V. Rajkumar v. Surendranatha Mallaya and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 11[TH] DAY OF JANUARY 2022 / 21ST POUSHA, 1943** **RSA NO. 922 OF 2008** **AGAINST THE JUDGMENT & DECREE IN AS 50/2004 OF SUB COURT,KOCHI** **AGAINST THE JUDGMENT & DECREE IN OS 500/2001 OF ADDITIONAL MUNSIFF COURT,KOCHI** ## **APPELLANT/APPELLANT/PLAINTIFF:** V.RAJKUMAR, AGED 52, S/O VENKITESWARA MALLAYYA, RESIDING AT C.C. 12/555, PANDIKUDY, KOCHI -2. BY ADV SMT.VANAJA MADHAVAN ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** 1 SURENDRANATHA MALLAYA, S/O HARI MALLAYA, C.C.12/549, PANDIKUDY, KOCHI -2. 2 CORPORATION OF KOCHI, REPRESENTED BY SECRETARY, CORPORATION BUILDNG, ERNAKULAM. 3 ASSISTANT EXECUTIVE ENGINEER, CORPORATION OF COCHIN, FORT COCHIN. BY ADVS. SRI.PRAVEEN K. JOY -R2 SRI.SABU GEORGE -R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A No.922 of 2008 2 K.BABU, J . -------------------------------------- R.S.A No.922 of 2008 --------------------------------------Dated this the 11[th] day of January, 2022 ## JUDGMENT The plaintiff in O.S.No.500/2001 on the file of the Additional Munsiff's Court, Kochi is the appellant. Defendant No.1 in the suit is respondent No.1. Defendant No.2/Respondent No.2 is the Corporation of Kochi and Defendant No.3/Respondent No.3 is the Assistant Executive Engineer, Corporation of Kochi. 2. Material facts relevant for the adjudication of this appeal are briefly narrated below: 3. Plaint 'A' schedule property is 6.350 cents of land and a building therein in survey No.373 in Mattancherry Village. Plaint 'B' schedule property is 7 cents of land in the same survey number of Mattancherry village, lying on the immediate south of the plaint “A' schedule property. 4. The plaintiff is the owner in possession of plaint 'A' schedule property. Defendant No.1 is in possession of 'B' schedule property. The plaintiff pleaded that defendant No.1 constructed a R.S.A No.922 of 2008 3 building in 'B' schedule property in violation of the Municipal Building Rules. According to the plaintiff, the construction effected by defendant No.1 is in such a way that the rain water from the terrace of the building falls upon the compound wall constructed by the plaintiff in 'A' schedule property. It is further pleaded by the plaintiff that the waste water from the kitchen as well as from the bathroom is drained to the northern portion of the residential building of defendant No.1, causing foul smell. 5. The plaintiff preferred a complaint before the Kochi Corporation. The competent authority of the Corporation deputed a Building Inspector to inspect the site. The Inspector found violation of the Building Rules by the plaintiff and defendant No.1 in the constructions effected in their respective properties. 6. The plaintiff instituted the original suit for a declaration that the construction effected by defendant No.1 violates the Municipal Building Rules and for a mandatory injunction directing defendant No.1 to remove the structures constructed by him violating the relevant rules. 7. Defendant No.1 resisted the claim of the plaintiff 4 R.S.A No.922 of 2008 contending that both sides effected constructions in their respective properties in violation of the Building Rules. The complaints preferred by the parties were referred to the Adalath conducted at the instance of the Corporation at Nehru Memorial Town Hall, Mattancherry on 21.07.2000, and the parties arrived at a settlement wherein they agreed to regularise the violations. 8. Defendant No.1 had set up a counterclaim for a mandatory injunction directing the plaintiff to remove the unauthorised constructions made in the plaint schedule property. 9. The Corporation submitted that the violations of the Building Rules in the constructions were brought to their notice at the time when the plaintiff preferred the complaint and that the matter was placed before the Adalath conducted on 21.07.2000, and both sides were directed to regularise their violations. The Corporation further submitted that as per the report of the Building Inspector, defendant No.1 had regularised the alleged violations in the construction effected in the 'B' schedule property. 10. During the trial, no oral evidence was adduced from both sides. Exhibits A1 to A31 were marked on the side of the plaintiff R.S.A No.922 of 2008 5 and Exhibits B1 to B7 were marked on the side of the defendants. Exhibit C1 was marked as Court Exhibit. 11. The Trial Court, after appreciating the rival contentions, based on the pleadings held that the constructions in plaint 'B' schedule property are against the Municipal Building Rules and the sanctioned plan. 12. However, the Trial Court, taking note of the fact that the parties have arrived at a compromise in the Adalath as noted in Ext.A13, and the further fact that not only the alleged violations were regularised but the alleged violations are not of such a nature as to endanger public safety, or in the nature of causing inconvenience to the general public also, the suit was dismissed. As defendant No.1 had withdrawn the counterclaim, the same was also dismissed. 