WP(C).No. 39324 of 2015 (M) & WP(C).No. 22167 of 2016 (U)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 3RD DAY OF NOVEMBER 2016/12TH KARTHIKA, 1938** ## **WP(C).No. 39324 of 2015 (M)** **----------------------------** ## **PETITIONER(S): -------------** **1. M.I.NIZABUDEEN S/O.M.P.IBRAHIM, MADUKKOLI PARAMBIL, KANJIRAPPALLY P.O.** **2. M.I.NOUSHAD S/O.M.P.IBRAHIM, MADUKKOLI PARAMBIL, KANJIRAPPALLY P.O.** **BY ADV. SRI.T.M.ABDUL LATHEEF** ## **RESPONDENT(S):** **--------------** **1. KANJIRAPPALLY GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, KANJIRAPPALY - 686 507.** **2. THE SECRETARY KANJIRAPPALLY GRAMA PANCHAYATH, KANJIRAPPALLY 686 507.** **3. T.M.MUHAMMED GEE, S/O.MUHAMMED ISMAIL T.M., THBENNAMMAKKAL HOUSE,KANJIRAPPALLY - 686 507.** **4. T.M. MUHAMMED GHA, S/O. MUHAMMED ISMAIL T.M. THENNAMMAKKAL HOUSE, KANJIRAPPALLY - 686507.** **R1 & R2 BY ADV. SRI.V.K.SUNIL R3 BY ADVS. SRI.P.A.MOHAMMED SHAH SRI.SOORAJ T.ELENJICKAL SRI.K.NANDAKUMAR SMT.P.M.MAZNA MANSOOR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-11-2016 ALONG WITH WPC 22167/2016,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** **WP(C).No. 39324 of 2015 (M)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** |**EXT.P-1:**|**TRUE COPY OF THE BUILDING PERMIT NO.A7-3291/2015**| |---|---| ||**DATED 5.5.2015 ISSUED BY THE IST RESPONDENT**| |**EXT.P-2:**|**TRUE COPY OF THE COMPLAINT DATED 1.9.2015**| ||**SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 2ND**| ||**RESPONDENT**| |**EXT.P-3:**|**TRUE COPY OF THE NOTICE NO.A7-7353/15 DATED**| ||**10.9.2015 ISSUED BY THE IST RESPONDENT**| |**EXT.P-4:**|**TRUE COPY OF THE REPORT NO.AE/LSGD/KPLY/1009/2015**| ||**DATED 10.9.2015 OF THE ASSISTANT ENGINEER**| |**EXT.P-5:**|**TRUE COPY OF THE REPORT NO.AE/LSGD/KPLY/1028/2015**| ||**DATED NIL OF THE ASSISTANT ENGINEER**| |**EXT.P-6:**|**TRUE COPY OF THE MEMORANDUM DATED 3.12.2015**| ||**SUBMITTED BY THE PETITIONERS BEFORE THE 2ND**| ||**RESPONDENT**| |**EXT.P-7:**|**TRUE COPY OF THE REPORT DATED 30.10.2015 ALONG**| ||**WITH THE SKETCH SUBMITTED BY THE PETITIONERS**| ||**BEFORE THE MUNSIFF COURT, KANJIRAPPALLY IN IA**| ||**NO.1122/15 IN OS NO.328 OF 2015**| |**EXT.P-8:**|**TRUE COPY OF THE URGENT NOTICE DATED 7.11.2015**| ||**ISSUED TO THE PETITIONERS BY THE TRIBUNAL**| |**EXT.P-9:**|**TRUE COPY OF THE APPEAL MEMORANDUM DATED**| ||**4.11.2015 FILED BY THE 3RD RESPONDENT BEFORE THE**| ||**TRIBUNAL.**| |**EXT.P-10:**|**TRUE COPY OF THE PETITION FOR STAY DATED**| ||**4.11.2015 FILED BY THE 3RD RESPONDENT BEFORE THE**| ||**TRIBUNAL**| |**EXT.P-11:**|**TRUE COPY OF THE RELEVANT PAGE OF THE PASS BOOK**| |**EXT.P-12:**|**COPY OF THE PROCEEDINGS NO.47-476/2016 DT 8/2/2016**| ||**ISSUED BY THE R2 TO THE PETITIONERS.**| |**EXT.P-13:**|**COPY OF THE PROCEEDINGS NO. A7-7277/2015 DT**| ||**3/9/2015 ISSUED by the R2 TO THE R3.**| |**EXT.P-14:**|**COPY OF THE PHOTOGRAPH.**| **WP(C).No. 39324 of 2015 (M)** **EXT.P-15: COPY OF THE COPY OF THE SURVEY SKETCH.** **EXT.P-16: COPY OF THE COUNTER AFFIDAVIT FILED BEFORE THE MUNSIFF COURT, KANJIRAPPALLY IN OS NO. 328/2015.** **EXT.P-17: COPY OF THE PHOTOGRAPH.** **EXT.P-18: COPY OF THE PHOTOGRAPH.** **RESPONDENT(S)' EXHIBITS :** **NIL.** **//TRUE COPY//** **P.A. TO JUDGE** **bp** ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 39324 of 2015 (M) & W.P.(C) No. 22167 of 2016 (U) -----------------------------------------Dated: 3[rd] November, 2016 ## **J U D G M E N T** The petitioners in the two writ petitions are neighbouring property owners; of very small extent, which were partitioned inter alia by the predecessors-in-interest of the petitioners, their respective fathers. The dispute is with respect to the construction of the commercial building in the property of the petitioners in W.P.(C) No.39324/2015; from which the parties and documents are referred to, unless otherwise specifically noticed. 2. The petitioners have 55 square meters of property, to the north of which lies the Kottayam-Kumily Road. On the western side is the **-2-** ## **W.P.(C) No. 39324 of 2015 (M) & W.P.