Binu Joy and Beena P. Babu v. Adoor Municipality and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS`** ``` THURSDAY, THE 7[TH] DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, 1945 WP(C) NO. 6321 OF 2020 ``` ## **`PETITIONERS:`** ``` 1BINU JOY AGED 45 YEARS S/O.P.K.JOY, PULLANIYIL, KAIPATTOOR.P.O, PATHANAMTHITTA-689648 2BEENA P. BABU AGED 40 YEARS W/O.BINU JOY, PULLANIYIL, KAIPATTOOR.P.O, PATHANAMTHITTA-689648 REPRESENTED BY POWER OF ATTORNEY HOLDER TIJU VARGHESE DANIEL, AGED 48 YEARS, S/O.P.P.DANILE, PAYIKATTU HOUSE, KUMBAZHA.P.O., PATHANAMTHITTA-689635 BY ADVS. JAMES ABRAHAM (VILAYAKATTU) SRI.P.BALAN (VYTTILA) ``` ## **`RESPONDENTS:`** ``` 1ADOOR MUNICIPALITY REPRESENTED BY ITS SECRETARY, ADOOR, PATHANAMTHITTA, DISTRICT, PIN-691523 2THE SECRETARY ADOOR MUNICIPALITY, ADOOR, PATHANAMTHITTA DISTRICT, PIN-691523 ``` W.P.(C).No.6321 of 2020 -:2:- ``` 3DIRECTOR OF URBAN AFFAIRS, 1ST FLOOR, SWARAJ BHAVAN, NANTHANCODU, KOWDIAR P.O, THIRUVANANTHAPURAM - 695 003 ``` ``` 4JOINT DIRECTOR (ADMINISTRATION) OF URBAN AFFAIRS, 1ST FLOOR SWARAJ BHAVAN, NANTHANCODU, KOWIDAR P.O., THIRUVANANTHAPURAM - 695 003 5ASSISTANT EXECUTIVE ENGINEER, PARAKODE BLOCK PANCHAYAT OFFICE, PARAKODU, PATHANAMTHITTA DISTRICT- 691 554. [ADDITIONAL R3 TO R5 ARE IMPLEADED AS PER ORDER DATED 05-03-2020 IN I.A. 01/2020 IN W.P.(c.No. 6321/2020 ``` ``` BY ADV. K.SHAJ, STANDING COUNSEL ``` ## **`OTHER PRESENT:`** ``` SMT. K.AMMINIKUTTY, SENIOR GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C).No.6321 of 2020 -:3:- ## **BECHU KURIAN THOMAS, J.** **--------------------------------------W.P.(C).No.6321 of 2020 ---------------------------------------** _Dated this the 7[tb] day of December, 2023_ ## **JUDGMENT** Petitioners application for a permit for construction of a commercial building was rejected by Ext.P7 order. The reason for rejection is alleged to be the lack of an access road to the property as required under Rule 2(a) of the Kerala Municipality Building Rules, 1999. The said order is challenged in this writ petition. Petitioners also seek a declaration that they are entitled to be issued with a building permit on the basis of Ext.P2 resolution of the Municipality. A further direction is sought against the respondents not to make any construction in the access portion to the Municipal Private Bus Stand, Adoor, to an extent of 19 metres width uptill the petitioners’ property. 2. Petitioners are the owners of an extent of 3.15 Ares of property in Survey Nos. 192/16 and 192/16/4 of Peringanattu Village, Adoor Taluk, Pathanamthitta District. The said private property was purchased by a sale deed dated 02.11.2009 bearing No.3067/2009 of the Sub Registrar Office, Adoor. One side of the property purchased by the petitioner belongs to the ## W.P.(C).No.6321 of 2020 ## -:4:- Municipality which had purchased that property from petitioners’ predecessor-in-interest through a negotiated purchase. 3. Admittedly, at the time the petitioners purchased the property, as seen from the recitals in Ext.P1 title deed, the property was landlocked and did not have any road access. Petitioners had purchased the property, fully conscious of the fact that there was no access to it. However, petitioners allege that by Ext.P2 resolution of the Municipal Council dated 23.12.2002, the Municipality had agreed to permit the petitioners’ predecessors to construct buildings on their property and also to have the facility of ingress and egress into the property without any objection from the Municipality. 4. Based upon the said resolution of 2002, petitioners allege that their predecessor-in-interest had executed Ext.P3 agreement with them on 25.07.2016, conferring the petitioners a right to use the access provided as per the said resolution. The agreement further recited that the recital in the document about the absence of an access road does not include the access provided as per Ext.P2 resolution of the Municipal Council. Petitioners contended that their application for building permit ought to be allowed on the basis of Ext.P2 resolution of the Municipal Council, treating the 19 metre wide access road to the Bus Stand as an access road to his property. W.P.