K. Anandan v. Dr. K.J. Krishnakumar and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 17TH DAY OF FEBRUARY 2012/28TH MAGHA 1933** ## **RSA.No. 1251 of 2008 ( )** **-----------------------AS.217/2006 of VI ADDL.DISTRICT COURT, ERNAKULAM OS.1184/1999 of I ADDL.MUNSIFF'S COURT,ERNAKULAM** **..........** ## **PLAINTIFF:APPELLANTS/APPELLANTS:** **----------------------------------------------------------K.ANANDAN., S/O.KUNJAMBU NAMBIAR, COMPANY EMPLOYEE, 1/934, KOKKUNNATH HOUSE, VAZHAKKALA VILLAGE.** **BY SRI.V.R.VENKATAKRISHNAN,SENIOR ADVOCATE BY ADV. SRI.N.K.SUBRAMANIAN SRI.S.ANANTHAKRISHNAN** ## **DEFENDANTS/RESPONDENTS:RESPONDENTS:** **-----------------------------------------------------------------------** **1. DR.K.J.KRISHNAKUMAR, S/O.LATE JAYARAJAN, KAVANATTU HOUSE, KOTTANAKKAVU JUNCTION., CHAKKARPARAMBU, VENNALA PO. KOCHI-28.** **2. BABY, W/O.LATE JAYARAJAN, RETIRED SCHOOL TEACHER, KAVANATTU HOUSE, 'KINGINI', KANIYAPPILLY ROAD, VENNALA PO.,KOCHI-28.** **3. K.J.RADHAKRISHNAN @ THAMPI, S/O.LATE JAYARAJAN, KAKKANATTU HOUSE, DO.DO.** **4. K.J.RAJKUMAR, S/O.LATE JAYARAJAN, KAKKANATTU HOUSE, DO.DO,.** **5. JESSY RAMU, W/O.RAMU, 33/1708A, KANIYAPPILLY ROAD, VENNALA PO., KOCHI-28.** **6. SREEJA, D/O.RAMU, DO...DO.....** ## **7. SREEJITH, S/O.RAMU,...DO...DO....** **R1 TO 3,5 TO 7 BY ADVS.SRI.K.C.CHARLES SRI.VIMAL K.CHARLES SRI.AJAY V.ANAND** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **THOMAS P. JOSEPH, J.** **-------------------------------------R.S.A. No.1251 of 2008 -------------------------------------Dated this the 17[th] day of February, 2012.** ## **JUDGMENT** In this Second Appeal, the following substantial question of law is framed for a decision: “When construction of building by the appellant/plaintiff started prior to coming into force of the Kerala Municipality Building Rules, 1999 (for short, “the 1999 Rules”), the Government of Kerala had granted exemption to the appellant from the Kerala Building Rules, 1984 (for short, “the 1984 Rules”) and building permit was also issued on the basis of such exemption, were the courts below justified in applying the 1999 Rules to hold that construction was effected in violation of the 1999 Rules?” 2. Appellant/plaintiff owned a little over four cents of land as per sale deed No.5684 of 1994. With the idea of putting up a seven storied building in the said property, he obtained permit and approved plan from the Local Authority at a time when the 1984 Rules was in force. At that time, he had surrendered about a cent of land for widening the public road abutting his property and what remained with him after such surrender is around 3 ½ cents. In view of the surrender, he obtained exemption from the appropriate authority from some of the provisions of the 1984 Rules. With the approved plan, permit and exemption he started construction of a three storied building. He felt that **RSA No.1251/2008** 2 his adjacent owners, respondents might cause obstruction to his putting up the building in the suit property and to prevent any such attempt, filed O.S.No.1184 of 1999 in the 1[st] Additional Munsiff's Court, Ernakulam seeking a decree for prohibitory injunction to restrain the respondents from trespassing into the suit property and causing obstruction to his constructing the building. Respondents filed written statement raising various objections as regards legality of the construction appellant has embarked upon in his property. They also contended that appellant has trespassed into a portion of the property belonging to them on the west of suit property and made a counter claim for recovery of possession of the (allegedly) trespassed area. It is said that learned Munsiff has passed order of status quo as regards construction activities of the appellant. It is not very much in dispute that by the time the suit was instituted on 03.08.1999, preliminary work for construction of the originally intended seven storied building had already been done. While so, respondents amended the written statement and counter claim and incorporated a prayer for mandatory injunction to direct the appellant remove the objectionable part of construction that was being carried on in the suit property. They contended that appellant has not complied with Rule 24 of the 1984 Rules by leaving 1.5 metre space between the western wall of building in the suit property and the western boundary of the suit property. According to them, not leaving the required space not only violated Rule 24 of the 1984 Rules but also prevented respondents from enjoying free air and light to the building that existed in their property on the western side. Appellant answered the counter claim suitably. Parties went to trial. Learned **RSA No.1251/2008** 3 Munsiff, based on the reports and plans submitted by the Advocate Commissioner