsuccessfully attempted to grab and failed. There is absolutely no material to support the case of the 4th respondent that his northern property and the southern property of the first petitioner are separated by the Municipal drainage canal. Ext.P6 WP(C)N0.20960/06 -28- will clearly establish that the first petitioner the purchaser in interest had permitted the Municipality to use a strip of land belonging to them having a width of 2.40 metres. Ext.P6 consent letter was executed by the first petitioner's predecessor in his capacity as the power of attorney holder of the persons who later executed Ext.P1 in favour of the first petitioner. In fact all these contentions had been raised by the 4[th] respondent in W.P.(C) No.40614/2003 and this court rejected all these contentions and confined the 4[th] respondent's challenge to one of jurisdiction of the Government to pass Ext.P18 order. The 4[th] respondent is not entitled now to resurrect those contentions and he is barred from doing so by the principle of transit in rem judicatum. The allegation that area now occupied by the drainage canal has been in the possession and ownership of the Municipality is without any basis. The further allegation hat the first petitioner attempted to dig up the property belonging to the 4[th] respondent etc. are false and those allegation were found to be without any basis by the Civil Court. The 4[th] respondent cannot turn around and say that the reports submitted by the WP(C)N0.20960/06 -29- Commissioner and that suit filed by him cannot be looked into in this proceeding. Ext.P18 order was set aside on the only reason that the Government need not have power to review its own order. This court never examined the legality or correctness of Ext.P17. The challenge against Ext.P17 order is not hit by the principles of resjudicata. 8. After the arguments began, the petitioner filed I.A.No.2493/2007 seeking admittance of additional documents. Ext.P22 is a copy of the general Power of Attorney dated 10.11.1989. The executant is said to be the grand father's brother 's son of the first petitioner. It is claimed on the basis of Ext.P22 that since 1989 the first petitioner has been the power of Attorney holder. Ext.P23 dated 9.8.1991 is a copy of the another power of attorney dated 9.8.1991 executed in favour of the first petitioner by assignors 1 and 2 in Ext.P1. The petitioner claims that Ext.P6 consent letter was executed by him on the strength of Ext.P23. Ext.P24 is another document produced by the petitioner. It is a copy of the consent letter dated 16.8.1993 executed by the first petitioner in favour of the Kasaragod WP(C)N0.20960/06 -30- Municipality. It is submitted that after Ext.P1 sale deed was executed, the Municipality insisted that the first petitioner shall execute a separate consent letter in his own name in view of the fact that only Ext.P1 the widening of the water channel had not been carried out. Pursuant to that request Ext.P24 was executed. 9. As directed by me, the learned Standing counsel for the Municipality Sri.V.M.Kurian has made available for my perusal file kept by the Municipality as regards the building permit applications submitted by the petitioners and also the same in respect of canal widening including these as regards the arrangements between the first petitioner and the Municipality in these matter. 10. Very elaborate submissions were addressed before me by the learned counsel appearing for the parties. Sri.S.V.Balakrishna Iyer, the learned Senior counsel for the petitioners, Sri.P.Ravindran, for the party respondents and Sri.V.M.Kurian, the learned Standing Counsel for the Municipality. 11. My attention was drawn by Sri.Balakrishnan Iyer to the WP(C)N0.20960/06 -31- various statutory provisions such as Rule 35 (c) of the Kerala Building Rules 1994 and Rule 288 and Rule 56 (2) of the Kerala Municipality Building Rules 1999. The learned counsel would draw my attention to the various documents placed on record and would fortify his submissions on the authority by various judicial precedents such as the Judgment of the Supreme court in **Motilal Padampat Sugar Mills Co. v. State of U.P. And others ( AIR 1979 SC. 621), Govindan Chengalath v. Cochin Shipyard Ltd. (1983 K.L.T. 1083), Union of India v. Godfrey Philips India Ltd. ( AIR 1986 S.C. 806) , Union of India and others v. Godfrey Philips Ltd. ( AIR 1991 S.C 14) Dr.Ashok Kumar v. State of U.P. And another ( 1998) 2 S.C.C. 502),. Sharma Transport av. Government of A.P. & Ors. ( 2002) 2 S.C.C.188, B.L.Sreedhar & Ors. v. K.M.Munireddy ( dead) & Ors ( 2003) 2 S.C.C. 355) Surendra Prasad v. Oil & Natural Gas Commission ( AIR 1987 Cal.1), Adinarayan Naik & Ors v. State of Orissa & Ors ( AIR 1987 Orissa 115) M/s. Intrans Systems Pvt. Ltd. v. State of Kerala & others ( AIR 1996 Kerala 161).