(C) No. 22167 of 2016 (U)** property of respondents 3 and 4, which has an extent of 40 square meters. The petitioners and the respondents have their properties respectively in Survey Nos.106/79 and 106/78. There is also another property having an extent of 1 Are on the eastern side of the petitioners' property. The petitioners have obtained a consent from the property owner on his eastern boundary so as to build without the set-back, as provided, in that boundary. The petitioners too have issued consent to that person. On that basis, both the petitioners and the person on the eastern boundary claim exemption under Chapter VIII of the Kerala Panchayat Building Rules, 2011, ('Building Rules' for short). In the property of the party respondents, there is existing an old building and the respondents too intend to construct a new commercial building thereon, which, it is alleged, would be hampered by the construction now attempted by the ## **W.P.(C) No. 39324 of 2015 (M) & W.P.(C) No. 22167 of 2016 (U)** **-3-** petitioners, is the case projected in the writ petition filed as W.P.(C) No.22167/2016. 3. The petitioners, while continuing the construction based on Ext.P1 building permit, were faced with a complaint raised by the respondents at Ext.P2. In Ext.P2, the complaint raised was that, the petitioners have carried on digging to a depth of more than 1.5 meters, which is not permissible, unless otherwise in compliance with Rule 12 of the Building Rules. Based on Ext.P2 complaint, an inspection was carried out by the Panchayat, prior to which a notice was issued at Ext.P3. The inspection report is produced at Ext.P4. 4. There were five allegations raised in the inspection report. The first allegation was that there cannot be more than three floors permitted in the small plot and that the stair room shown in the plan is not ## **W.P.(C) No. 39324 of 2015 (M) & W.P.(C) No. 22167 of 2016 (U)** **-4-** permissible. The second allegation was with respect to the excavation having been conducted beyond 1.5 meters. The third allegation was the passage having lesser width than that prescribed. The fourth allegation was with respect to lack of set back as provided in the Building Rules on the western boundary. The fifth allegation was with respect to lack of sanitation facilities, as provided for in Rule 57(6) (wrongly shown as 57 (7)). 5. The petitioners filed a detailed objection, based on which, again, a report was submitted as per Ext.P5. The allegation of excavation having been conducted beyond 1.5 meters, was found to be impossible of verification since there was a cellar space already built and a retaining wall also provided on the western boundary. There could not have been any assessment made of the depth to which the excavation ## **W.P.(C) No. 39324 of 2015 (M) & W.P.(C) No. 22167 of 2016 (U)** **-5-** was made, was the clear finding. 6. In addition to the earlier allegations, it was also alleged that the staircase did not have the required width and that there was no ramp constructed for disabled persons. A new allegation was also raised with respect to there being a common wall between the property of the petitioners and that on the eastern boundary, which was alleged to be in violation of Rule 62 of the Building Rules. The petitioners are also said to have filed a suit for injunction against the encroachment attempted by the respondents, in which a temporary injunction was granted on the basis of the Commission report produced at Ext.P7. The petitioners also point to Ext.P9 appeal filed by the respondents before the Tribunal for Local Self Government Institutions, which assail the permit granted to the petitioners. ## **W.P.(C) No. 39324 of 2015 (M) & W.P.(C) No. 22167 of 2016 (U)** **-6-** 7. The petitioners, admittedly, have been carrying on the construction, but, were faced with Ext.P12 order, which pointed out three allegations which had to be rectified before the construction is continued; which, as of now, is the objection finally raised against the construction; challenged herein. The petitioners claim that both allegations, two and three, as noticed in Ext.P12, will be rectified. 8. With respect to the first allegation in Ext.P12, the learned Counsel for the petitioners relies on **Krishnan Mahadevan v. Moniamma - 2013 (1) KLT 588** , to contend that there can be no exemption denied under Chapter VIII of the Building Rules, if the adjacent properties are not owned by the very same person. The learned Counsel for the respondents, however, submits, on the basis of the title deed produced, that respondents had 2.45 meters frontage in their property, ## **W.P.(C) No. 39324 of 2015 (M) & W.P.(C) No. 22167 of 2016 (U)** **-7-** which has now been reduced as 2.2 meters, as per Ext.P4 survey, which has been challenged in appeal by Ext.P5, produced in W.P.(C) 22167/2016. Ext.P4 in the said writ petition is the sketch prepared on survey conducted of the properties, on the request made by the petitioners. The learned Counsel appearing for the respondents would contend that there were five allegations raised and they remain as such even now. 9. The first objection against the construction of the petitioners is the lack of set-back on the western boundary of the petitioners, which abuts the respondent's property, which can be resolved only if the appeal at Ext.P5, in the second writ petition, is decided. The further objection is with respect to the excavation conducted beyond 1.5 meters, which the respondents contend would have to be directed to be examined in terms of Rule 12(9) of the Building Rules, wherein, a ## **W.P.(C) No. 39324 of 2015 (M) & W.P.(C) No. 22167 of 2016 (U)** **-8-** stipulation of inspection by a Technical Expert Committee is required. The third objection is with respect to the combination of the two plots of the petitioners and that existing on the eastern boundary and a common wall having been built in that boundary, which violates the proviso to Section 62 of Chapter VIII. The fourth and fifth objections are that noticed as two and three in Ext.P12, which the petitioners agree to rectify before the construction is further carried on. 10. In such circumstance, there can only be a consideration of the three objections with respect to the petitioners' construction, in the writ petitions; which consideration would, all the same, be subject to the result of the challenge made to the permit before the Tribunal for Local Self Government Institution. As for the excavation carried on, being beyond 1.5 meters as stipulated in Rule 12 of the Building Rules, it has to ## **W.P.(C) No. 39324 of 2015 (M) & W.P.(C) No. 22167 of 2016 (U)** **-9-** be noticed that the cellar has been constructed and there is also a retaining wall built on the western boundary of the petitioners' property, on which the Commissioner, as per Ext.P7, has also reported that the existing wall of the petitioners' building is resting. There is absolutely no method by which the excavation, beyond 1.5 meters depth, can be investigated; especially since the cellar has been already constructed. Hence, there can be no reservation under Rule 12(9) of the Building Rules, which the petitioners ought to have taken up at the appropriate time when the excavation was being carried on. However, with respect to any deleterious effect having been caused to the petitioners' building or his property, it would have to be examined in the proper civil forum, if the petitioners so desire and not under the Building Rules. 11. With respect to a joint wall having been **-10-** ## **W.P.(C) No. 39324 of 2015 (M) & W.P.(C) No. 22167 of 2016 (U)** constructed between two properties of the petitioners and that on the western boundary, one has to look at Section 62 and the proviso thereunder, which are extracted hereunder: ## “ **62. Provisions for construction in Small** **plots.-** Provisions in this Chapter shall apply to construction or reconstruction of residential or commercial buildings or a combination of both in plots not exceeding 1.25 ares or 125 sq. metres in area subject to modifications in this chapter. Provided that permit shall not be granted under this chapter to one and the same person or with his consent to another person, for constructing different buildings, whether separately or abutting each other, in plots formed by division of one or more plots, he remaining as owner of more than one such divided plots or if that person has ## **W.P.(C) No. 39324 of 2015 (M) & W.P.(C) No. 22167 of 2016 (U)** **-11-** another plot abutting the proposed plot.” 12. The learned Counsel for the petitioners relied on the decision of this Court in **2013 (1) KLT 588** . Therein, the question was with respect to a person having sought for a permit, based on the exemption available in Rule 62 of the Building Rules; when there was, abutting the very same property, another land in his own ownership. This Court found that there can be no such exemption granted when there is another property of the applicant abutting the small plot on which the construction is intended. The aforesaid judgment would have absolutely no application, since, here, there are two separate property owners, who intend to join together to construct a common building in both the properties. 13. In this context, it has to be noticed that the ## **W.P.(C) No. 39324 of 2015 (M) & W.P.(C) No. 22167 of 2016 (U)** **-12-** learned Counsel appearing for the Panchayat would specifically contend there is no joint application made and both the petitioners and his western property owner have filed separate applications for building permit. Looking at the proviso to Rule 62 of the Building Rules, it cannot be said that the prohibition in the proviso is only with respect to building in two properties owned by the same person. The proviso also deals with a building construction; with a consent to another person and that person having another plot abutting the proposed plot. Otherwise, two owners having adjacent properties; each having lesser than 125 sq:meters of area, but together exceeding that area, could make a joint construction availing the exemption, which would run contrary to the spirit of such exemption. 14. It is also to be noticed that if a common **-13-** ## **W.P.(C) No. 39324 of 2015 (M) & W.P.(C) No. 22167 of 2016 (U)** building is to be constructed, there has to be made an application under Rule 15 of the Building Rules, which, admittedly, has not been made in this case. In such circumstance, if consent is granted, set back could be avoided on the eastern boundary, but, however, the Panchayat would have to verify as to the building being constructed in accordance with the plan submitted by the petitioners before the Panchayat, in accordance with the provisions of the Building Rules. 15. The remaining contention is only with respect to the set back on the petitioners' western boundary. There is considerable dispute as to the measurement of both the properties. Both the Counsel have addressed arguments on the basis of measurements found in Exts.P1 and P2 in W.P.(C) No.22167/2016. Admittedly, both the parents of the petitioners were parties to a partition and the respondents, on whom their father's **-14-** ## **W.P.(C) No. 39324 of 2015 (M) & W.P.(C) No. 22167 of 2016 (U)** property devolved, were also parties to Ext.P1 in W.P. (C) No.22167/2016, conceding the property devolved on them to the common kitty and taking the subject property having 40 square meters to their share, as is seen from Ext.P2 partition deed in W.P.(C) No.22167/2016. 16. All the properties are having small extents, wherein earlier a row building was existing. It is also to be noticed that the various documents produced in W.P. (C) No.39324/2015 including the Commission report at Ext.P7 and the report of the Assistant Engineer at Ext.P4 speaks of a partition existing on the eastern boundary of the respondents', which is a combination of bricks and wooden planks. Considering also the fact that earlier there was a row building, as of now, subject, however, to any proceedings taken in a civil court and also the appeal from re-survey; the boundary ## **W.P.(C) No. 39324 of 2015 (M) & W.P.(C) No. 22167 of 2016 (U)** **==> picture [24 x 9] intentionally omitted <==** of the respondents would have to be considered to be the existing wall of brick and wooden planks. 17. When computing the set back to be made available in the petitioners' property, the petitioners' boundary has to be taken as that found in survey (Ext.P4) produced in W.P.(C) No.22167/2016, wherein the property of the petitioners have a frontage of 3.0 meters. The Panchayat would be entitled to examine the same to verify the set-back provided to ensure that the construction already made does not violate Rule 62 of the Building Rules. If it is so found, then, necessarily, the Panchayat could give permission to continue the construction, again, subject to the orders passed by the Tribunal, any suit if initiated by the parties before the appropriate civil forum as also the appeal from the survey sketch. ## **W.P.(C) No. 39324 of 2015 (M) & W.P.(C) No. 22167 of 2016 (U)** **==> picture [24 x 9] intentionally omitted <==** 18. The Panchayat shall conduct inspection with notice to the petitioners and the respondents within a period of three weeks from the date of receipt of the certified copy of this judgment. If at all any violation is found of Rule 62 of the Building Rules, then the petitioners would be entitled to make rectification, which shall be inspected by the Panchayat after such rectification is effected. The writ petitions are disposed of. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 4/11/16