T.P. Swayam Prabha v. Payyanur Municipality

W.A. No. 92/2021 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942 ## WA.No.92 OF 2021 AGAINST THE JUDGMENT DATED 30.11.2020 IN WP(C) 11332/2020(N) OF HIGH COURT OF KERALA ## APPELLANT/PETITIONER: 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 ## RESPONDENTS/RESPONDENTS: - 1 PAYYANUR 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 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. No. 92/2021 : 2 : ## **Dated this the 12[th] day of January, 2021.** ## ## **SHAJI P. CHALY, J.** This appeal is preferred by the petitioner in W.P.(C) No.11332 of 2020 challenging the judgment dated 30.11.2020, whereby the writ petition was disposed of with the following directions: 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 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 W.A. No. 92/2021 : 3 : weeks, after 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.” 2. Brief material facts for the disposal of the appeal are as follows: According to the appellant, the property having an extent of 41 cents lying in RS No. 79/IAIA of Vellur Amsom Desom is a coownership property of the appellant and respondents 2 and 3, covered by the registered documents of SRO, Payyannur. It is relevant to point out that the details of the document of the co-ownership property was not produced before the writ court. However, information received under the Right to Information Act namely Ext.P1 is produced to show that the petitioner and respondents 2 and 3 are co-owners of the property. Further, the claim for ownership of the property raised by the appellant is disputed by the 2nd respondent stating that the property absolutely belongs to her. The case of the appellant is that there was a single storied house in the property bearing door No. PMC IX-532 and on the death of the mother Lakshmikutty Amma, the petitioner and respondents 2 and 3 have inherited the property. However, the second respondent namely, Bhagya Sathi, without obtaining building permit from the first respondent and without the W.A. No. 92/2021 : 4 : consent of the petitioner, started construction of the first floor above the existing building, which, according to the appellant, was an unauthorised and illegal act. 3. Anyhow, the subject matter was brought to the notice of the Secretary of the Payyannur Municipality, the first respondent, who initiated action under Section 406 of the Kerala Municipality Act, 1994 ('Act, 1994' for short) and Ext. P3 final order of demolition was passed on 18.12.2018. But, the order was not implemented, consequent to which the appellant has approached this Court and secured Ext. P5 judgment dated 09.12.2019 in W.P.(C) No. 22075 of 2019, whereby the Secretary of the first respondent Municipality was directed to hear the petitioner and respondents 2 and 3 and then take a final decision as to the future steps required, if any, based on the order passed by the Secretary. It was, accordingly, that Ext.P6 order dated 13.03.2020 was passed by the Secretary of the Municipality, which reads thus: E1-3581/18 Payyanur, Dated: 13/03/20 ## NOTICE Sub: Payyanur Municipality - Engineering Department Unauthorized construction in building No. 9/532 - Reg. W.A. No. 92/2021 : 5 : Ref 1. Complaint filed by Smt. Edavan Pothera Swayamprabha. 2. Judgment passed by Hon'ble High Court of Kerala in WP(C) No. 22075/2019. -------------------------- As per the enquiry on your complaint we find that there was unauthorized construction in the building bearing No. 9/532 and so notice under Section 406(1) and (2) (3) served to the opposite party for the demolition and removal of the unauthorized construction. But as per the order of Hon'ble High Court of Kerala direction was given to you to hear both parties before decision is taken and after hearing both parties and pursuing all available documents it has been found both parties are having undivided right over the land where the unauthorized building constructed situates. Under these circumstances, if the above said building is demolished and removed, the opposite party will naturally lose the residential place and for humanitarian consideration and for the right over the major portion of the above property to the opposite parties, based on inspection of land from the municipality it is found that there was no violation of rules as per the municipalities act except the dispute of right over the land, as per the order of the Hon'ble High Court of Kerala one chance is given to regularize the construction is informed to you. Apart from this, the dispute with regard to the right over the property does not come under the purview of Municipality immediately the dispute over the right dissolved through a civil court. Also till regularized or demolished it will be considered as unauthorized construction and as per section 442 of municipalities act, three times of the building tax already assessed should be remitted to the municipality. Secretary, Payyanur Municipality.” W.A. No. 92/2021 : 6 : It was, thus, challenging the legality, veracity and correctness of Ext. P6, the writ petition was filed. 4. The learned single Judge, after taking into account the pros and cons of the matter, has held that there was no requirement for interference with the impugned order of the Secretary after entering into the findings with regard to the construction carried out by the second respondent and also the legal question raised with respect to the co-ownership rights in the property in question. 5. We have heard the learned counsel for the appellant Sri. S.S. Aravind, Sri. M. Sasindran for the Municipality and Sri. P.V. Anoop for the second respondent, and perused the pleadings and materials on record. **6.