Suresh Babu v. Mohd Azeem, Haleema Naina, V.K. ANEEZ, V.K. HARRIZ and Aluva Municipality

IN THE HIGH COURT OF KERALA AT ERNAKULAM TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 RSA.No. 142 of 2008(A) ---------------------AS.130/2004 of PRINCIPAL SUB COURT, NORTH PARAVUR .................... APPELLANT/ APPELLANT/2ND DEFENDANT: SURESH BABU, S/O.KUTTAPPAN, RESIDING IN AMC 18/433, PALACE ROAD, ALUVA. BY ADV. SRI.P.JACOB VARGHESE SRI.VARUGHESE M EASO SRI.VIVEK VARGHESE P.J. SMT.PRAISHEEL PRAKASAM SMT.ELIZEBETH MEERA SRI.P.J.VINOD JOSEPH SMT.NIKHILA SOMAN RESPONDENTS/ RESPONDENTS/PLAINTIFFS/1ST DEFENDANT: 1. MOHD AZEEM, S/O.KUNJALI NAINA, - VEZHAPPILLY HOUSE, PALACE ROAD, REPRESENTED BY POWER OF ATTORNEY HOLDER, KUNJALI NAINA, S/O.MUHAMMED, VAZHAPPILLY HOUSE, PALACE ROAD, 2. HALEEMA NAINA, W/O.KUNJALI NAINA, VAZHAPPILLY HOUSE, PALACE ROAD, ALUVA. 3. V.K.ANEEZ, S/O.KUNJALI NAINA, VAZHAPPILLY HOUSE, PALACE ROAD, ALUVA. 4. V.K.HARRIZ, S/O.KUNJALI NAINA, REPRESENTED BY POWER OF ATTORNEY HOLDER, KUNJALI NAINA, VAZHAPPILLY HOUSE, PALACE ROAD, 5. ALUVA MUNICIPALITY REPRESENTED BY ITS THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/02/2008, THE COURT ON THE SAME DAY PASSED THE ## **M.SASIDHARAN NAMBIAR,J.** -----------------------------------------R.S.A .NO. 142 OF 2008 ------------------------------------------ Dated 12[th] February 2008 ## **J U D G M E N T** Second defendant in O.S.278/2002 on the file of Munsiff court, Aluva is the appellant. Respondents 1 to 4 are plaintiffs and fifth respondent the Municipality. Respondents 1 to 4 instituted the suit seeking a decree for mandatory and permanent injunction contending that they are the owners of plaint B schedule property under the final decree in O.s.328/1987 and plaint B schedule property is a wooden structure placed on brick walls with tinned roof situated in an area of 8 sq.m and the appellant is running a C class shop in the property illegally. Plaint B schedule property is built at the extreme north western corner of plaint A schedule property adjacent to the foot path of Palace road. Appellant was earlier running a bunk shop few meters away from the plaint B schedule property. After the demolition of the original bunk B schedule bunk was constructed unauthorisedly and illegally without obtaining license RSA 142/08 2 from the second respondent Municipality. Municipality did not take any action in spite of the complaint. On 19/6/2002 the appellant unloaded bricks and sand near the plaint A schedule property to construct permanent structure and he has no right to do so and respondents 1 to 4 are entitled to a decree for mandatory injunction directing second respondent to demolish the plaint schedule structure and also for permanent prohibitory injunction against appellant from continuing with construction. Second respondent Municipality filed a written statement stating that after the institution of the suit Municipality noticed the construction of plaint B schedule bunk and it was constructed illegally and Municipality has not received any complaint from respondents 1 to 4 and Municipality is not supporting any illegal construction. It was contended that appellant purchased 200 sq.links of land by virtue of sale deed No.4772/2000 of Aluva SRO for conducting business and said bit of land was a portion of a shop room and after getting the property appellant renovated the wall on either side of the building and roofed with tin sheet and the said property has no connection with plaint A schedule property and respondents 1 to 4 are not RSA 142/08 3 entitled to the injunction sought for. Appellant filed a written statement contending that plaint B schedule bunk is not an unauthorised construction and he is depending his livelihood mainly on the income from the shop and he is a bonafide purchaser for valid consideration of Rs.2,50,000/- and the suit is filed without any bonafides and he has obtained necessary license from the Municipality for conducting the business in the plaint B schedule bunk and as construction is legal respondents 1 to 4 are not entitled to decree sought for. As the Municipality had raised a contention that suit is barred by the provisions of Kerala Municipality Act, an issue was framed on that