** Those WP(C)N0.20960/06 -32- decisions were relied on by the learned counsel in support of the arguments which he advanced to show that principles by estoppl by representation applied in this case and the Municipality and the Government are not entitled to turn back now and say that the strip of land permitted to be used cannot be treated as open space. The learned Senior counsel submitted that the ground floor of the building was completed on 18.7.1997 and the first floor was completed on 3.5.1999 expending about Rs.20 Lakhs. The learned counsel also submitted that even oral representations coupled with acting to one's detriment/changing position by the representee is sufficient to attract the equitable doctrine. Relying on the judgment in **John v. Thaikkad Panchayat ( 1990) 2 KLT 721)** the learned Senior counsel submitted that the majority members of the Municipal committee in Ext.P15 proceedings as also the Government in Ext.P17 order were labouring under a misapprehension that there was a claim of surrender That is why it is stated in those order that no evidence of surrender is produced by the petitioners. The clear case was that there was no surrender and that there was only a WP(C)N0.20960/06 -33- permissive user. This is the consistent case of the petitioners. If a surrender is to be made, it should be in accordance with the Rules framed by the Municipality under Section 214 of the Kerala Municipality Act. Otherwise, the so called surrender will not operate as surrender. Section 207 of the Kerala Municipality Act makes it clear that the the water channel which passes through private property will not vest with the Municipality. 12. The learned counsel submitted that mere delay will not debar the court from exercising powers to do away with an illegality or to undo an injustice which is patent on the face of the record. The counsel relied on the decision in **Moni Mathai & Ors. V Federal Bank Ltd. ( 2003 (1) KLJ 406 para 7) and Hindustan Petroleum Corporation v. Dolly Das ( 1994) 4 SCC 450** in this context. The counsel submitted that respondents 1 to 3 in the writ petition do not challenge the maintainability of the writ petition on the ground of delay. The delay is highlighted only by the 4[th] respondent. The Municipality has held out by its counter affidavit that there was only permissive user coupled with the condition as held out by the WP(C)N0.20960/06 -34- petitioners. The above stand is maintained by the Municipality now also. The Government did not raise any argument against the grant of the relief in O.P. No. 25790/1999. The Government has not field any counter affidavit in this case. The 4[th] respondent has his own axe to grind. He was a judgment debtor in Ext.P3. He won't sustain bona fide interest and he has no legal or other injury. He cannot set up certain peripheral mistakes in the plan submitted. The essence of the matter is that there is the required set back. The learned counsel relied ## on the judgment in **Arivananda v. Satyapal ( 1977 KLT 965** ). 13. Sri.P.Ravindran, the learned counsel for the 4[th] respondent was equally persuasive in his submissions. Referring to certain passages in Ext.P1 document , Mr.Ravindran, submitted that it is very clear from Ext.P1 itself that the previous owners sold the property covered by Ext.P1 to the petitioners because they were convinced regarding the unsuitability of the land for making the construction. He points out that within one year of purchasing the property under Ext.P2 dated 6.5.1992 the previous owner sold the property to the first petitioner on the WP(C)N0.20960/06 -35- reason that it would be extremely difficult to develop the land because of the smallness of the extent involved. The counsel submitted that going by the documents of title of the properties of the petitioner and the 4[th] respondent are separated by a Municipal drainage, the southern boundary of the petitioner's property being a drainage and the northern boundary of the 4[th] respondent being the very same drainage. In the plan submitted by the petitioners for licence under the building rules, the entire Municipal drainage and the portion of the 4[th] respondent's property were shown as part of the petitioner's property. This was deliberately done for creating impression that sufficient space is available for rear yard as to satisfy the building rules. The Municipal Secretary granted licence to the petitioners though the measurements in the sketch plan submitted were clearly wrong. The appeal was rightly allowed by the Municipal council which clearly found that the southern boundary shown in the sketch was wrong. The council also found that inclusion of the Municipal drainage as part of the petitioner's property was also wrong and accordingly, the Municipal council cancelled the licence WP(C)N0.20960/06 -36- granted by the Municipal Secretary. The Government interfered with the order of the Municipal council in a revision filed by the petitioners, but that order of the Government was set aside by this court, which remitted the matter back to the Government and the Government thereafter passed fresh orders upholding the decision of the Municipal council. It is Ext.P17 and the consequential notice issued by the Municipal Council to demolish the unauthorized portion of the constructions already made is under challenge. Sri. Ravindreen submitted that the entire case of the petitioners that the Municipality was permitted by him to construct drainage through the southern side of the property on condition that the portion occupied