WP(C) Nos.29809/2010 & 34911/2010 – A.K. Nazar and Abdul Majeed v Kalamassery Municipality and Tribunal of Local Self Government Institutions (High Court of Kerala, Ernakulam)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 30[TH] DAY OF MAY 2023 / 9TH JYAISHTA, 1945** ## **WP(C) NO.29809 OF 2010** ## **- PETITIONER :** A.K.NAZER, SON OF A.M.KHADER PILLAI, 24/203, ANJIKKATH HOUSE, VMB ROAD, PATHADIPPALAM, KOCHI-33. BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.MANU VYASAN PETER **-** 1 FABIDA WIFE OF ABDUL SALAM, ELLIKKAL HOUSE, PATHADIPALAM, CHANGAMPUZHA NAGAR P.O., ERNAKULAM – 682 033. 2 THE KALAMASSERY MUNICIPALITY KALAMASSERY P.O., PIN – 682 033 REPRESENTED BY ITS SECRETARY. 3 THE TRIBUNAL OF LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM – 695 001. BY ADVS. SRI.ANIL S.RAJ SRI.M.K.ABOOBACKER SMT.K.N.RAJANI(K/001295/1999) SMT.RADHIKA RAJASEKHARAN P.(R-718) SMT.ANILA PETER(K/660/2006) SRI.MUHAMMED HARIS K.K.(K/561/2021) SMT.SIMI S. ALI(K/2275/2021) SMT.SNEHA S. MENON(K/000594/2020) SRI.APPU.P.S., GP ## **- RESPONDENTS :** THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.05.2023, ALONG WITH WP(C).34911/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) Nos.29809 & 34911 OF 2010 -: 2 :- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 30[TH] DAY OF MAY 2023 / 9TH JYAISHTA, 1945** **WP(C) NO.34911 OF 2010** ## **- PETITIONER :** ABDUL MAJEED, AGED 45 YEARS, S/O.HASSAN, ILLIKKAL HOUSE, CHANGAMPUZHA NAGAR P.O., KOCHI – 682 033. BY ADVS. SRI.P.K.SURESH KUMAR SMT.M.SINDHU THANKAM J.RAMKUMAR ## **- RESPONDENTS :** 1 KALAMASSERY MUNICIPALITY REPRESENTED BY ITS SECRETARY, KALAMASSERY – 683 104, ERNAKULAM DISTRICT. 2 A.K.NAZAR S/O.A.M.KADARUPILLA, 24/203, ANJIKKATH HOUSE, V.M.P.ROAD, PATHADIPPALAM, CHANGAMPUZHA NAGAR P.O., PIN - 682 033, ERNAKULAM DISTRICT. BY ADVS. SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.MANU VYASAN PETER SRI.M.K.ABOOBACKER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.05.2023, ALONG WITH WP(C).29809/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) Nos.29809 & 34911 OF 2010 -: 3 :- ## JUDGMENT ## [W.P.(C) Nos.29809/2010 & 34911/2010] Dated this the 30th day of May, 2023 These writ petitions are filed with regard to a construction carried out in the 3[rd] floor of a building belonging to the petitioner in W.P.(C) No.29809/2010. The prayer in W.P.(C) No.29809/2010 is to set aside Ext.P12 order of the Tribunal for Local Self Government Institutions as also for a direction to the respondent Municipality not to take any action under Section 406 of the Kerala Municipality Act against the building constructed by the petitioner pursuant to Ext.P6 building permit. W.P.(C) No.34911/2010 is filed to quash Ext.P6 building permit and to declare that the entire proceedings leading to the passing of Ext.P6 is ab initio void. 2. Heard the learned counsel for the petitioners in both the writ petitions, the learned counsel appearing for the 1[st] respondent in W.P.(C) No.29809/2010 and the learned counsel appearing for the respondent Municipality. 3. It is submitted by the learned counsel for the petitioner in W.P.(C) No.29809/2010 that the petitioner had constructed ground floor and first floor of a building in 30.62 cents of property in Survey No.651/8 A, B and C of Thrikkakara North Village, Kanayannur Taluk. It is stated that out of the total extent of 30.62 WP(C) Nos.29809 & 34911 OF 2010 -: 4 :- cents, the petitioner had obtained 24.500 cents of property as per partition deed No.481/1997 of the SRO, Edappally and the balance extent of 6.12 cents was purchased from his brother and mother by assignment deed No.8782/2004 of the SRO, Edappally dated 20.12.2004. It is submitted that Ext.P5 is the building permit in respect of the first two floors of the building and the building had been constructed and assigned building numbers in the year 2006. It is submitted that on the basis of an application submitted by the petitioner, Ext.P6 building permit was issued on 26.7.2007 permitting the construction of a third floor of the building according to the sanctioned plan. The petitioner had put up the construction which was completed. However, on 29.7.2010, Ext.P7 appeal was preferred by the 1[st] respondent challenging Ext.P6 and stating that she had received copy of the permit under the Right to Information Act only on 1.7.2010. 