SUJA RAJAN v. STATE OF KERALA, PERUMBAVOOR MUNICIPALITY, Abdul Latheef V.A., and Fathima Latheef

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY ,THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940** ## **WP(C).No. 360 of 2013** ## **PETITIONER/S:** **SUJA RAJAN, AGED 31 YEARS, W/O.RAJAN, THOMBRA HOUSE, PULLUVAZHY KARA, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT.** **BY ADV. SRI.ALEXANDER JOSEPH : 1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, STATE SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 PERUMBAVOOR MUNICIPALITY, REP BY ITS SECRETARY, PERUMBAVOOR, ERNAKULAM DISTRICT - 683 542. 3 ABDUL LATHEEF V.A., S/O.AHAMMED, VARIKKADAN VEEDU, PALLIPRAM KARA, MUDICKAL P.O., PERUMBAVOOR - 683 547. 4 FATHIMA LATHEEF, W/O.ABDUL LATHEEF, VARIKKADAN VEEDU, PALLIPRAM KARA, MUDICKAL P.O., PERUMBAVOOR - 683 547.** ## **RESPONDENT/S:** **BY ADVS.** **R1 BY SMT. RAJI T.BHASKAR, GOVERNMENT PLEADER R2 BY SRI.V.M.KURIAN, STANDING COUNSEL R3 & R4 BY SRI.S.VINOD BHAT SRI.LEGITH T.KOTTAKKAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.01.2019, ALONG WITH WP(C).3496/2013, WP(C).22810/2017, THE COURT ON 08.02.2019 DELIVERED THE FOLLOWING:** W.P.(C) Nos.360 & 3496/13 & 22810/17 2 ## **JUDGMENT** The first two among the writ petitions are filed basically challenging the order passed by the Tribunal for Local Self Government Institutions in Appeal Nos.827 and 833 of 2011. The third writ petition is filed by a third person against rejection of licence application submitted before the Secretary of the Municipality for a building, which was the subject matter of dispute before the Tribunal. Therefore, I heard them together and propose to deliver this common judgment. 2. Basically, the challenge in W.P.(C) No.360 of 2013 is against Ext.P7 order of the Tribunal in Appeal No.833/11, set aside the building permit No.134/06-07 dated 01.07.2011 issued by the 2[nd] respondent, and also to direct the 2[nd] respondent to demolish the unauthorised construction carried out by respondents 3 and 4. Material facts for the disposal of the writ petition are as follows: 3. One Daisy Paul and others pegmarked 69 cents of property in Survey No.304/11 of Perumbavoor Village into 5 plots, i.e., A, B, C, D & E, providing a passage having a width of 3 metres for common access to the W.P.(C) Nos.360 & 3496/13 & 22810/17 3 plots and sold the plots to different persons. Respondents 3 and 4 are the present owners of plot No.C, and the petitioner therein is the owner of plot No.B. Respondents 3 and 4 obtained building permit from the 2[nd] respondent for construction of a building in plot No.C. As per the title deed of respondents 3 and 4, half of the passage, i.e., 1.5 metres is included in their property. However, they have submitted building plan without providing set back from the passage, which is in violation of Rule 25 of the Kerala Municipality Building Rules, 1999 (hereinafter referred to as 'the Rules, 1999'). 4. So also, parking area of the neighbouring buildings was shown as passage to their property, violating Rule 33 of the Rules, 1999. Respondents 3 and 4 constructed a portion of the building and submitted application for occupancy certificate. Petitioner herein filed Appeal No.833/11, challenging the building permit. Respondents 3 and 4 also filed Appeal No.827/11, seeking direction to the Secretary of the Municipality to issue occupancy certificate. In an earlier round, the Tribunal allowed Appeal No.833/11 and dismissed Appeal No.827/11. Challenging the order of the Tribunal, W.P.(C) Nos.12016 and 13374 of 2012 W.P.(C) Nos.360 & 3496/13 & 22810/17 4 were preferred before this Court and the order of the Tribunal was set aside and directed the Tribunal to reconsider the issue. It was thereafter that the Tribunal considered the issue and has passed the impugned common order, which is produced as Ext.P7 in the said writ petition. 5. W.P.(C) No.3496 of 2013 is filed against the very same common order passed in Appeal No.827/11 and for other consequential reliefs. The basic contention put forth in the writ petition by the petitioner society is that, the shop owners of the Bazar, named as 'Gandhi Bazar' had entered into an agreement with the property owners for allotment of specified undivided shares in the Gandhi Bazar building. After construction of the building, the specified undivided shares along with parking area was purchased by each member separately under different sale deeds. Under the sale deeds executed by individual shop owners, a total extent of 800 square metres is set apart as parking space for the members of the petitioner society. The parking space is specifically earmarked for the owners of the respective shops. As a result of meticulous planning, sufficient area for vehicle parking in accordance with the Building Rules necessary for W.P.