P.K. Sony v. Kochi Municipal Corporation and T.H. Rohit

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY, THE 30TH DAY OF JUNE 2017/9TH ASHADHA, 1939** **WP(C).No. 27170 of 2016 (U) ----------------------------** **PETITIONER(S): -------------** **P.K. SONY, AGED 36 YEARS, JAYES TRADES, CC 20/17E, KACHERIPADY, PALLURUTHY, KOCHI 682 006.** **BY ADVS.SRI.K.N.SIVASANKARAN SRI.SUNIL SHANKER** **RESPONDENT(S):** **--------------** **1.KOCHI MUNICIPAL CORPORATION, REPRESENTED BY ITS SECRETARY, COCHIN 682 011.** **2.T.H. ROHIT, AGED 28 YEARS, S/O T.K.HARIDAS, CC NO.18/300, THATTUPURACKAL HOUSE, DR.GANGADHARAN ROAD, PALLURUTHY, KOCHI 682 006.** **R1 BY ADVS. SMT.SAREENA GEORGE,SC SRI.P.K.SOYUZ,SC R2 BY ADVS. SRI.M.RAMESH CHANDER (SR.) SMT.K.A.SANJEETHA SMT.DIVYA S KUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 27170 of 2016 (U) ---------------------------APPENDIX PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 THE TRUE PHOTOCOPY OF THE AGREEMENT DATED 3.2.2014 EXECUTED BY PETITIONER AND 2ND RESPONDENT EXHIBIT P2 TRUE PHOTOCOPY OF THE FIR NO.1377/2015 OF KOCHIN KASABA POLICE STATION, KOCHI EXHIBIT P3 TRUE PHOTOCOPY OF THE PLAINT IN OS NO.413/2015 FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, AT KOCHI EXHIBIT P4 TRUE PHOTOCOPY OF THE JUDGMENT PASSED BY THE HON'BLE HIGH COURT IN WPC NO.22890/2015 EXHIBIT P5 TRUE PHOTOCOPY OF THE FINAL ORDER PASSED BY 1ST RESPONDENT CORPORATION DATED 14.10.2015 EXHIBIT P6 TRUE PHOTOCOPY OF THE ORDER PASSED BY THE HON'BLE TRIBUNAL FOR LOCAL SELF GOVT. INSTITUTIONS IN APPEAL NO.951/2015 DATED 25.7.2016 EXHIBIT P7 TRUE PHOTOCOPY OF THE LETTER DATED 27.12.2016 OF THE 1ST RESPONDENT RESPONDENT(S)' EXHIBITS ----------------------EXHIBIT R2(A) PHOTOSTAT COPY OF THE DOCUMENT DATED 01.02.2014 EXHIBIT R2(B) PHOTOSTAT COPY OF THE BUILDING TAX RECEIPT EXHIBIT R2(C) PHOTOSTAT COPY OF THE INFORMATION FURNISHED BY THE 1ST RESPONDENT UNDER THE RIGHT TO INFORMATION ACT 2005 EXHIBIT R2(D) PHOTOSTAT COPY OF THE APPLICATION ALONG WITH THE APPENDED CONSENT** **TRUE COPY** **P.S. TO JUDGE** **EL** ## **K. VINOD CHANDRAN, J.** ------------------------------------------ W.P.(C) No. 27170 of 2016 (U) -----------------------------------------Dated: 30[th] June, 2017 ## **J U D G M E N T** The petitioner is aggrieved with Ext.P6 order of the Tribunal which affirmed Ext.P5 order of the Corporation. 2. I have heard learned Counsel for the petitioner, the learned Senior Counsel appearing for the 2[nd] respondent and the learned Standing Counsel for the 1[st] respondent. 3. The controversy is insofar as constructions made by the petitioner, a lessee of the 2[nd] respondent. Admittedly, a lease agreement was entered into with the 2[nd] respondent for construction of a building in the property of the 2[nd] respondent and occupation of the said building with monthly rent payable by the ## **W.P.(C) No. 27170/2016** **-2-** petitioner to the 2[nd] respondent. The petitioner applied for a building permit in the name of the 2[nd] respondent itself and constructed a building. 4. After construction of the permitted building there were some constructions additionally made, based on which allegation the Corporation initiated proceedings. This was on the complaint of a relative of the 2[nd] respondent, who alleged that the unauthorised construction encroached upon their property. The contention of the 2[nd] respondent is that earlier the petitioner had entered into a rent agreement with those third parties and also the petitioner, produced as Ext.R2 (a). Subsequently, the petitioner had acted upon only the rental agreement entered into with the 2[nd] respondent, Ext.P1. 5. The petitioner disputes execution of Ext.R1(a). The petitioner, however, went on with the construction ## **W.P.(C) No. 27170/2016** **-3-** encroaching into the property of the third party also, is the specific complaint before the local authority. The complaint was enquired into by the respondent and a provisional order was issued. The petitioner challenged the same before this Court, which writ petition was disposed of by Ext.P4. There was a direction to consider the objections filed by the petitioner and dispose of the matter finally. An order was passed at Ext.P5, which was impugned before the Tribunal unsuccessfully. 6. The petitioner takes up two contentions primarily; to challenge the order of the Tribunal. The first contention is violation of principles of natural justice. It is pointed out from Ext.P5 that there is no consideration made and none of the objections raised by the petitioner have been adverted to. Ext.P5 order does not even refer to the objection filed by the petitioner. ## **W.P.(C) No. 27170/2016** **-4-** 7. The other contention is with respect to Rule 86 of the Kerala Municipality Building Rules, 1999 ('Building Rules' for short), which, admittedly, the petitioner did not raise before the original authority, but, raised for the first time before the Tribunal. The learned Counsel for the petitioner contends that the Tribunal has added words to the provision and has misinterpreted the same. On these contentions the petitioner prays that Exts.P6 and P5 be set aside and the matter be directed to be re-considered by the Municipality. 8. The learned Senior Counsel seeks to sustain the order pointing out that the entire contentions were elaborately considered by the Tribunal after looking into the files and the argument with respect to Rule 86 of the Building Rules was one which was first raised before the Tribunal. ## **W.P.(C) No. 27170/2016** **-5-** 9. The learned Counsel for the petitioner relied on **Institute of Chartered Accountants of India v. L.K. Ratna and others – AIR 1987 SC 71** to urge that merely because the appellate authority has considered the entire issues, that alone would not cure the defect of a proper hearing and consideration being made by the original authority. This Court, on a reading of Ext.P6, does not find any support from the aforesaid judgment applicable to the facts of the instant case. The petitioner had, before the original authority, as has been recorded by the Tribunal, raised contentions on the dispute relating to monthly rent and the alleged collusion between the 2[nd] respondent and his neighbours. The petitioner did not raise any claim that the additional construction made by him would come within the purview of Rule 86 of the Building Rules. The objections were mainly with respect to the dispute between the parties and the harassment and ## **W.P.(C) No. 27170/2016** **-6-** assault alleged to have been committed on him by the 2[nd] respondent and his relatives. The petitioner had not even raised an objection that the entire construction was authorised. The specific contention in the objection was that even if there was an unauthorised construction, the 2[nd] respondent had permitted the same and had also undertaken to apply for of the same. There was hence an regularisation admission that there was an unauthorised construction made in excess of the sanctioned plan. 10. There was one other objection with respect to the final order having not specifically dealt with the unauthorised construction or the details of the same. The Tribunal specifically looked at the provisional order and found that the provisional order contained the exact description of the unauthorised construction. The Tribunal, as is noticed above, looked at the objections ## **W.P.(C) No. 27170/2016** **-7-** and found that there was nothing raised against the provisional order, which was worthy of consideration by the original authority. It was in such circumstance, that the Tribunal found that the order passed by the original authority, affirming the provisional order, has to be read along with the provisional order and there could be no defect found. The provisional order is not seen produced here. 11. It is also seen from the Tribunal's order that the files reveal the objection to be part of the records and a hearing having been conducted by the Secretary with participation of the petitioner, the 2[nd] respondent and the third parties. It is pertinent that the petitioner has not produced the provisional order before this Court and this Court does not have an opportunity to look into it. It is also pertinent that the petitioner had not thought it fit to implead the third parties, who ## **W.P.(C) No. 27170/2016** **-8-** raised the complaint before the local authority; before the Tribunal. 12. Be that as it may, the objections of the petitioner did not touch upon any of the relevant factors. There was no reason why the original authority should deal with it. Even the objection with respect to Rule 86 of the Building Rules was never raised before the original authority in the written objections filed or at the time of hearing. The Tribunal has looked into the files and found that the petitioner's objections were not worthy of consideration. In such circumstance, a remand back to the original authority would be an empty formality, which, this Court is not inclined to direct. 13. The further contention raised before the Tribunal is with respect to Rule 86 of the Building Rules. Rule 86 speaks of building used exclusively for ## **W.P.(C) No. 27170/2016** **-9-** the purposes of plant house or metre house, not being a dwelling house and sheds for keeping fuel or firewood for the domestic use of its owner or for keeping agricultural implements, tools, rubbish or other materials or for watching crops or kennel and so on and so forth. The specific contention taken by the petitioner is that the Tribunal has added the words 'similar' before the other materials to find that the petitioner, who is carrying on stationery business in the said premises cannot rely on Rule 86 to seek exemption for the unauthorised constructions. 14. It is true that the Tribunal had noticed similar other materials but, however, followed it up immediately with the sentence that 'It is imprudent to think that the expression that 'other materials' should be liberally interpreted to include any merchandise.' This is the rule of ejusdem generis which the Tribunal ## **W.P.(C) No. 27170/2016** **-10-** had not specifically stated. The general words take colour from the specific words and by no stretch of imagination can the 'other materials' be a reference to stationery items kept for sale. There cannot be found any addition of words to the provision, by the Tribunal. 15. The learned Counsel for the petitioner also has an argument that only fuel or firewood be kept for domestic use of its owner and the other materials do not have such a restriction. That is for the reason that agricultural implements and tools would be used for agricultural purposes and not for domestic purposes and keeping of rubbish, definitely, is not for a domestic purpose. The petitioner, admittedly, is carrying on stationery sales in the unauthorised construction, which is not permitted by Rule 86. The petitioner also did not have a contention that the constructions made were for any purpose as indicated in Rule 86 and had raised it ## **W.P.(C) No. 27170/2016** **-11-** before the Tribunal as an afterthought. Ext.P7 being consequential to Ext.P6 order, there is no reason to interfere with the same also. 16. The Tribunal had elaborately considered the grounds raised before it. There were no grounds raised by the petitioner before the original authority, worthy of consideration; which the Tribunal had found on a reading of the objection filed by the petitioner before the local authority. The so termed valid objections raised for the first time by the petitioner, before it, was also looked into by the Tribunal. There can hence be found no defect of violation of principles of natural justice or non- application of mind by the first authority, which the Tribunal attempted to cure in appeal. For all the above reasons, this Court is not inclined to interfere with the Tribunal's order and the writ petition would stand dismissed. The dismissal of the ## **W.P.(C) No. 27170/2016** **-12-** writ petition need not affect the right of the petitioner to continue in the authorised construction, which will only be subject to the orders in the civil cases pending between the parties. However, the petitioner shall be granted a month's time to demolish the unauthorised construction; failing which the local authority will be entitled to do so, at the risk and cost of the petitioner. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 1/7/17