Renjith Kumar v. Muvattupuzha Municipality and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 11TH MARCH 2008 / 21ST PHALGUNA 1929 WP(C).No. 4005 of 2008(B) ------------------------- PETITIONER: - ------------ RENJITH KUMAR, S/O.ISSAC, AGED 37, THENNITTAMPADIYIL HOUSE, KAKKOOR P.O. KOOTHATTUKULAM - 686 062. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE RESPONDENTS: ------------- 1. MUVATTUPUZHA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUVATTUPUZHA. 2. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, TRIVANDRUM. 3. THE VICAR, HOLY MAGGY CHURCH POST OFFICE JUNCTION, MUVATTUPUZHA. R1 BY ADV.MR.V.M.KURIAN R3 BY ADV. SRI.LATHEESH SEBASTIAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS C. KURIAKOSE,J.** **- - - - - - - - - - - - - - - - - - - - - - - - -** W.P.(C) No.4005 of 2008 **- - - - - - - - - - - - - - - - - - - - - - - - -** Dated: 11[th] March, 2008 ## **JUDGMENT** In this Writ Petition under Article 226 of the Constitution the petitioner challenges Ext.P6 provisional order and Ext.P7 confirmation order issued by the 1st respondent-Municipality under Sections 406 (1) and (3) respectively of the Municipalities Act to the third respondent, the Vicar of Holy Maggy Church, Muvattupuzha. He also challenges Ext.P11 order passed by the Tribunal for Local Self Government Institutions rejecting the appeal which he had preferred against Ext.P7 on the ground of limitation. Ext.P1 is copy of the building permit which was issued by the 1st respondent-Municipality to the third respondent for construction of a commercial building on the third respondent's property which is situated on the eastern and southern sides of the petitioner's property. The petitioner alleges that violating the approved plan and Ext.P1 permit, the third respondent constructed a shed on the eastern side of the petitioner's property by encroaching into the petitioner's property. That shed was constructed without any building permit at all. The third respondent allegedly constructed a tank also without keeping open space from the well in W.P.C.No.4005/08 - 2 - the petitioner's property. Noticing these illegalities, the petitioner submitted Ext.P2 complaint before the Municipality. Pursuant to Ext.P2, the Municipality issued Ext.P3 provisional order to the third respondent directing the third respondent to demolish the unauthorised constructions. The Municipality also sought police protection for implementing Ext.P3 and Ext.P4 is copy of Municipality's letter in that regard. When it was noticed that in spite of Ext.P3 the Municipality was not proceeding further in the matter, the petitioner filed W.P.C.No.5904/06 before this court seeking directions against the Municipality. This court passed Ext.P5 judgment in that Writ Petition directing the Municipality to pass final orders on Ext.P3 after hearing both sides within one month. The petitioner submits that pursuant to Ext.P5, he was not issued with any notice for hearing from the Municipality though he waited for such a hearing. On the contrary what the Municipality did was to issue a fresh provisional order directing the third respondent to demolish the sunshade on the western side to a width of 20 C.M. Ext.P6 is copy of that provisional order. Thereafter confirming Exts.P6, Ext.P7 final order was passed by the Municipality. The petitioner alleges that issuance of Ext.P6 as well as Ext.P7 has been in utter disregard on Ext.P5 judgment and was with the intention of W.P.C.No.4005/08 - 3 - helping the third respondent. Against Ext.P7 the petitioner preferred Ext.P8 appeal. The petitioner submits that he had to apply under the Right to Information Act on two occasions for obtaining copy of Ext.P7. But the Tribunal rejected Ext.P8 on the ground of limitation by passing Ext.P11 order. Challenging Ext.P11 the present Writ Petition has been filed seeking the following reliefs: 1. Call for the records leading to Exts.P6, P7 and P11 and quash the same by issue of a writ of certiorari or other writ order or direction. 2. Issue a writ of mandamus or other writ order or direction compelling the 1[st] respondent to pass final order on Ext.P3. 2. The third respondent has filed a counter affidavit contending that the Writ Petition is not maintainable in law. The petitioner has no reason to be aggrieved by Ext.P7 since Ext.P11 order does not affect him at all. The Tribunal was justified in passing Ext.P7 since there was a delay of about one and half years and there was not even an application for condonation of delay. There was gross negligence on the part of the petitioner who was fully aware of Ext.P7 as soon as the same was passed. The counter affidavit alleges that the conduct of the petitioner from the very beginning was bereft of bonafides. The third respondent-Church purchased the property by means of sale deed No.2785/1950 from one Kunjan. The petitioner's predecessors W.P.C.No.4005/08 - 4 - had owned property adjacent to the third respondent's property on its northern side separated by a compound wall which is described as the northern boundary of the property purchased by the Church. The boundary wall has been in existence for the past 58 years and exists even now without any change. The petitioner's predecessors never had title or possession over the third respondent's property situated on the southern side of the compound wall. The property which is now claimed by the petitioner was purchased by the petitioner's predecessors from same Kunjan as per document No.2831 dated 18.11.1115(ME.) and the measurements and boundaries are clearly stated in that document. 3. While the third respondent was continuing with the construction on the strength of a building permit issued by the 1st respondent, the petitioner filed Ext.P2 complaint followed by another complaint reiterating the very same allegations. In Ext.P2 the petitioner laid the claim over a portion of the third respondent's property. But no evidence was produced by the petitioner for substantiating his claims over the property. But by exerting undue influence on the then Municipal Authorities, he was successful in issuing Ext.P3 notice under Section 406.... In response to Ext.P3, the third respondent filed objections and produced the original of Ext.R3 W.P.C.No.4005/08 - 5 - (a), the title document of the third respondent. It was thereafter that the petitioner approached this court and this court passed Ext.P5 judgment. The Municipality vide notice dated 16.2.2006 directed the petitioner to produce survey sketch prepared by the Taluk Surveyor. It was stated in the said notice that if the survey sketch prepared by the Taluk Surveyor is not produced, the complaint will be rejected. Ext.R3(b) is copy of the notice issued to the petitioner. The petitioner did not produce the survey sketch at all. Thereafter the Municipality heard both parties in compliance with Ext.P5 judgment and found that there was no substance in the claims raised by the petitioner over the property belonging to the Church. It is pointed out that the claim of the petitioner is regarding the property on the northern side of the building. Under Ext.P6 provisional order and Ext.P7 confirmation order the alleged violation of the building rules is pointed out on the western side of the building. The third respondent claims that there is no violation and contends that in any event the petitioner cannot have any grievance regarding Ext.P7. The counter affidavit goes on to justify Ext.P11 order passed by the Municipality. 4. The Standing Counsel for the Municipality has filed a statement justifying Ext.P11. It is contended that in the Writ Petition the challenge is against Ext.P7 passed by the Municipality against the W.P.C.No.4005/08 - 6 - third respondent and not against the petitioner. The petitioner has no reason to be aggrieved by an order which is passed against the third respondent. The statement justifies Ext.P11 on the authority of the judgments of this court in **Kerala Motor Transport W.W.F.Board** **v. Government of Kerala** (2001(1) KLT 608) and **District Executive Officer v. Abel** (2006(2) KLT 758). Along with the statement, the Standing Counsel has also produced Annexure A statement which had been filed by the Municipality in W.P.C.No.5904/06. It is considering Annexure A that this court passed Ext.P5 judgment, it is contended. 5. I have heard the submissions of Mr.S.Sreekumar, learned counsel for the petitioner, Mr.V.M.Kurian, Standing Counsel for the Municipality and Mr.Latheesh Sebastian, learned counsel for the third respondent-Church. 6. Mr.Sreekumar would submit that it was absolutely illegal on the part of the Municipality to have issued Ext.P6 provisional order and confirmed that provisional order ignoring the directions of this court in Ext.P5. The directions in Ext.P5 was that the matter in relation to Ext.P3 orginal order should be finalised after hearing necessary parties. The petitioner has not been heard at all. Exts.P6 and P7 is in gross violation of the directions of this court in Ext.P5. W.P.C.No.4005/08 - 7 - The Tribunal has not gone into the merits of the matter at all. The Tribunal should have noticed that Exts.P6 and P7 had not been communicated to the petitioner at all and that the petitioner had to apply twice under the Right to Information Act before copy of Exts.P6 and P7 were issued to him. The Tribunal accordingly should have found that there was no delay at all and should have entertained Ext.P8 appeal. 