13. The plaintiff challenged the judgment and decree of the Trial Court before the First Appellate Court by filing A.S.No.50/2004. The First Appellate Court confirmed the findings of the Trial Court. 14. The plaintiff is now before this Court in the second appeal invoking Sec.100 of the CPC. R.S.A No.922 of 2008 6 ## 15. On 17.12.2008, this Court admitted the appeal on the following substantial question of law: “Was the trial Court, which having held that the plaint C schedule construction on the plaint B schedule property was against the Building Rules and against the sanctioned plan, justified in refusing the declaration sought for by the plaintiff and consequential prohibitory injunction especially when the completion certificate had not been obtained by the 1[st] defendant from the 2[nd] defendant Corporation?” 16. Heard Smt.Vanaja Madhavan, the learned counsel for the appellant/plaintiff and Sri.Sabu George, the learned counsel for the respondent No.1/defendant No.1. 17. The question that falls for consideration in this appeal is whether the Courts below were justified in refusing the relief prayed for by the plaintiff even after recording a finding that the plaint 'C' schedule constructions on the plaint 'B' schedule property were against the Municipal Building Rules and against the sanctioned plan. 18. The Trial court held that the plaint 'C' schedule constructions effected on the plaint B schedule property are against the Building Rules. It has come out in evidence that there were violations of the Municipal Building Rules in the constructions effected by both sides, the plaintiff and defendant No.1. Exhibit A13 R.S.A No.922 of 2008 7 is the decision based on the compromise between the parties in the Adalath held on 21.07.2000. The parties conceded that there were violations in the constructions and agreed to regularise those violations. Defendants 2 and 3, the official defendants, have specifically pleaded that defendant No.1 has regularised the violations referred to in Ext.A13. The relevant portion of the judgment of the Trial Court refusing to grant the reliefs is extracted below: “ In the present case it is clear that the alleged violations are not of such a nature as to endanger public safety or in the nature of causing inconvenience to the general public. The violations brought out are trivial in nature for which imposition of fine by the competent authority would be sufficient. The first defendant had produced Ext.B5 fee receipt for regularising of unauthorised construction and Ext.B6 completion plan of first floor. Thus in the facts and circumstances of the case, I see that no mandatory injunction as prayed for need be issued.” The Trial Court answered issue No.5 as follows: “From the available evidence it is clear that first defendant had completed the construction. There is no material brought out to show that the plaintiff is intending any further construction in violation of building rules. Thus, the relief of permanent prohibitory injunction has become infructuous. Issue No.5 answered against the plaintiff.” 19. The Trial Court and the First Appellate Court held that the alleged violations in the construction effected by defendant No.1 are not in such a manner to endanger public safety. The Courts below R.S.A No.922 of 2008 8 recorded that the alleged violations are trivial in nature, for which imposition of a fine by the competent authority would be sufficient. In Rajatha Enterprises v. S.K.Sharma (AIR 1989 SC 860) the Apex Court, while dealing with a trivial violation in the Building Rules in the construction of the building held that in the absence of any evidence of public safety being in any manner endangered or the public or a section of the public being in any manner inconvenienced by reason of the construction of the building, whatever may be the personal grievance of the parties it was not justified in ordering the demolition of any portion of the building, particularly when there was no evidence whatsoever of dishonesty or fraud or negligence on the part of the builder. 20. In Narahari Rao v. State of Kerala and others (1999 KHC 36) Division Bench of this Court held that, while dealing with the violations of the Building Rules, if the deviations from the approved plan are trivial having no bearing on public safety, imposition of a fine might meet the requirements of law. 21. The result of the above discussion is that since the violation of the Building Rules is trivial in nature and the parties R.S.A No.922 of 2008 9 have arrived at a settlement in the Adalath conducted by the Corporation and the further fact that the 1[st] respondent/1[st] defendant has regularised the alleged violations, even though 'C' schedule construction is found to be in violation of the Building Rules, the plaintiff is not entitled to the prohibitory and mandatory injunction as prayed for. The substantial question of law is answered accordingly against the appellant. This Court finds no reason to interfere with the concurrent findings of the Courts below. The Appeal lacks merits. The Regular Second Appeal stands dismissed. The parties are directed to bear their respective costs. Sd/- K.BABU, JUDGE KAS