M.K. Fousiya vs. Ramachandra Bhat and Kozhikode Corporation (RSA No. 1530 of 2012)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 2[ND] DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943** **RSA NO. 1530 OF 2012** **AGAINST THE JUDGMENT AND DECREE DATED 16.08.2012 IN AS 66/2011 OF ADDITIONAL SUB COURT-I, KOZHIKODE AGAINST THE JUGMENT AND DECREE DATED 29.01.2011 IN OS 347/2006 OF ADDITIONAL MUNSIFF COURT, KOZHIKODE-II** ## **APPELLANT/APPELLANT/PLAINTIFF:** M.K FOUSIYA AGED 43 YEARS D/O. LATE M.K. ABOOBACKER, RESIDING AT MURINGAKANDY HOUSE, PANNIYANKARA AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. BY ADV SRI.S.AJITH (PALAKKAD) SRI.C.P.MOHAMMED NIAS ## **RESPONDENTS/RESPONDENT/DEFENDANTS:** 1 RAMACHANDRA BHAT, AGED 45 YEARS, FATHER'S NAME NOT KNOWN, JANATHA SALES AND SERVICE, PANNIYANKARA AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN - 673003 2 KOZHIKODE CORPORATION REPRESENTED BY ITS SECRETARY, KOZHIKODE DISTRICT-673001. BY ADV. P.V.SURENDRANATH, SC FOR R2 **THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON 02.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA No.1530 of 2012** **2** ## **K.BABU, J.** ------------------------------------------- ## R.S.A.No.1530 of 2012 --------------------------------------------- Dated this the 02[nd] day of November, 2021 ## **JUDGMENT** The plaintiff in the Court below is the appellant and the defendants are the respondents. The plaintiff instituted the original suit seeking a prohibitory injunction against the defendants and their officials from trespassing upon the plaint schedule property, demolishing the structures therein, or otherwise disturbing the peaceful possession of the plaint schedule property by the plaintiff. 2. The plaint schedule property is 15 cents and 630 square meters of land in Re.Sy.No.23/2/60 of Panniyanakara village. According to the plaintiff, the plaint schedule property belongs to the plaintiff and her daughters. A public lane lies on the eastern side of the plaint schedule property. The predecessor of the plaintiff had constructed a compound wall along the eastern boundary, which is still existing. A portion of the compound wall on the eastern boundary had collapsed. The remaining part of the wall is intact. Under the pressure of defendant No.1, on **RSA No.1530 of 2012** **3** 03.08.2006, the officials of defendant No.2 – Corporation visited the plaint schedule property and threatened that they would take immediate steps to remove the encroachment upon the public lane. The Plaintiff has not committed any encroachment as alleged by the officials of defendant No.2 - Corporation. 3. Defendant No.1 did not contest the proceedings. 4. Defendant No.2 – Corporation contended that the suit is not maintainable in view of Section 563 of the Kerala Municipality Act (hereinafter referred to as 'the Act' for short). The plaintiff has included certain property on which she has no right in the description of plaint schedule property. There is no compound wall on the eastern side of the plaint schedule property. The properties belonging to defendant No.2 comprised in Re.Sy.No.61 and 62. The plaint schedule property is in Re.Sy.No.23/2/60. The plaintiff is trying to establish right over the property comprised in Re.Sy.No.61. The plaintiff has constructed a boundary wall encroaching upon the property in Re.Sy.No.61. Defendant No.2 has the right to remove the encroachment upon Re.Sy.No.61. 5. The evidence, in this case, consists of the oral evidence of PW1, Exts.A1 to A9 marked on the side of the plaintiff and Exts. C1 and C2 series marked as court Exhibits. **RSA No.1530 of 2012** **4** 6. The Trial Court dismissed the suit holding that it is barred under Section 563 of the Act. The Trial Court also held that the suit is barred under Section 544 of the Act, as no notice was served on defendant No.2 as provided therein. 7. The plaintiff challenged the decree and judgment passed by the Trial Court in A.S. No.66/11. The First Appellate Court relying on sub-section (2) of Section 544 of the Act held that notice under Section 544 of the Act was not required since the suit was only for an injunction simpliciter. However, the First Appellate Court confirmed the findings of the Trial Court holding that the suit is barred under Section 563 of the Act, as the Civil Court has no jurisdiction to try the suit. 8. This Court admitted the appeal and the following substantial questions of law were formulated: (i) Whether the First Appellate Court went wrong in coming to the conclusion that Civil Court has no jurisdiction to try the suit. (ii) Whether the Courts below erred in holding that availability of the right to exercise alternative remedy under the Kerala Municipality Act acts as a bar to the institution of a suit in a Civil Court, and takes away **RSA No.1530 of 2012** **5** the Civil Court's jurisdiction. (iii) Whether the Courts below went wrong in accepting the commission report and plans in toto without even considering the objections filed against the said commission report and plan by the plaintiff. (iv) Whether the Courts below went wrong in completely eschewing Exhibit A6 from their consideration, and if so, has it not prejudiced the plaintiff. (v) Whether, the Courts below mis-appreciated the evidence adduced in the case and consequently, went wrong in holding that plaintiff is not entitled to get the relief of permanent prohibitory injunction as prayed for. 9. Heard Sri.S.Ajith (Palakkad), the learned counsel for the appellant and the learned Standing Counsel for defendant No.2Corporation. 10. The learned counsel for the appellant contended that as no notice was served on the appellant/plaintiff before initiation of the action by defendant No.2 - Corporation, the plaintiff had not been given an opportunity to agitate the issue as provided in the **RSA No.1530 of 2012** **6** Act. 11. The fundamental question that falls for consideration is whether the Civil Court has jurisdiction to try the subject matter in the suit, in view of the bar contained in Section 563 of Act. 12. The plaint schedule property is 15 cents and 630 square meters of land comprised in Re-Sy.No.23/2/60 of Panniyanakara Village. A public lane owned by defendant No.2Corporation lies on the eastern side of the plaint schedule property. This lane is admittedly in Re-Sy.No.61. 13. The case of the appellant/plaintiff is that defendant No.2-Corporation is attempting to demolish the boundary wall constructed on the eastern boundary of the plaint schedule property. 14. The challenge of the defendant Corporation is that the plaintiff has right over the property comprised in Re-Sy.No.60 only and that she has encroached upon the adjacent lane which is in Re-Sy.No.61. According to defendant No.2-Corporation, they have the statutory right to remove the encroachment made by the plaintiff on the lane in Re-Sy.No.61. 15. The Kerala Municipality Act, 1994, is a self-contained code. Chapter XVII, which deals with 'Streets', contains Sections **RSA No.1530 of 2012** **7** 346 to 380. 16. Section 369 of the Act refers to the prohibition of structures or fixtures which cause obstruction in public streets. Section 369 reads thus: _“_ _**369. Prohibition of Structures or fixtures which cause obstruction in public streets.-** No person shall except with the written permission of a Municipality erect or set up within a municipal area any wall, fence, rail, post, step, booth or other structures or fixtures in or upon any public street or upon or over any open channel, well or tank in any street so as to form an obstruction, or an encroachment upon or a projection over, or to occupy any portion of such street, channel, drain, well or tank.”_ ## 17. Section 372 empowers the Secretary of the Municipality to remove encroachment without notice. Section 372 reads thus:- _**“372.Secretary may without notice remove encroachment.-** Notwithstanding anything contained in this Act, the Secretary may, without notice, cause to be removed-_ _(a) Any wall, fence, rail, step, booth, or other structure or fixture which is erected or set up in contravention of the provisions of section 369;_ _(b) Any stall, chair, bench, box, ladder, bale, or any other thing whatsoever, placed or deposited in contravention of Section 370;_ _(c) Any article, whatsoever, hawked or exposed for sale in any public place or in any public street in contravention of Section 371 and any vehicle, package, box, board shelf or any other thing in or on which such article placed or kept for the purpose of sale.”_ 18. Section 563 of the Act refers to jurisdiction of Civil Courts. Section 563 reads thus:- **RSA No.1530 of 2012** **8** _**563. Jurisdiction of Civil Courts barred.-** No civil Court shall have jurisdiction to entertain any suit, application or petition challenging 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._ 19. Sections 369 and 372 come under Chapter XVII of the Act. Section 509 of the Act provides that an appeal may be preferred to the Council against any notice issued or order passed or action taken by the Chairperson or the Secretary under any of the provisions of the Act other than Sections 390, 391 395, 406 and 408 or the rules or bye-laws or regulations made thereunder. 20. The question that falls for consideration is whether, 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 and Others v. Shikar Chand and another (AIR 1966 SC 893)** and later in **Dhruv Green Field Ltd. v. Hukum Singh and** **RSA No.1530 of 2012** **9** ## **others [(2002) 6 SCC 416].** In **Dhruv Green Field** the ## Apex Court, in paragraph 10 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 lead 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 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]** in paragraph 10, 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 **RSA No.1530 of 2012** **10** affords an alternative remedy which is sufficient and adequate, exclusion of jurisdiction of Civil Court is implied. 23. Defendant No.2-Corporation has specifically pleaded that the encroachment in Re-Sy.No.61 is liable to be removed. Going by the pleadings of defendant No.2, there is nothing to show that it has an intention to remove any construction in Sy.No.60, which belongs to the plaintiff. PW1, the brother of the plaintiff gave evidence that, they have no objection in removing the unauthorised structures in the property comprised in ReSy.No.61. The Advocate Commissioner who prepared Ext.C2 series report, mahazar, plan etc., specifically reported that he could not see any lane there and a portion of the lane is in possession of the plaintiff. The Trial Court as well as the First Appellate Court found that the plaintiff has encroached upon the public lane on the eastern side. The learned counsel for the appellant submitted that defendant No.2-Corporation has no right to encroach upon the property in Re-Sy.No.60. Going by the pleadings, it is crystal clear that defendant No.2-Corporation never attempted to take any action in respect of the structures within Re-Sy.No.60. The learned counsel for the appellant relied on Ext.A6 to contend that on an application submitted by the predecessor of the plaintiff, defendant No.2-Corporation had not taken any action in respect of **RSA No.1530 of 2012** **11** the alleged encroached portion. Ext.A6 is of the year 1994. The cause of action in the present suit admittedly arose on 03.08.2006. The First Appellate Court and the Trial Court found that Ext.A6 is not relevant in relation to the pleadings. This Court has carefully gone through the materials placed. The First Appellate Court re-appreciated the evidence and held that, the plaintiff was not entitled to a relief of permanent prohibitory injunction and the suit was not maintainable. The plaintiff has an equally efficacious remedy in view of the provisions contained in the Kerala Municipality Act. Accordingly, the questions of law are answered against the appellant. The Regular Second Appeal is dismissed. **Sd/K.BABU JUDGE** VPK