High Court of KeralaDivision Bench2016-06-27Appeals dismissed

Sathish Murthi v Palakkad Municipality and others

Case / Petition Number:WA No. 1013 of 2016

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Antony Dominic
Dama Seshadri Naidu
Judgment Date: 2016-06-27
Court Decision / Holding: Appeals dismissed; the common judgment under challenge is upheld, and no exemplary costs are imposed despite a finding of vexatious litigation in the record.
Final Disposition: Appeals dismissed

Parties to the Case

Appellants / Petitioners

Sathish Murthi

Respondents

Palakkad Municipality
K.V. Vaidyanathan
The Chief Town Planner, Art and Heritage Commission, Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

• S. Easwaran

Counsels for Respondents

• S. Sojan James
• P. Ravindran (Sr.)
• T. C. Suresh Menon

Case Synopsis & Summary

This writ appeal arises from a common judgment disposing of WP(C) Nos. 7997/2014, 14455/2014 and 23236/2014, involving Sathish Murthi (appellant) challenging the Palakkad Municipality’s Ext.P8 building permit granted on 23.08.2013 for a heritage area property owned by K.V. Vaidyanathan, with the Art and Heritage Commission’s considerations and Ext.P10/Ext.P12 orders featuring in the dispute. The appellate court examined whether the building permit was valid in light of purported land alienation by the second respondent, alleged demolition without Art and Heritage Commission sanction, and questions of mind applied by the Municipality under the Kerala Municipality Building Rules (KMBR). It traced factual and legal strands through Tribunal for Local Self Government Institutions’ order Ext.P12 and the single-judge judgments, ultimately affirming that the permit could stand if there is still sufficient land to comply with KMBR, and that the alleged alienation does not automatically invalidate a permit. The court stressed that the petitioners’ repeated and vexatious litigation spans multiple forums, including writ petitions, civil suits, and LSGI proceedings, and found no actionable merit in the criticisms of Ext.P8, Ext.P10 or Ext.P12. Consequently, the WA petitions were dismissed with a guarded stance on costs, noting the parties’ close relations and desire for resolution of disputes.

Provisions of Law Cited

Kerala Municipality Act, 1994, Sec. 510Finance Act, 1994, Sec. 85(3)Kerala Municipality Building Rules (KMBR), Rules 7, 25, 155Kerala Municipality Building Rules (KMBR), Rule 8(3) proviso

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that Ext.P9 application for the building permit was submitted on 09.01.2013, and the subsequent partial alienation of 3.8 cents of land to a fourth party was not disclosed to the Municipality, rendering Ext.P8 invalid. They argue that demolition or alteration of the century-old structure requires Art and Heritage Commission sanction, and that the permit was issued without due application of mind under the Kerala Municipality Building Rules. They challenge the co-ownership claim and rely on limitations provisions under Sec. 510 of the Kerala Municipality Act and related statutes to press for dismissal of the permit.

