T.P. Swayam Prabha v. Payyannur Municipality and Thazhathithe Pothera Bhagya Sathi & Thazhathithe Pothera Edavan Unnikrishnan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **MONDAY, THE 30TH DAY OF NOVEMBER 2020 / 9TH AGRAHAYANA, 1942** ## **WP(C).No.11332 OF 2020(N)** ## **PETITIONER/S:** **T.P.SWAYAM PRABHA AGED 57 YEARS W/O. V.P.RAJAGOPALAN NAYANAR, 'PARVATHI VILASAM', KUTHIRUMMAL, KUNHIMANGALAM P.O., PAYYANNUR TALUK, KANNUR DISTRICT** **BY ADVS. SRI.M.V.AMARESAN SRI.S.S.ARAVIND** ## **RESPONDENT/S:** - **1 PAYYANNUR MUNICIPALITY REPRESENTED BY SECRETARY, P.O.PAYYANNUR, KANNUR DISTRICT, PIN-670 307** **2 THAZHATHE POTHERA BHAGYA SATHI, D/O. LASKHMI KUTTY AMMA, NEAR G.H.S.S. VELLUR ,P.O., VELLUR, PAYYANNUR TALUK, KANNUR DISTRICT, PIN-670 307** **3 THAZHATHE POTHERA EDAVAN UNNIKRISHNAN, S/O. LASKHMI KUTTY AMMA, NEAR G.H.S.S. VELLUR ,P.O., VELLUR, PAYYANNUR TALUK, KANNUR DISTRICT, PIN-670 307** **R1 BY ADV. SRI.M.SASINDRAN R2 BY ADV. SRI.P.V.ANOOP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-11-2020, THE COURT ON 30-11-2020 DELIVERED THE FOLLOWING:** WP(C).No.11332 OF 2020(N) ## **-:2:-** ## **JUDGMENT** **Dated this the 30th day of November 2020** Rivalry between siblings over a property resulted in filing of this writ petition. A single storied house comprised in a co-ownership property of the petitioner and respondent Nos.2 and 3 is the subject matter of the dispute. The property is situated within the limits of Payyannur Municipality. 2. The respondents 2 & 3, without consent of the petitioner, undertook construction over the existing floor. This was also without obtaining necessary permission from Payyannur Municipality. The construction appears to have been completed in the year 2013. The Municipality was moved to initiate action. The Municipality issued provisional order under Section 406 of the Kerala Municipality Act, WP(C).No.11332 OF 2020(N) ## **-:3:-** 1994 on 7.8.2013. The third respondent, another sibling, gave a reply. The Municipality, after adverting to the reply, found that the construction was illegal and ordered to demolish illegal construction by a final order. 3. Since no action was forthcoming, the petitioner caused to send a lawyer notice and then approached this Court with W.P.(C).No.22075/2019. This Court disposed of the said writ petition directing the Secretary of the Municipality to hear the parties again and take a final decision as to demolition. The judgment was rendered on 9/12/2019. 4. The Municipality decided to give an opportunity to regularise the construction and directed the petitioner to approach the civil court to redress the grievances. Apparently, the Municipality took WP(C).No.11332 OF 2020(N) ## **-:4:-** the stand as above in the light of the proviso to Section 406(1) of the Kerala Municipality Act. This order is under challenge in the writ petition. 5. Heard the learned counsel for the petitioner, Shri M.V.Amaresan, learned Standing Counsel for the Municipality, Shri M.Sasindran and learned counsel for the party respondent, Shri Anoop P.V. 6. According to the learned counsel for the petitioner, the Municipality cannot take a decision to permit regularisation where an action is initiated under Section 406 for demolition. The learned counsel further argued that a co-owner cannot submit an application for regularisation of permit without the concurrence of other co-owners. According to the learned counsel, 'land owner' referred to in the relevant rules, means all the co- WP(C).No.11332 OF 2020(N) ## **-:5:-** owners and not a few among the co-owners. It is submitted that the Municipality is colluding with the party respondents on political lines, to defeat the interest of the petitioner. 7. The learned Standing Counsel for the Municipality justified the order with reference to the proviso to Section 406 of the Municipality Act. The learned Counsel for the party respondents submits that they have submitted the application for regularisation and the same is pending consideration with the Municipality. It is submitted that the petitioner's husband, V.P.Rajagopalan is the real culprit in the litigation. 8. The Court has to consider the dispute within the parameters of public law. The parties cannot be allowed to agitate any civil dispute between them in WP(C).No.11332 OF 2020(N) ## **-:6:-** the garb of public law. In public law, the Court is only concerned of the acts of officials in relation to the subject matter of such action or decision. 9. There are two points to be considered in this matter. First, the order passed by the Municipality and, second, in relation to the competency of the co-owner submitting an application for regularisation of a building. 10. Admittedly, construction was completed without obtaining any permit from the Municipality. Nobody has a case that such a construction does not require permission from the Municipality under the relevant Municipality laws. Section 406 of the Municipality Act deals with the proceedings related to demolition of a building constructed contravening the provisions of the Municipality Act or any other law WP(C).No.11332 OF 2020(N) ## **-:7:-** applicable. Proviso to Section 406 allows the Secretary to regularise any construction completed without getting a plan approved by the Secretary. As the matter now stands, under the Kerala Municipality Building Rules, 2019, the Secretary is given the power to regularise any construction without obtaining approved plan under Rule 92. Therefore, the statutory provisions clearly enable the Secretary to regularise an illegal construction commenced or completed. Therefore, this Court does not find that the impugned order is bad for the reason that the final order has been passed to demolish the illegal construction. It is to be noted in the writ petition filed by the petitioner that this Court directed the Secretary of the Municipality, to hear the petitioner and the party respondents to take a final decision. Therefore, it WP(C).No.11332 OF 2020(N) ## **-:8:-** may not be proper on the part of the petitioner to contend that the Municipality cannot take a decision to regularise the completed construction after the final order is passed. 11. The next point to be considered is whether a co-owner, without the consent of other co-owners, is entitled to submit an application for regularisation of permit. Section 387 of the Municipality Act refers to application to be submitted for construction of a building. It does not state about the owner. It only states that any person is competent to submit the application. However, under Section 393 it is stated that application for permission can be rejected if it is not prepared in a manner required by any rule or bylaw made under the Act. Though construction was completed in the year 2013, the regularisation will have to be WP(C).No.11332 OF 2020(N) ## **-:9:-** considered in accordance with the Kerala Municipality Building (Amendment) Rules, 2013. In the matter of construction, the law applicable at the time of construction has to be followed. (See the judgment of the **Howra Municipality Corporation v. Ganges Rope Company Ltd. [(2004) 1 SCC 663].** Appendix A1 is the format of application for permit/regularisation under the Kerala Municipality Building (Amendment) Rules, 2019. Clause 4(vii) in the Appendix is related to nature of ownership. Rule 93 states that in the matter of regularisation, it shall be accompanied by documentary evidence of ownership. As far as public law parameter is concerned, what is required to be satisfied is the right of the applicant to undertake construction in the land. WP(C).No.11332 OF 2020(N) ## **-:10:-** 12. Law of ownership in this Country does not prevent a co-owner from enjoying his property. A coowner has interest in whole property and also in every parcel of it. The Apex Court in **Jai Singh and ors. v. Gurmej Singh** [( **2009) 1 SCC 747]** broadly outlined the principles relating to _inter se_ rights and liabilities of co-owners as follows: (l) A co-owner has an interest in the whole property and also in every parcel of it. (2) Possession of joint property by one co-owner is in the eye of law, possession of all even if all but one are actually out of possession. (3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all. (4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other as, when a co-owner openly asserts his own title and denies, that of the other. WP(C).No.11332 OF 2020(N) ## **-:11:-** (5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment. (6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners. (7) Where a co-owner is in possession of separate parcels under an arrangement consented by the other co-owners, it is not open to any body to disturb the arrangement without the consent of others except by filing a suit for partition. 13. A co-owner therefore is entitled to enjoy his property as a full owner in respect to every parcel of the land. If any of the parties is of the view that such enjoyment is detrimental to their interest, that party can approach the civil court and injunct other co-owner. That is purely a civil dispute amongst the parties. This Court finds nothing wrong on the part of the Municipality in accepting an application from a co-owner for building permit or regularisation application without concurrence or consent of other co-owners in WP(C).No.11332 OF 2020(N) ## **-:12:-** the perspective of public law. Unless and until any competent civil court passes orders against the construction, the public officials cannot reject the application pointing out that all co-owners have not joined in such application. The petitioner is attempting to put forward a dispute of civil nature in the garb of public law remedy. The petitioner can very well seek any such remedy against the party respondents before the civil court. In the light of the discussions as above, I am of the view that, challenge to the impugned order is legally untenable. However, nothing prevents the Municipality in implementing the order of demolition, if the party respondents fail to regularise in accordance with law. The Municipality is accordingly directed to take a decision on regularisation application within four weeks, after WP(C).No.11332 OF 2020(N) ## **-:13:-** hearing the petitioner and party respondents. In that process, if it is found that the party respondents are not entitled for regularisation, it shall enforce its order without further delay. The writ petition is dismissed with the observation as above. No costs. **Sd/-** ## **A.MUHAMED MUSTAQUE, JUDGE** ms ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF REPLY BEARING NO.R4-17824/13 DATED 13.08.2013 OBTAINED FROM THE 1ST RESPONDENT UNDER RIGHT TO INFORMATION ACT BY HUSBAND OF THE PETITIONER** - **EXHIBIT P2 TRUE COPY OF PROVISIONAL ORDER BEARING NO,E1-23679/13 DATED 07.08.2013 ISSUED TO THE 1ST RESPONDENT** - **EXHIBIT P3 TRUE COPY OF FINAL DEMOLITION ORDER BEARING NO.E1-3581/18 DATED 18.12.2018 ISSUED BY THE 1ST RESPONDENT** - **EXHIBIT P4 TRUE COPY OF LAWYER NOTICE DATED 06.05.2019 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT** - **EXHIBIT P4A TRUE COPY OF POSTAL ACKNOWLEDGMENT RECEIPT OF EXHIBIT P2 RECEIVED BY 1ST RESPONDENT DATED 8.5.2019** - **EXHIBIT P5 TRUE COPY OF JUDGMENT DATED 9.12.2019 IN WPC 22075/2019 PASSED BY THIS HON'BLE COURT** - **EXHIBIT P6 TRUE COPY OF ORDER BEARING NO.E1-3581/18 DATED 13.303.2020 PASSED BY 1ST RESPODENT** - **EXHIBIT P7 TRUE COPY OF OWNERSHIP CERTIFICATE DATED 23.05.2020 ISSUED BY KAYYUR-CHEEMENI GRAM PANACHAYATH** - **EXHIBIT P8 TRUE COPY OF ORDER BEARING B.E1/23990/17 DATED 6.12.2017 PASSED BY THE 1ST RESPONDENT** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R2(a): TRUE COPY OF THE APPLICATION DATED NIL ALONG WITH THE COVERING LETTER FILED BY THE DEPONENT BEFORE 1ST RESPONDENT.**