Saji Kumar & Jolly Bhasker v. Mary, The Corporation of Kochi & The Assistant Executive Engineer, Kochi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **MONDAY, THE 16TH DAY OF JANUARY 2012/26TH POUSHA 1933** ## **RSA.NO. 889 OF 2004 ( )** **-------------------------------------** **AS.74/2002 OF PRINCIPAL SUB COURT,KOCHI OS.608/1998 OF ADDITIONAL MUNSIFF COURT,KOCHI** ## **APPELLANT(S)/APPELLANTS/DEFENDANTS:** **-----------------------------------------------------------------** **1. SAJI KUMAR, PROPRIETOR, PRADEEP DRIVING SCHOOL, NEAR RAMESWARAM TEMPLE KARUVELIPADY, KOCHI-682 005.** **2. JOLLY BHASKER, XVI/261-F, KAZHUTHUMUTTU, KOCHI-5.** **BY ADVS.SRI.K.N.SIVASANKARAN SRI.V.V.ASOKAN SRI.SUNIL SHANKER** ## **RESPONDENT(S)/RESPONDENTS/PLAINTIFF & DEFENDANTS 2 AND 3:** - **------------------------------------------------------------------------------------------------------** **1. MARY, AGED 54, RESIDING AT 23/2422, PALLURUTHY, KOCHI-6.** **2. THE CORPORATION OF KOCHI,** - **REPRESENTED BY ITS SECRETARY, ERNAKULAM, KOCHI-11.** **3. THE ASSISTANT EXECUTIVE ENGINEER, CORPORATION OF KOCHI, ZONAL OFFICER, PALLURUTHY KOCHI-6.** **R2 & R3 BY SRI.K.ANAND, SC, COCHIN CORPN. R1, BY SRI.N.N.SUGUNAPALAN (SR.)** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No.889 of 2004 ==================================== Dated this the 16[th] day of January, 2012** ## **J U D G M E N T** The following substantial questions of law are framed for a decision. i) Are not the courts below in error in granting mandatory injunction in respect of a construction which has been duly regularized under the Act and the Rules? ii) Is not the suit non-maintainable in view of Sec.563 of the Kerala Municipality Act, which specifically ousts jurisdiction of the civil court to entertain any suit, application or petition challenging the legality or propriety of any action taken under Chapter XVIII of the Act? iii) Is not the conclusion of courts below that the repair works done by the appellant to the existing -: 2 :- ## **R.S.A. No.889 of 2004** structures in his property (1.472 cents) amounted to unauthorized and illegal construction, unsustainable in law and on the evidence on record? iv) Ought not the lower appellate court has accepted Exts.B3 to B5 as documents relating to the construction made in the property of plaintiff instead of adopting hyper technical reasons to deny benefit of Ext.B3 to B5 and simply decree the suit? Is not the approach of the lower appellate court in this regard perverse, erroneous and unsustainable in law? 2. These questions arise in a Second appeal preferred against the judgment and decree passed by the learned Sub Judge, Kochi in A.S. No.74 of 2002 arising from the decree for mandatory and prohibitory injunction granted by the learned Munsiff, Kochi in O.S. No.608 of 1998. 3. First respondent filed the suit originally against first appellant and Corporation of Kochi and its Assistant Executive Engineer, respondents 2 and 3 for a decree for mandatory and ## **R.S.A. No.889 of 2004** ## -: 3 :- prohibitory injunction. First respondent owns 15 cents. On its south-west is a plot of land measuring 1.47 cents which first respondent alleged, belonged to the first appellant where he started with certain construction. It is the case of first respondent that it is without obtaining approved plan and permit and in violation of the the Kerala Municipality Building Rules (for short, “the Building Rules”) that the said construction was made. It is alleged that first appellant did not leave sufficient set back space as required under the Building Rules. Hence the prayer for mandatory and prohibitory injunction. 4. First appellant contended that he does not own or possess the 1.472 cents and the said property belonged to the second appellant. In view of that contention the second appellant was impleaded as the additional 4[th] defendant in the suit. Second appellant contended that by the time he was impleaded in the suit, construction was completed. Thereon plaint was amended to include a prayer for mandatory injunction to direct removal of the entire construction made by the second appellant. Respondents 2 and 3 raised appropriate contentions. The trial court basing on the evidence on record including Ext.C1, report of the Advocate Commissioner granted a decree for mandatory ## **R.S.A. No.889 of 2004** ## -: 4 :- and prohibitory injunction finding that the impugned construction was made by the second appellant without obtaining approved plan and permit and in violation of the Building Rules since the construction is made without leaving the necessary set back space. Appellants challenged that judgment and decree in A.S. No.74 of 2002. In appeal appellants produced Exts.B3 to B5 and those documents were received in evidence. Appellate court did not act upon Exts.B3 to B5, concurred with the judgment and decree of the trial court and dismissed the appeal. 