by the drainage would be treated as open space for the purpose of building rules is without basis. Ext.P6 consent letter is a self serving document. Ext.P6 refers to a power of attorney dated 9.8.1999 executed by Sri.T.K.Ibrahim and his wife on 9.8.1991. Sri.T.K.Ibrahim and his wife are not owners of the property through which the drainage was constructed. Thus any power of attorney executed on 9.8.1999 could not authorize the petitioners to give consent WP(C)N0.20960/06 -37- for the construction of the drainage through the land which was not a property executed under the power of attorney. Ext.P23 which is the power of attorney dated 9.8.1991 will show that the power of attorney has nothing to do with the land in question. Sri.Ravindran submitted that the Municipality being a local authority governed by a statute is expected to function in accordance with law. If the consent is given to the Municipality, the Municipality has to acknowledge the consent. Absolutely, no material is placed on record to show that consent was given and that the same was accepted by the Municipality. Going by the documents produced by the petitioners, southern boundary of the property is the drainage. Under these circumstances, the sketch will show that the southern boundary of the petitioners' property cannot be of any consequence. According to Mr. Ravindran, it is indisputable that drainage cannot form part of the petitioners' property upon which the construction is to be made. The building rules mandate open space of 1.5 metres as rear yard. Obviously so much of open space is not available as rear yard. Neither the Municipality nor the Government are entitled to WP(C)N0.20960/06 -38- enter into any kind of agreement with the petitioners in violation of the provisions of the building rules. Learned counsel referred Section 207 and 208 (A) of the Municipalities Act. The drainage, according to him, would vest absolutely in the Municipality in view of the provisions of the Building Rules and also Section 207 and 208(A). the argument which was prominently addressed before me by Sri.Ravindran was that final fact finding authorities are the Municipal Council and the revisional authority. They considered the case on merits and arrived at the conclusion that the petitioners have not provided the requisite space as a rear yard. It is after analyzing and appreciating the facts that the facts finding authorities came to such conclusion. This court within the contours of jurisdiction for judicial review under Article 226 of the Constitution of India will not be justified in re appreciating the facts and substituting its view to that of the fact finding authorities. The counsel also relied on the decision of the Supreme Court in **1992 Supp (2) SCC 312** to highlight that in judicial review the court is not expected to review the decision of the administrative authority, but is only expected to review WP(C)N0.20960/06 -39- the decision taking process. Decision taking process in this case by the administrative authorities has not been tainted in any manner. Therefore, there is no warrant for interference. 14. Sri.V.M.Kurian, learned standing counsel for the Municipality would support the submissions of Mr.Balakrishna Iyer. According to him a water channel which passes through private property will not vest with the Municipality under section 207 of the Municipalities Act. He submitted that the Municipality firmly stands by the counter affidavit filed on behalf of the Municipality which reveals that the consistent case of the Municipality is that Ext.P6 document was executed by the first petitioner then holding power of attorney being his subsequent vendors Sri.P.K.Ibrahim and others giving consent to the Municipality for constructing concrete drain for disposal of waste water having width of 2.4 metres and length of 43 metrs along the southern side of the property covered by Ext.P1 and length of 50 metres on the eastern side of that property. He also submitted that it was not an absolute consent which was given, instead the consent was conditional, the condition being that the land upon WP(C)N0.20960/06 -40- which the drain is being constructed will be considered as open space in the event of construction of any building in future on the property covered by Ext.P1. Further condition according to him was that the current and future owners of the land upon which drain is being constructed will not obstruct the Municipality from maintaining the drainage. It was in view of the consent so given that the Municipality while issuing Ext.P1 building permit treated the area occupied by the drain which is completely covered by concrete slabs as land belonging to the petitioners as open space belonging to the petitioners. He also submitted that the 4[th] respondent began invoking the provisions of the Municipalities Act only when he failed before the civil court. The contesting party respondent does not have any claim over the land covered bay the drain, title to which even now remains with the first petitioner as revealed by the Taluk Surveyor's report Ext.P18. 