found that the allegation of trespass made by respondents is not correct and refused to grant decree for recovery of possession. Learned Munsiff thought that the 1999 Rules applied and hence, notwithstanding that appellant has obtained exemption from the Government, was bound to leave a minimum of 1.5 metre space between the western wall of building in the suit property and western boundary of said property. So holding, the counter claim was allowed to the extent it related to the mandatory injunction. Appellant was directed to remove objectionable part of the construction (without specifying as to what portion is to be removed, whether it is on the ground floor or on first floor or so). Appellant's prayer for prohibitory injunction was refused. Appellant carried the matter in appeal. Appellant specifically contended that since construction started based on plan, permit and exemption obtained when the 1984 Rules was in force, only that Rule will govern the construction and that the 1999 Rules has no application. Learned Additional District Judge-VI, Ernakulam decided A.S.No.217 of 2006. Learned Additional District Judge, it is contended by learned Senior Advocate, forgot to answer the question raised whether the 1999 Rules has application to the case but held that even if exemption pleaded by appellant is accepted, that would not exempt him from leaving a minimum of 1.5 metre space between the western wall of building in the suit property and his western boundary. So holding, the decree for mandatory injunction on the counter claim was confirmed. Dismissal of the suit was also confirmed. 3. Learned Senior Advocate for the appellant has contended that **RSA No.1251/2008** 4 both the courts below went wrong in applying the 1999 Rules to the construction embarked upon by the appellant. It is pointed out by the learned Senior Advocate that since the plan was approved, permission and exemption were obtained and construction started at a time when the 1984 Rules was in force, only that Rule would govern the construction notwithstanding that the 1999 Rules came into force on 01.10.1999. It is contended that courts below were patently at error in referring to Rule 82 of the 1999 Rules to hold that in spite of the exemption obtained, appellant is bound to leave 1.5 metre space between the western wall of building in the suit property and western boundary of the property. Learned Senior Advocate has placed reliance on the decision in ## **Albert Jerone v. State of Kerala (2009 (3) KLT 194)** to hold that even after commencement of the 1999 Rules on 01.10.1999, whatever action that was taken under the 1984 Rules would continue to hold good in view of Sec.172 of the Municipality (Amendment) Act, 1999. It is further contended that the right that has accrued by the 1984 Rules cannot be taken away unless there is specific provision in the 1999 Rules to that effect. Reliance is placed on the ## decision in **Garikapati Veeraya v. N.Subbiah Choudhry and others** **(AIR 1957 SC 540)** to contend that rights shall be deemed to be preserved unless it is specifically taken away by the subsequent legislation. My attention is also drawn to 'Maxwell on Interpretation of Statutes, 11[th] Edition' at page 212 where the author states that “in general, when the law is altered during the pendency of an action, the rights of the parties are **RSA No.1251/2008** 5 decided according to the law as it existed when the action was begun; unless the new statute shows a clear intention to vary such rights.” It is therefore contended that finding entered by the courts below that the construction is in violation of Rule 82 of the 1999 Rules cannot be sustained. Leaned Senior Advocate also contended that on account of the counter claim raised by the respondents and this litigation, much hardship was caused to the appellant in that the construction itself was delayed resulting in escalation of cost of materials and labour charges. It is contended that the decree on the counter claim is to be set aside and the counter claim dismissed. 4. Learned counsel for respondents contended that the 1984 Rules ceased to exist on the commencement of the 1999 Rules on 01.10.1999 and the construction is governed by the 1999 Rules. Reliance is placed on the decision in **Girilal v. Corporation of Cochin (2004 (2) KLT 251)** . It is also contended by the learned counsel that there is nothing to show that the Chief Town Planner (for short, “the CTP”) has applied his mind while recommending for exemption to the appellant from the provisions of the 1984 Rules. Reliance is placed on the decision in **Kurian v. State of Kerala (2001 (2) KLT 70)** . A further contention learned counsel has raised is that even if exemption granted under the 1984 Rules is accepted, there are still violations of the 1984 Rules as deposed by DW2 and noticed in Ext.X1(b). It is pointed out by the learned counsel that Rules 21(12(c), 21(3)(a) and 21(11)(c) of the 1984 Rules have been violated by the appellant. A further contention is that **RSA No.1251/2008** 6 the original plan having expired after three years, under Rule 9(2) of the 1984 Rules, it was necessary that the construction was completed not later than the validity period of permit (as originally granted) and if the construction was not completed, permit was to be revalidated on application subject to the Rules then in force, ie. the 1999 Rules. 