(C).No.6321 of 2020 ## -:5:- 5. A counter affidavit has been filed by the first and second respondents stating that the Municipality had purchased the properties in Survey No.192/16 of Peringanattu Village for the purpose of construction of a Municipal Bus Stand and that Ext.P2 does not confer a right on the petitioners to have access to their property through the Municipal Bus Stand. According to the respondents, the dispute relates to the enforcement of an alleged right of way by easement of necessity. Since there are other properties of the predecessor-in-title of the petitioners adjacent, if in case there is any severance of tenement, the petitioners will have to establish that right of way in a civil court and not through the writ jurisdiction. It is further pointed out that petitioners had applied for the construction of a commercial cum residential building with a plinth area of 494.12 square metres and showed access to the said property through the Municipal Private Bus Stand with an access width of 19 metres shown to his property. The portion shown as a way to his property in his application for construction of the building is, in fact, the area for plying and parking of private buses and that, if the petitioners are permitted to use the private bus stand or any portion of it as an access road to his property, it will cause nuisance and inconvenience to the general public. It was further pointed out that if Ext.P2 conferred a right of way on the petitioners’ predecessor, the same is against the law as the Municipality could not ## W.P.(C).No.6321 of 2020 ## -:6:- have created a liability on its land without the permission of the Government as held in _**Anil Kumar v. Aluva Municipality** [2022(1) KLT 190]._ It is further pointed out that the properties were purchased from the predecessor-in-interest of the petitioners by way of absolute sale, and therefore, the petitioners cannot claim any right over the Municipal Bus Stand. 6. I have heard Sri. James Abraham, the learned counsel for the petitioners and Sri. K. Shaj, the learned Standing Counsel for respondents 1 and 2 as well as Smt. K.Amminikutty, the learned Government Pleader. 7. The property purchased by the petitioners as per Ext.P1 sale deed contains the specific recital that the fair value has been fixed, reckoning the property as land without access. Though Ext.P2 is pointed out as a binding obligation on the Municipality to create a permanent right of way to the petitioners, it is noticed that without the permission of the Government no such rights can be created on the Municipal property as held in the decision in _**Anil Kumar v. Aluva Municipality** [2022(1) KLT 190]._ In the said decision, it was observed that “Section 215 of the Act 1994 deals with power of Municipality to acquire and dispose of property. Sub-section (1) thereto specifies that a Municipality may in the manner prescribed, acquire any property such as land or building within or outside its Municipal area or dispose of any of its properties with the prior W.P.(C).No.6321 of 2020 ## -:7:- approval of the Government for providing any arrangement or facility for a public purpose. On the basis of the powers conferred under S.215 read with Section 368 and Section 565 of the Kerala Municipality Act, 1994, the State Government has made the Kerala Municipality (Acquisition and Disposal of Property) Rules, 2000. Rule 6 thereto deals with transfer of Municipality's own property, which stipulates that the transfer of Municipality's own property shall be in accordance with Sub-section (1) of Section 215 and Form II in Schedule II appended to the Rules, 2000.” 8. In view of the above, if at all Ext.P2 is to be treated as conveying or creating a right over the property of the Municipality, the approval of the Government is necessary. Petitioner has no case that Ext.P2 was approved by the Government. Therefore, the contention of a right of access to petitioners property based on Ext.P2 is without any basis. 9. Apart from the above, a reading of Ext.P2 does not indicate that any absolute right is granted to the petitioners to have vehicular access to his property through the land purchased for the Municipal Private Stand. If at all the petitioners have a right, the same can only be by way of easement either by necessity or by prescription. 10. In this context, this Court had, by order dated 05.03.2020, called for a report from the Executive Engineer, the Local Self Government Department, to file a sketch and a report. From the report and the sketch W.P.(C).No.6321 of 2020 ## -:8:- produced, it is noticed that there is a tar road on the eastern side of the Municipal Bus Stand, and there is another private land between the tar road and the petitioners’ property. Therefore, if at all the petitioners have any right in the property as an access to the to tar road, it can only be by way of an easement, which will have to be pleaded and proved before a Court of law. 11. Apart from the above, the nature of contentions raised in this writ petition reveals that, there are serious disputed questions of fact which cannot be adjudicated in exercise of the jurisdiction under Article 226 of the Constitution of India. The contention of the learned counsel for the petitioners that remedy before the Civil Court for establishing his right of easement is barred as per Section 563 of the Kerala Municipality Act, 1994 (for short ‘the Act’) is without any merit. A reading of Section 563 of the Act clearly reveals that the restriction is confined only with regard to the legality or propriety of any action taken under the provisions comprised in Chapter XVII, XVIII and XIX of the Kerala Municipality Act or its Rules and Regulations. The declaration of right of way or declaration of an easement right of way cannot certainly come within the purview of the restriction under Section 563 of the Act. Therefore, the said contention is also not correct. W.P.(C).No.6321 of 2020 -:9:- In the above circumstances, I find no merit in this writ petition, and it is dismissed without prejudice to the right of the petitioners, if any, to initiate appropriate action before the appropriate forum in accordance with law. Sd/- **BECHU KURIAN THOMAS JUDGE** Jka/07.12.23 -:10:- ## W.P.(C).No.6321 of 2020 ## **`APPENDIX OF W.P.(C).No.6321/2020`** ## **`PETITIONERS’ EXHIBITS`** ``` EXHIBIT P1A TRUE COPY OF THE SALE DEED NO.3067/2009 DATED 2.11.2009 OF SUB REGISTERED OFFICE, ADOOR. EXHIBIT P2A TRUE COPY OF DECISION NO.19, G4- 7358/2001 DATED 23.12.2002 OF ADOOR MUNICIPALITY ALONG WITH COVERING LETTER DATED 26.12.2002 ADDRESSED TO THE VENDOR OF THE PETITIONERS ISSUED BY THE 2ND RESPONDENT. EXHIBIT P3A TRUE COPY OF THE NOTARIZED DOCUMENT DATD 25.07.2016. EXHIBIT P4A TRUE COPY OF THE NOTICE NO.E2-4225/16 (BA-90/16-17) DATED 28.6.2016. EXHIBIT P5A TRUE COPY OF THE ORDER IN APPEAL NO.685/2016 DATED 21.3.2018. EXHIBIT P6A TRUE COPY OF THE COMMISSION REPORT ALONG WITH SKETCH AND PHOTOGRAPHS DATED 30.3.2017 FILED BY THE ADVOCATE COMMISSIONER IN APPEAL NO.685/2016 BEFORE THE HON'BLE TRIBUNAL. ``` ``` EXHIBIT P7A TRUE COPY OF THE REJECTION LETTER NO.CG4-6275/16 DATED 25.07.2018. EXHIBIT P8A TRUE COPY OF THE DECISION NO.II DATED 19.8.2017 WITH RESPECT TO THE CONSTRUCTION OF MUNICIPAL COMPLEX CUM BUS STAND TAKEN BY THE COUNCIL OF THE 1ST RESPONDENT OBTAINED UNDER RIGHT TO INFORMATION. ``` ``` EXHIBIT P9A TRUE COPY OF THE NEWS PAPER REPORT WITH RESPECT TO THE CONSTRUCTION OF ``` ## W.P.(C).No.6321 of 2020 ## -:11:- ``` MUNICIPAL COMPLEX CUM- BUS TERMINAL OF ADOORMUNICIPALITYPUBLISHEDIN MALAYALAMANAORAMADAILYDATED 26.11.2019. ``` ## **`RESPONDENT EXHIBITS`** ``` Exhibit R1(a) ``` ``` THE TRUE COPY OF THE MINUTES OF THE MEETINGS CONDUCTED BY THIS RESPONDENT ON VARIOUS DATES IN CONNECTION WITH THE APPLICATIONSUBMITTEDBYTHE PETITIONERS. ``` ``` Exhibit R1(b) ``` ``` THE TRUE COPY OF THE COUNCIL AGENDA SLIP DATED 17/05/2018 AND 18/05/2018 ```