Corporation of Thiruvananthapuram v. Biju Ramesh

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 14[TH] DAY OF FEBRUARY 2022 / 25TH MAGHA, 1943** **RSA NO. 362 OF 2006** **AGAINST THE JUDGMENT & DECREE IN AS 58/1997 OF III ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM AGAINST THE JUDGMENT & DECREE IN OS 1770/1993 OF I ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM** ## **APPELLANT/APPELLANT/DEFENDANT:** CORPORATION OF THRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, THIRUVANANTHAPURAM. BY ADVS. SRI.N.NANDAKUMARA MENON (SR.) SHRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION ## **RESPONDENT/RESPONDENT/PLAINTIFF:** BIJU RAMESH, RESIDING AT SAMTHRIPTI, RAJADHANI BUILDINGS, THIRUVANANTHAPURAM. BY ADVS. SRI.M.R.ANANDAKUTTAN SRI.R.S.MADHU SRI.MAHESH ANANDAKUTTAN SRI.B.SATHIQ THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A No.362 of 2006 2 K.BABU, J . -------------------------------------R.S.A No.362 of 2006 --------------------------------------Dated this the 14[th] day of February, 2022 ## JUDGMENT The defendant, the Corporation of Thiruvananthapuram, in O.S.No.1770/1993 on the file of the I[st] Additional Munsiff's Court, Thiruvananthapuram is the appellant. The plaintiff is the respondent. 2. The plaintiff instituted the original suit for a permanent prohibitory injunction and other consequential reliefs against the defendant-Corporation. 3. The plaintiff pleaded that he is the owner of 37.503 cents of land comprised in Survey Nos.1178/3 & 1178/4 of Vanchiyoor Village. Two buildings bearing T.C.Nos.25/1009 and 25/1010 are also situated in the property. The buildings are used for running a hotel. According to the plaintiff, he renovated the existing building by providing ceilings and decorating and beautifying the same to suit the requirements of the hotel. He had only taken the steps urgently required to protect the building. No alteration to the existing R.S.A No.362 of 2006 3 structure was done. The Town Planning Officer of the defendantCorporation as per Memo No.TP-3/21925/93 dated 15.06.1993 alleged that the plaintiff had commenced extension and reconstruction of the existing building bearing No.T.C.No.25/1010 and was directed to produce sanction, plan etc,. The plaintiff gave a reply dated 23.06.1993 stating that he had undertaken only emergency repairs along with maintenance of the whole building. On 15.07.1993, the plaintiff was served with an order bearing No.T.P-3/21925/93 dated 15.06.1993 directing him to show cause within three days why the alleged extension should not be demolished and why the provisional order should not be confirmed. The plaintiff again gave a reply to Ext.A2 provisional order and subsequently, the defendant-Corporation made Ext.A2 provisional order absolute by way of Ext.A4 order. Aggrieved by the orders directing the demolition of the building, the plaintiff sought for a permanent prohibitory injunction against the defendant-Corporation from proceeding further pursuant to Ext.A4 order. 4. The defendant-Corporation resisted the suit, and Inter alia contended that the suit is not maintainable in view of the bar R.S.A No.362 of 2006 4 contained in Sec.563 of the Kerala Municipality Act, 1994. The defendant pleaded that the plaintiff without obtaining the required permit and licence completed the extension of the existing building bearing No.25/1010 with an area of 11.8 metres x 8.8 metres and 5 metres x 6.4 metres. New walls were constructed and the extended portion was constructed with AC sheet roofs. Three rolling shutters were also fitted. The construction made by the plaintiff required licence. But the plaintiff had not applied for grant of licence. Therefore, the defendant proceeded under Chapter XVIII of the Kerala Municipality Act, 1994 (for short 'the Act'). 5. During the trial PWs 1 and 2 were examined and Exts.A1 to A7 were marked on the side of the plaintiff. DW1 was examined on the side of the defendant. 6. The Trial Court decreed the suit, holding that the suit is maintainable, and granted a permanent prohibitory injunction against the defendant-Corporation. 7. The defendant-Corporation challenged the decree and judgment of the Trial Court, filing A.S.No.58/1997 before the District Court, Thiruvananthapuram. The First Appellate Court confirmed R.S.A No.362 of 2006 5 the findings of the Trial Court. 8. The defendant-Corporation is in appeal before this Court under Sec.100 of the CPC. 9. After hearing both sides, this Court reformulated the substantial question of law as follows: “Whether the suit filed by the respondent for a decree for perpetual prohibitory injunction to restrain the Secretary of the Corporation from exercising his statutory functions, without resorting to the statutory remedies available to the respondent under Sec.509 of the Kerala Municipality Act is maintainable in law.” 10. Heard Sri.N.Nandakumara Menon, the learned Senior Counsel appearing for the appellant/defendant-Corporation and Sri.M.R.Anandakuttan assisted by Smt.M.A.Zohra, the learned counsel appearing for the respondent/plaintiff. 11. The short question that falls for consideration is whether the original suit is maintainable in view of the bar contained in Sec.563 of the Kerala Municipality Act, 1994. 12. The plaintiff is the owner of two buildings situated in a property having an extent of 37.503 cents of land comprised in R.S.A No.362 of 2006 6 Survey Nos.1178/3 and 1178/4 of Vanchiyoor Village. 13. The case of the plaintiff is that he has conducted renovation in the building in question. According to the plaintiff, he has not altered the existing structure of the building. 14. The challenge of the defendant-Corporation is that the plaintiff has unauthorisedly and without obtaining a permit and licence from the Corporation, completed the extension of the existing building bearing No.T.C.No.25/1010 with an area of 11.8 X 8.8 metres and 5 X 6.4 metres. 