4. The learned counsel for the petitioner submits that the appeal itself was totally incompetent in view of the provisions of the Tribunal for Kerala Local Self Government Institutions Rules and the provisions contained therein with regard to limitation for filing appeals. It is submitted by the learned counsel for the petitioner that in the absence of any provision for condoning the delay in filing the appeal beyond 30 days, the appeal which was filed long after WP(C) Nos.29809 & 34911 OF 2010 -: 5 :- the statutory time limit was not maintainable before the Tribunal. This aspect was specifically pointed out in the written statement filed by the petitioner before the Tribunal. However, the Tribunal, by Ext.P12, on an erroneous assumption that the appellant received sufficient information enabling her to file the appeal only on 1.7.2013 considered the appeal and allowed the same setting aside the building permit. 5. It is submitted by the learned counsel for the petitioner that the only reason stated for setting aside the building permit in Ext.P12 was that the application pursuant to which the permit was granted was not properly filled up by the petitioner. It is contended by the learned counsel for the petitioner that the construction of the third floor had been duly completed after obtaining Ext.P6 building permit and that the 1[st] respondent, who was the petitioner in the appeal before the Tribunal, was very well aware of the existence of the building permit as well as the ongoing construction and that there is absolutely no merit in the contention that she was made aware of the construction only in July, 2010. In support of the said contention, the learned counsel for the petitioner placed reliance on the decision of this Court in Rermal Padmanabhan v. Tribunal for Local Self Government Institutions [2015 (3) KLT 201] where, after considering the provisions of Rule 8(3) of the Tribunal for Kerala WP(C) Nos.29809 & 34911 OF 2010 -: 6 :- Local Self Government Institutions Rules, the Bench held that on a reading of the Rules, it is clear that there is no power in the Tribunal to condone the delay in filing the appeal in excess of the period prescribed under the proviso to Rule 8(3). It was held that there is a complete exclusion of Section 5 of the Limitation Act and that the appeal could not have been entertained unless there is a specific finding that the appellant was aware of the construction only on the date as shown in the appeal. 6. The learned counsel appearing for the 1[st] respondent in W.P.(C) No.29809/2010 submits that the 1[st] respondent's husband was unwell and her brother-in-law was out of the country during the period in question and that she got a copy of the permit through the Right to Information Act only on 1.7.2010 and that the appeal was filed immediately thereafter. It is, therefore, contended that the knowledge about the contents of the permit was received by her only on 1.7.2010 and therefore, the time available to her for filing the appeal have to be calculated from the said date. 7. As far as W.P.(C) No.34911/2010 is concerned, it is submitted by the learned counsel for the petitioner that the 2[nd] respondent, who is the petitioner in the other writ petition, had obtained 6.12 cents of property by Ext.P1 sale deed No.8782/2004 of the Edappally SRO dated 20.12.2004. It is submitted that on an WP(C) Nos.29809 & 34911 OF 2010 -: 7 :- examination of the boundaries and measurements given in Ext.P1, an extent of 2 cents of land from the petitioner's adjacent property had been fraudulently included in Ext.P1 document. It is submitted that O.S.No.744/2010 had been filed by the petitioner before the Munsiff Court, Ernakulam seeking a decree declaring that the sale deed is void to the extent it affects the property of the petitioner and true copy of the plaint is produced as Ext.P2. It is submitted by the learned counsel for the petitioner that the suit had been transferred to the 1[st] Additional Sub Court, Ernakulam and renumbered as O.S.No.110/2012 and is pending between the parties. It is submitted that the extent of property shown by the 2[nd] respondent for obtaining building permit is, therefore, erroneous. Further, it is contended that the height of the building shown in the application is incorrect and that the Fire NOC was also obtained by the 2[nd] respondent concealing the actual facts. It is submitted that though the construction was completed by the 2[nd] respondent on the basis of the building permit, the occupancy certificate has not been issued to him and as such, further action is liable to be taken only on the basis of the decree of the civil court in the pending civil dispute between the parties. 8. The learned counsel appearing for the respondent Municipality submits that there was an existing building in the WP(C) Nos.29809 & 34911 OF 2010 -: 8 :- property and the ground and first floors of the building were constructed after obtaining due building permits. Occupancy certificate was also granted on the basis of completion plan. Thereafter, on the basis of the very same title deeds, an application was submitted for construction of a further floor over the building which was considered and Ext.P6 building permit was issued on 26.7.2007. It is submitted that the construction of the third floor was completed on the basis of the building permit. It is submitted that it is only if the suit filed by the petitioner in W.P.(C) No.34911/2010 is allowed that any question with regard to the FAR exceeding the permissible limits would arise and it is only in such circumstances that there would be any defect in the building permit granted by the Municipality. It is further submitted that there are several litigations between the parties and that the building permit had been duly granted after conducting necessary inspections. 9. Having considered the contentions advanced on either side, I notice that the building permit for the further construction had been granted by Ext.P6 dated 26.7.2007. The 1[st] respondent in W.P.(C) No.29809/2010, who is a next door neighbour, does not have a contention either in the appeal or even before this Court that she was unaware of the grant of a building permit or the undertaking of a construction over a building in land adjacent to her WP(C) Nos.29809 & 34911 OF 2010 -: 9 :- property. This is more so, in view of the contentions of the parties that there are several pending litigations between them. The 1[st] respondent does not appear to have raised any objection to the construction before the Municipality or before any other authority before the appeal was filed before the Tribunal. Before the Tribunal also, the appellant only stated that she obtained a copy of the building permit through the Right to Information Act only on 1.7.2010. There is no contention that she was unaware of the construction or that she had raised any complaints. In the above factual situation, I am of the opinion that the contention that the appellant had knowledge of the building permit only on 1.7.2010 cannot be accepted. The mere fact that the copy of the permit was obtained by the appellant only on 1.7.2010, according to me, cannot be a reason to find that the appeal preferred before the Tribunal was maintainable. This is more so in view of the fact that the parties are holders of adjacent property and there are several civil and other disputes pending between them. In the above view of the matter and in the light of the judgment of a Division Bench of this Court in Rermal Padmanabhan v. Tribunal for Local Self Government Institutions and of a learned Single Judge in Thomas Thomas v. Kottayam Municipality [2008 (3) KLT 964], I am of the opinion that the appeal was not maintainable WP(C) Nos.29809 & 34911 OF 2010 -: 10 :- before the Tribunal and the setting aside of the building permit on the grounds mentioned in Ext.P12 was not legal or proper. W.P.