K.V. Sugha v. K.V. Sujeevan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 18TH DAY OF AUGUST 2014/27TH SRAVANA, 1936** ## **RSA.No. 570 of 2013 ()** **----------------------AS. NO.53/2011 OF III ADDITIONAL SUB COURT, ERNAKULAM. OS. NO.871/2007 OF II ADDITIONAL MUNSIFF COURT, ERNAKULAM. ......** ## **APPELLANT/APPELLANT/DEFENDANT:** **---------------------------------------------------------** **K.V. SUGHA, W/O. MOHANDAS, AGED 59 YEARS, KAPPATTIPARAMBIL HOUSE, NEAR NORTH RAILWAY STATION, KALOOR P.O., ERNAKULAM-682 018.** **BY ADV. SRI.K.G.BALASUBRAMANIAN.** **RESPONDENT/RESPONDENT/PLAINTIFF:** **--------------------------------------------------------------** **K.V. SUJEEVAN, S/O. PURUSHOTHAMAN, AGED 45 YEARS, KANJIRAPARAMBIL HOUSE, PJ ANTONY ROAD, MAMANGALAM, EDAPPALLY P.O., ERNAKULAM-682 024.** **BY ADV. SRI.K.R.VINOD.** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **RSA.No. 570 of 2013** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE R1** **COPY OF THE ORDER DATED 13/08/2007 OF THE HONOURABLE MUNSIFF COURT, ERNAKULAM IS I.A. NO.5642/2007 IN O.S. NO.871/2007.** ## **RESPONDENT'S ANNEXURES:-** **NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **rs.** ## **P.BHAVADASAN, J. ----------------------------------------------Regular Second Appeal No.570 OF 2013 ----------------------------------------------Dated this the 18[th] day of August, 2014.** ## **J U D G M E N T** Siblings are at war. Both of them obtained property namely, A and B schedule respectively as per Ext.A1 partition deed. The properties were separated by a boundary wall. The defendant started construction of a residential building in B schedule property and the allegation in the plaint was that that was being done in gross violation of the Building Rules and in fact, to be more precise, in violation of the sanctioned plan. The plaintiff also alleges that the sunshades of the 1[st] floor of the building constructed in the B schedule property project into the plaint A schedule property causing rain water to fall on his building. Various other instances of illegal construction in gross violation of the sanctioned plan are mentioned in the plaint. Ultimately, suit was laid for mandatory injunction and prohibitory injunction seeking necessary reliefs as against the defendants. **R.S.A No.570/2013** **2** 2. The defendant apart from resisting the suit pointed out that the plaintiff has clandestinely shifted the compound wall and thereafter laid the suit with false allegations. It was pointed out that the building was constructed in conformity with the plan submitted before the local authority and approved by them and the allegations to the contrary are false. It is contended that the officer of the Corporation has inspected the construction and he was satisfied that it was done in terms of the sanctioned plan. The Village Officer was also satisfied about the same. The grievance of nuisance being caused as a result of rain water falling on the building situated in the plaint A schedule property was denied. It is contended that the plaintiff at the time of commencement of construction had no objection. No Objection Certificate was given to her by the Corporation after being satisfied about the regularity of the construction. The grievance made against the location of the septic tank is without any basis and is unjustified. It was therefore contended that the suit is illmotivated and is only with the intention to harass the defendant. **R.S.A No.570/2013** **3** 3. On the basis of the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and the documents marked as Exts.A1 to A6 from the side of the plaintiff. The defendant had DWs 1 and 2 examined and Exts.B1 to B13 marked. Exts.C1 to C2 series, commission reports and plan, were also marked. 4. The trial court, on appreciation of evidence in the case, came to the conclusion that the grievance of the plaintiff that the defendant had put up construction in gross violation of the Building Rules and the sanctioned plan was justified going by the commission report and holding that the defendant had no right to put up such constructions, granted the relief as sought for by the plaintiff. Aggrieved defendant carried the matter in appeal as A.S.No.53/2011 before the Sub Court, Ernakulam. The lower appellate court, after independent evaluation of the materials before it, came to an identical conclusion that of the trial court and dismissed the appeal. 5. The following substantial questions of law were seen formulated in the appeal. **R.S.A No.570/2013** **4** - (i) Did the courts below go wrong in relying on the decision in **Kunnathu Automobile** v. **Muthu Ayyan Chettiar (1986 KLT 560)** in the light of the decision in **Thodupuzha Municipality v. Abraham Philip (2007 (4) KLT 972)** ? - (ii) Did the courts below go wrong in holding that a neighbour can file a suit for specific relief on a cause of action based on the alleged violation of Municipal Building Rules in as much as the Kerala Municipality Act, 1994 and Kerala Building Rules provided equally efficacious remedy? - (iii) Was not the suit liable to be dismissed based on the principle of estoppal and acquiescence? 6. Sri.K.G.Balasubramanian, learned counsel appearing for the appellant contended that both the courts below have erred in law in holding that the suit is maintainable. In view of the fact that there is an alternate forum available for the redressal of the grievance of the plaintiff and also in the light of the decision in _**Rikhabsao Nathusao Jain** vs._ _**Corporation of the City of Nagpur and others**_ ((2009) 1 Supreme Court Cases 240), learned counsel went on to point out that the suit is not maintainable. It is also pointed out that both the courts below **R.S.A No.570/2013** **5** have not considered the real point in issue i.e. the boundary dispute. The defendant has specifically raised an issue that the plaintiff had changed the boundary and thereafter laid the suit accusing the defendant of having violated the Building Rules and made constructions in violation of the approved plan. It was then contended that serious objections taken to the Commissioner's report by the defendant have not been adverted to and considered by the courts below and on these grounds, the judgment and decree of the courts below cannot stand. 7. Per contra, Sri.K.R. Vinod, learned counsel appearing for the respondent contended that both the courts below have considered all the aspects in considerable detail and have come to the conclusion that the construction put up by the defendant is in violation of the sanctioned plan and she is bound to remove the objectionable structures. According to the learned counsel, the question regarding boundary was considered by the courts below. Referring to the commission report and plan Exts. C2, C2(a) and C2(b), it was contended by the learned counsel that the properties were measured with reference to the partition **R.S.A No.570/2013** **6** deed and it was found that each of the parties were in possession of the property obtained by them as per the partition deed and there was no shifting of boundary as alleged by the appellant. The Commissioner has visited the property on two occasions and has given all the details and particulars sought for by the respective parties and the tabular data given by the Commissioner shows the gross violation committed by the defendant in putting up the construction. Learned counsel pointed out that _**Rikhabsao Nathusao Jain** vs._ _**Corporation of the City of Nagpur and others**_ ((2009) 1 Supreme Court Cases 240) does not lay down any different principles than the decision in _**Bernad Mani** vs._ _**James**_ (2012 (1) KLT 485). 8. Learned counsel appearing for the respondent went on to point out that it was not against the order of the Municipality or other statutory authority that the grievance was being voiced by the respondent herein. But it was against putting up of structures in violation of the sanctioned plan that the objection was being taken to. If that being the position, the decision relied on by the learned counsel for the appellant can have no **R.S.A No.570/2013** **7** application to the present case. In the case on hand, according to the learned counsel, there is a clear finding by both the courts below that there is gross violation of the sanctioned plan in putting up the structures and that being essentially a finding of fact, no substantial question of law arises for consideration in this appeal and it is only to be dismissed. 9. After having heard the learned counsel on both sides and after having perused the records and also the decision relied on by either side, it is felt that there is considerable force in the submission made by the learned counsel for the respondent. It is true that the defendant had raised a contention that the plaintiff was guilty of having shifted the boundary and then laid the suit complaining about the violation of the sanctioned plan in putting up the structures. 10. Sri.K.G.Balasubramanian, learned counsel appearing for the appellant very vehemently contended that this core issue has not been gone into by both the courts below and that being the real issue ought to have been determined based on the available evidence in the case. There was no proper identification **R.S.A No.570/2013** **8** of the property to ascertain this aspect. 11. The argument seems to be without any basis. In fact, in the commission report dated 20.02.2010, the matters noted in the work memo supplied by the defendant are stated and caption 2 therein reads as follows: - “2. And on the basis of that measurement report whether there is any trespass into the Defendant Property and if so report about the area trespassed”. On the basis of the same, it is observed as follows: “The property as per the partition deed mentioned above having side measurements as follows. From North-west corner to east 98 links, from there to south 37 links, from there to west 28 links, from there to south 16 links, from there to west 71 links and from there to north point at which the measurements started 48 links. According to the measurements taken and sketch prepared by the surveyor, the corresponding measurements are 19.7 (19.8) meters, 7.35 meters, 5.6 (5.95) meters, 3.2 meters 14.1 meters and 9.7 meters. And the area calculated is 4.500 cents”. 12. The Commissioner had submitted his report along with the sketch prepared by the surveyor. A reading of the above report shows that each of the parties was found to be in **R.S.A No.570/2013** **9** possession of the extent of property obtained as per the partition deed and the claim made by the defendant that there was shifting of boundary does not appear to be correct. Even though objections seems to have been filed by the appellant, there were no attempt to substantiate the same by adducing evidence. Under such circumstances, both the courts below were justified in accepting the commission report and coming to the conclusion that there was no shifting of boundary as claimed by the defendant. 13. As regards the question as to whether there is violation of the sanctioned plan in putting up of constructions, there can be no manner of doubt in the light of the Commissioner's report and sketch namely, Exts.C1 to C2(b). In fact, in Ext.C2 report, the Commissioner at page 4, in a tabular form, has shown the details of the measurements that need to be left on various sides as per the sanctioned plan and the present stage of construction undertaken by the defendant. The Commissioner has also taken pains to show the violation of the distance committed by the defendant on each portions. The Commissioner has also pointed **R.S.A No.570/2013** **10** out that these violations have been shown in the sketch prepared and submitted by him. It is significant to notice that the Commissioner has opined about the location of the septic tank in his report dated 20.02.2010 at page 5, paragraph 4 as follows: “4. Inspect, locate and report about the plaint C schedule septic tank and pit constructed in the Plaint B schedule property and measure the distance between the septic tank and the well, and the pit and the well. The plaint C schedule septic tank and pit in the plaint B schedule property situate east side of the building and between building and the compound wall on the west side of the plaint A schedule property the septic tank having a size at the top of it, i.e. ground level, is 2.60 x 1.70 meters and pit is south to the septic tank. The distance between the septic tank and well is 2.3 meters and that of Pit and well is zero”. 14. The refuge taken by the appellant that occupancy certificate has been granted so also the Village Officer has visited the property and satisfied about the construction serve no purpose as far as the defendant is concerned. Assuming that the statutory authorities overlooked the violation of the sanctioned plan, that cannot justify the violations. **R.S.A No.570/2013** **11** 15. It will be useful to refer to the decision relied on by either side. In the decision in _**Rikhabsao Nathusao Jain** vs._ _**Corporation of the City of Nagpur and others**_ ((2009) 1 Supreme Court Cases 240), the Apex Court was considering the question with reference to Town Planning Act and after observing that Town Planning Act provides remedies for the grievance that may arise under the Act, the Apex Court in paragraph 23 considered the question whether the District Court can exercise its jurisdiction altogether in such a matter. The Apex Court went on to observe as regards the contravention of the Town Planning Act on the following terms. “23. We will proceed on the basis that a deemed sanction would amount to an order granting sanction of a building plan. However, the jurisdiction of the District Judge can be invoked if a building is erected or re-erected in contravention of any town planning scheme or building bye-laws. Indisputably, right of a neighbour is also a valuable right. He, in the event a building plan has wrongly been sanctioned, is entitled to file an appropriate application before the District Court for an injunction for removal or alteration of any building plan on the premise that the same was in contravention of any **R.S.A No.570/2013** **12** ## provisions of the Act or bye-laws made thereunder”. 16. In the decision relied on by the learned counsel for the respondent i.e. _**Bernad Mani** vs._ _**James**_ (2012 (1) KLT 485), it was held as follows: “A plain reading of S.563 itself indicates that the jurisdiction of the civil court is ousted only if the challenge before the civil court is regarding the legality or propriety of any “action” taken by or under the authority of the Secretary under any of the provisions contained in Chapter XVII, XVIII and XIX of the Act or the Rules and Regulations, if any, made thereunder. There is no dispute that no action of the Municipality or its Secretary under the aforementioned Chapters is either assailed in the suit or requested to be adjudicated upon by the court. In fact, the grievance of the plaintiffs is that the Municipality is proposing to issue completion and ownership certificates and allot building numbers to the offending construction. If as a matter of fact the apprehended certificates or building numbers were already issued by the Municipality, then the embargo under S.563 of the Kerala Municipality Act would have been squarely attracted disabling the court from entertaining the suit or going into the legality or propriety of the action so taken. The court below was not justified in holding that it was debarred by **R.S.A No.570/2013** **13** S.563 of the Kerala Municipality Act from going into the said question. If as matter of fact the buildings have been constructed illegally or in violation of the Rules, then the plaintiffs will be justified in seeking the temporary injunction against the issuance of the aforementioned certificates and allotment of number in respect of those buildings. The court below by refusing to go into this question has abdicated its function as the civil court”. 17. On a reading of both the decisions, it could not be said that there is a conflict between the decisions at all. Both the decisions concerned itself as to the question as to whether the jurisdiction of the civil court is ousted by the provisions contained in the respective Town Planning Act as well as Municipalities Act. In both the decisions it was held that as regards the orders passed under the respective cases, there may be an embargo created but as as regards the contravention or violation of the Rules etc. and also as regards putting up of structures in gross violation of the relevant Rules, there is no embargo casts on the power of the court to interfere and grant necessary relief to a neighbour who complained of violation of approved or sanctioned plan. **R.S.A No.570/2013** **14** 18. In the case on hand, the plea based on alternate relief has necessarily to fail in the light of the decisions cited above. Equally without force is the contention that the commission report ought not to have been accepted at all. Both the courts below have discussed the commission report and also the objection filed by the appellant and found that the objections are not tenable. Even though an attempt was made by the appellant to show that there is subsequent approval by the authority concerned, there is no convincing evidence even before this Court to show that unauthorized constructions have been approved or ratified by compounding the same as envisaged by law. Learned counsel appearing for the respondent pointed out that if at all any ratification is required, it can be done only by the Government and there is nothing to show that such procedure has been followed. 19. On going through the decisions of the courts below, it is found that both the courts below have considered all the aspects in considerable detail and also considered the contentions raised by the defendant in the proper perspective and have come **R.S.A No.570/2013** **15** to the conclusion that the constructions carried out by the defendant is in violation of the sanctioned plan. The location of the septic tank, as noticed by the Commissioner, gives a cause of action to the plaintiff. As rightly pointed out by the learned counsel for the respondent, the findings arrived at by the courts below are on appreciation of evidence and are essentially findings of fact. It is not shown that the findings are either perverse or contrary to the evidence on record. This appeal is without merits and it is liable to be dismissed. I do so. There will be no order as to costs. Sd/- **P.BHAVADASAN JUDGE** smp // True Copy // P.A. to Judge.