5. It is contended by learned counsel for appellants that Ext.B3 to B5 show that the competent authority, the Secretary of second respondent has regularized construction in exercise of power conferred on him under the Kerala Municipality Act (for short, “the Act”). It is the further contention that it is not within the power of the civil court in view of Sec.563 of the Act to go into the legality or otherwise of Ext.B3, order passed by the competent authority. 6. Learned counsel for first respondent would contend that finding of the courts below that the impugned construction was made without obtaining approved plan and permit and that it violated the Building Rules, on fact and evidence does not call **R.S.A. No.889 of 2004** ## -: 5 :- for interference. It is also contended that Ext.B3 is of no consequence since the Secretary of second respondent is not competent to regularize unauthorized construction done in violation of the Building Rules. According to the learned counsel, competency of the Secretary of second respondent is only to regularize construction when the construction is made without an approved plan but without violating provisions of the Building Rules. It is pointed out by the learned counsel that since Ext.B3 order is passed by the Secretary without jurisdiction, it within the power of the civil court to go into that question. 7. So far as ouster of jurisdiction of the civil court under Sec.563 of the Act is concerned, the said provision says that no civil court shall have jurisdiction to entertain any, suit, application or petition challenging the legality or propriety of any action taken by or under any authority of the Secretary under any provision comprised in Chapters 17, 18 and 19 or the rules and regulations if any made thereunder. The said provision only forbids the civil court from entertaining any suit, application of petition challenging the legality or propriety of action as referred to therein. In the present case the suit is not one challenging action of the Secretary taken in accordance with the provisions ## **R.S.A. No.889 of 2004** ## -: 6 :- referred to in Sec.563 of the Act. On the other hand, the suit is on the premise that the impugned construction is made by the appellants without obtaining approved plan and permit and violating the Building Rules. This Court in **Saina & Others v.** **Konderi & Others** (1984 KLT 428) has held that an adjoining owner even if has not suffered any special damage is entitled to file a suit to ensure that his neighbour while constructing the building complies with the provisions of the Building Rules. There is also another way of looking at Sec.563 of the Act. There what is prohibited is a challenge to the legality and propriety of action taken by the authority referred therein. If the Secretary has passed an order without jurisdiction it is nonest in the eye of law and it is certainly within the power of the civil court to consider whether a Statutory Tribunal or other authority has acted in accordance with the provisions of law. Therefore the bar under Sec.563 of the Act does not prevent the civil court from considering whether Ext.B3, order passed by the Secretary is with jurisdiction or not. 8. So far as the allegation that the impugned construction was made by the appellants without an approved plan and permit and in violation of the Building Rules is **R.S.A. No.889 of 2004** ## -: 7 :- concerned, trial court has entered specific finding in that regard based on the evidence including Ext.C1, report of the Advocate Commissioner. That being a finding of fact supported by evidence this Court is not required to interfere with the same. 9. What is required to be decided is only the effect of Exts.B3 to B5. The second respondent had issued a stop memo to the second appellant based on Ext.A3, compliant preferred by the first respondent and that was followed by a final order directing the appellants to demolish the structure. Second appellant challenged that order in this Court under Article 226 of the Constitution. This Court directed the second appellant to file statutory appeal against the impugned order. Accordingly, second appellant filed appeal before the Local Self Government Department which passed Ext.B2, order dated 07.03.2000. That authority set aside the order for demolition of the structure issued by the second respondent and directed second appellant to file application for regularization of construction under the relevant rules. Accordingly second appellant filed application before the second respondent. Exhibit B4 is the occupancy certificate and Ext.B5 is the receipt for payment of fee for the application for regularization. Pursuant to that application ## **R.S.A. No.889 of 2004** ## -: 8 :- Secretary of the second respondent passed Ext.B3, order which states that in exercise of the power conferred under Sec.406 of the Act the Secretary of second respondent has absolved second appellant from liability in respect of construction or digging of Well and that construction or digging of Well has been regularized. 