(C) No.29809/2010 is, therefore, ordered setting aside Ext.P12 order of the Tribunal. W.P.(C) No.34911/2010 is also disposed of making it clear that the parties shall abide by the decisions of the civil court in the pending civil dispute between them. The writ petitions are ordered accordingly. Sd/ANU SIVARAMAN JUDGE Jvt/5.6.2023 WP(C) Nos.29809 & 34911 OF 2010 ## -: 11 :- ## **APPENDIX OF WP(C) 29809/2010** PETITIONER EXHIBITS :- EXHIBIT P1 TRUE COPY OF THE PARTITION DEED No.481/1997 OF SRO EDAPPALLY DATED 03.02.1997. EXHIBIT P2 TRUE COPY OF THE ASSIGNMENT DEED No.8782/2004 DATED 20.12.2004 OF SRO EDAPPALLY. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 18.4.2005 OF THE SENIOR TOWN PLANNER, ERNAKULAM. EXHIBIT P4 TRUE COPY OF THE G.O.(Rt)No.3025/2005 LSGD DATED 29.7.2005. EXHIBIT P5 TRUE COPY OF THE BUILDING PERMIT No.714/2001 DATED 27.10.2005 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P6 TRUE COPY OF THE BUILDING PERMIT No.172/2006 DATED 26.07.2007 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P7 TRUE COPY OF THE APPEAL FILED BY THE FIRST RESPONDENT BEFORE THE 3RD RESPONDENT. EXHIBIT P8 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT IN APPEAL No.664/2010. EXHIBIT P9 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 2ND RESPONDENT MUNICIPALITY BEFORE THE 3RD RESPONDENT. - EXHIBIT P10 TRUE COPY OF THE APPLICATION FOR AMENDMENT. EXHIBIT P11 TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY THE PETITIONER. - EXHIBIT P12 TRUE COPY OF THE ORDER DATED 08.09.2010 IN APPEAL No.664/2010 OF THE 3RD RESPONDENT TRIBUNAL. - EXHIBIT P13 TRUE PHOTOS OF THE BUILDING OF THE PETITIONER. WP(C) Nos.29809 & 34911 OF 2010 ## -: 12 :- RESPONDENTS' EXHIBITS :- - EXHIBIT R1A TRUE COPY OF THE THANDAPER REGISTER No.9365 OF THRIKKAKARA NORTH VILLAGE. - EXHIBIT R1B TRUE COPY OF THE LETTER DTD 18-09-2010 ISSUED BY THE ADDITIONAL TAHASILDAR TO VILLAGE OFFICE THRIKKAKARA NORTH VILLAGE - EXHIBIT R1C TRUE COPY OF THE REPORT SUBMITTED BY THE VILLAGE OFFICER, THRIKKAKARA NORTH VILLAGE TO THE TAHASILDAR, KANAYANNOOR DTD 16-07-2010 - EXHIBIT R1D TRUE COPY OFF THE APPLICATION FOR PERMIT DTD 1704-2006 SUBMITTED BY THE PETITIONER BEFORE THE KALAMASSERY MUNICIPALITY. - EXHIBIT R1E TRUE COPY OF THE SKETCH OF THE PLOT SUBMITTED BY THE PETITIONER BEFORE THE KALAMASSERY MUNICIPALITY. WP(C) Nos.29809 & 34911 OF 2010 -: 13 :- ## **APPENDIX OF WP(C) 34911/2010** PETITIONER EXHIBITS :- EXHIBIT P1 TRUE COPY OF SALE DEED REGISTERED AS DOC.No. 8782/04 DATED 20.12.2004 OF EDAPPALLY SRO EXECUTED IN FAVOUR OF THE 2ND RESPONDENT. EXHIBIT P2 TRUE COPY OF PLAINT DATED 9.7.2010 IN O.S.No. 744/2010 FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, ERNAKULAM. EXHIBIT P3 TRUE COPY OF REPORT DATED 16.7.2010 OF THE VILLAGE OFFICER, THRIKKAKARA NORTH. EXHIBIT P4 TRUE COPY OF ORDER DATED 18.09.2010 PASSED BY TAHSILDAR, KANAYANNUR TALUK. EXHIBIT P5 TRUE COPY OF APPLICATION FOR BUILDING DATED 17.4.2006 SUBMITTED BY THE 2ND RESPONDENT. EXHIBIT P6 TRUE COPY OF BUILDING PERMIT No.172/06 DATED 26.7.2007 ISSUED BY THE 1ST RESPONDENT IN FAVOUR OF THE 2ND RESPONDENT. EXHIBIT P7 A TRUE COPY OF THE CERTIFICATE DATED 30.06.2007 BEARING NO. G2-3964/07 ISSUED BY THE DIRECTOR (TECHNICAL), FOR COMMANDANT GENERAL, FIRE AND RESCUE SERVICES EXHIBIT P8 TRUE COPY OF THE COMPLAINT DATED 28.04.2013 SUBMITTED BY THE PETITIONER BEFORE THE DIVISIONAL OFFICER, FIRE AND RESCUE SERVICES, ERNAKULAM EXHIBIT P9 A TRUE COPY OF THE QUICK VERIFICATION REPORT DATED 19.11.2012 BEARING NO.QV.07/2011/EKM VIGILANCE AND ANTI-CORRUPTION BUREAU, ERNAKULAM UNIT EXHIBIT P10 A TRUE COPY OF THE JUDGMENT DATED 26.05.2015 IN WP(C) NO. 23244/2012 OF THIS HON'BLE COURT WP(C) Nos.29809 & 34911 OF 2010 -: 14 :- RESPONDENTS' EXHIBITS :- EXHIBIT R2(a) TRUE COPY OF THE JUDGMENT DATED 19-12-2019 IN W.P.(C)No.16952 OF 2014. EXHIBIT R2(b) TRUE PHOTOCOPY OF THE PROPERTY TAX RECEIPT ISSUED BY RESPONDENT No.1 ON 14-03-2022