15. I have considered the rival submissions addressed at the Bar in the light of the statutory provisions to which my attention was drawn by the learned counsel. I have gone through the various documents which has been placed on record on either WP(C)N0.20960/06 -41- sides. Having regard to the submissions and the ratio emerging from the decisions which were cited before me by Mr.Balakrishna Iyer and Mr.P.Raveendran I am of the view that there is justification for granting the relief to the petitioner to a certain extent. 16. I cannot agree that through the present writ petition the petitioner is indirectly challenging Ext.P19 judgment of this court which has attained finality. As will be seen from Ext.P19 this court has not gone in that judgment into the merits contentions which are nor raised by the petitioner against Ext.P17. In Ext.P19 this court interfered with the Government's order Ext.P18 reviewing Ext.P17 only on the ground that the Government had issued Ext.P17 in exercise of its powers under the Municipalities Act did not have any statutory power under that Act to review Ext.P17. On this reasons alone this court interfered with Ext.P18. The effect of Ext.P19 is only to nullify Ext.P18 which means that Ext.P17 has re-emerge The explanation of the petitioner in not challenging Ext.P17 on time is that he received legal advice that the government can be moved for review of Ext.P17. May be it is WP(C)N0.20960/06 -42- true that the first petitioner had clout with the then Municipalities Minister, but at the same time his version that legal advice was received by him regarding the power of the Government to review Ext.P17 cannot be said to be false or improper. He filed review petition which was allowed by the Government under Ext.P18. The version of the petitioner that the cause for him to challenge Ext.P17 arises only when this court passes Ext.P19 judgment leading to disruption of Ext.P17 and that petitioner does not have to explain the delay up to the date of Ext.P19 is fairly convincing. As for the delay which has occasioned subsequently the explanation is that the first petitioner was not able to contact his counsel at Ernakulam since he had been frequently out of the State and even abroad in connection with business and that the letter which was sent from counsel's office about the disposal of the case was not received by him on account of his absence. This explanation is not completely convincing, but at the same time I am inclined to accept this explanation which is fervently endorsed by the learned senior counsel appearing for the first petitioner by putting the petitioner WP(C)N0.20960/06 -43- to terms since I notice some merit in the grounds of challenge raised by the petitioner against Ext.P17 I am of the view that the 4[th] respondent and the Municipality will be adequately compensated for the inconvenience which are being occasioned to them by entertaining this writ petition belatedly by directing the petitioner to pay a sum of Rs.10,000/- and Rs.5000/respectively to the 4[th] respondent and the municipality. 17. Now coming to the sustainability of Ext.P17 order of the Government. Sri.P.Raveendran, the learned senior counsel had the authority of the judgment of the Supreme Court in 1992 Supp (2) SCC 312 and a number of other cases to remind me that in judicial review it will not be justified in re-appreciating the facts and substituting this court's view to that of the fact finding authorities which in this case are the Municipality Secretary and the Municipal council. I am not unmindful on the exercise of powers of judicial review. But I find that in Ext.P17 the Government has proceeded as though the case of the first petitioner was that the land belonging to the first petitioner was surrendered to the Municipality for the purpose of constructing WP(C)N0.20960/06 -44- drain on the understanding that the area of drain will be treated as open space for the purpose of building rules. In Ext.P17 decision of the Government turns mainly on the reason that there were no documentary evidence to show that there was a valid surrender. The case of the petitioner is not one of surrender. The case on the contrary is that the Municipality was permitted to construct drain through the petitioner's property by widening the existing Thodu and that ownership of the widened portion has continued with the petitioner himself. In fact Taluk Surveyor had reported on the basis of a measurement the correctness of which is not under challenge that the width occupied by the widened channel is under the ownership of the first petitioner. Ext.P18 which was since nullified by this court in Ext.P19 the Government had actually taking into account Taluk Surveyor's report and notice that the Municipality does not have a case that title over the widened portion of the channel vests with the Municipality. Though this court set aside Ext.P18 on the ground that the same was issued by the Government without jurisdiction the finding in Ext.P18 that title to the widened portion WP(C)N0.20960/06 -45- of the channel is with the first petitioner is supported by documents produced in this case including Ext.P3 decree which is binding on the 4[th] respondent also. In fact the 4[th] respondent endeavours to restrain the