5. The substantial question of law framed and which I am required to decide is, when the construction of building by the appellant started prior to coming into force of the 1999 Rules, the Government has granted exemption to the appellant from the 1984 Rules and building permit was also issued on the basis of such exemption, whether the courts below were justified in applying the provisions of the 1999 Rules to hold that construction was effected in violation of the 1999 Rules? 6. It is not in dispute that construction of building by the appellant started at a time when the 1984 Rules was in force and for the said purpose, he had obtained approved plan and permit from the appropriate authority in accordance with the 1984 Rules. It is also not very much in dispute and, is revealed by various reports submitted by the Advocate Commissioner before the trial court that construction of the building had commenced even before the 1999 Rules coming into force. Ext.A8 is dated 03.07.1997 while Ext.A9 is dated 04.02.1998. Ext.A7 is dated 04.04.1998. It is under Exts.A7 and A9 that permission was granted to the appellant for construction of a seven storied building. Under Ext.A8, he was exempted, among other provisions, from Rule 15 (3)(c) of the 1984 Rules which relates to leaving side space between the **RSA No.1251/2008** 7 building being constructed in the suit property and western boundary of the suit property. 7. Now the question is whether in such a situation, for the reason that the 1999 Rules came into force on 01.10.1999 and by the time construction of building in the suit property was not completed, appellant was bound to switch over to the provisions of the 1999 Rules and comply with that Rule or, was entitled to complete construction in accordance with the 1984 Rules and the exemption granted under that Rule? In this connection I must bear in mind that in the counter claim the only contention raised by the respondent is as regards violation of Rule 24 of the 1984 Rules (ie., regarding leaving required space between the western wall of building in the suit property and its western boundary). The reports of Advocate Commissioner would show that the space available between the western wall of building in the suit property and its western boundary is less than 1.5 metre. 8. The one decision which learned counsel for respondents has placed reliance is **Girilal v. Corporation of Cochin** . There, learned Judge of this Court while deciding W.P.(C) No.31647 of 2003 took the view that any order issued under the 1984 Rules which was repealed by the 1999 Rules will survive only if the said order could have been issued under the 1999 Rules. Learned Judge took that view since it was Sec.410 of the Kerala Municipality Act, 1994 which gave power to the appropriate authority to grant exemption from the provisions of the Building Rules, Sec.410 was repealed and as no similar provision is contained in the Kerala Municipality Act, 1994, it was not open to the **RSA No.1251/2008** 8 authorities to exempt any person from the provisions of the 1999 Rules. So holding it was held that the exemption granted under the 1994 Rules will not survive after 01.10.1999. 9. If the said decision were to be applied it follows that the exemption granted to the appellant as per Ext.A8 could not survive after 01.10.1999. It is to be noticed that the judgment in W.P.(C) No.31647 of 2003 **(Girilal v. Corporation of Cochin)** was challenged in W.A.No.774 of 2004 and by judgment dated 24.08.2004, may be for the reason of the affidavits parties filed regulating the construction, the Division Bench set aside the judgment in **Girilal v. Corporation of Cochin** and the Writ Petition dismissed. Therefore, judgment in **Girilal v. Corporation of Cochin** does not survive for consideration. 