question also. 2. Learned Munsiff on the evidence of PW1, DW1, Exts.A1 to A5(b) and B1 to B5 found that plaint B schedule property is constructed without obtaining license from second respondent Municipality and Municipality should have acted against the unauthorised construction and did not take action. It was found that in the suit the legality and proprietary of action taken under the authority of the Secretary was not challenged and so Chapter 17 of Kerala Municipality Act do not apply and suit is not barred. Learned Munsiff RSA 142/08 4 granted a decree for mandatory injunction directing Municipality to demolish the plaint B schedule structure illegally constructed. Appellant was restrained by a permanent prohibitory injunction from conducting the shop in the plaint B schedule property. Appellant challenged the judgment before Sub court, North Paravur in A.S.130/2004. Learned Sub Judge on re-appreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal by second defendant. 3. Learned counsel appearing for appellant was heard. 4. Argument of learned counsel is that courts below did not properly consider the question of bar of jurisdiction. Relying on the decision of this court in ## **Thodupuzha Municipality v. Abraham Philip (2007(4) KLT** **972)** learned counsel argued that civil court has no jurisdiction to grant the decree and decree is not sustainable. It is further argued that by granting a mandatory injunction courts below shut out the remedy available to the appellant to regularise the construction and decree and judgment are not sustainable. Learned counsel also argued that without exhausting the RSA 142/08 5 remedy provided under Kerala Municipality Act, civil court should not have granted the decree. 5. On hearing the learned counsel and on the facts and circumstances of the case I do not find any substantial question of law involved in the appeal. First defendant Municipality has not challenged the decree granted against them. Appellant who has no right to construct the structure without obtaining license from the Municipality is not entitled to challenge the decree on a plea, which is available to the Municipality so as to perpetuate his illegal action. Courts below on the facts of the case found that civil court has jurisdiction to entertain the suit. In the suit respondents 1 to 4 did not challenge any of the action taken by the Municipality. On the other hand, what was contended in the plaint was that even though plaint B schedule bund was unauthorisedly constructed without obtaining the license, Municipality has not taken any action. In the written statement filed before the trial court it was admitted by the Municipality that plaint B schedule building is an unauthorised construction. It was also pleaded by the Municipality that appellant had utilised the number available to another building and affixed that RSA 142/08 6 number to the plaint B schedule bunk to raise a claim that it is not an unauthorised construction. In spite of this admission in the written statement, there is no case for the second respondent Municipality that they are taking action in accordance with the rules to remove the unauthorised construction. The inaction on the part of Municipality cannot be ignored. When the Municipality was not acting under the provisions of Municipality Act and Rules courts below were justified in granting the decree, Moreover, second respondent Municipality did not challenge the decree granted by the civil court, even though objection was raised regarding jurisdiction and it was rejected by the trial court. In such circumstances, I do not find that appellant is entitled to take up the question of jurisdiction which was available to Municipality and that too to perpetuate an unauthorised illegal action on his part. When the evidence establish that plaint B schedule bunk was constructed illegally without obtaining license from the Municipality, the decree granted by the courts below does not warrant any interference. Argument of the learned counsel is that in that event appellant will lose his remedy provided under Kerala Municipality Act. RSA 142/08 7 If appellant has any such right the decree will not take away that right. M.SASIDHARAN NAMBIAR, JUDGE. uj.