7. Mr.V.M.Kurian, learned Standing Counsel for the Municipality drew my attention to Annexure A statement which had been filed by the Municipality in Ext.P5 Writ Petition and submitted that Ext.P5 judgment was passed taking into account the statement Annexure A and the direction was that a decision should be taken having regard to Annexure A statement. The petitioner has come to this court with a totally false case that he was not heard at all before Ext.P7 was passed. My attention was drawn by the learned Standing Counsel to Ext.P8 wherein it is conceded that the petitioner was heard by the Municipality. Counsel submitted that the claim which the petitioner has raised over the plot in which the Church is permitted to construct a building is without any substance since even according to the title deed of the Church which is of the year 1950, the property of the Church is bounded on all four sides by compound walls. The claim in W.P.C.No.4005/08 - 8 - any event is regarding the property on the northern side of the building and is not regarding the western side which is subject matter of Ext.P7. The petitioner has no reason to be aggrieved by Ext.P7. If the petitioner has any grievance that the directions in Ext.P5 judgment of this court has been violated, it was upto him to have invoked the contempt jurisdiction of this court which he has not done so far. Counsel referred to the judgment of this court in **Krishnan.T. v. State of Kerala** (ILR 2007(1) **Kerala 233, Kerala Motor Transport W.W.F.Board v. Government of Kerala** (supra) and **District Executive Officer v. Abel** (supra) to argue that the Statutory Tribunal cannot be directed to condone delay in the absence of any power to condone delay statutorily conferred on the Tribunal. Section 509(6) of the Municipalities Act read with the proviso to Rule 8 of the Tribunal Procedural Rules, 1999 will show that the Tribunal has no power to condone the delay of more than 30 days caused in the matter of preferring appeals. On the strength of the very same decisions and especially the judgment of this court in **District Executive Officer v. Abel** (supra), learned counsel argued that in a case where the party was not vigilant and failed to avail the statutory remedy on time, he will not be justified in invoking the extraordinary jurisdiction of this court under Article 226 of the W.P.C.No.4005/08 - 9 - Constitution. 8. Mr.Latheesh Sebastian, learned counsel for the third respondent-Church addressed me on the basis of the counter affidavit filed by him and draw my attention to Ext.R3(a), copy of the title deed in favour of the Church and also to Ext.R3(b). He argued that the title deed will show that Adv.T.J.Joseph was the common predecessor-in-interest of the third respondent-Church and the petitioner and that the entire property of the Church is bounded by ancient compound walls thus ruling out any scope for any claim over the Church's property by the petitioner or for that matter anybody else. Counsel would submit that on noticing that the petitioner was raising claim of title and possession over a portion of the property of the Church covered by the building permit, the Municipality had issued Ext.R3(b) notice to the petitioner directing the petitioner to produce the survey sketch prepared by the Taluk Surveyor in respect of the petitioner's property. In spite of that direction, the petitioner never produced the sketch. Counsel also submitted that it is after hearing the petitioner that Ext.P7 order was issued by the Municipality. The petitioner cannot have any grievance regarding Ext.P7 since Ext.P7 relates to the western sunshade of the building and not to that portion of the Church property which is adjoining to W.P.C.No.4005/08 - 10 - the petitioner's property. 9. I have considered the rival submissions addressed at the Bar. On the of the basic premises on which the petitioner has filed the present Writ Petition is that notwithstanding the direction of this court in Ext.P5, the petitioner was not heard before Exts.P6 and P7 were issued by the Municipality. Ext.P8 produced by the petitioner is copy of the very appeal memorandum which he had preferred against Ext.P7 order. In clause No.6 of Ext.P8, it is stated as follows: “The petitioner approached the Honourable High Court by filing W.P.