10. On the other hand, in **Albert Jerone v. State of Kerala** another learned Judge referring to Sec.172 of the Municipality (Amendment) Act, 1999 held that any action taken pursuant to the provisions of the 1984 Rules will hold good even after the 1994 Rules came into force on 01.10.1999. That was a case where the 4[th] respondent in that proceeding had applied for exemption on 05.08.1998 under Sec.410 of the Kerala Municipality Act, 1994 at a time when the 1984 Rules was in force. While the application was pending, Sec.410 referred to above was repealed with effect from 24.03.1999 and on 01.10.1999 the 1999 Rules came into force. It was therefore, contended that the exemption applied for cannot be entertained in view of enactment of the 1999 Rules with effect from 01.10.1999. Repelling that contention, learned Judge held that **RSA No.1251/2008** 9 though Sec.410 was repealed with effect from 24.03.1999, Sec.172 of the Municipality (Amendment) Act , 1999 is almost similar to the power granted under the repealed Sec.410 and hence it is open to the authorities concerned to decide the application preferred under the 1984 Rules even after the said Rules ceased to exist and the 1999 Rules came into force on 01.10.1999. Learned Senior Advocate has also brought to my attention the decision in **Ashalatha** ## **v.Commissioner, Cannanore Municipality (1989 (2) KLT 681)** where the building permit was granted in accordance with the 1984 Rules, construction could not be completed, extension prayed for was not allowed by the appropriate authority and that was challenged in this Court. This Court held that the building permit having been issued under the 1984 Rules was liable to be renewed from time to time notwithstanding that the 1984 Rules ceased to exist. In view of the said decisions and Sec.172 of the Amendment Act referred above, it is clear to me that notwithstanding that the 1999 Rules came into force on 01.10.1999, exemption granted to the appellant as per Ext.A8 under the 1984 Rules hold good. 11. Construction of building by the appellant has, therefore to be governed by the 1984 Rules and not by the 1999 Rules. In **Garikapati** ## **Veeraya v. N.Subbiah Choudhry and others** relied on by the learned Senior Advocate, it is held that vested rights are deemed to be preserved unless specifically taken away. That is what Maxwell also has stated (quoted above). Hence the exemption appellant has obtained as per Ext.A8 before the 1999 Rules came into force must hold good even after 01.10.1999. Unfortunately the **RSA No.1251/2008** 10 courts below have referred to Rule 82 of the 1999 Rules to hold that even if exemption has been granted as per Ext.A8, appellant is bound to leave as the proviso to Rule 82 of the 1999 Rules says a minimum of 1.5 metre between the western wall of building and the western boundary of the suit property. 12. In the light of what I have stated above, I must hold that the said finding of the courts below is erroneous, for, it is the 1984 Rules which should have governed the construction and as I stated, contention raised in the counter claim also was only as regards alleged violation of Rule 24 of the 1984 Rules. And, so far as that is concerned, Ext.A8 is the answer – there is exemption granted to the appellant from leaving side space between his building and the boundary of his property. Viewed in that line, finding of the courts below that there is violation of Rule 82 of the 1999 Rules cannot be accepted. On the other hand I am to hold that in view of Ext.A8, appellant was exempted from leaving side space between his building and the western boundary of his property. 13. Another objection which learned counsel for respondents has raised is regarding correctness of report of the CTP based on which Ext.A8, exemption is granted. It is in connection with that, learned counsel referred me to the decision in **Kurian v. State of Kerala** where it is held that recommendation by the GCDA and the CTP is a sine qua non for granting exemption from the operation of the Rules by the State Government. There the Supreme Court considered the amplitude of the expression ‘recommended’ occurring in Rule 5 of the 1984 Rules. **RSA No.1251/2008** 11 14. In Ext.A8, there is reference to the report of the CTP which was taken into account by the appropriate authority to grant the exemption. I must notice that the civil court is not sitting in appeal over the report of the CTP. The report of the CTP is not before me to say whether the CTP had applied mind or not in giving the recommendation. Ext.A8 shows that the report of the CTP also was taken into account by the appropriate authority while deciding to grant exemption to the appellant. 15. Yet another contention the learned counsel for respondents has addressed is as to the violation of Rule 9(3) of the 1984 Rules. It is also contended by the learned counsel from Ext.X1(b) and the evidence of DW2 that there are other violations (which I have referred to above). 