** It is an admitted fact that the building was constructed by the second respondent without securing any permit and approved plan from the Secretary of the Payyannur Municipality, which is a mandatory requirement as per the provisions of Chapter XVIII of Act, 1994, and the Kerala Municipality Building Rules, 1999 ('Rules, 1999 for short) since the construction was of the year 2013. It is clear and evident that as per Section 382 of the Act, 1994, no piece of land shall W.A. No. 92/2021 : 7 : be used as a site for the construction of a building and no building shall be constructed or reconstructed otherwise than in accordance with the provisions of Chapter XVIII and of any Rules or bye-laws made under Act, 1994 relating to the use of building sites or the construction or reconstruction of buildings. 7. It was on the basis of the illegal construction carried out by the second respondent and as per the complaint submitted by the appellant, action was initiated under Section 406 of the Act, 1994. Section 406 of Act, 1994 specifies that if the Secretary is satisfied that the construction, reconstruction or alteration of any building or digging of any well etc. has been commenced without obtaining the permission of the Secretary or in contravention of the decision of the Council; or is being carried on, or has been completed otherwise than in accordance with the plans or specifications on which such permission or decision was based etc., the Secretary is vested with powers to make a provisional order requiring the owner or the person for whom the work is done to demolish the work done. 8. It is an admitted fact that the statutory mandatory procedure in contemplation of Section 406 of Act, 1994 was followed by the W.A. No. 92/2021 : 8 : Secretary and it was thereafter that the final order was passed directing the second respondent to demolish the building constructed unauthorisedly by invoking the power conferred under Section 406 (3). However, fact remains, as per the proviso to Section 406(1), the Secretary is vested with powers to regularise any constructions, reconstruction or alteration of any building or digging of any well, commenced, carried on or completed without getting a plan approved by the Secretary etc. on realisation of a compound fee as may be fixed by the Government. 9. That apart, Section 407 of Act, 1994 prescribes a procedure to regularise the unlawful building construction and by virtue of the power conferred thereunder, periodical orders were being passed by the Government and at present, a notification issued by the Government amending the cut off date prescribed originally thereunder is in force. However, it is clear from the explanation thereto that unlawful construction in contemplation of Section 407 means any construction for which the Secretary shall have no power to regularise under Section 406 of Act, 1994. 10. But fact remains, as per Rule 143 of the Rules, 1999, power W.A. No. 92/2021 : 9 : is conferred on the Secretary to regularise the construction or reconstruction or addition or alteration of any building or digging of any well or other structures commenced, being carried on or completed without obtaining approved plan or in deviation of the approved plan. But, the first proviso thereto stipulates that such construction or reconstruction or addition or alteration of any building etc. shall not be in violation of any of the provisions of the Act or Rules, 1999. It is true Rules 1999 is superseded by the Rules 2019. 11. Likewise, as per Section 92 of the Rules, 2019, the Secretary is vested with powers to regularise construction or reconstruction or addition or alteration of any building etc., which is a provision similar to Section 143 of Rules, 1999, and the proviso of which also makes it clear that such work shall not be in violation of any of the provisions of the Act, 1994 or Rules, 2019. 12. Therefore, on a reading of proviso to Section 406(1) and the other provisions of the Act, 1994 and the Rules discussed above, it is clear that if the construction carried out by the second respondent is not in violation of the provisions of the Act and the Rules, the Secretary is vested with ample powers to regularise the building W.A. No. 92/2021 : 10 : construction. But, a question was raised by the appellant that since she being a co-owner of the property, a construction carried out or sought to be regularized by receiving an application from the second respondent alone, cannot be sustained under law. 13. The learned single Judge has taken into account the said contentions and has held as follows at paragraphs 11 and 12 thus: “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 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. 12. Law of ownership in this Country does not prevent a coowner from enjoying his property. A co owner has interest in the whole property and also in every parcel of it. The Apex Court in Jai Singh and W.A. No. 92/2021 : 11 : 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. (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.” 14. The findings so rendered cannot be said to be in any manner bad or illegal, especially in view of the fact that the co ownership in the property claimed by the appellant is disputed by the 2nd W.A. No. 92/2021 : 12 : respondent, and the appellant has not produced any conclusive document to establish a title of co ownership to the satisfaction of the writ court. On analysing the findings rendered by the learned single Judge, we are of the considered opinion that the learned single Judge has exercised the discretionary jurisdiction conferred under Article 226 of the Constitution of India lawfully and correctly so as to arrive at the judgment dismissing the writ petition. Therefore, we do not think that the appellant has made out any case, justifying interference in an intra-court appeal filed under Section 5 of the Kerala High Court Act, 1958. Resultantly, writ appeal fails and accordingly, it is dismissed. sd/- **S. MANIKUMAR, CHIEF JUSTICE.** sd/- **SHAJI P. CHALY, JUDGE.** _Rv_