(C) No.5904/2006, in which the Honourable High Court has issue a direction to the first respondent to dispose the complaint filed by the appellant within one month by the judgment dated 06.03.2006. The first respondent has thereafter heard both sides and the appellant produced documents including the copies of title deeds, survey sketch etc. to substantiate his contentions. Without going to the merits and factual possession of the case at hand the first respondent has passed the impugned order.” The very admissions in Ext.P8 quoted above will show that the basic plank on which the petitioner approaches this court is not strong. Under Ext.P5 this court has directed the Municipality to finalise the matter covered by Ext.P3 original provisional order. But at the same W.P.C.No.4005/08 - 11 - time, it should be noticed that Ext.P5 judgment was passed by this court taking into account Annexure A statement filed by the Municipality. In that statement, the Municipality had contended inter alia that in response to the provisional order under Section 406(1), the Church had submitted a reply denying the claim of the petitioner that he has one and half feet wide property on the southern side of the compound wall. The Church also produced their title deed in which their northern boundary (southern boundary of the petitioner) is described as the compound wall of Advocate T.J.Joseph and others who are the predecessors-in-interest of the petitioners. It was also stated in Annexure A that apart from making oral claim, the petitioner has not produced the title deed or any other documentary evidence for substantiating his claim. In view of the disputed claims, the Municipality had issued notice to both the parties to produce survey sketch prepared by the Taluk Surveyor. 10. Thus this court was informed through Annexure A statement that essentially the dispute between the petitioner and the Church is over a strip of one and half feet wide property lying within the compound wall of the Church and on the southern side of the petitioner's property. This was why this court noticed that statement and directed in Ext.P5 judgment which is a very precise one that the W.P.C.No.4005/08 - 12 - statement filed by the Municipality is recorded and that having regard to the statements contained therein, the matter covered by Ext.P3 provisional order should finalised after hearing necessary parties. It is obvious that pursuant Ext.P5, the Municipality did conduct an enquiry and direct the petitioner to produce documents. Though the petitioner claims to have produced documents, nothing is placed on record to show that the petitioner submitted the survey sketch which was called for by the Municipality. Ext.P6 order followed by Ext.P7 was passed pursuant to Ext.P5 and the petitioner cannot successfully contend that he had no information at all regarding this. Whatever that be, if the petitioner felt that Ext.P5 order was passed in violation of the directions of this court in Ext.P5, he should have invoked the contempt jurisdiction of this court and could have effectively compelled the Municipality to comply with the directions in Ext.P5. Having considered rival submissions addressed at the Bar and having scanned the documents placed on record, I feel that in substance the dispute between the petitioner and the third respondent is over a portion of the property lying within the compound wall of the 3rd respondent-Church. Being a purely civil dispute, the petitioner has to seek settlement of that dispute by approaching a competent civil court. W.P.C.No.4005/08 - 13 - 11. As far as Ext.P11 order of the Tribunal, I do not find any infirmity about that order. Being a statutory Tribunal, the Tribunal for Local Self Government Institutions had no power to entertain Ext.P8 appeal which was filed after about one and half years of passage of the impugned order. Therefore, I am inclined to accept the case of the respondents that there was gross negligence of the part of the petitioner in approaching the Tribunal and I do not find any special circumstances attending on this case warranting interference with Ext.P11 under the constitutional jurisdiction of this court under Article 226. I decline the prayers in the Writ Petition. The Writ Petition will stand dismissed. However, other remedies, if any, available to the petitioner are not foreclosed. srd ## **PIUS C.KURIAKOSE, JUDGE**