10. Learned counsel for the appellants has invited my attention to Sec.406 of the Act which according to learned counsel gave power to the Secretary to pass Ext.B3, order. Section 406 of the Act deals with demolition or alteration of building work unlawfully commenced or carried or completed. It is not disputed that certain powers are conferred on the Secretary of the local authority by virtue of Sec.406 of the Act. The proviso to sub-sec. (1) of Sec.406 says that the Secretary may on realization of compounding fee as fixed by the Government regularize any construction, reconstruction or alteration of any building work or digging of any Well commenced, carried or completed without getting a plan approved by the Secretary or in deviation of the approved plan if any provided that such construction or reconstruction or alteration of the building or digging of Well does not contravene any of the provisions or specifications mentioned ## **R.S.A. No.889 of 2004** ## -: 9 :- in the Act or the Rules made thereunder. 11. As rightly pointed out by learned counsel for first respondent, it is pertinent to note that the proviso of Sec.406(1) of the Act enables the Secretary to regularize construction made without getting approved plan or in deviation of the approved plan. It is to be noted that the said power does not empower the Secretary to regularize when there is contravention of the Act or the Building Rules. It is clear that the Secretary of second respondent had no power to regularize the construction made by the appellants or any of them as it violated provisions of the Act and the Building Rules. 12. It is pointed out by learned counsel for first respondent that the application filed by the second appellant which culminated in Ext.B3, order was preferred to the Secretary on 29.03.2000 and that application under Sec.407 of the Act ought to have been filed on or before 18.10.1999. Going by Sec.407 of the Act, I find myself unable to accept that argument. For, the cut off date mentioned as 15.10.1999 is regarding the completion of work of the building. Sub-sec.(2) of Sec.407 of the Act says that an application for regularization under sub-sec.(1) of the Act shall be submitted within such time and in such ## **R.S.A. No.889 of 2004** ## -: 10 :- manner as prescribed. Rule 3 of the Kerala Buildings (Regularization of Unauthorized Construction and Land Development) Rules (for short, “the Rules”) states that the application shall be submitted to the Secretary (of the local authority) in Form No.I on or before 31.10.2000. In this case, going by Ext.B3, the application was made on 29.03.2000. Hence Rule 3 of the aforesaid Rules is satisfied. Rule 5 says that the Secretary of the local authority shall after necessary inspection and verification forward the application to the Town Planner. Under sub-rule 4, the Town Planer shall examine the application in detail and forward the application to the Government with his recommendation within 30 days of its receipt. Sub-rule (5) states that the Government, after examining the plans, other documents, recommendation of the Secretary and Town Planner shall issue orders according sanction to the Secretary for regularization with or without conditions or rejecting the same. 13. It is contended by learned counsel for the first respondent that application preferred by the second appellant is before the Secretary of the second respondent and hence can only be treated as one under Sec.406 of the Act which does not confer power on the Secretary to regularize construction made in ## **R.S.A. No.889 of 2004** ## -: 11 :- violation of the Act and the Building Rules. Hence Ext.B3, cannot be taken as regularizing construction made in violation of the Act and the Building Rules. 14. The Rules above stated has been framed in exercise of the power conferred under Sec.565 read with Sec.407 of the Act and published in the Gazette dated 15.10.1999 under G.O (Ms) No.196/99/L.SGD. It is seen from Ext.B2, order that the Appellate Authority while considering the appeal of the second appellant against the final order of demolition directed that as per rules for regularization of unauthorized construction issued in G.O(Ms) No.196/99/L.SGD dated 15.10.1999 and the Notification referred to therein unauthorized construction made before 15.10.1999 may be regularized on application of parties in the prescribed form with the required documents and that in the circumstances second appellant is directed to submit application for regularization of unauthorized construction. It is therefore clear that the Appellate Authority by Ext.B2, order directed the second appellant to move application under Sec.407 of the Act. 