Renjith S.D. v. Kattapana Grama Panchayath & Others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2016-02-10
Court Decision / Holding: This writ petition is dismissed. The petitioner is at liberty to invoke statutory remedies under the applicable Building Rules.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Renjith S.D.

Respondents

Kattapana Grama Panchayath, rep. by its Secretary, Kattappana
Village Officer, Village Office, Kattappana
District Collector, Idukki
P.P. Kishore
Lissy
Jayasree

Legal Representation & Advocates

Counsels for Petitioners

• S. Sachithananda Pai

Counsels for Respondents

• P. N. Ramakrishnan Nair
• P. Viswanathan
• Joi ce George
• Reji Joseph

Case Synopsis & Summary

The petitioner, Renjith S.D., resides on the southern side of the property belonging to respondents 4 to 6 and challenges the grant of building permits for a multi-storeyed structure on that property. He contends that respondents 4 to 6 hold defective title and that the first respondent Panchayath issued a building permit (Ext. P3) and a building plan (Ext. P4) to the 4th respondent, and permits (Exts. P5) and plans (Ext. P6) to the 5th and 6th respondents based on these defective documents. The construction allegedly violates the Kerala Municipality Building Rules, 1999, particularly for not leaving adequate open space on the public road and thus impinging on the right of way. The petitioner seeks a mandamus directing the first respondent to ensure conformity with Exts. P2 series (plan and permit) and to direct the third respondent to inquire into the authenticity of Exts. P1 and P2 certificates by the second respondent. The respondents counter that the writ petition is not maintainable since Rule 160 of the Building Rules provides a statutory remedy, and they contend that the construction was carried out with sufficient open space in compliance with the Rules. The court ultimately held that the alleged violations involve disputed facts and that the petitioner did not invoke the available remedy; hence the petition was dismissed, with liberty to pursue statutory remedies.

Provisions of Law Cited

Article 226 of the Constitution of IndiaKerala Municipality Building Rules, 1999Rule 160 of the Kerala Municipality Building Rules

Legal Doctrines & Maxims

Rule of self-imposed limitation on Article 226 jurisdiction
Ordinarily no interference where an adequate and efficacious remedy exists
Equality of remedies (equal, efficacious remedy)
Doctrine of relying on established statutory remedies before invoking extraordinary jurisdiction

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the first respondent issued building permits and plans to 4th–6th respondents based on defective titles and documents, violating the Kerala Municipality Building Rules, resulting in obstruction to public road and right of way. He seeks a mandamus directing compliance with Ext.P2 and an enquiry into Exts.P1–P2 certificates by the second respondent. The petitioner argues that there is no adequate remedy outside Article 226 and that the construction should be halted or guided to conform.

Contentions of Respondents

The respondents contend that the writ petition is not maintainable since Rule 160 provides an alternative remedy under the Building Rules. They assert the construction complies with the Rules, including adequate open space, and deny allegations of collusion or defect in title. They emphasize that disputed facts regarding conformity to the approved plan cannot be resolved in extraordinary jurisdiction and that the petitioner did not resort to statutory remedies.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of H.P. v. Gujarat Ambuja Cements Limited	2005 (6) SCC 499	Positive	The Apex Court decision is cited as supporting the principle that, where an adequate remedy exists, the High Court should normally refrain from exercising extraordinary jurisdiction; the current court relies on this to justify dismissal where Rule 160 remedy is available.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 10TH DAY OF FEBRUARY 2016/21ST MAGHA, 1937** **WP(C).NO. 20299 OF 2011 (J) ----------------------------** ## **PETITIONER(S):** ## **---------------** **RENJITH.S.D, AGED 44 YEARS, S/O. DAMODARA PANICKER, MALIYIL HOUSE, KATTAPANA.P.O.** **BY ADV. SRI.S.SACHITHANANDA PAI** **RESPONDENT(S):** **---------------** **1. THE KATTAPANA GRAMA PANCHAYATH, REP. BY ITS SECRETARY, KATTAPPANA 685508** **2. THE VILLAGE OFFICER, VILLAGE OFFICE, KATTAPPANA-685508** **3. THE DISTRICT COLLECTOR, IDUKKI-685001** **4. P.P. KISHORE, AGED 30 YEARS, S/O. PRABHAKARAN, PUTHENPURACKAL HOUSE, KATTAPPANA.P.O.-685508** **5. LISSY, AGED 28 YEARS, W/O. RAJU, MARAMPARAMPIL HOUSE, KATTAPANA.P.O.,-685508** **6. JAYASREE, AGED 35 YEARS, W/O. SYAMKUMAR, PAZHANJIYIL HOUSER, KATTAPANA.P.O.-685508** **R4-6 BY ADV. SRI.P.N.RAMAKRISHNAN NAIR R4-6 BY ADV. SRI.P.VISWANATHAN** **R1 BY ADV. SRI.JOICE GEORGE** **R2-3 BY ADV. GOVERNMENT PLEADER,SRI. REJI JOSEPH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).NO. 20299 OF 2011 (J)** ## **----------------------------** ## **APPENDIX** ## **--------** ## **PETITIONER'S EXHIBITS:** ## **---------------------** |**EXT.P1**|**TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY**| |---|---| ||**VILLAGE OFFICER TO 4TH RESPONDENT.**| |**EXT.P2**|**TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE**| ||**VILLAGE OFFICER TO 5TH RESPONDENT.**| |**EXT.P3**|**TRUE COPY OF THE BUILDING PERMIT DT.18.02.10 ISSUED TO**| ||**THE 4TH RESPONDENT.**| |**EXT.P4**|**TRUE COPY OF THE APPROVED BUILDING PLAN ISSUED TO THE**| ||**4TH RESPONDENT.**| |**EXT.P5**|**TRUE COPY OF THE BUILDING PERMIT DT.06.07.2010 ISSUED**| ||**TO THE 5TH RESPONDENT.**| |**EXT.P6**|**TRUE COPY OF THE APPROVED BUILDING PLAN ISSUED TO THE**| ||**5TH AND 6TH RESPONDENTS.**| **RESPONDENTS EXHIBITS: NIL ---------------------** **//TRUE COPY//** **P.A. TO JUDGE** **DST** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = = = W.P. (C) No. 20299 of 2011 - - - - - - - - - -- - - - - - - - - - -** Dated this the 10th day of February, 2016 ## **J U D G M E N T** The petitioner is residing with family on the southern side of the property of the respondents 4 to 6. According to petitioner, the respondents 4 to 6, do not have proper title for the property and on the basis of defective title, they have approached the 1[st] respondent for building permit, to construct a multi storied building. On receipt of the application, along with defective documents, which do not establish title and possession of the respondents on their property. The 1[st] respondent issued Ext.P3 building permit and Ext.P4 plan to the 4[th] respondent and Ext.P5 building permit and Ext.P6 ## **W.P.(C) No. 20299 of 2011** ## **-: 2 :-** plan to the respondents 5 and 6. On the basis of Exts.P3 to Ext.P6, which were issued in violation of the Kerala Municipality Building Rules, 1999 ( _hereinafter referred to as 'the Rules)_ respondents 4 to 6 had proceeded with the construction in a hasty manner and the construction is made, without leaving open space towards the public road and thereby, the right to travel through the road is very much affected. Thus, the respondents 4 to 6 are carrying out illegal construction in collusion with the 1[st] respondent Panchayat. According to the petitioner, in the above circumstances, the petitioner has no alternative and efficacious remedy, other than approaching this Court under Article 226 of the Constitution of India. Hence, the petitioner filed this writ petition, with a prayer to issue a writ of mandamus, or any other writ or direction, directing the 1[st] respondent to **W.P.(C) No. 20299 of 2011** **-: 3 :-** see that the construction made by the respondents 3 to 5 are strictly in accordance with Ext.P2 series of plan and permit and also to direct the 3[rd] respondent to make an enquiry, regarding the issuance of Exts.P1 and P2 certificates, by the 2[nd] respondent. 2. The 4[th] respondent entered appearance and filed a counter statement, denying the allegations that the constructions were made in violation of the plan and permit thereunder. The main contention is that the writ petition is not maintainable so long as alternative and efficacious remedy is available under Rule 160 of the Rules and petitioner has not resorted to such remedies provided under law. That apart, considering the facts and circumstances of the case, there is no circumstances, warranting invocation of extraordinary discretionary jurisdiction under Article 226 of the Constitution ## **W.P.(C) No. 20299 of 2011** **-: 4 :-** of India. According to the respondents, they have made constructions, after leaving sufficient open space, as required under the Rules. 3. The short question that arises for consideration is, whether there is any extraordinary circumstance, warranting invocation of discretionary jurisdiction of this Court, under Article 226 of the Constitution of India. 4. It is true that even if, equal and efficacious remedies are available the jurisdiction under Article 226 of the Constitution of India also can be invoked at the discretion of the court. The scope and interference under Article 226 of the Constitution of India, relating to a matter for which alternative remedy has been provided under statute, is a Rule of self imposed limitation. Normally, High Court should not interfere, if there is an alternative adequate and efficacious remedy is **W.P.(C) No. 20299 of 2011** **-: 5 :-** available. If somebody approach the High Court, without availing the alternative remedy, the High Court should ensure that he has made out a strong case or there exist good ground to invoke extraordinary jurisdiction. The above view is supported by the decision of the Apex Court in _**State of H.P. v. Gujarat Ambuja Cements Limited**_ [2005 (6) SCC 499]. 5. In the above view, I have scrutinised the allegations in this writ petition against the respondents 4 to 6. The petitioner has no case that constructions were made, without obtaining approved plan and building permit. The vague allegation raised in this petition is that the building plan and permit are obtained in violation of the Rules. So also, it is contended that the constructions are made in violation of the approved plan and permit. Whether respondents 4 to 6 have made constructions ## **W.P.(C) No. 20299 of 2011** ## **-: 6 :-** in violation of approved plan and permit, is a disputed fact, which cannot be decided in exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India. An equal, efficacious and adequate remedy is left opened under Rule 160 of the Building Rules and the petitioner has not resorted to such remedies available under law. This is not a fit case, which deserves invocation of extraordinary jurisdiction under Article 226 of the Constitution of India. In the above view, this writ petition will stand dismissed and the petitioner is at liberty to invoke statutory remedies under law. Sd/- **K. HARILAL,** **JUDGE** DST //True copy// P.A. To Judge