Contentions of Respondents

The respondents/Authorities contend that the building permit was issued after due consideration and in accordance with KMBR and the Commission’s recommendation (Ext.P10). They emphasize that alienation of part of the land does not automatically nullify a valid permit, provided the land still satisfies statutory requirements. They point to Ext.P12 and the Tribunal’s orders as support for the permit’s validity, and contend the writ petitions are time-barred or otherwise not maintainable under Article 226, citing prior limitations jurisprudence and public-interest vexatious litigation. The courts below have dealt extensively with Rule 7, 25, 155 of the KMBR and the scope of judicial review in such regulatory matters.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Assistant Commissioner of Central Excise v. Krishna Poduval	2005(4) KLT 947	Positive	Cited to support the proposition that once the statutory period of limitation has expired, the remedy cannot be revived under Article 226.
Thomas Thomas v. Kottayam Municipality	2008(3) KLT 964	Positive	Cited to reinforce the same limitation principle and to indicate that delay-condonation under Rule 8(3) is limited.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU MONDAY, THE 27TH DAY OF JUNE 2016/6TH ASHADHA, 1938 ## WA.No. 1013 of 2016 () IN WP(C).7997/2014 ------------------------------------------- AGAINST THE ORDER/JUDGMENT IN WP(C) 7997/2014 of HIGH COURT OF KERALA DATED 08-04-2016 ## APPELLANT(S)/PETITIONER: ------------------------------- SATHISH MURTHI, AGED 50 YEARS, S/O K.V. NARAYAN MURTHI, BETA PLAZA, 2ND FLOOR, DR. KRISHNASWAMY ROAD, KOCHI 35 ## BY ADV. SRI.S.EASWARAN ## RESPONDENT(S)/RESPONDENTS: ------------------------------------- 1. THE PALAKKAD MUNICIPALITY, NEAR MUNICIPAL TOWN HALL, PALAKKAD 1, REPRESENTED BY ITS SECRETARY 2. K.V. VAIDYANATHAN, S/O LATE VISWANATHAJOISER, "SARASWATHY", G.R. PURAM, PALAKKAD 673 003 3. THE CHIEF TOWN PLANNNER, ART AND HERITAGE COMMISSION, POOJAPURA, VIKAS BHAVAN, PALAYAM, THIRUVANANTHAPURAM 33 R BY SRI. SOJAN JAMES, GOVERNMENT PLEADER R BY SRI.P.RAVINDRAN (SR.) R BY SRI.T.C.SURESH MENON THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27-06-2016, ALONG WITH WA. NOS. 1017 & 1025 OF 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ. ------------------------------------------W.A. Nos. 1013, 1017 & 1025 of 2016 -----------------------------------------Dated this the 27[th] day of June, 2016. ## JUDGMENT ## Antony Dominic,J. These appeals are filed by the petitioners in W.P.(C) Nos. 7997 and 14455 of 2014 and the additional 3[rd] respondent in W.P.(C) No. 23236 of 2014 respectively against a common judgment, whereby the learned single Judge dismissed W.P.(C) Nos. 7997 and 14455 of 2014 and disposed of W.P.(C) No. 23236 of 2014 directing consideration of Ext.P5 therein. For convenience, we shall be referring to the facts and documents that are produced in W.P.(C) No. 7997 of 2014 against which W.A. No. 1013 of 2016 is filed. 2. We heard the learned counsel for the appellants and the learned Standing Counsel appearing for the respondent Municipality. 3. Insofar as W.P.(C) Nos. 7997 of 2014 is concerned, the challenge therein is basically against Ext.P8 building permit obtained by the second respondent from the Palakkad Municipality and Ext.P12 order passed by the Tribunal for Local Self Government W.A. Nos. 1013, 1017 & 1025 of 2016 -2- Institutions dismissing the appeal filed against the building permit. In W.P.(C) No. 14455 of 2014, the challenge was mainly against Ext.P8, the building permit and Ext.P10, the recommendation of the Art and Heritage Commission. Insofar as W.P.(C) No. 23236 of 2014 is concerned, that writ petition was filed by the aforesaid second respondent seeking an order to the first respondent in W.A. No. 1025 of 2016, the Art and Heritage Commission, to consider Ext.P5, whereby a modification to an earlier recommendation made by them vide Ext.P10 was sought. As we have already stated, by the judgment under appeal, W.P.(C) Nos. 7997 and 14455 of 2014 were dismissed and W.P.(C) No. 23236 of 2014 was disposed of directing consideration of Ext.P5. 4. Briefly stated the facts of the case are that, the second respondent mentioned above is the 76 year old paternal uncle of the appellants in these appeals. It is stated that the second respondent owns a plot of land having an extent of 10 cents, in which a very old building is situated. In order to spend the rest of his life in his ancestral property, he wanted to repair, alter and maintain the said building. Therefore, he applied to the Municipality for a building W.A. Nos. 1013, 1017 & 1025 of 2016 -3- permit as per Ext.P9 application. It appears that the area in question is a heritage area, which comes within the jurisdiction of Art and Heritage Commission, and in terms of the provisions contained in the Kerala Municipality Building Rules, the sanction of the Commission was necessary to grant the building permit. It appears that the second respondent had made an application to the Commission, and on consideration of the application, the Commission recommended to the Municipality to grant the building permit vide Ext.P10 dated 17.07.2013. Accordingly, the Municipality considered the matter and issued Ext.P8 building permit on 23.08.2013. It was challenging this building permit, the appeal was filed before the Tribunal for Local Self Government Institutions. The Tribunal after having heard the parties and perusing the files of the Municipality, dismissed the appeal by Ext.P12, which was challenged in W.P.(C) No. 7997 of 2014, against which W.A. No. 1013 of 2016 is filed. 5. Insofar as W.A. No. 1017 of 2016 is concerned, challenging Ext.P8 building permit issued on 23.08.2013 and Ext.P10, the recommendation of the Art and Heritage Commission dated 17.07.2013, the appellant therein filed W.P.(C) No. 14455 of 2014 on W.A. Nos. 1013, 1017 & 1025 of 2016 -4- 06.06.2014. According to us, that writ petition ought to have been dismissed at the threshold itself for the reason that if the appellant was aggrieved by the building permit, he had a remedy of appeal before the Tribunal for Local Self Government Institutions. As per Section 510 of the Kerala Municipality Act, 1994, the time limit prescribed for filing an appeal is 30 days from the date of the order. The petitioner in this writ petition did not file any appeal. Instead, long after the expiry of the period prescribed in Section 510 of the Act, he filed the writ petition before this Court on 06.06.2014, challenging the building permit. Once a cause of action has become time barred, a litigant cannot seek to revive the same by taking recourse to the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India. In this context, it is relevant to refer to the Division Bench judgment of this Court in Assistant Commissioner of Central Excise v. Krishna Poduval[1] , where it was held thus: “7. At the outset we may state that in so far as the respondents have not taken up the original orders imposing penalty in appeals before the appellate authority within the maximum period prescribed under S.85(3) of the Finance Act, 1994, they cannot get the appeals revived and heard on merits by 1 2005(4) KLT 947 W.A. Nos. 1013, 1017 & 1025 of 2016 -5- resorting to the discretionary remedy before this Court under Article 226 of the Constitution of India. Once the period of limitation has run itself out and the appellate authority does not have power to condone the delay in filing the appeals beyond the maximum period prescribed under the Act, the remedies of the appellants come to an end just like in the case of a time barred suit and the respondents cannot, by invoking the discretionary remedy under the extraordinary jurisdiction of this court under Article 226 of the Constitution of India, resurrect their unenforceable cause of action and require this court to consider their contentions against the original orders on merit. That would amount to defeating the very law of limitation which we are not expected to do under Art.226. If we are to entertain the contentions of the respondents on merits, that would amount to negating the law of limitation which we have no jurisdiction to do under Article 226 and which may even lead no anomalous results. We are not satisfied that the jurisdiction of this Court under Art.226 of the Constitution of India is so wide as to resurrect a cause of action which has become unenforceable on account of the law of limitation. Further, we are of the firm opinion that the jurisdiction under Art.226 of the Constitution of India cannot be invoked against express statutory provisions, however harsh the effect of the provisions may be on an assessee or litigant.” ## Subsequently, referring to the judgment in Krishna Poduval's case (supra), this Court in Thomas Thomas v. Kottayam Municipality[2] held thus: “11. From the aforesaid judgments it is clear that once the statutory period of limitation has expired, the party looses its right of appeal. Thereafter it is not open to him to invoke the power of this court under Art.226 of the Constitution and bypass the statutory restrictions and get the delay condoned or to have the matter examined by this court. Admittedly proviso to R. 8(3) authorises the Tribunal to condone delay of only one month if it is satisfied that there is sufficient reason for the delay. The power conferred on the Tribunal being restricted, in my view, the above two judgments of this court gives a complete answer to the contentions of the petitioner.” 2 2008(3) KLT 964 W.A. Nos. 1013, 1017 & 1025 of 2016 -6- Therefore, for that reason itself, W.P.(C) No. 14455 of 2014 should have been dismissed as not maintainable. 6. Be that as it may, since common issues were raised in W.P.(C) Nos. 7997 and 14455 of 2014, we shall proceed to consider the submissions made before us. However, before we proceed to deal with the contentions raised, it is necessary to refer to the conduct of the appellants herein. The endeavour of the second respondent, the 76 year old paternal uncle of the appellants themselves, is to repair, alter and maintain a century old ancestral building with an intention to spend the rest of his life therein. It was for that purpose he has obtained the building permit. We find that since then the appellants herein and certain organisations (in the guise of public interest) approached this Court repeatedly. This is apart from the litigations instituted by them in the Tribunal for Local Self Government Institutions and the Civil Court. A list of those cases has been produced as Ext.R2(a), which reads thus: “Vexatious proceedings filed by Advocate Satish Murthi directly, and indirectly through a private body named Kerala Heritage Preservation & Protection Council, against K.V. Vaidyanathan, his uncle and a 76 year old retired senior citizen (to our knowledge as of March 25, 2014. W.A. Nos. 1013, 1017 & 1025 of 2016 -7- |**_No_**|**_Case No._**|**_Filed by_**|**_Forum_**|**_Against_**|**_Case in brief_**|**_Status_**| |---|---|---|---|---|---|---| |1|W.P.(C) No. 31141 of 2013|Mr. Satish Murthi|High Court|K.V. Vaidynathan DG Registrations , ett al.|Challenging the decision of the Sub- Registrar not to stop registration and not initiating criminal action.|Dismissed| |2|W.P.(C) No. 27247 of 2013|Mr. Satish Murthi|High Court|K.V. Vaidynathan, K.V. Ramesh (Son of K.V. Vaidynathan, Palakkad Municipality, Chief Town Planner, et al.|Challenging the building permit issued by the Palakkad Municipality.|Withdrawn after obtaining interim ex parte interim stay, during the pendency of the writ proceedings| |3|O.S.No. 546 of 2013|Mr. Satish Murthi|Munsiff Court, Palakkad|K.V. Vaidynathan, K.G. Mahalakshmi (wife of K.V. Vaidynathan) , K.V. Suresh (Son of K.V. Vaidynathan) & K.V. Ramesh|Seeking restoration of Josier House to its original state.|Pending| |4|Appeal No. 1090 of 2013|Mr. Satish Murthi|Tribunal for Local Self Government Institutions, Trivandrum|K.V. Vaidynathan, Palakkad Municipality, Chief Town Planner.|Challenging the building permit & the concurrence of the Art & Heritage|Dismissed| W.A. Nos. 1013, 1017 & 1025 of 2016 -8- |**_No_**|**_Case No._**|**_Filed by_**|**_Forum_**|**_Against_**|**_Case in brief_**|**_Status_**| |---|---|---|---|---|---|---| |5|W.P.(C) No. 25979 of 2013|Mr. Satish Murthi|High Court|K.V. Vaidynathan, K.S.Uma,DG Registration, et al.|Similar relief as in item 1|Withdrawn| |6|W.P.(C) No. 21931 of 2013|Kerala Heritage Preservation & Protection Council (a private body)|High Court|Palakkad Municipality, Chief Town Planner, et al.|Repair work of Josier house started without approvals|Writ disposed off. Review Petition filed by Vaidyanathan heard and judgment reserved.| |7|W.P.(C) No. 29288|Kerala Heritage Council|High Court|K.V. Vaidynathan, K.V. Ramesh, Palakkad Municipality, Chief Town Planner, et al.|Challenging the building permit issued by the Palakkad Municipality|Pending| |8|Petition dated 16.01.2014|Kerala Heritage Council|LSGI Department Kerala Government|K.V. Vaidynathan, Palakkad Municipality, Chief Town Planner, et al.|Seeking action against Vaidyanathan and others for alleged 'unauthorised constructions' in Kalpathy|Pending| |9|Petition dated 30.01.2014|Satish Murthi|LSGI Department, Kerala Government|K.V. Vaidynathan, Palakkad Municipality, Chief Town Planner, et al.|Seeking action against Vaidyanathan and others for alleged 'unauthorised constructions' in Kalpathy|Pending| W.A. Nos. 1013, 1017 & 1025 of 2016 -9- |**_No_**|**_Case No._**|**_Filed by_**|**_Forum_**|**_Against_**|**_Case in brief_**|**_Status_**| |---|---|---|---|---|---|---| |10|W.P.(C) No. 7280 of 2014|Satish Murthi|High Court|K.V. Vaidynathan, Palakkad Municipality, Chief Town Planner|Seeking direction to the LSGI Tribunal to consider some fresh documents|Pending| |11|W.P.(C) No. 7997|Satish Murthi|High Court|K.V. Vaidynathan, Palakkad Municipality, Chief Town Planner|Challenging the dismissal of appeal by the Tribunal for LSGI.|pending| The above list, which does not include W.P.(C) No. 14455 of 2014, would show that the appellants are bent upon preventing the second respondent from enjoying the fruits of Ext.P8 building permit and are misusing judicial forums, in order to settle their family disputes and these writ petitions are the culmination of that mala fide and vexatious exercise. 7. Insofar as the merits of the contentions raised before us are concerned, the first contention raised is that Ext.P9 application was submitted to the Municipality on 09.01.2013; on the same day itself, the second respondent alienated 3.8 cents of land to the 4[th] respondent. According to the counsel, transfer of a part of the W.A. Nos. 1013, 1017 & 1025 of 2016 -10- property, in respect of which the permit was applied for, was not informed to the Municipality and that Ext.P8 building permit issued by the Municipality in ignorance thereof, is invalid. We find that this contention was raised before the Tribunal and the learned single Judge, and that both have rejected this contention. First of all, there is no provision either in the Building Rules or elsewhere preventing the owner of a plot of land from alienating any portion of the property, in respect of which the application for building permit is made. Secondly, as long as he still holds sufficient extent of land to satisfy the requirement of the Kerala Municipality Building Rules and the plot of land will accommodate the building proposed to be constructed, alienation of a part of the land by itself cannot operate against the applicant for permit. A reading of the order passed by the Tribunal reveals that plinth area of the ground floor of the building that is proposed to be constructed would occupy only 105.16 sq. mtrs and the first floor is only 13.60 sq. mtrs. Even the appellants have no case that the land still in the ownership of the second respondent is insufficient to accommodate a building with the aforesaid plinth area. Municipality also has no such case. Therefore, the contention now W.A. Nos. 1013, 1017 & 1025 of 2016 -11- raised has absolutely no force. 8. Yet another contention raised before us was that a portion of the building was demolished without obtaining the sanction of the Art and Heritage Commission. First of all, there is no material to substantiate this contention. We are inclined to think that even in a case where an existing structure has been demolished, though the landlord is liable to be visited with the consequences, if any, thereof, that does not mean that the landlord is not entitled to make a construction in that plot of land, and no such limitation is imposed either in the KMBR or elsewhere. Therefore, this contention also cannot be accepted. 9. It was contended that the building permit was issued without any application of mind. According to us, the Tribunal, which had occasion to go through the files, has upheld the building permit. The learned single Judge has also upheld the Tribunal's order. In such circumstances and that too, in the absence of any material to hold that this concurrent opinion is wrong, this plea cannot be accepted. 10. We also find from Ext.P12 order passed by the Tribunal that each of the contentions raised by the appellants with reference to W.A. Nos. 1013, 1017 & 1025 of 2016 -12- Rules 7, 25, 155 of the Kerala Municipality Building Rules have been dealt with and negatived. Similarly, these contentions were also dealt with by the learned single Judge with reference to the materials available. None of the contentions raised by the learned counsel for the appellants are sufficient to reverse those findings. 11. Lastly, the counsel contended that the learned single Judge has held him to be not a co-owner, and that the said finding of the learned single Judge would prejudice his case in O.S No. 546 of 2013 filed by him. A reading of the order passed by the Tribunal and the judgment under appeal shows that it was the consistent case of the appellant in W.A. Nos. 1013 and 1025 of 2016 that he is a co-owner of the plot of land, in relation to which Ext.P8 building permit has been obtained. Though he has made repeated assertion that he is a co-owner, the appellant has not produced any material to substantiate the plea. Even O.S. No. 546 of 2013 filed by him is only a suit for injunction. It was taking note of this factual situation that the Tribunal and the learned single Judge have come to the conclusion that the appellant has not produced any material to substantiate his plea of being a co-owner of the property. According W.A. Nos. 1013, 1017 & 1025 of 2016 **==> picture [23 x 9] intentionally omitted <==** to us, in this background, the finding of the learned single Judge is fully justified and this finding cannot be of any prejudice to the appellant, if at all this is an issue in O.S No. 546 of 2013 pending in the Civil Court. No other contention was urged. 12. Having considered the matter in its totality, we do not find any reason to interfere with the judgment under appeal. Appeals failed and are dismissed. Though this is a fit case for imposition of exemplary costs, having regard to the close relationship between the parties and hoping that this would give a quietus to the disputes, we refrain from doing so. ANTONY DOMINIC, JUDGE. DAMA SESHADRI NAIDU, JUDGE. _Rv_ W.A. Nos. 1013, 1017 & 1025 of 2016 -14-