15. Though learned counsel for first respondent has contended that Sec.407 of the Act does not deal with cases where ## **R.S.A. No.889 of 2004** ## -: 12 :- there is no approved plan or permit, I find myself unable to accept that contention. For, Rule 2(d) of the Rules defines unauthorized construction as including deviation from the approved plan and in violation of the Act or the Building Rules or without obtaining permit and in violation of the provisions of the Act or the Building Rules. It is also relevant to note that clause 8 of Form No.I provided in the Rules (application for regularization of unauthorized construction) deals with details of copies of building permit, approved plan (if permission was obtained earlier). Therefore it is clear that under Sec.407 of the Act it is within the power of the Government to regularize construction made without obtaining valid permit and approved plan and in violation of the Act and the Building Rules. 16. Viewed in that line, Secretary of the second respondent on receipt of the application referred to in Ext.B3, order ought to have complied with Rule 5 of the Rules and forwarded the application to the Town Planner who, in accordance with the Rules has to forward the same to the Government for necessary orders. Instead, the Secretary of the second respondent has proceeded to dispose of the application as if it is one under Sec.406 of the Act. In the circumstances I make it **R.S.A. No.889 of 2004** ## -: 13 :- clear that notwithstanding Ext.B3, order it will be open to the second appellant to request the Secretary of second respondent to treat the application preferred by the second appellant as under Sec.407 of the Act and forward the same to the Town Planner as provided under Rule 5 of the Rules. 17. If ultimately the Government accepts request of second appellant for regularization there is no reason why the decree for mandatory injunction should stand. 18. At this stage learned counsel for first respondent submitted that rain water falling on the roof of construction made by the second appellant is falling on the compound wall and property of the first respondent. Having regard to that complaint it is sufficient to make a direction to the second appellant to provide an Eves Gutter on the side of the roof of the structure so that water from the roof will not fall on the compound wall and property of the first respondent. 19. In the light of the observations made above enabling the second appellant to move the Secretary of the second respondent to forward the application referred to in Ext.B3, order to the appropriate authority as provided under Rule 5 of the Rules it is only just and proper that the decree for mandatory ## **R.S.A. No.889 of 2004** ## -: 14 :- injunction is made conditional with the order of regularization the Government may pass after hearing interested parties. Substantial questions of law urged are answered as above. Second appeal is disposed of as follows: Judgment and decree passed by the courts below will stand modified as under: i) It is made clear that notwithstanding Ext.B3, order it will be open to the second appellant to move the secretary of the second respondent to forward the application to the Town Planner as provided under Rule 5 of the Rules. ii) In case there is any defect in the application preferred, appellants shall be given opportunity to cure the defects before the Secretary forwards the application to the appropriate authority under Rule 5. iii) In case the application referred to above is thus forwarded to the Government for necessary ## **R.S.A. No.889 of 2004** ## -: 15 :- orders on the request for regularization, the Government shall pass appropriate orders in the matter having regarding to the facts and circumstances and after hearing all interested parties. iv) It is made clear that the decree for mandatory injunction will be conditional on the Government passing appropriate orders on the application as aforesaid. v) The Government shall pass appropriate orders on the application above referred within six months from the date on which a copy of this judgment is delivered to the Secretary of the Local Self Government Department. vi) Execution of the decree for mandatory injunction which I stated will be conditional on the orders which the Government may pass on the application for regularization is stayed for a period of ## **R.S.A. No.889 of 2004** ## -: 16 :- six months. vii) Second appellant is directed to provide Eves Gutter on the side of the roof of his structure to avoid rain water from the roof of his structure falling on the compound wall or property of first respondent. viii) The decree for prohibitory injunction passed by the courts below will remain in force. Registry shall forward a copy of this judgment to the Secretary of the Local Self Government Department. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv