SANTHA v. THALASSERY MUNICIPALITY and OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 19TH DAY OF DECEMBER 2019 / 28TH AGRAHAYANA, 1941** # **WP(C).No.29617 OF 2019(B)** ## **PETITIONER:** **SANTHA AGED 72 YEARS W/O. JAYAKRISHNAN, PARAYALI HOUSE, CHIRAKKARA, THALASSERY, KANNUR DISTRICT 670 104** **BY ADVS.** **SRI.HARISH R. MENON SRI.K.T.SHYAMKUMAR SRI.A.G.PRASANTH** ## **RESPONDENTS:** **1 THALASSERY MUNICIPALITY THALASSERY, REP BY ITS SECRETARY PIN 670 035** **2 THE SECRETARY, THALASSERY, THALASSERY MUNICIPALITY, KANNUR DISTRICT PIN 670 035** **3 K.K PUSHPAVALLY, W/O. RAMANANTHAN, PARAYALI HOUSE, CHIRAKKARA P.O, THALASSERY, KANNUR DISTRICT 670 104** **R3 BY ADV. SRI.BASANT BALAJI** ## **SC I.V.PRAMOD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.29617 OF 2019 2** ## **JUDGMENT** The petitioner has approached this Court impugning Ext.P9 order, issued by the 2[nd] respondent-Secretary of the Thalassery Municipality, under the provisions of Section 406 of the Kerala Municipality Act asking her to demolish a small toilet/latrine constructed by her next to her property, on the allegation that the area where the said structure has been constructed does not belong to her. 2. The petitioner says that prior to Ext.P9, Ext.P4 notice had been issued to her, wherein again, it was accused that she had constructed the toilet/latrine in a property that does not belong to her and the petitioner says that she had replied to the same through Ext.P6 objections, wherein, she has explained that she is in possession of the property in question, conceding that there are certain civil litigations between her family members, which are still pending in a Civil Court. **WP(C).No.29617 OF 2019 3** 3. The petitioner says that the Municipality, however, has pre-judged the title of the parties and has virtually found that she is not entitled to the ownership or possession of the same, as if they are a Civil Court, thus issuing Ext.P9 and subsequently trespassing into the property and demolishing the toilet/latrine on 17/07/2017. 4. The petitioner asserts that, as has been stated in paragraph four of the writ petition, the latrine was constructed in the year 2016 - under a Scheme of the Central Government and on the recommendation of the Kudumbasree Unit of that area, as per which amounts were allotted to her for the construction of the same finding that she had no facility of a latrine otherwise. The petitioner, therefore, prays that Ext.P9 be set aside and that the Municipality be directed to reconstruct the latrine relying on the judgment of a Division Bench of this Court in _**Subaida Abdul Rasheed and Another v.**_ **WP(C).No.29617 OF 2019 4** _**State of Kerala and Others**_ **[2015 KHC 7031].** 5. In answer to the afore submissions made on behalf of the petitioner by Shri.Harish R.Menon, the learned counsel appearing for respondent No.3-Shri.Basant Balaji, submitted that a counter affidavit has been filed filed on behalf of his client wherein the following have been stated. “5. On 31/05/1996 the 5 person who are in joint ownership of the 38.5 cents of property after the execution of Ext R3(a) deed entered into another partition by which the property having and extent of 38.5 cents was partitioned by metes and bound. One of the parties to the partition deed namely Jayalakshmi obtained 9 cents as per the partition deed. She thereafter executed another settlement deed No.1419/1996 on 01/06/1996 by which the 9 cents she obtained was given to 5 persons namely 1) Jayakrishnan, 2)Sreenivasan, 3) Pushpavally, 4) Suresh and 5) Jayaraman. True copy of the settlement deed no.1419/1996 dtd 01/06/2019 is produced herewith and the same be marked as Exhibit R3(b). 6. In this connection it is respectfully submitted that jayalakshmi who executed Ext.R3(b) cancelled the said settlement deed by Ext P7. Thereafter another settlement deed was executed by Jayalakshmi by which the 9 cents she obtained was settled in favour of the this respondent by Ext P8. It may be noted that this respondent mutated the said property in her name and is paying tax **WP(C).No.29617 OF 2019 5** for the same. True copy of the tax receipt in the name of the 3[rd] respondent regarding the 9 cents obtained by Ext P8 is produced herewith and the same be marked as Exhibit R3(c) . 