petitioner for carrying out the constructions by approaching the civil court advancing claims over property were unsuccessful. The commissioner's report which are relied on by the petitioner would also support the petitioner's case that title over the widened portion of the water channel remains with the petitioner. Consequently the 4[th] respondent has no case that the extra width of land utilised by the third respondent Municipality for widening the water channel was taken from his holding. Of course the 4[th] respondent has a contention that going by the title documents his property and the property of the first petitioner are separating by Thodu. Obviously that Thodu is the originally existing Thodu which had a width of .50 metres alone even according to the Municipality. The petitioner has a claim that title over that portion also is with him which I am not inclined accept. But the documents available and the admissions of the Municipality will show that the widened WP(C)N0.20960/06 -46- portion of the water channel having width of 1.90 metres is even now in the absence of valid surrender by the petitioner with the first petitioner. Obviously the widening of the Thodu as drainage canal having total width of 2.40 metres and covering the same with concrete slabs has been possible only with the permission of the first petitioner, his predecessor in interest. The case of the petitioner is that his predecessor in interest became compelled to permit the Municipality to widen the Thodu by utilizing his land in the wake of a threat of acquisition by the Municipality is seen supported by the Municipality. Thus it is common ground for the petitioner and the Municipality that the widened portion of the canal having width of 1.50 metres was permitted by the petitioner's predecessor in interest to be converted as drainage on the agreement that that portion will be reckoned with as open space belonging to the owner at the time when it becomes necessary to construct buildings. Whether the Municipality or the Government can now say that the first petitioner is not entitled to treat that portion of the drainage canal as open space is a question to be considered now. While considering this question it WP(C)N0.20960/06 -47- is not possible to ignore the case of the petitioner that by believing the assurance of the Municipality that they be prepared to treat the area occupied by the widened portion as open space belonging to the petitioner in the event of the petitioner taking up constructions on his remainder property the petitioner permitted the Municipality to convert 1.90 metres of his land as water channel to his detriment and that for all practical purposes he has been deprived of his right to enjoy the property which even now continues to be his own. The argument of Mr.Balakrishna Iyer based on principles of estopel both equitable and promissory cannot be said to be totally without force. At the same time two common question as to whether a water channel covered by concrete slabs presently maintained by the local authority though not by a private citizen can be treated for the purposes of the Kerala Municipality Building Rules as open yards, front rear or side. These questions in my opinion should receive a second look at the hands of an authority which is competent to go into the facts. Ordinarily the matter should have been remitted to the Government which passed Ext.P17. But I find that under the WP(C)N0.20960/06 -48- present statutory scheme revision petitions against orders passed by the Municipal Councils are to be decided by the Tribunal for Local Self Government Instituitons. The Tribunal which is meant by a member of the higher judicial service has amble powers to adjudicate and settle factual and legal questions. Under these circumstances I quash Exts.P15, P17 and P20 and permit the first petitioner to file a revision petition before the Tribunal for Local Self Government Institutions against Ext.P15. If such a revision petition is received by the Tribunal within one of this court excluding the time taken for obtaining certified copy of this judgment the Tribunal will dispose of that revision in accordance with law within four months or registration of the revision petition. The 4[th] respondent and the Municipality shall be made parties to the revision and 4[th] respondent is permitted to raise all available contentions in that revision petition. All issues are left open including the question of ownership over the widened portion of the water channel and the question whether under the Kerala Municipality Building Rules that portion of the watter channel covered by concrete slabs can be considered as open WP(C)N0.20960/06 -49- space. The above order will become operative only if the petitioner pays a sum of Rs.10,000- by way of cost of the 4[th] respondent and Rs.5000/- by way of cost to the Municipality within one month from today. The petitioner shall not continue with the constructions till such time as the Tribunal gives its verdict on the prospective revision petition. In other words, quashment of Ext.P20 will not enable the petitioners to continue with the constructions. **(PIUS C.KURIAKOSE, JUDGE)**