Chandrasekharan Pillai v. The State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 12TH DAY OF SEPTEMBER 2013/21ST BHADRA, 1935** ## **WP(C).No. 9167 of 2012 (U)** **--------------------------------------** ## **PETITIONER:** - **-------------------** **CHANDRASEKHARAN PILLAI, S/O.PARAMESWARAN PILLAI, RESIDING AT CHANDRA BHAVAN, VENDAR MURI, PUTHOOR.P.O, KOTTARAKKARA TALUK, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER P.ANIL KUMAR, LAKSHMI BHAVAN, VENDAR.P.O, PUTHUR, KOTTARAKKARA.** **BY SRI.P.B.SURESH KUMAR, SENIOR ADVOCATE, ADVS.SRI.K.N.SASIDHARAN NAIR, SRI.T.T.RAKESH, SRI.LEO GEORGE.** **RESPONDENTS:** **-----------------------** ## **1. THE STATE OF KERALA,** - **REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001.** **2. THE KOLLAM MUNICIPAL CORPORATION, REPRESENTED BY ITS SECRETARY, KOLLAM MUNICIPALCORPORATION, KOLLAM-691 001.** **3. THE TOWN PLANNING OFFICER, MUNICIPAL CORPORATION, KOLLAM-691 001.** **4. THE VILLAGE OFFICER, KOLLAM EAST VILLAGE, KOLLAM-691 001.** **5. TRAVANCORE DEVASWOM BOARD,** - **REPRESENTED BY ITS SECRETARY, TRAVANCORE DEVASWOM BOARD OFFICE, KOWDIAR, THIRUVANANTHAPURAM-695 001.** **Prv.** ## **W.P.(C).NO.9167/2012-U:** **6. THE SUB GROUP OFFICER, TRAVANCORE DEVASWOM BOARD, CHITTADEESWARAM, KOLLAM, PIN-691 001.** **7. ARUN YESUDAS, AGED 30 YEARS, S/O.YESUDAS, RESIDING AT THITTAVILA VEEDU, KANNANALLOOR.P.O, KOLLAM, PROPRIETOR OF CARMEL ENGINEERING WORKS, BENZIGER HOSPITAL, KOLLAM-691 001.** **R1 & R4 BY GOVERNMENT PLEADER SRI. R. PADMARAJ, R2 & R3 BY ADV. SRI.M.K.CHANDRA MOHAN DAS,S.C, R5 & R6 BY SRI.P.GOPAL,S.C,** **SRI.G.BIJU,S.C, R7 BY ADV. SRI.B.SURESH KUMAR.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-04-2013, THE COURT ON 12-09-2013 DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.9167/2012-U:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: TRUE COPY OF SALE DEED NO.3135/2007 OF KOLLAM S.R.O DATED 25/10/2007. EXT.P2: TRUE COPY OF THE APPROVED BUIDING PERMIT AND THE PLANS APPEARED TO IT OBTAINED BY THE PETITIONER DATED 25/11/2009. EXT.P3: TRUE COPY OF BRC(OP)NO.34/2009 ON THE FILE OF THE RENT CONTROL COURT, KOLLAM DATED 26/11/2009. EXT.P3(A): TRUE COPY OF THE PROOF AFFIDAVIT FILED IN BRC (OP) 34/2009 ON THE FILE OF THE RENT CONTROL COURT, KOLLAM DATED 1/1/2011. EXT.P4: TRUE COPY OF THE ORDER IN RCR NO.453/2011 DATED 3/12/2011. EXT.P5: TRUE COPY OF THE ORDER IN RCR NO.465/2011 DATED 15/12/2011. EXT.P6: TRUE COPY OF THE ORDER IN RCR NO.476/2011 DATED 21/12/2011. EXT.P7: TRUE COPY OF THE MEMORANDUM OF APPEAL IN APPEAL NO.150/2011 DATED 18/2/2011. EXT.P8: TRUE COPY OF THE RELEVANT PAGE OF THE BASIC TAX REGISTER MAINTAINED AT KOLLAM EAST VILLAGE DATED NIL. EXT.P9: TRUE COPY OF THE LETTER SENT BY THE FOURTH RESPONDENT TO THE THIRD RESPONDENT DATED NIL. EXT.P10: TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN APPEAL NO.150/2011 DATED NIL. EXT.P11: TRUE COPY OF THE STATEMENT FILED BY THE CORPORATION IN APPEAL NO.150/2011 DATED 26/3/2011. EXT.P12: TRUE COPY OF THE REPORT FILED BY THE COMMISSIONER APPOINTED BY THE TRIBUNAL DATED 6/1/2012. EXT.P13: TRUE COPY OF THE ORDER OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS IN APPEAL NO.150/2011 DATED 23/3/2012. EXT.P14: TRUE COPY OF THE CIRCULAR BEARING NO.72671/RA1/08/LSGD DATED 15/1/2008. EXT.P15: TRUE COPY OF THE ORDER OF THE DELEGATION BY THE SECRETARY OF THE CORPORATION DATED 28/7/2006. EXT.P16: TRUE COPY OF THE ORDER OF DELEGATION ISSUED BY THE SECRETARY OF THE CORPORATION DATED 21/11/2008.** **Prv.** ## **W.P.(C).NO.9167/2012-U:** ## **RESPONDENTS' EXHIBITS:** **EXT.R5.A: COPY OF THE RELEVANT PAGE OF THE SETTLEMENT REGISTER OF THE TRAVANCORE GOVERNMENT IN RESPECT TO KOLLAM TALUK. EXT.R7.A: COPY OF THE BUILDING TAX REGISTER OF THE PROPERTIES IN SUB DIVISION NO.20, 21 AND 22 DTD. 24/07/2010 ISSUED BY THE VILLAGE OFFICER, KOLLAM EAST VILLAGE. EXT.R7.B: COPY OF THE RE-SURVEY PLAN OF BLOCK NO.148 OF KOLLAM EAST VILLAGE.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## **A.M.SHAFFIQUE, J** ## *** * * * * * * * * * * * *** W.P.C.No.9167 of 2012 ---------------------------------------Dated this the 12[th] day of September 2013 ## **J U D G M E N T** Petitioner challenges Ext.P13 order passed by the Tribunal for Local Self Government Institutions by which the building permit issued by the Municipal Corporation in his favour came to be cancelled. Ext.P13 order was passed in an appeal filed by the 7[th] respondent who is the tenant of the petitioner. The petitioner, being the owner of the property having an extent of 5.65 Ares in Re-Survey No.24 of Kollam East village obtained a building permit dated 25/01/2009. He sought for eviction of the tenants in the building which was allowed on the ground of reconstruction. However when the matter was considered by this Court in RCR Nos.453/2011, 465/2011 and 476/2011, this Court observed in RCR.No.453 of 2011 that it shall be open for the revision petitioner who is the 7[th] respondent herein to prosecute Appeal No.150 of 2011 pending before the W.P.C.No.9167/2012 2 Tribunal for Local Self Government Institutions and if the appeal is allowed and the building permit granted to the petitioner is interfered, it was open for the revision petitioners to appraise the matter before the Execution court and the Execution Court shall order delivery only after ensuring that the respondents are having a current valid building permit for carrying out the proposed construction. 2. The Tribunal, while considering the appeal filed by the 7[th] respondent found that the access to the property sold is not correct as property in Re-survey No.21 is shown as Government puramboke and therefore the petitioner could not have a proper access to the road and hence the building permit cannot be issued in favour of the petitioner. It was also found that the Town Planning Officer who had issued the permit did not have proper authority to issue the permit. 3. The petitioner contends that the appeal itself was barred by limitation as it is filed beyond 30 days from the date of Ext.P2 building permit. The building permit was W.P.C.No.9167/2012 3 produced before the Rent Control Court on 26/11/2009 along with the application for eviction and therefore the petitioner was well aware of the existence of a building permit. The appeal Ext.P7 is filed only on 18/02/2011. Reference is made to Section 509(7) of the Municipal Corporation Act and Rule 8(3) of the Tribunal for the Kerala Local Self Government Institutions Rules 1999. It is contended that no application was filed to condone the delay in filing the appeal. A further contention had been raised stating that a tenant is not entitled to question the right of the landlord to have access to the property as the tenant himself is using the very same access for ingress and egress. Reference is made to Section 116 of the Evidence Act in order to contend that no tenant of immovable property shall be entitled to deny the title of the landlord. Further it is contended that the property in Resurvey No.20 is lying as a public road. The property in the Resurvey No.21 is lying contiguous to the property in Resurvey No.20 and is being used as a public road from time W.P.C.No.9167/2012 4 immemorial and the same is the only access to several buildings situated therein. 4. Counter affidavit is filed by respondents 5 and 6 as well as the 7[th] respondent. Respondents 5 and 6 represents the Travancore Devaswom Board. According to them, as per settlement register Ext.R5(a) an extent of 57 cents in Sy.No.8357/A1 of Kollam East village belongs to the temple. 5 meter width pathway was laid down across the 57 cents of land. 46 cents of land on the southern side of the pathway belongs to the Devaswom and there is no access to the petitioner or his predecessor in interest from the property to the pathway across the 46 cents of Devaswom land. It is further contended that after the re-survey the revenue authorities has classified 57 cents of Devaswom land into various subdivisions. The temple is situated in Sy.No.18. The re-survey number of the pathway/road is 21. It is therefore contended that the property belongs to the Devaswom Board and it is not Government land. W.P.C.No.9167/2012 5 5. The 7[th] respondent in the counter affidavit supports the stand taken by the Tribunal. It is inter alia contended that as per Rule 33 of the Kerala Municipality Building Rules, for construction of a three storied building access through a 5 metres width road is required. According to the 7[th] respondent Re-survey No.24 is the property proposed for construction, Re-survey No.20 is the pathway and Re-survey No.21 is the property belonging to Travancore Devaswom Board. It is further contended that the plan submitted by the petitioner shows that the property under proposed construction and the property belonging to Travancore Devaswom Board is lying contiguously and therefore it is contended that the plan submitted by the petitioner does not satisfy the requirement of Rule 7(9). 6. Having regard to the aforesaid factual situation, the first question that requires to be considered is whether Appeal No.150 of 2011 which resulted in Ext.P13 order is barred by limitation. Under Section 509(6) and (7) of the W.P.C.No.9167/2012 6 Kerala Municipality Act, an appeal is to be filed within a period of 30 days from the date of passing such decision, order or notice. In so far as the building permit which is the subject matter in issue has been issued on 25/11/2009, apparently a cause of action arises for filing an appeal. According to the 7[th] respondent, he had come to know about the building permit only on 02/02/2011 when a copy of the chief affidavit was given to the 7[th] respondent in B.R.C (O.P.No.34/2009). It is contended that though a copy of the building permit was produced in B.R.C.34/2009, at that time joint trial was not allowed. The same was allowed only on 17/12/2010. Chief affidavit is filed on 01/02/2011 and the appeal is filed on 08/02/2011. Therefore according to the 7[th] respondent, he had filed the appeal within 30 days from the date of knowledge of the building permit. According to the petitioner, the 7[th] respondent was aware of the proceedings when the building permit was filed before the Court. Reference is also made to the Tribunal for the Kerala Local W.P.C.No.9167/2012 7 Self Government Institutions Rules 1999 with specific reference to Rule 8(3) which provides that petitions in the form of an appeal shall be submitted before the Tribunal within 30 days from the date of the notice or order or proceedings against which the petition is filed. Proviso to Rule 8(3) indicates that the Tribunal may admit a petition submitted within one month after the said time limit if the Tribunal is satisfied that there is sufficient reason for not submitting the petition within the time limit. It is argued that when a special law of limitation is provided which restricts the right of the Tribunal to condone the delay beyond one month after the said time limit it is not open for the respondent to contend that he was not aware of the issuance of the building permit. Any person aggrieved by any decision taken by the Secretary has to file an appeal within 30 days from the date of passing such an order as provided under Section 509(6) and delay can be condoned only to the extent of a further one month period. W.P.C.No.9167/2012 8 Apparently, in this case, the petitioner had obtained the building permit on 25/11/2009 and it was produced before the Rent Control Court on 26/11/2009 along with the petition for eviction produced as Ext.P3. Therefore, going by the date of the building permit that is 25/11/2009 the appeal filed on 08/02/2011 is clearly barred by limitation. However, if the date of knowledge of the building permit is taken into consideration one has to believe the 7[th] respondent and come to a conclusion that he had knowledge about it only on 02/02/2011. The 7[th] respondent does not have a case that he was not aware of the eviction proceedings initiated against him on the basis of a building permit on the ground of re-construction. That apart, when an appeal is filed against an order it has to be filed within 30 days from the date of passing such an order. The 7[th] respondent will not get any better benefit by contending that he was not aware of the building permit. When a special law of limitation is applicable, date of knowledge of the order is immaterial. W.P.C.No.9167/2012 9 Hence, I am of the view that the appeal ought to have been dismissed on the ground of delay itself. 7. The 2[nd] contention is based on Section 8 of the Transfer of Property Act and Section 116 of the Evidence Act. It is contended that public thoroughfare is a public easement annexed to the ownership of the property. When a tenant is provided with a premises along with all its easements it is not open for him to deny the title of the landlord. According to the petitioner, the 7[th] respondent is not entitled to raise any contentions in any proceedings against the landlord on the ground that the landlord does not have access to the property as claimed by him. But this case is not concerning the right of the tenant viz a viz the landlord's right. Here the tenant questions the validity of a building permit as a defence in a rent control proceedings and the High Court has permitted the tenant to raise such a question before the Execution court in view of the pendency of the appeal. In such a view, while questioning the grant of W.P.C.No.9167/2012 10 building permit, the estoppal under Section 116 of the Evidence Act will have no application to the tenant. 8. The petitioner has a case that the property in Resurvey No.21 is lying contiguous to the property in Resurvey No.20. Apparently, respondents 5 and 6 makes a claim to the said item of lands. They have not independently put up a claim in respect of Re-survey No.21 in any proceedings known to law. They were made parties in the appeal before the Tribunal. If respondents 5 and 6 have any independent right in respect of the property in Resurvey No.21 they have to take appropriate proceedings under law. As matters stand now, according to the petitioner, based on the Village Officer's report at Ext.P9, the property in Block No.148 Re-survey.Nos.20 & 21 is lying as Government land which is puramboke road as well as barren land. It is based on Ext.P9 that the building permit had been issued. Nothing prevents the statutory authority like the Municipality to grant a building permit based on the W.P.C.No.9167/2012 11 particulars issued by the revenue authority. Therefore, the Tribunal cannot sit in judgment over a decision taken by the local authority based on Ext.P9 report. In that view of the matter also, the Tribunal committed serious error of law in coming to such a conclusion. 9. The petitioner has a consistent case that the portion of the property in Re-Sy.No.21 is lying as part of the road and it is accepted by the revenue authorities also in terms of Ext.P9. Such being the situation, there was no reason for the Tribunal to have come to a different opinion. 10. Much has been stated by the Tribunal on the basis of the contentions urged by the respondents 5 and 6. First of all, there was no reason to consider any of such contentions if the Devaswom Board has any independent right in respect of any property. They are always free to take appropriate proceedings in accordance with law to recover possession of the property which according to them, they have a rightful claim. Learned counsel for respondents W.P.C.No.9167/2012 12 5 and 6 relied upon the judgment of the SC in **Gopalakrishnan v. Cochin Devaswom Board and others** _[2007(4) ILR Kerala 181]_ to contend that it is the duty of the Courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation. In order to enable the Courts to apply the said principle of law, the Devaswom Board will have to initiate appropriate proceedings in accordance with law. They cannot in an appeal filed by a third party implead as additional respondents and support the appellant by contending that the building permit is to be cancelled. Nothing prevents the Devaswom Board to take appropriate legal action to recover possession of their property if it is actually owned by them. This Court is not adjudicating on any title issues in the case. The Judgment in the second appeal referred to by the learned counsel appearing for respondents 5 and 6 i.e. S.A.No.119 of 1995 by itself will not prove the claim made by the Devaswom Board in respect of W.P.C.No.9167/2012 13 a property which is now stated by the Government as puramboke tharisu. Under these circumstances, I am of the view that the writ petition is only to be allowed as under: Ext.P13 order is set aside and Appeal No.150/2011 filed by the 7[th] respondent shall stand dismissed. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr