Peoples Forum for Natural Justice v. Joy Alukkas and Others (WP(C). Nos. 30510-F of 2007, 33540-P of 2007, 20745 and 25544 of 2016-P)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY, THE 18TH DAY OF NOVEMBER 2016/27TH KARTHIKA, 1938** ## **WP(C).No. 30510 of 2007 (F)** **----------------------------** ## **PETITIONER:** ## **----------** **PEOPLES FORUM FOR NATURAL JUSTICE, REPRESENTED BY ITS SECRETARY, R.GOKULPRASAD, S/O LATE GOPINATHAN, AGED 39 YEARS,, 18/8, KALVAKULAM ROAD, KOPPAM, PALAKKAD.** **BY ADV. SRI.BINOY VASUDEVAN** **RESPONDENT(S):** **--------------** **1. JOY ALUKKAS, CHELAKKOTUKARA DESOM, CHIYYARAM VILLAGE,** **THRISSUR DISTRICT, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER JACOB V.PALAYOOR, S/O VAREED, "PARIJATH", VENKITANGU P.O., THRISSUR DISTRICT.** **2. THE PALAKKAD MUNICIPAL COUNCIL, REPRESENTED BY ITS CHAIRPERSON.** **3. THE PALAKKAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY.** **4. THE SECRETARY, PALAKKAD MUNICIPALITY.** **5. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL ADMINISTRATION, DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **6. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.** - **R1 BY ADV. SRI.BABU JOSEPH KURUVATHAZHA R2 & 4 BY ADVS. SRI.P.S.APPU SRI.JIBU P THOMAS** - **SRI.T.C.SURESH MENON R5,R6 BY GOVERNMENT PLEADER SRI K.J.MANURAJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-11-2016, ALONG WITH WPC. 25544/2016, AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** **WPC NO 30510 OF 2007: --------------------** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **--------------------** - **P1; COPY OF G.O.(RT)NO 2759/98/LAD DATED 16.9.98.** - **P2: COPY OF THE PHOTOGRAPH SHOWING THE OBSTRUCTION CREATED BY THE PETITIONER.** - **P3: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.** - **P4: COPY OF THE COMMUNICATION ISSUED BY THE FOURTH RESPONDENT TO THE C.I.OF POLICE.** - **P5: COPY OF THE COMMON JUDGMENT DATED 13.11.2006 IN WPC NO 26376.06 AND 28257/06.** - **P6: COPY OF THE COMMISSION REPORT PREFERRED IN OS NO 663/06 BEFORE THE MUNSIFF COURT, PALAKKAD.** - **P7: COPY OF THE SKETCH PREPARED BY THE ADVOCATE COMMISSIONER.** - **P8: COPY OF THE DECISION OF THE SECOND RESPONDENT IN ITEM NO 1313 DATED 19.12.2006.** - **P9: COPY OF THE COMMUNICATION VIDE E.J.C.R.28/98/99/PW4 DATED 21.12.2006.** - **P10: COPY OF THE MEMORANDUM OF REVISION NO RP 17/7/FILED BY THE FIRST RESPONDENT BEFORE THE SIXTH RESPONDENT.** - **P11: COPY OF THE COMMISSION REPORT SUBMITTED BEFORE THE SIXTH RESPONDENT TRIBUNAL BY THE ADVOCATE COMMISSIONER.** - **P12; COPY OF I.A. NO 782/07 PREFERRED BY THE PETITIONER BEFORE THE SIXTH RESPONDENT.** - **P13: COPY OF THE ORDER IN R.P NO 17/07 DATED 27.9.2007 OF THE SIXTH RESPONDENT.** - **P14: COPY OF THE ORDER IN IA.NO 782/07 DATED 7.9.07 OF THE SIXTH RESPONDENT.** ## **RESPONDENTS EXHIBITS: NIL** ## **--------------------** ## **/TRUE COPY/** ## **P.A.TO JUDGE** ## **K.V.** **K. VINOD CHANDRAN, J. ---------------------------------W.P(C). Nos.30510-F & 33540-P of 2007 &** ## **20745 & 25544 of 2016-P ---------------------------------Dated this the 18[th] day of November, 2016** ## **JUDGMENT** The writ petitions of the year 2007 are by the Municipality and a voluntary organization. They challenge the order of the Tribunal for Local Self Government Institutions ('Tribunal' for short) in an appeal filed by the party respondent. The other two writ petitions filed of the year 2016 by that party respondent; were preferred against notices issued by the Municipality under Section 406 of the Kerala Municipality Act, 1999 [KMBR]. These notices have a direct connection with the issue agitated in the writ petitions of 2007. The _**W.P(C). Nos.30510-F & 33540-P of 2007 & 20745 & 25544 of 2016-P**_ **2** notices issued and impugned, in 2016, are to remove the obstruction caused to the T.B. Link Road, over the property, which is alleged to have been surrendered to the Municipality by the predecessor-in-interest of the petitioners. 2. WP(C) No.20745 of 2016 is with respect to an order passed by the Secretary of the Municipality, which was challenged in an appeal before the Council, when actually the appeal ought to have been filed to the Tribunal. Be that as it may, there was a subsequent notice issued specifically on that issue itself by Ext.P12 in WP(C) No.25544 of 2016. The petitioner in the said writ petitions, who is the contesting respondent in the writ petitions of 2007 hence request through the learned Counsel that WP(C) No.20745 of 2016 may be _**W.P(C). Nos.30510-F & 33540-P of 2007 & 20745 & 25544 of 2016-P**_ **3** permitted to be withdrawn. It is also requested that WP(C) No.25544 of 2016 may also be permitted to be withdrawn, leaving open the question to be decided before the Secretary, which proceeding is said to have been heard and concluded and order awaited. WP(C) No.33540 of 2007 is taken up for hearing and the parties are referred to from the said writ petition. 3. The 2[nd] respondent purchased the property from one Hussain, who purchased it from one Prabhakara Menon. Admittedly, Prabhakara Menon was running a Hotel in the said premises. Prabhakara Menon, according to the Municipality, had sought for an exemption for converting the Hotel into a Hospital and for making certain alterations to the building existing in the property, which was licensed to _**W.P(C). Nos.30510-F & 33540-P of 2007 & 20745 & 25544 of 2016-P**_ **4** function as a Hotel. The application for exemption was under the Kerala Building Rules, 1984 [for brevity, the Rules of 1984]. 4. Ext.P1 was the exemption order granted by the Government under Rule 5 of the Rules of 1984. The existing five-storied Hospital building was permitted to be converted to a Hospital building and exemption was granted from various provisions of the Rules of 1984 as noticed in Ext.P1, as per the plan submitted by the applicant, subject to three conditions. This Court is concerned with the first condition with respect to surrender of the required land from the property for the new road formation and road improvement work as and when necessary. 5. The Municipality asserts that based on _**W.P(C). Nos.30510-F & 33540-P of 2007 & 20745 & 25544 of 2016-P**_ **5** the exemption order, there was a reconstruction carried on in the building and the same was converted to a Hospital. The property was then sold with the building and the Hospital to one Hussain, who was also running a Hospital. While so by Ext.P2, the property was conveyed to the 2[nd] respondent. The 2[nd] respondent, while in enjoyment of the property, is said to have been issued with Ext.P3 notice, by which a request for surrender of 17.65x15 meters was sought for by the Municipality. 6. It is the contention of the Municipality that in fact there was no requirement for such a notice and the same was done only since the 2[nd] respondent requested for such a notice, on the undertaking to surrender the required land. The Municipality claims that contrary to the **6** _**W.P(C). Nos.30510-F & 33540-P of 2007 & 20745 & 25544 of 2016-P**_ undertaking, based on such notice, the 2[nd] respondent refused to surrender the property and took up a contention that; earlier there was no surrender made of such property and that the exemption application was never made effective, for reason of there being no alterations made in the existing building. 7. The Municipality, faced with the prospect of receiving no surrender from the 2[nd] respondent, issued Ext.P4 notice, against which, an appeal was filed before the Council. The 2[nd] respondent approached this Court with a writ petition, which was disposed of by Ext.P5, directing consideration of the appeal. The appeal was considered and Ext.P6 order passed, rejecting the claim raised by the 2[nd] respondent, pursuant to which Ext.P7 notice was _**W.P(C). Nos.30510-F & 33540-P of 2007 & 20745 & 25544 of 2016-P**_ **7** issued against the 2[nd] respondent for eviction from the property; allegedly surrendered by his predecessor-in-interest-once-removed. The 2[nd] respondent took up the matter in revision before the Tribunal, which set aside the order as per Ext.P8. 8. The Tribunal found that there was no statutory sanction for the exemption or the condition imposed. In the absence of such statutory sanction, it was found by the Tribunal that even if there were modifications made as per the order, the surrender as such could not be enforced against the 2[nd] respondent. It was on such finding that the Tribunal set aside the order passed by the Secretary,confirmed in appeal. 9. The learned Counsel appearing for the _**W.P(C). Nos.30510-F & 33540-P of 2007 & 20745 & 25544 of 2016-P**_ **8** Municipality would submit that the Tribunal erred in finding that there was no statutory sanction, since the exemption order was passed under Rule 5 of the Rules of 1984. It is also submitted that there was a plan submitted by the predecessor-in-interest of the 2[nd] respondent before the Municipality, based on which the exemption order was issued by the Government as per Ext.P1. The sanctioned plan permitting such alterations are also with the Municipality which has been found by the Tribunal also. In such circumstance, it is submitted that the 2[nd] respondent cannot now contend that no alterations were made and it does not lie in the mouth of the 2[nd] respondent to assert as to any alterations having been made, which would be only within the knowledge _**W.P(C). Nos.30510-F & 33540-P of 2007 & 20745 & 25544 of 2016-P**_ **9** of Prabhakara Menon, the predecessor-ininterest. Further, it is also emphasised that the exemption was not solely with respect to the alterations as per the sanctioned plan, but also from the zoning under the Town Planning Scheme permitting the owner of the land to carry on a Hospital in a commercial zone. The Zoning Regulations at that point of time also did not permit a Hospital to be conducted in a commercial zone, is the specific contention. 10. The finding of the Tribunal as to there being no statutory sanction for exemption and the condition imposed; is sought to be challenged by reliance to two decisions of this Court in **Raman v. State of Kerala [1994 (1) KLT 1029]** and **George Joseph v. State of Kerala [2002 (1) KLT 360]** . The learned counsel also _**W.P(C). Nos.30510-F & 33540-P of 2007 & 20745 & 25544 of 2016-P**_ **10** would take me through the Rules of 1984, which does not provide for any particular manner in which the surrender has to be effected. It is also pointed out that sub-rule (2) of Rule 79 of the KMBR, provide a procedure to be followed,similar to surrender of lands to Government; which was absent in the Rules of 1984. The procedure mandated was also only by an amendment in the year 2006, in the KMBR, 1999. The learned Counsel would place reliance on three unreported decisions, to buttress his contention with respect to the surrender of properties to local authorities. 11. There is no appearance for the 2[nd] respondent in WP(C) No.33540 of 2007. The learned Counsel, who is appearing for the party respondent in the other writ petition of 2007 _**W.P(C). Nos.30510-F & 33540-P of 2007 & 20745 & 25544 of 2016-P**_ **11** submits that he has been authorised to appear in the writ petition filed by the Municipality. I have heard the learned Counsel, who assert that no structural alterations are made as per the sanctioned plan and hence there cannot be any claim of exemption having come into effect. The learned Counsel also relies on the subsequent notice issued by the Municipality for surrender of properties based on Ext.P1, to contend that the same establishes that there was no surrender made earlier. It is also submitted that the exemption from Zoning Regulations never came into effect. The learned Counsel would also rely on the specific averments made by the 2[nd] respondent, before the Tribunal; as found in the Memorandum of Revision produced as Ext.P10 in WP(C) No.30510 _**W.P(C). Nos.30510-F & 33540-P of 2007 & 20745 & 25544 of 2016-P**_ **12** of 2007. In paragraph 4, it is stated that Prabhakara Menon had not surrendered the Property nor effected any alteration to the existing building and the building as such was used as a Hospital. 12. Rule 5 of the Rules of 1984 is extracted herein below: ## _“_ **5. Power of Government to exempt buildings** _:-_ _The Government may in consultation with the Chief Town Planner exempt any building from the operation of all or any of the provisions of these rules, subject to conditions, if any, to be stipulated in the order, granting such exemption;_ _Provided that such exemption shall be considered on individual application forwarded to the Government through the authority and the Chief Town Planner with their specific recommendations._ _Provided further that such exemptions shall be considered only if the individual application for exemption from building rules is forwarded to Government along with a Chalan receipt remitting the application fee in the Government Treasury as detailed below, namely:-_ _(a) For building to be used as_ _**W.P(C). Nos.30510-F & 33540-P of 2007 & 20745 & 25544 of 2016-P**_ **13** _residence:-_ - _(i) Plinth area upto 50sq.mts._ - _(ii) Plinth area above 50 sq.mts. but not exceeding 100 sq.mts._ _(iii) Plinth area above 100 sq.mts. but not exceeding 200 sq.mts._ - _(iv) Plinth area above 200 sq mts._ - _(b) For all buildings of nonresidential purpose:-_ - _(i) Plinth area upto 50sq.mts._ - _(ii) Plinth area above 50 sq.mts. but not exceeding 100 sq.mts._ - _(iii) Plinth area above 100 sq.mts. but not exceeding 200 sq.mts._ - _(iv) Plinth area above 200 sq mts.”_ 13. **Raman** [supra] held the power to exempt under Rule 5 to be part and parcel of the statutory rules. **George Joseph** [supra] spoke on the scope and ambit of the provision; declaring it to be a power to be exercised prior to the construction and not one to be exercised _expost facto_ ; to cure illegalities consciously and deliberately perpetrated. _**W.P(C). Nos.30510-F & 33540-P of 2007 & 20745 & 25544 of 2016-P**_ **14** 14. A mere reading of the Rule would indicate that the finding of the Tribunal that there is no statutory sanction, is erroneous. No provision has also been pointed out from the Rules of 1984 as to any specific procedure having been prescribed for surrender of properties to a local authority. The procedure for surrender of land to Government was adopted only in 2006, that too in the building rules framed in 1999; which superseded the Rules of 1984. It cannot for a moment be disputed that the predecessor-in-interest; Prabhakara Menon, made an application for conversion of the user of the existing building from Hotel to Hospital. It can also be seen from Ext.P1 order that there was a revised plan submitted for making alterations in the existing building, _**W.P(C). Nos.30510-F & 33540-P of 2007 & 20745 & 25544 of 2016-P**_ **15** which was not compliant to the various provisions of the Building Rules applicable to a Hospital. The sanction given to the revised plan was after exempting certain provisions of the Rules of 1984. 15. The exemption granted, as seen from Ext.P1, was for conversion of the use of the building and also for the alterations to be made. Presumably in the context of the conversion of the user sought, the Government had specified in Ext.P1 that the construction permitted above, is exempted from the zoning regulation of the sanctioned DTP scheme for Central area Palakkad. Hence even if the alterations were not effected the conversion of user, which is admitted will bring into effect the exemption order; and the conditions too _**W.P(C). Nos.30510-F & 33540-P of 2007 & 20745 & 25544 of 2016-P**_ **16** would have to be made effective as on the date of such conversion. Prabhakara Menon and his subsequent assignee were both functioning a Hospital; and the latter sold the building to the 2[nd] respondent. The sale, only conferred on the 2[nd] respondent the rights that were available to his vendor. A subsequent conversion of user; even as a Hotel, would not confer a right on the assignee to take back the lands already surrendered. 16. The specific contention raised by the 2[nd] respondent would go against the arguments raised before this Court. In paragraph 4 of Ext.P10 produced in WP(C) No.30510 of 2007, it is admitted that the predecessors-in-interest had carried on a Hospital in the building. Prabhakara Menon, who obtained Ext.P1 _**W.P(C). Nos.30510-F & 33540-P of 2007 & 20745 & 25544 of 2016-P**_ **17** exemption, hence cannot be said to have not availed of the exemption granted in Ext.P1. Ext.P1 exemption was not for alterations alone, but for the conversion of user of the building in a commercial zone. The exemption from Zoning under the DTP Scheme was Regulations specifically granted for the purpose of carrying on a Hospital. It is admitted that Prabhakara Menon converted the same as a Hospital and carried on the said Institution in the building till he sold it to Hussain. Hussain also admittedly carried on a Hospital in the building. 17. It does not lie in the mouth of the 2[nd] respondent to contend that no alterations were made. Admittedly, a plan was submitted for the purpose of alteration, which violated certain _**W.P(C). Nos.30510-F & 33540-P of 2007 & 20745 & 25544 of 2016-P**_ **18** provisions of the Building Rules as it existed then. The alterations so proposed were also to effectively convert the user of the building from that of a Hotel to a Hospital. Hence, it cannot also be said that there were no alterations made to the building; without which the Hospital could not have been commenced. The prior owner, who obtained Ext.P1 exemption, had specifically applied for and got such exemption, which has come into effect definitely by the conversion of the user, which is admitted by the 2[nd] respondent also. 18. The further contention is with respect to Ext.P3 notice, requesting surrender of the property. The surrender having come into force with the prior owner having availed of the exemptions granted, the Municipality could have _**W.P(C). Nos.30510-F & 33540-P of 2007 & 20745 & 25544 of 2016-P**_ **19** straight away sought for possession or eviction of encroachment. The circumstance under which notice was issued has been explained and this Court is inclined to accept such explanation. Even otherwise if the 2[nd] respondent was in possession of the surrendered property, the Municipality could have only requested for the petitioner to surrender such property as has been agreed to by the prior owner and on failure of the same, could only take proceedings under Section 406. The Municipality has taken such steps, which cannot be faulted and it does not at all affect the surrender made by the prior owner. 19. The facts are clear in so far as the existence of an exemption order made by the Government. The exemption was from the zoning _**W.P(C). Nos.30510-F & 33540-P of 2007 & 20745 & 25544 of 2016-P**_ **20** regulation to function a Hospital in the building till then used as a Hotel. Alterations in the building plan submitted also projected violations of the extant building rules, which too stood exempted. It is an admitted fact that the Hospital was commenced and continued in the building by the first owner and the subsequent one; which was by virtue of a exemption. Prabhakara Menon who obtained the exemption order; on facts is found to have been divested of the land needed for widening of the road and his assignees cannot claim any right over those lands. 20. Almost identical contentions were adjudicated in **2013 (1) KLT 846 Natarajan vs. Village Officer;** in appeal from one of the unreported decisions cited. The Division Bench _**W.P(C). Nos.30510-F & 33540-P of 2007 & 20745 & 25544 of 2016-P**_ **21** found that even in the teeth of the provisions of the Kerala Land Relinquishment Act,the absence of an order accepting the surrender would not result in the ownership of the property being reverted back to the original owner. There the son who succeeded to the title challenged the surrender for multifarious reasons: (i) of the surrender being not accepted,(ii) the road-widening project, motivating the surrender, having not fructified in time (iii) the conditions of exemption having not been availed and (iv) the local authority's right to proceed for acquisition. The Division Bench rejected all these grounds and found that there could be no reversion claimed since the surrender was unilateral and that there was no consequence provided on the _**W.P(C). Nos.30510-F & 33540-P of 2007 & 20745 & 25544 of 2016-P**_ **22** surrender being not accepted by an order under the enactment facilitating such surrender. To hold so; the Division Bench relied on a decision of the Hon'ble Supreme Court in _**Administrator, Municipal Committee Charkhi Dadri v. Ramji Lal Bagla, ((1995) 5 SCC 272).**_ This Court also found that the son, the assignee of the father; who surrendered the property to the local authority cannot have a better claim than that of the predecessor-in-interest. The dicta squarely apply here. 21. The imperative conclusion on the reasoning above is that the impugned order of the Tribunal is unsustainable for not noticing the relevant statutory provision and grossly erroneous on facts. W.P.(C)Nos.30510-F & 33540-P of 2007 are allowed setting aside the _**W.P(C). Nos.30510-F & 33540-P of 2007 & 20745 & 25544 of 2016-P**_ **23** orders impugned there. WP(C) No.20745 is dismissed as withdrawn. WP(C) No.25544 of 2016 is dismissed as withdrawn with liberty to urge the contentions other than that, which are found against the petitioner herein; in the writ petitions of 2007, before the Secretary of the Municipality. The parties to suffer their respective costs. Sd/- ## **K. VINOD CHANDRAN, JUDGE.** //True Copy// P.A. to Judge. sp/18/11/16