Nellikode Housing Colony Allottees Association v IOB Officers and Retired Officers Housing Co-operative Society Ltd, Sky Dome Constructions, Kerala State Housing Board, Corporation of Calicut

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931** **WP(C).NO. 3729 OF 2010(O)** **----------------------------------------** **CMA.77/2009 OF D.C. & SESSIONS COURT,KOZHIKODE OS.566/2009 OF ADDL.M.C.,KOZHIKODE-II** **....................** ## **PETITIONER(S):** **-----------------------** **1. NELLIKODE HOUSING COLONY ALLOTTEES ASSOCIATION, (A SOCIETY REGISTERED UNDER THE SOCIETIES REGISTRATION ACT) 19/32,PLOT NO.9 NELLIKODE HOUSE COLONY, CHEVAYUR PO,CALICUT -17 REPRESENTED BY ITS SECRETARY C.RAJAN, S/O.J.CHELLAYAN.** ## **2. ROOSHIMOL N** **W/O.SAJAL MOHAMMED T.P.M., D/O.NEELIKANDY ASHRAF, RESIDING AT "PAVITHRAM" NEAR NELLIKODE HOUSING COLONY,CHEVAYUR PO,CALICUT -17.** **BY SENIOR ADVOCATE SHRI K. JAYAKUMAR BY ADV. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN** ## **RESPONDENT(S):** ## **--------------------------** **1. IOB OFFICERS AND RETIRED OFFICERS HOUSING CO-OPERATIVE SOCIETY LTD NO.D 2893 C/O.INDIAN OVERSEAS BANK REGIONAL OFFICE,CHEROORTY ROAD KOZHIKODE, REPRESENTED BY ITS SECRETARY MR.CHANDRAN,S/O.RAMAN, RESIDING AT 'SUVIDHA' KADUPPINI PO,VALAYANAD AMSOM AND DESOM KOZHIKODE.** **2. SKY DOME CONSTRUCTIONS RAM MOHAN ROAD, KOZHIKODE, A FIRM REGISTERED UNDER THE PARTNERSHIP ACT, REPRESENTED BY ITS MANAGING PARTNER.** ## **3. KERALA STATE HOUSING BOARD** **KOZHIKODE DIVISION, CHAKKAROTHKULAM, KOZHIKODE 673 006, REPRESENTED BY ITS REGIONAL ENGINEER.** ## **4. CORPORATION OF CALICUT** **CORPORATION BUILDING, BEACH ROAD, KOZHIKODE-32 REPRESENTED BY ITS SECRETARY.** **ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE FOR R1 & 2 SRI.T.RAMPRASAD UNNI FOR R1 & 2 SMT.SMITHA GEORGE FOR R1 & 2** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** = = = = = = = = = = = = = = = = = = = = = = = = **W.P(C) NO.3729 OF 2010** = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 16[th] day of February, 2010 ## **J U D G M E N T** --------------------- Writ Petitioners before me are petitioners/plaintiff Nos.1 and 2 in I.A. No.2695 of 2009 in O.S. No.566 of 2009 of the court of learned Additional Munsiff-II, Kozhikode. That was a suit filed by petitioners against the respondents for a decree for prohibitory injunction against construction of a multi storied building in plaint B schedule and use of plaint A schedule road on allegations that the construction is in violation of relevant rules of the Kerala Municipality Building Rules, 1999 (for short, “the Rules”) and that respondent Nos.1 and 2 obtained permit from the local authority (respondent No.4) fraudulently and suppressing material facts. Along with the suit they filed I.A. No.2695 of 2009 for an order of temporary injunction. After hearing both sides learned Munsiff granted temporary injunction as prayed for. Respondent Nos.1 and 2 took up the matter in appeal. Learned Additional District Judge, Kozhikode as per judgment dated 16.12.2009 in C.M.A. No.77 of 2009 held that no interference is required with the order of ## **W.P(C) No.3729 of 2010** ## -: 2 :- injunction passed by learned Munsiff except as to the use of plaint A schedule road. Accordingly injunction granted with respect to that portion was set aside. Petitioners are aggrieved and have come up with this Writ Petition. Learned Senior Advocate appearing for petitioners contended that appellate court has not considered Section 62 of the Kerala State Housing Board Act, 1971 (for short, “the Housing Board Act”) which states that until the road belonging to the State Housing Board (respondent No.3) is transferred to the local authority it continued to belong to respondent No.3. Learned Senior Advocate contends that petitioners are allottees of different plots from respondent No.3 and their entitlement is not as regards the plots allotted to them alone but also for common facilities provided for the allottees which includes use of plaint A schedule road. Learned Senior Advocate invited my attention to Ext.P6, letter dated 12.5.2009 issued by the Executive Engineer of respondent No.3 to the Secretary of petitioner No.1 under the Right to Information Act where it is stated that the road (plaint A schedule) as per the records maintained by respondent No.3 has not been transferred to the local authority (respondent No.4) and until such transfer takes place right over the road vested with respondent ## **W.P(C) No.3729 of 2010** ## -: 3 :- No.3. It is also contention of learned Senior Advocate that finding of appellate court that width of plaint A schedule road which according to respondent Nos.1 and 2 is the access to plaint B schedule is not less than 5 metres is erroneous. As width of the said road is less than 5 metres, it could not be used for access to the plaint B schedule in the nature of building being put up there. Learned counsel for respondent Nos.1 and 2 would contend that finding of the first appellate court regarding plaint A schedule road is based on the materials on record, that finding does not require interference at this stage and further that appellate court has exercised the discretion not to grant injunction with regard to plaint A schedule road which so far as it is not shown to be perverse or arbitrary does not require interference in Writ Petition under Article 226 or 227 of the Constitution of India. 2. It is not disputed that respondent No.1 is constructing a 10 storied building in plaint B schedule, construction work is entrusted to respondent No.2, a contractor and that construction is in progress. It is the case of petitioners that on account of failure of respondent Nos.1 and 2 to comply with even the conditions of permit issued by the local authority (respondent No.4), southern ## **W.P(C) No.3729 of 2010** ## -: 4 :- portion of the property has slided down causing damages to adjacent owner and that respondent Nos.1 and 2 have not constructed retaining wall on all sides of plaint B schedule as directed in the permit. It is also contended that construction violated the relevant rules of the Rules. 3. So far as matters other than use of plaint A schedule road are concerned I find from the judgment of learned Additional District Judge that no interference is made with regard to the finding of learned Munsiff and grant of injunction accordingly. Learned Additional District Judge has only interfered with the order of injunction to the extent it concerned use of plaint A schedule road. It is pointed out by learned counsel for respondent Nos.1 and 2 that they have not challenged that part of the judgment of learned Additional District Judge which went against them. Therefore what remained for decision is only whether it is necessary for this Court to invoke Article 226 or 227 of the Constitution and interfere with the judgment of learned Additional District Judge to the extent it modified the order of learned Munsiff. 4. Exhibit P4 is the copy of plan produced by petitioners. It is not disputed that plaint A schedule starts from Mavoor road, ## **W.P(C) No.3729 of 2010** ## -: 5 :- runs abutting plaint B schedule and further goes beyond plaint B schedule. Access to plaint B schedule is from the A schedule road. Contention of petitioners regarding plaint A schedule road is two fold: firstly, it is not a public street in so far as it is revealed from Ext.P6 that respondent No.3 has not so far transferred that road to the local authority (respondent No.4) and hence it remained to be a private road belonging to respondent No.3 and; secondly, learned Additional District Judge was not correct in holding that width of plaint A schedule road is not less than 5 metres. 5. So far as first limb of the argument is concerned reliance is placed on Sec.62 of the Housing Board Act which deals with the provision for transfer of road or street laid out or altered and open spaces provided by the Housing Board under a housing or an improvement scheme and enabled the State Housing Board to transfer any road or street to the local authority concerned after giving one month's notice. No doubt prima facie it is seen from Ext.P5 that no such transfer has taken place in favour of respondent No.4. But it is the contention of respondent Nos.3 and 4 that plaint A schedule road is being maintained by respondent No.4 and that respondent No.4 has metalled and tarred that road. It is on record ## **W.P(C) No.3729 of 2010** ## -: 6 :- that plaint A schedule road is being used as a public thoroughfare by the people of the locality and they have even drawn water, electricity and telephone connections along the said road. There is no case or evidence that such acts were done with the consent of respondent No.3. As per rule 33 of the Rules what is required is that there should be a minimum clear width of access to a building and plot as well and width of the street giving access to the plot from the main street shall be as shown in Table 4. It is not disputed before me that the minimum width of the street giving access to plaint B schedule required as per rule 33 of the Rules is 'not less than 5 metres'. Here the main street is Mavoor road. Rules 33 does not say that access to the building or plot must be through a public street. The Kerala Municipality Act (for short, “the Act”) defines 'public street' and 'private street'. 'Public street' is defined as meaning any street, road, square, court, alley, passage or riding path over which the public have a right of way whether a thoroughfare or not and includes the categories mentioned in clauses (a) to (c). 'Private street' is defined as any street, road, square, court, alley, passage or riding path which is not a public street but does not include a path or way made by the owner of ## **W.P(C) No.3729 of 2010** ## -: 7 :- premises on his own land to secure access to or convenient use of such premises. I stated that rule 33 of the Rules does not say that access from the main street to the plot or building in question must be along a public street as defined in the Act. Even otherwise the evidence on record is that plaint A schedule road is being used as a thoroughfare by the public and through which water, electricity and telephone connections have been drawn which is not shown to be with the permission of respondent No.3. It is also in evidence that maintenance of plaint A schedule road is being done by respondent No.4. Thus prima facie, public are enjoying access through plaint A schedule road which is not shown to be with the permission of respondent No.3. Therefore contention that in so far as respondent No.3 has not transferred plaint A schedule road to respondent No.4, it continued to be the private property of respondent No.3 and hence Rule 33 is not satisfied cannot prima facie be accepted. 6. So far as the second limb of argument regarding minimum width of plaint A schedule road is concerned, the Advocate Commissioner has reported that at the culvert junction (beyond the point where plaint A schedule road enters plaint B ## **W.P(C) No.3729 of 2010** ## -: 8 :- schedule) and beyond that, width of plaint A schedule road is 4.8 metres and 4.15 metres respectively. This aspect is highlighted by the learned Senior Advocate to show that plaint A schedule road does not satisfy the requirement of rule 33 of the Rules. But it is seen from the records and discussion in the judgment of learned Additional District Judge that width of plaint A schedule road less than 5 metres is after plaint A schedule road branched beyond plaint B schedule which has nothing to do with access to the plaint B schedule from the main street (Mavoor road) through plaint A schedule road is concerned. So far as access to plaint B schedule through plaint A schedule road from the main street (Mavoor road) is concerned the width is not less than 5 metres which prima facie satisfied the requirement of rule 33 of the Rules. This being an application for temporary injunction what the courts below are concerned is only whether a prima facie case is made out by the petitioners. Prima facie it is shown that rule 33 is satisfied. The Supreme Court in **Abdul Razak v. Mangeh Rajaram** **Wagle** (2010 [1] KLN SN 33 [C. No.42] SC) has pointed out the circumstances when the High Court could interfere with the order of a court subordinate to it invoking Article 226 or 227 of the ## **W.P(C) No.3729 of 2010** ## -: 9 :- Constitution. It is when the subordinate court has acted: (i) without jurisdiction – by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction – by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure, or (iv) acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice that the High Court could interfere under Article 226. Supervisory jurisdiction under Article 227 is exercised to keep the subordinate courts within the bounds of their jurisdiction. On hearing learned Senior Advocate for petitioners, counsel for respondents and going through the materials produced before me and judgment of learned Additional District Judge I am not satisfied that any such situation arises in this case warranting interference under Article 226 or 227 as the case may be of the Constitution. Hence the Writ Petition has to fail. ## **W.P(C) No.3729 of 2010** ## -: 10 :- Learned Additional Munsiff shall dispose of the suit untrammelled by any of the observations or findings contained in this judgment or the impugned judgment/order. With the above observation, Writ Petition is dismissed. **THOMAS P.JOSEPH, JUDGE.** vsv