16. According to the learned Senior Advocate for the appellant, Rule 9(2) of the 1984 Rules is complied. It is pointed out that Ext.A7, permit was granted in favour of appellant when the 1984 Rules was in force and Ext.A4, dated 07.02.2001 would show that the application for the purpose was preferred on 19.05.2000. Thereafter Ext.A3, permit dated 19.04.2001 was issued in favour of appellant as per application preferred on 28.02.2001. The said permit was valid for a period of three years from 16.04.2001. The suit was filed on 03.08.1999. 17. So far as those contentions are concerned, I must bear in mind that there is no plea raised by respondents in the counter claim in that regard. I stated that the counter claim is raised on two grounds, viz., that appellant has trespassed into a portion of the property belonging to the respondents, hence **RSA No.1251/2008** 12 recovery of possession is prayed for and secondly, appellant has violated Rule 24 of the 1984 Rules, the construction is therefore objectionable and hence, the prayer for mandatory injunction. 18. Learned counsel for respondents has contended that there is allegation in the counter claim that appellant has violated the Building Rules. Relying on **New Model Bank Ltd. (in liquidation) v. P.A.Thomas (1959 KLT 1237)** and **Kamalaksha Pai v. Kesava Bhatt (AIR 1972 Kerala 110)** it is argued that question of law is not required to be pleaded and that the plea that the construction is in violation of the Building Rules is sufficient. 19. In **New Model Bank Ltd. (in liquidation) v. P.A.Thomas** relied by learned counsel it is held that necessary averment of facts having been made, it is not necessary that the relevant provision of law should be pleaded and that the legal consequences must necessarily follow whether the provision of law is pleaded or not. In **Kamalaksha Pai v. Kesava Bhatt** in paragraph 5, it is stated that where a relief is asked for in the plaint on a certain basis the fact that plaintiff asks virtually for a relief on different grounds at the time of trial will not disentitle him for that relief provided, the defendant is not prejudiced. 20. I am inclined to think that unlike the facts of those cases, here is a case where the prayer is for a decree for mandatory injunction to pull down a multi-storied building constructed by the appellant. A mere, vague allegation of violation of Building Rules is not sufficient, even to raise an issue regarding that. When the adjacent owner, ofcourse he has a right to seek mandatory **RSA No.1251/2008** 13 injunction if the Building Rules are violated, seeks the building to be pulled down he is expected to state what exactly are the violations. It is not as if he can make a vague, spacious allegation that the Building Rules are violated and use the forum of the civil court to hold a rowing enquiry to see whether there is any violation of the Building Rules and then direct the building owner to demolish the structure. When respondents came with an allegation of violation of the Building Rules it was required of them to state what exactly are the violations so that, appellant had the opportunity to meet it. A vague allegation that the Building Rules are violated is not sufficient. It is settled that any amount of evidence not having the backing of pleadings cannot be looked into. Therefore, the argument advanced by the learned counsel for respondents that there are other violations of the 1984 Rules relying on the evidence of DW2 and Ext.X1(b) is not required to be gone into in this proceeding. 21. The result of my discussion is that the trial and first appellate courts were wrong in proceeding on the basis that the 1999 Rules applied to the construction made by appellant notwithstanding that appellant had obtained Exts.A7 to A9 under the 1984 Rules which existed at the relevant time and finding that there is violation of Rule 82 of the 1999 Rules. The substantial question of law raised is answered accordingly. The failure to leave side space of 1.5 metre is saved by Ext.A8. 22. So far as the decree for prohibitory injunction prayed for by appellant is concerned, it is submitted by the learned Senior Advocate for the **RSA No.1251/2008** 14 appellant that construction of the building is completed and hence appellant no more has the apprehension of any obstruction by the respondents in the matter of construction. In the light of that, it is not necessary to grant decree for prohibitory injunction prayed for by the appellant. The Second Appeal is allowed as under: i. Judgment and decree of learned Additional Munsiff-I, Ernakulam in O.S.No.1184 of 1999 and judgment and decree of learned Additional District Judge-VI, Ernakulam in A.S.No.217 of 2006 to the extent it concerned the decree on the counter claim are set aside. ii. The counter claim filed by respondents will stand dismissed. iii. The dismissal of the suit will stand confirmed. iv. Parties are directed to suffer their respective costs in this proceedings. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**