Rinil Raphel and Laya Antony v. Eloor Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 05TH DAY OF AUGUST 2020 / 14TH SRAVANA, 1942** ## **WP(C).No.15040 OF 2020(D)** ## **PETITIONERS:** - **1 RINIL RAPHEL, AGED 33 YEARS KANDAIKODATH HOUSE, MANJUMMAL P.O, ERNAKULAM DISTRICT PIN 683501** - **2 LAYA ANTONY, KANDAIKODATH HOUSE, MANJUMMAL P.O, ERNAKULAM DISTRICT PIN 683501** **BY ADVS. SRI.ARUN THOMAS SRI.SANTHOSH MATHEW SRI.JENNIS STEPHEN SRI.VIJAY V. PAUL SMT.KARTHIKA MARIA SMT.VEENA RAVEENDRAN SRI.ANIL SEBASTIAN PULICKEL SMT.DIVYA SARA GEORGE SMT.JAISY ELZA JOE SHRI.ABI BENNY AREECKAL SMT.LEAH RACHEL NINAN** ## **RESPONDENTS:** **1 ELOOR MUNICIPALITY, REPRESENTED BY ITS SECRETARY, ELOOR MUNICIPALITY OFFICE, ELOOR FERRY ROAD, UDYOGAMANDAL P.O, ELOOR, ERNAKULAM DISTRICT, KERALA PIN 683501** - **2 ELOOR MUNICIPALITY, ELOOR FERRY ROAD, UDYOGAMANDAL P.O, ELOOR, ERNAKULAM DISTRICT, KERALA PIN 683501** **BY SRI K S ARUN KUMAR SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.15040 OF 2020(D) 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------W.P.(C)No. 15040 of 2020 ---------------------------------------------Dated this the 05[th] day of August, 2020 ## **JUDGMENT** The case set up in this Writ Petition (Civil) is as follows:- _The petitioners purchased 2.02 Ares of land [Re. Survey No. 51 (Survey No. 78/4) in Eloor Village in Ernakulam District] out of 4.19 Ares of land from one Smt. Krishnadhar as per sale Deed No:2756/2019 on 8.11.2019. The previous owner of the property Smt. Krishnadhar earlier submitted an application for building permit in the above property of land on 13.9.2013. On 12.11.2013, the application has been rejected by the respondent Municipality stating that the set back required is 16.5 metres from the centre of the Manjummal Glass Factory Road instead of 3 metre, since the Manjummal Glass Factory road has included in the widening proposal of the Government by order G.O. (M.S) No. 103/91/LAD dated 20.3.1991. Challenging the same, Smt. Krishnadhar approached the Tribunal for Local Self Government Institutions through Appeal No.1142/2013. As per the order dated 30.4.2015, the_ WP(C).No.15040 OF 2020(D) 3 _Tribunal for Local Self Government Institutions allowed the appeal setting aside the rejection order issued by the municipality after holding that the set back required is only 3 metre and directed the Municipality to reconsider the application submitted by Smt. Krishnadhar. As per the direction of the LSGD Tribunal, the Municipality issued building permit on 20.6.2015 to Smt. Krishnadhar and the above building permit has been renewed and is valid till 19.6.2021. Before effecting the construction, the petitioners purchased 2.02 Ares of land out of 4.19 Ares of land of Smt. Krishnadhar. Thereafter, the petitioners submitted application for building permit before the Municipality on 28.1.2020. After a lapse of about 5 months from the submission of the application, the Municipality orally informed the petitioners that Ext.P-3 order passed by the Tribunal is not applicable to the petitioners, since they are not a party before the LSGD Tribunal and hence the objection raised by the municipality in Ext.P-2 against Smt.Krishnadhar is now surviving against the petitioners. The respondent municipality informed the petitioners that without obtaining an order from the court they are not in a position to_ WP(C).No.15040 OF 2020(D) 4 _consider the application for availing the benefit of Ext.P-3 order of the LSGD Tribunal. Hence, the petitioners are approaching this Court, seeking direction against the municipality to pass orders on Ext.P-6 Building Permit application submitted by the petitioners in accordance with observations in Ext.P-3 order passed by the Tribunal for Local Self Government Institutions._ It is in the light of the above factual averments and contentions that the petitioners have filed the instant Writ Petition (Civil) with the following prayers:- _“i) Issue a writ of mandamus or appropriate writ or order direction, commanding the 2[nd] respondent to pass orders on Ext. P6 building permit application submitted by the petitioners in the light of the observations in Ext. P3 order passed by the Tribunal for Local Self Government Institutions, within a timeframe fixed by this Hon’ble Court._ _ii) Issue a writ of mandamus or appropriate writ or order direction, commanding the 2[nd] respondent to issue building permit to the petitioners in accordance with Ext. P3 order passed by the Tribunal for Local Self Government Institutions, within a timeframe fixed by this Hon’ble Court._ _Iii) To issue such other appropriate writ order or direction which this Hon’ble Court may deem fit and just under the circumstances of the case.”_ 2. Heard Sri.Arun Thomas, learned counsel appearing for the petitioners and Sri.K.S. Arun kumar, learned Standing Counsel for the Eloor Municipality appearing for the WP(C).No.15040 OF 2020(D) 5 respondents. 3. The petitioners' predecessor, who was having a total extent of 4.19 Ares of land, had submitted application for grant of building permit to construct a residential building in the said property, which was rejected by the 2[nd] respondent-Secretary of Eloor Municipality as per Ext.P-2 rejection order dated 12.11.2013, on the ground that since there is a proposal for widening of the nearby Manjummal Glass Factory road in view of the stipulations in G.O.(M.S.) No.103/91/LAD dated 20.03.1991, and a distance of 16.5 meters from the middle of the said road to the construction has not been maintained, etc., and also that the construction was made with a set off of 3 meters only. The petitioners' predecessor had challenged Ext.P-2 rejection memo by filing statutory appeal No.1142/2013, before the Tribunal for Local Self Government Institutions in accordance with the provisions contained in the Kerala Municipality Act, 1994 and Rules framed thereunder. This resulted in Ext.P-3 final order dated 30.04.2015, rendered by the Tribunal, whereby the Tribunal has held in favour of the petitioners' predecessor that the said ground of rejection in Ext.P-2 herein is unsustainable in law in the light of the dictum WP(C).No.15040 OF 2020(D) 6 laid down by this Court in decisions as in _**Kalpetta Municipality v. M. Mohandas and Others**_ [2011 (4) KHC 844] and quashed Ext.P-2 rejection order and also had directed respondent-Eloor Municipality to reconsider the application for building permit, in the light of the above said findings made by the Tribunal in Ext.P-3. Thereafter, the 2[nd] respondent-Eloor Municipality has granted Ext.P-4 building permit dated 20.06.2015 in favour of the petitioners' predecessor for constructing the said building in a total extent of 4.19 Ares mentioned therein. Later, it appears that, the petitioners' predecessor has not completed the said construction and has transferred not only the immovable property concerned, but also the right to enjoy Ext.P-4 building permit, in favour of the petitioners, but in respect of 2.02 Ares out of the total extent of 4.19 Ares of land, held by the petitioners' predecessor, as per Ext.P-1 registered Sale Deed No.2756/2019 dated 08.11.2019. Pursuant to the change of ownership as per Ext.P-1, the petitioners have submitted application for change of the name of the building owner in Ext.P-4, in the name of the petitioners and they were informed that as they have not purchased the entire extent of the subject property mentioned in Ext.P-1, but WP(C).No.15040 OF 2020(D) 7 only part thereof, they will have to file separate application for grant of building permit. Thereafter, Ext.P-4 building permit has also been renewed by the respondent Municipality as per Ext.P-5 order dated 22.01.2019. Thereupon, the petitioners have formally submitted Ext.P-6 application for grant of building permit on 28.01.2019, and the receipt of which has been acknowledged by the respondent Municipality as per Ext.P-7 dated 28.01.2020. The complaint of the petitioners is that no decision has been taken on Ext.P-6 application and the petitioners could reliably learn that the 2[nd] respondent is taking the objection since the petitioners are not parties to the proceedings in Ext.P-3 verdict of the Tribunal, they cannot claim the benefit of Ext.P-3 and that therefore the respondents are not bound by the findings and directions in Ext.P-3 to the extent it may be claimed by the petitioners herein. 4. The petitioners would assert that eventhough the extent of the property purchased by them is only a part of the total extent of 4.19 Ares of property of their predecessor, the proposed construction as per Ext.P-6 is in compliance with the requirements of the applicable building Rules, including set off as prescribed in the applicable building Rules and that the WP(C).No.15040 OF 2020(D) 8 insistence on the requirements in Ext.P-2 for fulfilling the distance of 16.5 meters from the middle of the road in question and not 3 meters set off as required in the Building Rules, is illegal and ultravires and further that the Municipality is bound by Ext.P-2, inasmuch as the petitioners have purchased the right not only in respect of the immovable property concerned, but also the right to enjoy the benefit of Ext.P-4 building permit and the consequences of the incidents flowing therefrom. The said plea of the petitioners has been resisted by the respondents. 5. After hearing both sides, it is seen that by Ext.P-1 sale deed, the petitioners' predecessor has conveyed his rights and other incidents in relation to the property mentioned in Ext.P-1, which appears to be part of the property covered by Ext.P-4 building permit. The petitioners have also been conveyed the rights of the petitioners' predecessor pertaining to Ext.P-4 building permit. Hence, by virtue of the force of Section 8 of the Transfer of property Act, 1882, all such incidental rights of the predecessor would also stand transferred to the petitioners as being the purchasers of the subject property concerned. The matter in issue as regards the WP(C).No.15040 OF 2020(D) 9 illegality or otherwise of Ext.P-2 has been agitated by the petitioners' predecessor which resulted in Ext.P-3 final order of the Tribunal. The directions of the Tribunal in Ext.P-3 final order has been fully complied with by the respondents by issuing Ext.P-4 building permit. In other words the respondents have not challenged Ext.P-3 in the manner known to law and therefore the findings in Ext.P-3 has become final and conclusive and therefore the findings and orders in Ext.P-3 to the extent it may apply to the fact in issue could also be pressed into service in any issue between the petitioners and the respondents. 6. Accordingly it is ordered that the 2[nd] respondentSecretary of the Eloor Municipality will take up for consideration the matters in Ext.P-6 application for building permit after affording reasonable opportunity of being heard to the petitioners through their authorised representative/ counsel, if any, and should pass orders thereon in accordance with the provisions contained in the applicable statutory building Rules in the light of the findings in Ext.P-3 final order of the Tribunal, without any further delay, within a period of three weeks from the date of production of a certified copy of WP(C).No.15040 OF 2020(D) 10 this judgment. 7. It is made clear that the issue as to whether the request of the petitioners in Ext.P-6 building permit would comply with the requirements and prescriptions in the applicable statutory building rules, is an issue to be ascertained and determined by the 2[nd] respondent-Secretary of Eloor Municipality. 8. The petitioners will produce certified copy of this judgment as well as a copy of the memorandum of the writ petition (civil) along with all the exhibits before the 2[nd] respondent-Secretary of the Eloor Municipality, for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. ## **Sd/-** ## **ALEXANDER THOMAS, JUDGE** Skk//1408 WP(C).No.15040 OF 2020(D) 11 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE SALE DEED NO. 2756/20198 DATED 8-11-2019** **EXHIBIT P2** **TRUE COPY OF THE REJECTION ORDER ISSUED BY THE RESPONDENT MUNICIPALITY BY LETTER NO. PW1-8466/13 DATED 12-11-2013** **EXHIBIT P3** - **TRUE COPY OF THE ORDER DATED 30-04-2015 IN APPEAL NO.1142/2013 PASSED BY THE HON'BLE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS** - **EXHIBIT P4 TRUE COPY OF THE BUILD PERMIT ISSUED BY THE MUNICIPALITY BY ORDER NO. PW1-8466/13 DATED 20-06-2015** - **EXHIBIT P5 TRUE COPY OF THE PROCEEDING ISSUED BY THE RESPONDENT MUNICIPALITY DATED 22-10-2019** - **EXHIBIT P6 TRUE COPY OF THE BUILDING PERMIT APPLICATION SUBMITTED BY THE PETITIONERS DATED 28-01-2020** **EXHIBIT P7 TRUE COPY RECEIPT ISSUED BY THE RESPONDENT MUNICIPALITY DATED 28-01-2020** - **RESPONDENTS' EXHIBITS: NIL**