15. The case of the defendant is that the plaintiff constructed new walls and the extended portion was constructed with AC sheet roofs. Three rolling shutters were also fitted. The construction done by the plaintiff required licence. The plaintiff had not even applied for the grant of licence. The defendant-Corporation initiated action under Sec.406 of the Act. As per Sec.406, where the Secretary of a Municipal Corporation is satisfied that any construction or alteration of the building is done in contravention of the provisions of Sec.405, he may make a provisional order requiring the owner or the person for whom the work is done to R.S.A No.362 of 2006 7 demolish the work done. 16. In the present case, the Secretary of the defendantCorporation issued notice under sub-sections (1) and (2) of Sec.406 of the Act. Subsequently, the defendant-Corporation issued Ext.A1 stop memo and Ext.A2 provisional order. After complying with the formalities as provided in Sec.406 of the Act, Ext.A4 final order was issued. 17. The learned Senior Counsel contended that in view of the bar contained in Sec.563 of the Act, the Civil Court has no jurisdiction to entertain the suit. 18. The Kerala Municipality Act is a self-contained code. The action initiated by the defendant-Corporation under Sec.406 can be challenged in appeal as provided in Chapter XXIII of the Act. Section 563 of the Act bars the jurisdiction of the Civil Court in entertaining suit or other proceedings in respect of the action taken by or under the authority of the Secretary under any provisions comprised in Chapters XVII, XVIII and XIX. ## 19. Section 563 reads thus: “563. Jurisdiction of Civil Courts barred: No civil court shall have jurisdiction to entertain any suit, application or petition challenging R.S.A No.362 of 2006 8 the legality or propriety of any action taken by or under the authority of the Secretary under any provisions comprised in Chapters XVII, XVIII and XIX or the rules and regulations, if any, made thereunder.” 20. The question that falls for consideration is whether before exhausting the remedy provided under the Act, the plaintiff is entitled to approach the Civil Court and seek a decree for a permanent prohibitory injunction. It is trite that when the Special Act affords an alternative remedy which is sufficient and adequate, the exclusion of the jurisdiction of the Civil Court is implied. The Constitution Bench of the Apex Court in M/s.Kamala Mills Ltd. V. State of Bombay (AIR 1965 SC 1942) has declared the law on this question. The question was again considered in Ram Swarup v. Shikar Chand and another (AIR 1966 SC 893) and later in Dhruv Green Field Ltd. v. Hukam Singh and others [(2002) 6 SCC 416]. In Dhruv Green Field the Apex Court held thus: “ 10. In the light of the above discussion, the following principles may be restated: (1) If there is express provision in any special Act barring the jurisdiction of a civil court to deal with matters specified thereunder the jurisdiction of an ordinary civil court shall stand excluded. (2) If there is no express provision in the Act but an examination of the provisions contained therein leads to a conclusion in regard to exclusion of jurisdiction of a civil court, the court would then inquire whether any adequate and efficacious alternative remedy is provided under the Act; if the R.S.A No.362 of 2006 9 answer is in the affirmative, it can safely be concluded that the jurisdiction of the civil court is barred. If, however, no such adequate and effective alternative remedy is provided then exclusion of the jurisdiction of the civil court cannot be inferred. (3) Even in cases where the jurisdiction of a civil court is barred expressly or impliedly, the court would nonetheless retain its jurisdiction to entertain and adjudicate the suit provided the order complained of is a nullity.” ## 21. In Noushad v. Kayamkulam Municipality [2006 (2) KLT 319] ## this Court held thus: “10. It is clear from the above that Section 563 expressly bars entertaining of any suit by civil court challenging the propriety or legality of any action taken by or under the authority of the Secretary under the provisions comprised in Chapters XVII, XVIII, XIX of the Act or the rules and regulations made thereunder. Granting of approval for construction of the building and action for violation etc. under the Building Rules are contained in Chapter XVIII of the Act. Therefore, suit is prima facie not maintainable. Moreover, the issue raised in the suit is decided by this Court, in these proceedings and therefore suit is now barred by res judicata. Therefore, in exercise of jurisdiction under Article 227 of the Constitution, I dismiss the suit as one no longer maintainable based on the findings in this Writ Petition.” ## 22. In Thodupuzha Municipality v. Abraham Philip [2007 (4) KLT 972], this Court held that when the Special Act affords an alternative remedy which is sufficient and adequate, the exclusion of the jurisdiction of the Civil Court is implied. 23. In the present case, the action initiated by the defendant- Corporation under Sec.406 of the Act, as stated above, comes under Chapter XVIII of the Act, which is appealable under provisions contained in Chapter XXIII. R.S.A No.362 of 2006 10 24. The defendant-Corporation had specifically set up the pleading that as per Sec.563 of the Act, the Civil Court has no jurisdiction to entertain the suit. 25. Both the Courts below lost sight of the mandate of the statutory provision contained in Sec.563 of the Kerala Municipality Act, 1994. The resultant conclusion is that the judgment and decree passed by the Courts below are liable to be set aside. The Regular Second appeal is allowed. The impugned judgments are set aside. The Original Suit stands dismissed. The parties are directed to bear their respective costs. Sd/K.BABU, JUDGE KAS