S. Krishnakumar v. Tribunal for Local Self Government Institutions, Thiruvananthapuram; Thiruvananthapuram Corporation; Kumari Girija

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 25TH DAY OF MAY 2011/4TH JYAISHTA 1933 WP(C).No. 13738 of 2011 (N) --------------------------- PETITIONER(S): ------------- S.KRISHNAKUMAR, S/O. SANKARANARAYANAN POTTI, SRI UDUPI HOTEL T.C.37/482(3), WEST FORT, FORT P.O. THIRUVANANTHAPURAM. BY ADV. SRI.T.M.RAMAN KARTHA RESPONDENT(S): -------------- 1. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM- REPRESENTED BY ITS SECRETARY. 2. THE THIRUVANANTHAPURAM CORPORATION, THIRUVANANTHAPURAM - REPRESENTED BY ITS SECRETARY. 3. KUMARI GIRIJA, D/O. VINAYAKUMARI, T.C.37/390, PADMANABHA NILAYAM, WEST NADA FORT P.O., THIRUVANANTHAPURAM. R3 BY SRI.A.A.ZIYAD RAHMAN R1 BY GOVERNMENT PLEADER SRI.K. REMESH R2 BY ADV.SRI.P.K. MANOJ KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25-05-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 13738 of 2011 (N) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF THE BUILDING PERMIT DATED 16.8.2002. EXT.P2 COPY OF THE CERTIFICATE DATED 11.11.2005. EXT.P3 COPY OF THE REPRESENTTION DATED NIL. EXT.P4 COPY OF THE APPLICATION DATED NIL. EXT.P5 COPY OF THE OFFICE NOTES OF THE R2 CORPORATION DATED 10.2.2011. EXT.P6 COPY OF THE CERTIFICATE DATED 10.2.2011. EXT.P7 COPY OF THE ORDER IN APPEAL NO.160/2011 DATED 4.5.2011 OF R1. /TRUE COPY/ P.S. TO JUDGE CL ## **C.T. RAVIKUMAR, J.** ........................................... W.P.(C).NO.13738 OF 2011 ............................................. Dated this the 25[th] day of May, 2011. ## **JUDGMENT** Petitioner and 3[rd] respondent are owners of neighbouring properties. This writ petition has been filed mainly challenging Ext.P7 order of the Tribunal for Local Self Government Institutions in Appeal No.160/2011. Appeal No.160/2011 was filed by the petitioner against the renewal of building permit in favour of the 3[rd] respondent as per Ext.P6. Before the Tribunal, it was contended by the petitioner that he is in possession and enjoyment of 2 cents of land in Sy.No.560/207 of Vanchiyoor village and that the property on the immediate north-eastern side of the said property having an extent of 0.789 cents in Sy.Nos.560/207,560/208 of Vanchiyoor village is owned and possessed by the 3[rd] respondent herein. Third respondent obtained Ext.P1 permit from Corporation of Thiruvananthapuram for constructing a new building after demolishing a dilapidated building that situated in the said property. The period of permit granted in favour of the third respondent was extended for a period of three years W.P.(C).NO.13738 OF 2011 : 2 : from 15.8.2008 as per Ext.P2. According to the petitioner, no further extension was granted and the 3[rd] respondent had not commenced and completed the permitted construction within the validity period. Later, the third respondent filed an application before the 2[nd] respondent and got Ext.P6 renewed permit. The contention of the petitioner is that the property comprised in the aforesaid survey number is situated in public and semi-public areas under the D.T.P scheme and it was ignoring all those aspects the permit was renewed as per Ext.P6. The renewal granted in favour of the 3[rd] respondent is therefore, bad in law, according to the petitioner. 2. Refuting and resisting the contentions raised in the appeal, 1[st] and 2[nd] respondents had filed separate written statements. In the written statement filed by the second respondent it was stated that in the year 2002 the petitioner and the 3[rd] respondent had jointly executed an agreement expressing their mutual consent for effecting construction in their respective properties that lie conterminous to each other. Further it is contented therein that by making use of W.P.(C).NO.13738 OF 2011 : 3 : the said mutual consent the petitioner had already effected construction without leaving space on the western and southern sides of his building. It is the contention of the 3[rd] respondent that he could not complete the construction owing to financial stringency and that constrained him to approach the 1[st ] respondent Corporation to get extension of the validity of the permit. Unfortunately, she could not construct the building even within the extended period. On 4.8.2008 she applied for further extension. However, no order was passed thereon. On 8.2.2011 the authorities have decided to grant extension. It is to be noted that in the written statement filed before the Tribunal, the 2[nd] respondent supported the contention raised by the 3[rd] respondent herein. It is admitted thereunder that the 3[rd] respondent had submitted an application for extension of validity of the permit on 4.8.2008 itself and no decision was taken thereon till October, 2010. Further, it is stated thereunder that, subsequently, the application submitted by the 3[rd] respondent was placed before the Adalath on 8.2.2011 and a decision was taken to grant extension of permit by three years from ## W.P.(C).NO.13738 OF 2011 : 4 : 15.8.2008 subject to limiting the number of floors of the proposed building from 3 to 2. It is further stated therein that though the area in question falls under public and semipublic areas in terms of the DTP scheme, new constructions, additions and alterations to existing buildings in the area are permissible only as per the Government order. It is after considering the rival contentions as stated above that Ext.P7 order was passed by the Tribunal. The specific contention of the second respondent was that Government granted permission to effect new construction, additions and alterations to existing buildings in the area and it is not refuted by the petitioner. No document has been produced by the petitioner to refute the said specific contention. It is also to be noted that the Tribunal has relied on the decision of this Court reported in **Shivaprasad v. State of Kerala** (2011(1) KLT 690) to arrive at a conclusion that new construction is permissible in the area. 3. It is an admitted fact that petitioner had effected construction in his own property having an extent of 2 cents of land making use of the mutual consent with the 3[rd] W.P.(C).NO.13738 OF 2011 : 5 : respondent. Having utilised the mutual consent for the purpose of putting up a construction in his own property, the petitioner cannot be permitted to turn around and raise objection against the construction being effected by the 3[rd] respondent making use of the very same mutual consent. All those aspects were duly taken note of by the Tribunal while passing Ext.P7. As already noticed, the first respondent Corporation has specifically admitted in the written statement that the petitioner has submitted an application for extension within the period. When the competent authority who received the application and admitted its receipt within time there is no reason to entertain any doubt with respect to such matters in the absence of any material to the contrary. Therefore, the contentions that it is a fabricated document and that the 3[rd] respondent has not submitted any application for extension within the time period are only to be discarded. Findings of the tribunal cannot be challenged without supporting any materials. There is no legal issue involved in this case. The tribunal rightly observed that the intention of the appellant/petitioner is vitiated by malafides and he had ## W.P.(C).NO.13738 OF 2011 : 6 : not approached the tribunal for protecting any law or protecting any property. Considering the conduct on the part of the petitioner in effecting construction in his own property making use of a mutual consent and then raising objections against the 3[rd] respondent, in the facts and circumstances, this writ petition deserves to be rejected with costs. However, I am desisting by doing so solely to enable the petitioner and the 3[rd] respondent to bring harmony between their families while living as next door neighbours. For the foregoing reasons, I am of the view that this writ petition is devoid of any merit. Hence, it is dismissed. ## **C.T. RAVIKUMAR, JUDGE.** **cl**