7. In this connection it is respectfully submitted that the petitioner started living in the house in the property extending to 5 cents and during the year 2016 she constructed a latrine in such as way the major part of the latrine is constructed in the property of the petitioner having and extent of 9 cents she obtained from Jayalakshmi. This respondent therefore filed a complaint regarding the illegal construction of the latrine before the 1[st] and 2[nd] respondents. On the basis of the complaint a notice was issued to the petitioner as well as this respondent for survey of the property to find out whether the latrine is constructed in any part of the property of this respondent. True copy of the notice issued by the Town Surveyor of the 1[st] respondent dtd 29/08/2018 is produced herewith and the same be marked as Exhibit R3(d) . On the basis of the notice the property was surveyed by the surveyor and a report was submitted to the 2[nd] respondent. On the basis of the survey a provisional notice was issued to the petitioner on 1/12/2018 to remove the unauthorized construction. True copy of the provisional notice issued to the petitioner dtd 1/12/2018 is produced herewith and the same be marked as Exhibit R3(e). 8. It is submitted that since the petitioner did not comply with the notice dtd 01/12/2018 a final order Ext P9 is passed by the 2[nd] respondent Ext P9 is passed after giving an opportunity of hearing to the petitioner and after survey of the property by the Town surveyor. Moreover the petitioner suppressing the cancellation of the document No 1419/1996 by cancellation deed No **WP(C).No.29617 OF 2019 6** 1817/2000 and thereafter the execution of the deed No. 1452/2012 in favour of this respondent filed a suit for partition as O.S. No 71/2019 before the Sub Court Thalassery. True copy of the plaint in O.S. No 71/2019 on the file of the Sub Court Thalassery filed by the petitioner is produced herewith and the same be marked as Exhibit R3(f) . A written statement is already filed by the petitioner in the above suit with a counter claim for partition of the 5 cents of land kept in common with the house. True copy of the written statement filed by the 3[rd] respondent is produced herewith and the same be marked as ” Exhibit R3(g) . 6. Shri.Basant Balaji then submitted that, going by the afore averments, it is clear that the petitioner does not have any title over the property in question and that the document on which she is relying upon to assert such title has been cancelled by the original executor. He, however, concedes that there are subsisting civil disputes between the parties - including a partition suit which is pending before a competent Civil Court and that final decree in the same is awaited. 7. The learned Standing Counsel for the 1[st] respondent–Municipality, Shri.I.V.Pramod, ## **WP(C).No.29617 OF 2019 7** submitted that action pursuant to Ext.P9 to demolish the latrine was taken for the reasons stated therein and also because the construction was made by the petitioner without obtaining a valid permit from the Municipality. He asserts that, Ext.P9 is, therefore, without fault and prays that this writ petition be dismissed. **==> picture [324 x 10] intentionally omitted <==** assertions and I have also examined the materials available on record. 9. It is indubitable from the pleadings available that there are civil disputes the petitioner and respondent No.3 with respect to the property in question, which is still pending in a partition suit before a competent Civil Court. Therefore, merely because the 3[rd] respondent asserts that the settlement deed, based on which the petitioner is claiming title over the property in question, has been cancelled by the settlor **,** the Municipality could not have unilaterally arrived at a conclusion that the ## **WP(C).No.29617 OF 2019 8** petitioner is not the owner of the property; and, in any event of the matter, they could not have pre-judged the title of any of the parties to the property in question. 10. Even though Shri.I.V.Pramod submits that action was taken to demolish the latrine because the construction was made without a Building Permit, it is luculent from Exts.P4 and P9 that the Municipality has no such case and that they have initiated action under Section 406 of the Kerala Municipality Act solely for the reason that they had concluded that the petitioner did not have any title over the property in question. 11. This stand of the Municipality certainly does not appeal to this Court, since, as is clear from Section 406 of the Kerala Municipality Act, it is only where the Secretary is satisfied that a construction has been commenced without his permission; or has been carried on or completed in violation of the approved plan and permit; or is carried on in breach of the provisions of the ## **WP(C).No.29617 OF 2019 9** Act or Rules; or if any alteration is made contrary to law, that the said Authority obtains the right to initiate and complete action under the said Section. 12. In the case at hand, there is not even a whisper in Exts.P4 and P9 that the petitioner has violated any of the afore conditions while making the construction of the latrine and all that is stated therein is that the petitioner has made the said construction in a land which does not belong to her. I am afraid, going by the provisions of Section 406 as noticed above, the action of the Municipality is completely in error and as has been well settled by the Hon'ble Supreme Court in _**Mohinder Singh Gill v. Chief**_ ## _**Election Commissioner**_ **[1978 (1) SCC 405]** an order cannot be bettered by pleadings or by subsequent explanation by an Administrative Authority. 13. In such milieu, I certainly find force in the submissions of Shri.Harish R.Menon, which have been made relying on ## **WP(C).No.29617 OF 2019 10** _**Subaida Abdul Rasheed**_ (Supra), that when a citizen suffers on account of the oppressive and capricious act of a public Authority, such citizen is entitled have his injuries remedied appropriately. In fact, going by the said judgment, the learned Division Bench directed the Local Self Government Institution involved therein to reconstruct a home stay for the petitioner therein. 14. That said, however, Shri.Harish R. Menon-learned counsel for the petitioner, submits that since his client is not interested in quarreling with anyone and only wants a latrine at her advanced age of 78 years, she is willing to reconstruct the same, provided the Municipality does not interdict such action. I am firm in my mind, for the reasons above, that this stand of the petitioner deserves to be approved, particularly because, as I have said above, Exts.P4 and P9 cannot obtain sanction in law. 15. Even when I say this, it may not be construed by anyone-including the petitioner- **WP(C).No.29617 OF 2019 11** that I have found the title of the property in question to be exclusively her's or that she has any right over the same, but only that since there was a latrine earlier, the same can be allowed to be reconstructed, solely because the action taken by the Municipality cannot be found to be tenable. 16. Obviously, therefore, the 3[rd] respondent is at liberty to pursue all her legal remedies against the property in question and if she is able to obtain orders in her favour, then she will be at full liberty to evict the petitioner in terms of law and the construction of the latrine as per this judgment will not inure to her any special right, either in equity or in law; and, in such event, she will have to suffer all further consequences, as if no such permission had been granted. Resultantly, I order this writ petition and set aside Exts.P4 and P9 with a consequential liberty being granted to the petitioner to reconstruct the latrine in the **WP(C).No.29617 OF 2019 12** same manner as it was constructed earlier without modifying its plinth area or its nature, which shall be inspected by the Secretary of the Municipality and confirmed. Needless to say, the afore liberty will be subject to the right of the 3[rd] respondent to pursue her legal remedies against the property in question as per law and subject to my observations above. I reiteratingly clarify that nothing contained in this judgment will be construed by the Civil Court to be, in any manner, trammeling or burdening its jurisdiction or competence to issue any decree that it may deem fit in the pending civil disputes between the parties. ## **Sd/-** ## **DEVAN RAMACHANDRAN** ## **JUDGE** **MC/1.1.2020** **WP(C).No.29617 OF 2019 13** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE PARTITION DEED NO. 551/1991 SRO THALASSERY** - **EXHIBIT P2 A TRUE COPY OF THE SKETCHE VIDENCING THE LIE AND NATURE OF THE PROPERTY** - **EXHIBIT P3 A TRUE COPY OF THE SETTLEMENT DEED NO. 1419/1996 OF THALASSERY SRO** - **EXHIBIT P4 A TRUE COPY OF THE NOTICE DATED 15-1-2019 ISSUED BY THE ASSISTANT ENGINEER (LSGD), THALASSERY MUNICIPALITY** - **EXHIBIT P5 A TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 2-2-2019** - **EXHIBIT P6 A TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER TO EXHIBIT P5** - **EXHIBIT P7 A TRUE COPY OF THE CANCELLATION DEED NO. 1817/2000** - **EXHIBIT P8 A TRUE COPY OF THE SECOND SETTLEMENT DEED NO. 1542/2012 EXECUTED BY JAYALAKSHMI IN FAVOUR OF PUSHPAVALLY** - **EXHIBIT P9 A TRUE COPY OF THE FINAL ORDER DATED 31-052019** - **RESPONDENT'S/S EXHIBITS:** **EXHIBIT-R3(a) TRUE COPY OF THE PARTION DEED NO.1343/1996 DTD 21/5/2019** - **EXHIBIT-R3(b) TRUE COPY OF THE SETTLEMENT DEED NO.1419/1996 DTD/01/06/2019** **EXHIBIT-R3(c) TRUE COPY OF THE TAX RECEIPT IN THE NAME OF THE 3RD RESPONDENT REGARDING THE 9 CENTS OBTAINED BY EXTP8 EXHIBIT-R3(d) TRUE COPY OF THE NOTICE ISSUED BY THE TOWN SURVEYOR OF THE 1ST RESPONDENT DTD 29/08/2018. EXHIBIT-R3(e) TRUE COPY OF THE PROVISIONAL NOTICE ISSUED TO THE PTITIONER DTD 1/12/2018** **WP(C).No.29617 OF 2019 14** **EXHIBIT-R3(f)** **TRUE COPY OF THE PLAINT IN O.S.NO.71/2019 ON THE FILED OF THE SUB COURT THALASSERY FILED BY THE PETITIONER.** **EXHIBIT-R3(g) TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 3RD RESPONDENT.** **MC** **(TRUE COPY) PA TO JUDGE**