(C) Nos.360 & 3496/13 & 22810/17 5 catering to the needs of the shop owners and customers have been provided outside the building. The Gandhi Bazar building was constructed on the basis of building permit No.BA/281/92-93 issued by the Secretary of the Municipality. 6. Respondents 3 and 4, owners of Plot C, started construction of the building. However, on enquiry, it was revealed that respondents 3 and 4 secured building permit by including 800 square metres parking area of the Gandhi Bazar building as their parking area. On coming to know about the dubious intention of respondents 3 and 4, petitioner raised objection before the 1[st] respondent. Thereupon, respondents 3 and 4 submitted a revised plan showing the parking area of Gandhi Bazar building as common area and shifting the parking area of their proposed building to the cellar portion. Based on the revised plan, a new building permit was issued to respondents 3 and 4. Thereafter, the 1[st] respondent issued a letter to the petitioner stating that the parking area of Gandhi Bazar building has not been allotted to any other person and that the parking area of the proposed building of respondents 3 and 4 had been shifted to the cellar portion and a new building permit is issued to them. W.P.(C) Nos.360 & 3496/13 & 22810/17 6 7. Thereupon, respondents 3 and 4 submitted yet another revised plan showing the parking area of Gandhi Bazar building as private road of 4.5 metres width, leading up to the building constructed by respondents 3 and 4. On coming to know about that, petitioner preferred a complaint pointing out the illegality. Apprehending that the permit obtained on the basis of misrepresentation may be cancelled, respondents 3 and 4 submitted a completion certificate on 02.11.2011 and requested the 1[st] respondent for issuance of occupancy certificate. After receipt of Ext.P12, 1[st] respondent issued a reply, directing respondents 3 and 4 to produce the survey sketch, failing which, the permit granted to the said respondents will be cancelled. 8. Thereafter, respondents 3 and 4 made yet another request before the 1[st] respondent that occupancy certificate need be issued only for the completed portion of the building, since they do not intend to carry out the balance construction. To the said request dated 02.11.2011, 1[st] respondent issued Ext.P13 reply to cancel the building permit. Challenging Ext.P13, respondents 3 and 4 filed an appeal before the 2[nd] respondent Tribunal, seeking direction for issuance of deemed occupancy certificate. It was thereupon that W.P.(C) Nos.360 & 3496/13 & 22810/17 7 the then Secretary of the petitioner organization, viz., P.B.Darshan got himself impleaded in the appeal. However, the Tribunal passed the common order allowing the appeal preferred by respondents 3 and 4. 9. W.P.(C) No.22810 of 2017 is filed by the petitioner who has applied for D&O licence in the building constructed in the C-schedule property, which was declined as per Ext.P3 order, assigning the reason that W.P.(C) No.3496 of 2013 is pending before this Court, and unless and until a final decision is taken, the application cannot be considered. 10. Detailed counter affidavits are filed by the party respondents, in the writ petitions filed by property owners, supporting the findings of the Tribunal. 11. I have heard respective counsel appearing for the petitioners and the respondents and perused the pleadings and the documents on record. 12. So far as the case of the petitioner in W.P. (C) No.360 of 2013 is concerned, it is revolving around Rule 25 of the Kerala Municipality Building Rules, dealing with minimum distance between central line of a street and building, which read thus: W.P.(C) Nos.360 & 3496/13 & 22810/17 8 _“The minimum distance between the central line of a street and any building other than a compound wall or fence or outdoor display structure shall be 5 metres and that between plot boundary abutting the street and building shall be 3 metres”._ 13. According to the learned counsel for the petitioner therein, the building is having a length of 37 metres from out of the total extent of 39 metres. Therefore, between the plot boundary abutting the street and building, set back of 3 metres is not available. Such a contention is raised by the petitioner therein, since in the deed, petitioner and party respondents were liable to set apart 1.5 metres for the purpose of providing 3 metres width for the road. Learned counsel has also taken me through the definition of “street” provided under Rule 2(bz), and submitted that, a private street or a public street is synonymous with a road when giving access to more than one plot or one building. Therefore, according to the learned counsel, the street that has to be provided by setting apart 1.5 metres from the property of plot-C owners and the equal measurement of property from the adjoining property owners will make the road as is contemplated by the parties. Therefore, going by the definition of 'street' provided under Rules, 1999, it is clear that, after leaving 1.5 metres by plot-C W.P.(C) Nos.360 & 3496/13 & 22810/17 9 owner, there is no sufficient width to comply with the stipulations contained under Rule 25 of Rules, 1999. 14. So also, the additional 2[nd] respondent in Appeal No.827/2011 who was the Secretary of the petitioner organization in W.P.(C) No.3496 of 2013 is also challenging the building permit on the ground of non-compliance of statutory provisions. According to the said respondents, the access width for the building constructed by respondents 2 and 3 is not in accordance with Rule 33 of the Kerala Municipality Building Rules. The impugned building permit shows that the construction of respondents 2 and 3 has got a total plinth area of 930.48 sq. metres, in three floors, i.e., ground floor, first floor and a cellar floor. The case put forth by the said respondents is that, if all the floors are taken together, then there is no sufficient width in accordance with the provisions of Rule 33 of the Rules, 1999, as the law stood then. However, the Tribunal, relying upon the judgment of this Court in _**'Dorphy v. State of Kerala'**_ [2012 (4) KLT 264] held that, the basement floor cannot normally be considered as a floor of the building. Therefore, the cellar floor has to be excluded and then there are only two floors remaining. The impugned building permit was W.P.(C) Nos.360 & 3496/13 & 22810/17 10 granted on 01.07.2011, and as per the law stood then, the access width as per Rule 33 for a building having a total floor area up to 1000 sq. metres with two storeys, require a minimum access width of 3.6 metres, in accordance with Table 4.2 of Rule 33 of the Rules, 1999. Therefore, the Tribunal was of the opinion that, since the total floor area is less than 1000 sq. metres, the access width required is only 3.6 metres, and therefore, the contention advanced by the additional respondents that there is no minimum width of access cannot be sustained. The said respondents had also a case that, as per the sale deed, the access width is only three metres, and therefore, a two storied commercial building could not have been permitted in this particular plot. 15. However, respondents 2 and 3 have raised a contention that, subsequent to the sale deed, the coowners have conceived the idea of formation of road or a way having more width and accordingly a way had been formed to this plot by carving out areas from Plots A, D and E, which had a width of 9.20 metres at the beginning and a width of 6.80 metres when it reaches the east of Plot A. Respondents 2 and 3 also would contend that the road to a width of 6.80 metres in W.P.(C) Nos.360 & 3496/13 & 22810/17 11 front of their property could be used by them as access, which is more than sufficient under Rule 33 of the Rules, 1999. 16. The appellant as well as additional respondents in the said appeal did not accept the contention of respondents 2 and 3. Thereupon, the Tribunal has ventured to identify the issue exactly and has arrived at a finding that with respect to Plot-B, now in the possession of the appellant, there has been a transfer of interest of the owners of the same in the name of a partnership by name M/s. Gandhi Bazar and the owners became partners of the said plot. T.P. Varghese, one of the co-owners of Plot-B, a partner assigned his share in the partnership firm and the property comprised in Plot-B as per assignment deed No.3007/1997. The copy of the said sale deed is produced by respondents 2 and 3 and the northern boundary of the property of Plot-B is described as 'common road having 30 feet width'. Another partner sold his undivided interest in the partnership and the property as per sale deed No.389/1998. The same is also verified by the Tribunal and in the said document, the northern boundary is shown as 'common road having 30 feet width', and in the said document, appellant 12 W.P.(C) Nos.360 & 3496/13 & 22810/17 i.e., the owner of Plot-'C' is also a party. 17. Subsequent to the sale of interest in the partnership firm and sale of interest in the property and induction of new partners to the firm Gandhi Bazar, there was a re-constituted partnership, which is produced by respondents 2 and 3, and in the same, the northern boundary of the plot is shown as a “common road having a width of 30 feet”. It was also noted, the sale deed No.448/1993 when executed, there was no pathway or road to the north of Plot-B. But, when the undivided shares of the property was sold and the partnership was re-constituted for development of the said plot, the property has been described as having a northern boundary of “30 feet road”, which is equivalent to 9.20 metres. Therefore, the Tribunal was not impressed by the contention advanced by the additional respondents that the construction is carried out by respondents 2 and 3 in violation of Rule 33 of the Rules, 1999. 18. So also, the power of attorneys viz., C.Y. Meeran, T.P. Varghese and T.P. Joy jointly gave application for building permit for developing plots A, D and E, and the plan was verified by the Tribunal, which shows that, there is a width of 9.20 metres at W.P.(C) Nos.360 & 3496/13 & 22810/17 13 the beginning of the plots from the Main Road, and from the north-eastern corner of Plot C up to the southwestern corner of Plot-A, the width of the pathway is 6.80 metres. 19. Even though the files were directed to be produced, the Municipality submitted an affidavit stating that the file is missing. The Tribunal also found that the revised plan would show that the power of attorney holders, which include additional respondents 4 and 5, in Appeal No.827/2011, for and on behalf of all the co-owners, by conceiving the idea of having more width for the way, plan was corrected and got the approval. The revised plan was produced and the original plan has not been produced by any of the parties, and thereupon inferred that, even in the original plan conceived the idea of having a more widened way, and it was accordingly that the way has a width of 9.20 metres at the beginning and 6.80 metres at the end, which serves as an access to the Plot-C belonging to respondents 2 and 3 and Plot-B belonging to the petitioner in W.P.(C) No.360 of 2013. 20. The assignment of properties in the Gandhi Bazar to various owners was found to be subsequent to the carving out of the way. If so, they cannot W.P.(C) Nos.360 & 3496/13 & 22810/17 14 complain that their parking area was reduced as way or road by respondents 2 and 3. So also, the Tribunal found that, document No.'R2 (9)' plan produced by the 2[nd] respondent in Appeal No.827/2011 cannot be accepted, and even though the said plan tally with 'R2 - R3 (K)' plan produced in Appeal No.833/2011, some sort of fabrication was noticed to the said document. The area of way shown in R2 - R3(K) plan in Appeal No.833/2011 is shown as parking area by drawing cross lines at that area. The Tribunal also found that the drawing of lines would have been done subsequently to suit the convenience, especially when respondents 4 and 5 in Appeal No.827/2011 who submitted the plan had no case of providing such parking area, evident from the plan given by them. Further, it was found by the Tribunal that the crossed area is indexed in 'handwriting' as 'area approved for parking', when all other writings are not in that manner in the said plan. Therefore, the Tribunal did not attach any importance or sanctity to R2(9) plan in Appeal No.827/2011, and thereupon, it was concluded that there is sufficient width as is provided under the Rules to enter into the plots. W.P.(C) Nos.360 & 3496/13 & 22810/17 15 21. Having assimilated the situations accordingly, the Tribunal has found as follows in paragraph 44 so far as the issue raised by the petitioner in W.P.(C) No.360 of 2013 in respect of the access width under Rule 25 of Rules, 1999: _“44. It is thus evident from my above discussion that even though it is stated that a private pathway of width of 15 links (3 metres) would be formed for which purpose 1.5 metres of land will be carved out from Plot C and remaining from Plot A and the other plots what could be made out is that even though the terminology used is “private way” the intention of the executants of the documents is to retain only a particular place in a private land belonging to some other for the purpose of exercising a right of way. It has never been intended by the executants of the documents to divest the predecessor of the respondents 2 and 3 and the respondents 2 and 3 of their title and right upon 1.5 metre wide area also upon which the appellant can exercise a right of way. In that view of the matter, the right title and interest upon which this 1.5 metres wide area exclusively belong to owners of Plot C, now with the respondents 2 and 3.”_ 22. Basically, the contention advanced by Plot-B owner is dependent upon “street” defined under Rule 2(bz), which read thus: 'street' “means a private street or a public street, synonymous with road and giving access to more than one plot or one building”. Which thus means, what is contemplated under the definition of 'street' is a street synonymous with road, and which is providing access to a plot or more than one plot or one building. Therefore, according to W.P.(C) Nos.360 & 3496/13 & 22810/17 16 the learned counsel, taking into account the extent of 1.5 metres agreed to be set apart when left by Plot-C owner, then there is no sufficient set back as is contemplated under Rule 25 of Rules, 1999. 23. However, it is worthwhile to note the definition of “private street” and “public street” provided under Sections 2(32) and 2(34) of Act, 1994, which read thus: _“2(32) “private street” means any street, road, square, court, alley, passage or riding path which is not a public street, but does not include a path or way made by the owner of premises on his own land to secure access to or the convenient use of such premises”._ _2(34) “public street” means any street, road, square, court, alley, passage or riding path over which the public have a right of way, whether a thoroughfare or not, and includes-_ _(a) the roadway over any public bridge or causeway;_ _(b) the footway attached to any such street, public bridge or causeway; and_ _(c) the drains attached to any street, public bridge or causeway and the land whether covered or not by any pavement, verandah, or other structure, which lies on either side of the roadway upto the boundaries of the adjacent property, whether that property is private property or property belonging to the Government”._ So also, Rule 2(bc) of Rules, 1999, defines 'pathway' to mean; an approach constructed with materials, such as bricks, concrete, stone, asphalt or the like. W.P.(C) Nos.360 & 3496/13 & 22810/17 17 24. Therefore, on a harmonious reading of Rule 2(bz) and the above quoted provisions, it is convincing and clear that, in the 1.5 metres agreed to be set apart by Plot-C owner under the registered document, he has the absolute title. Therefore, at the most it can be treated as an access for the convenient use of such premises, guided by Sec.2(32) of Act, 1994. Taking into account all these aspects, I am of the considered opinion that, the findings rendered by the Tribunal are substantially and materially correct and in accordance with law. 25. As I have pointed out earlier, the Tribunal has arrived at a conclusion in respect of the access width under Rule 33 of Rules, 1999, referring to various documents and found that it is conforming to the Rules. It is quite evident and explicit that the Tribunal has arrived at findings with respect to the access width based on factual circumstances and evaluating the covenants contained under the sale deeds. In my considered view, there are no circumstances established by the petitioners in the connected writ petition to interfere with the factual evaluations made by the Tribunal in order to identify the issue with respect to access width under Rule 33 of W.P.(C) Nos.360 & 3496/13 & 22810/17 18 Rules, 1999. However, the finding rendered by the Tribunal relying upon the judgment in _**'Dorphy'**_ ( _supra_ ), may not be correct, since the question considered there was the height of the building for the purpose of Fire NOC, and it has got nothing to do with access width provided under law. But the finding so rendered above will not have any adverse consequences in view of the finding under Rule 33 of Rules, 2011. Therefore, it is well settled under law that a writ court considering an issue need look into only whether the findings arrived at by the authority concerned was after complying with the principles of natural justice, and whether there is any patent irregularity or arbitrariness or illegality, justifying interference with the findings. Having assimilated the situations so, I am of the considered opinion that, there are no circumstances made out by the petitioner, justifying interference of this Court under Article 226 of the Constitution of India. The Tribunal has arrived at the following findings, which, according to me, warrants no interference: “(i) Appeal No.833/2011 filed by the petitioner in W.P.(C) No.360 of 2013 is dismissed confirming the impugned permit granted in favour of respondents 2 and 3; and W.P.(C) Nos.360 & 3496/13 & 22810/17 19 (ii) Appeal No.827/2011 is dismissed with direction upon the appellants, i.e., the Plot-C owners to submit a revised completion plan showing the present length of the building and the rear yard available as also after leaving 1.50 metres wide area on the northern portion of their property free from any sort of disturbances and constructions, enabling the appellant in Appeal No.833/2011, i.e., the petitioner in W.P.(C) No.360/2013 to exercise a right of way to her property i.e., Plot-B, and revised plan was directed to be submitted within one month from the date of order passed. 26. So also, I find that the total property admeasuring is 69 cents and the property sold to plot owners viz., A to E will come to only 67.650 cents. Therefore, it is also clear that an extent of 1.350 cents was left apart, which must be for the formation of road and access to the plots. I also find that the findings of the Tribunal rendered in respect of Rule 25 and Rule 33 of Rules, 1999 are substantially correct and no interference in the said findings rendered by the Tribunal is requisited. 27. When these writ petitions were admitted to the files, stay was granted by this Court, which is still W.P.(C) Nos.360 & 3496/13 & 22810/17 20 in force and therefore, there will be a direction to the owners of Plot-C, i.e., the appellant in Appeal No.827/11 to submit a completion plan within a month from the date of receipt of a copy of this judgment, which shall be processed by the Secretary of the Municipality in accordance with law, and attain finality at the earliest possible, and at any rate, within a month thereafter, after providing a notice of participation and hearing to all concerned, taking into account the directions of the Tribunal. Resultantly, W.P.(C) Nos.360 and 3496 of 2013 are dismissed and W.P.(C) No.22810 of 2017 is disposed of, leaving open the liberty of the petitioner to seek licence, when the issues are sorted out in accordance with the directions issued by the Tribunal and modified by this Court as above. **Sd/-** ## **SHAJI P.CHALY** **JUDGE** W.P.(C) Nos.360 & 3496/13 & 22810/17 21 ## **APPENDIX OF WP(C) 360/2013** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE SKETCH OF THE PROPERTY.** - **EXHIBIT P2 TRUE COPY OF THE PURCHASE DEED NO. 466/93 DATED 1/2/93 OF PERUMBAVOOR S.R.O.** - **EXHIBIT P3 TRUE COPY OF THE COMPLETION PLAN SUBMITTED BY RESPONDENTS 3 AND 4 BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE APPEAL PETITION NO.833/11 OF THE PETITIONER BEFORE THE TRIBUNAL DATED 21/11/2011.** - **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 5/5/2012 OF THE TRIBUNAL IN APPEAL NO.827/11 AND 833/11.** - **EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 20/7/2012 IN WP(C) NO. 13374/12.** - **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 6/12/2012 IN APPEAL NO. 827/2011 AND 833/11 OF THE TRIBUNAL.** - **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT-R3(a) COPY OF SALE DEED NO. 389/1998 DATED 22/1/1998.** **EXHIBIT-R3(b) COPY OF SALE DEED NO. 3007/1997 DATED 18/3/1997. EXHIBIT-R3(c) COPY OF SECOND RECONSTITUTED PARTNERSHIP DEED NO. 6045/1996 DATED 24/9/1998.** //TRUE COPY// P.S. TO JUDGE St/-