Mathew Abraham v. Kottayam Municipality and Others

W.P.(C) No.15865/2016 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 26[TH] DAY OF AUGUST 2022 / 4TH BHADRA, 1944** ## **WP(C) NO. 15865 OF 2016** ## **PETITIONER:** **MATHEW ABRAHAM AGED 72 YEARS S/O.M.M. ABRAHAM, MEECHIRAYIL HOUSE, CHINGAVANAM.P.O., KOTTAYAM DISTRICT-686 531, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, M.M. ABRAHAM, MEECHIRAYIL HOUSE, CHINGAVANAM.P.O., KOTTAYAM DISTRICT-686 531.** **BY ADV SRI.SURIN GEORGE IPE** ## **RESPONDENTS:** **1 KOTTAYAM MUNICIPALITY REPRESENTED BY ITS SECRETARY, KOTTAYAM MUNICIPAL OFFICE, KOTTAYAM - 686 001. 2 EXECUTIVE ENGINEER KOTTAYAM MUNICIPALITY, MUNICIPAL OFFICE, KOTTAYAM - 686 001. 3 M.K.CHERIAN KOZHIKODEPARAMPIL, PAKKIL, KOTTAYAM - 686 012. R1 & R2 BYBY ADV ASISH K.JOHN R3 BY SMT.K.V.RESHMI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.15865/2016 2 ## **JUDGMENT** ## **Dated this the 26[th] day of August, 2022** This writ petition is filed by the petitioner seeking to quash Exhibit P1 order passed by the Secretary of the Kottayam Municipality – the 1[st] respondent, as per section 406(3) of the Kerala Municipality Act, 1994 , and Exhibit P2 order passed by the Local Self Government Institutions, Thiruvananthapuram, in Appeal No.1398/14 dated 11[th] March, 2016, whereby Exhibit P1 order passed by the Secretary of the Municipality directing the petitioner to demolish the unauthorised constructions carried out by the petitioner by changing the roof of the building and constructing a wall partially, was affirmed by the Tribunal; however, liberty of the petitioner to seek regularisation was left open. 2. Brief material facts for the disposal of the writ petition are as follows; petitioner is in joint ownership of an extent of 4.11 Ares of property along with an old shed therein, situated in Sy.No.99/1 of Nattakam Viilage, Block No.9 of Kottayam Municipality, along with his wife, Sajeena Varghese. According to the petitioner, the property along with the old shed was purchased on 21.1.2014 from one Josen Joseph John, Kottayam, who in turn had purchased the property from the sister of the 3[rd] respondent viz., Eliyamma Abaham, who derived the property as per C schedule of the Parturition Deed No.797/92 dated 24.3.92 of Kottayam SRO. W.P.(C) No.15865/2016 3 3. According to the petitioner, the property of the 3[rd] respondent viz., one M.K.Cherian, lies next to his property, is specifically described in B schedule of the aforesaid partition deed. It is further submitted that the 3[rd] respondent had an intention to purchase the said property as it was originally owned by his ancestors, and it was in order to wreck vengeance, frivolous complaint was filed before the Secretary of the Kottayam Municipality; and it was accordingly that proceedings were initiated under section 406 of Act, 1994 dealing with unauthorised constructions. It is the further case of the petitioner that having been aggrieved by the final order passed as per section 406(3) of Act, 1994, petitioner has filed appeal before the Tribunal but the Tribunal has not appreciated the contentions put forth by the petitioner. The Tribunal, after calling for the files, has found that the roof of the building was changed and alterations were made in the wall and installed two rolling shutters and effected truss work. It was accordingly that the order passed by the Secretary of the Municipality was affirmed. 4. A counter affidavit is filed by the Secretary of the Municipality and has produced along with the same, the notice under section 406(1) and the provisional order under section 406(2) of Act, 1994 and also the objections made by the petitioner, wherein the constructions made by the petitioner is explained. 5. The paramount contention advanced by the learned counsel for petitioner is that the Secretary of the Municipality as well as the Tribunal erred in arriving at W.P.(C) No.15865/2016 4 the conclusion that the petitioner has carried out construction without securing permit, basically for the reason that changing of shutters from wooden doors and changing of roof with sheets after replacing the old one, would not amount to constructions, for which a permit is not to be secured from the Secretary of the Municipality. To substantiate the said contention, learned counsel for the petitioner invited my attention to rule 10 of the Kerala Municipality Building Rules, 1999 dealing with permits not necessary for certain works. According to the petitioner, clause (1) of rule 10 deals with providing or removing of windows or doors or ventilations and clause (7) deals with petty repairs to the building, pitched roof, and therefore, according to the petitioner, the work of changing wooden doors with rolling shutters and petty repairs to the building for installation of the rolling shutters would come under the exception contained under rule 10 of Rules, 1999. For brevity rule 10 of the Rules, 1999 is extracted: **“10. Permit not necessary for certain works.** - Not withstanding anything contained in these rules, no building permit shall be necessary for executing the following works which do not otherwise violate any provisions regarding general building requirements, structural stability and fire safety requirements of the rules, namely:- (i) Providing or removing of windows or doors or ventilators; Providing inter-communication doors; (ii) Providing or removing of partitions; (iii) ( Gardening excluding any permanent structures, (iv) White or color washing; (v) Painting; W.P.(C) No.15865/2016 5 ## (vi) Petty repairs to the building and pitched roof ## (viii) Plastering and patch work; and (ix) Interior decoration without any structural alterations ; (x) Changing of the location of the building or construction within the plot: Provided that the details of works under item (ix) shall be intimated to the Secretary at least ten days before the commencement of such work, with particulars regarding the existing conditions in full so as to enable him to make an assessment of the nature of work. If the Secretary has any objection it shall be communicated to the applicant within ten days. Provided further that the changing of the location under item (x) shall be incorporated in the completion plan. “ 6. That apart it is submitted that the very same question was considered by a learned Single Judge of this Court in **E.Ansarudeen v. Tribunal for Local Self Government Institutions, Thiruvananthapuram** [ 2013(2) KHC 130 and held as follows: As rightly pointed out by the learned counsel for the petitioner, if providing a new door where there was no door at all, does not require a building permit under the said Rule, then replacement of an existing door also is a construction, which requires no building permit. ## 6. S.386 of the Kerala Municipality Act Reads thus: “3 **86. Prohibition of construction of doors, ground floor windows and bars so as to open outwards.-** - No door, gate, bar or ground floor window which opens on any public street shall be constructed or reconstructed so as to open outwards except with a licence under S.366.” The learned counsel for the Corporation argues that in view of S.386, without obtaining a licence under S.366, the petitioner could not have re - constructed W.P.(C) No.15865/2016 6 the door, which opens into a public street. S.366 reads thus: “ **366. Prohibition and regulation of doors, ground floor windows and bars opening outwards** .-- (1) No door, gate, bar or ground floor window shall, without a licence from the Municipality be hung or placed so as to open outwards upon any street. (2) The Secretary may, by notice, require the owner of such door, gate, bar, or window to alter it so that no part thereof, when open, shall project over the street.” It is plain for anybody to see that S.366 and S.386 apply only if a door is constructed or re-constructed so as to open outward into a public street. Here, the existing wooden planks used as door is replaced by rolling shutters, which does not open outwards into a public street. That being so, no licence under S.366 is required for such re-construction as well. Therefore, I have no doubt in my mind that replacement of wooden planks by rolling shutters by the petitioner is not an activity or construction, which would require a permit either under the Kerala Municipality Act or under the Kerala Municipality Building Rules. No provision of law which requires the consent of the landlord for such construction has also been brought to my notice. Therefore, the second contention of the learned counsel for the Corporation is also unsustainable. That being so, the interference by the Corporation in the said activity is clearly without jurisdiction. Consequently, the impugned orders are unsustainable. 7. Accordingly, Exts. P9 and P13 orders are quashed. It is declared that the petitioner does not require any permit for replacement of the wooden planks used as doors by rolling shutters. But, I make it abundantly clear that I have not considered the inter se dispute between the petitioner and respondents 3 and 4 in respect of the tenancy, which is left open to be agitated by the parties before the appropriate Civil Court. The Writ Petition is allowed as above.” 7. So also learned counsel for the petitioner has invited my attention to rule W.P.(C) No.15865/2016 7 2(f) of the Kerala Municipality Building rules, 1999 dealing with alteration which is defined to mean, a structural change, such as an addition to the area or height or addition of floor/floors or mezzanine floor within any existing floor height, or change of existing floor or changing the roof to concrete slab or re-construction of existing walls or construction of concrete beams and columns amounting to structural change or construction of internal walls for subdividing the existing rooms etc.; and therefore according to the learned counsel , permit is required only if the roof is changed with concrete slab. 8. Relying upon the said provision, the submission made by the learned counsel for the petitioner is that the changing of the roof using new aluminium sheets or other sheets would not be an alteration in work and in order to attract the alteration of work, there should have been a change of the existing roof to the concrete slab. However, in the case on hand, petitioner has only changed the sheets of the roof using new ones and therefore, no permit was required. 9. On the other hand, learned counsel appearing for the 3[rd] respondent Smt.K.V.Reshmi submitted that the sheet provided to the roof of the building is protruding into the property of the 3[rd] respondent and therefore, nuisance is caused to the 3[rd] respondent in many ways. Learned standing counsel for the Municipality Sri.Asish K. John also advanced arguments supporting the order passed by the Secretary of the Municipality and the Tribunal. 10. I have heard learned counsel for petitioner Sri.Surin George Ipe, learned W.P.(C) No.15865/2016 8 standing counsel Sri.Asish K. John for the Kottayam Municipality, learned counsel Smt.K.V.Reshmi for the party respondent and perused the pleadings and documents on record. 11. The discussion of facts made above would make it clear that the changing of roof with new sheets may not come under the term, “alteration”, so as to attract the requirement of the permit for changing the roof since as per rule 2(f) of the Rules, 1999, it is categorically made clear that in order to attract the requirements of alteration of a roof, it should be an alteration of a roof with concrete slab. There is no case for the 3[rd] respondent and the Municipality that, such an alteration was made by the petitioner. That part rule 10 of the Rules, 1999 read with the judgment of the learned Single Judge in **E.Ansarudeen** (supra), would make it clear that the changing of wooden doors with rolling shutters is not an activity or construction, which would require permission either under the Kerala Municipality Act, 1994 or Kerala Municipality Building Rules, 1999. 12. In that view of the matter, I am of the considered opinion that the petitioner is entitled to succeed in the writ petition. Accordingly, the writ petition is allowed and consequentially, Exhibit P1 order passed by the Secretary of the Municipality under section 406(3) of Act, 1994 dated 8.12.2014 bearing No.NPW1-2303/14 and the order passed by the Tribunal in Appeal No.1398/2014 are quashed. However, I make it clear that, if the 3[rd] respondent has a complaint W.P.(C) No.15865/2016 9 that nuisance is created due to the roofing sheet protruding /overhanging to the property of the 3[rd] respondent, liberty of the 3[rd] respondent to file or institute any appropriate proceedings, is left open. **Sd/-** **SHAJI P.CHALY** **JUDGE** smv W.P.(C) No.15865/2016 10 ## **APPENDIX OF WP(C) 15865/2016** **PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 08-12-2014 BEARING NO.NPW 2303/2014. EXHIBIT P2 THE TRUE COPY OF THE ORDER DATED 11-03-2016 IN APPEAL 1398/2014 OF TRIBUNAL OF LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. EXHIBIT R1A STOP MEMO DATED 5.5.2014 EXHIBIT R1B PROVISIONAL ORDER & NOTICE DATED 7.10.2014 EXHIBIT R1A THE REPLY SUBMITTED BY MR.ABRAHAM M.M. (POWER OF ATTORNEY HOLDER OF THE PETITIONER) DATED 13.10.2014**