Dismissed

Smt.K.G.Rajani v. Corporation of Kollam

Kerala HC3 Nov 2016WP(C)/12098/2016

Case brief

AI extract

What is this about?

The Court dismissed a writ petition filed by a tenant challenging a government order denying regularisation and directing demolition of a property owned by her landlord. The Court held that the petitioner, as a tenant, lacked locus standi to challenge the coercive action against the building owned by the owner and found no evidence of collusion.

What did the court decide?

The writ petition was dismissed; parties to suffer their respective costs.

Smt.K.G.Rajani Vs Corporation of Kollam — Landlord and Tenant | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THURSDAY, THE 3RD DAY OF NOVEMBER 2016/12TH KARTHIKA, 1938

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WP(C).No. 12098 of 2016 (J)

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PETITIONER:

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----------SMT.K.G.RAJANI

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W/O.G. ABRAHAM, AGED 63, KAILATH VEEDU,

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EAST KALLADA PO, KOLLAM 691502, PROPRIETOR, "FATHIMA LAB", HOSPITAL ROAD, NEAR VELANKANNI SHRINE, TALUK CUTHERY JUNCTION, KOLLAM

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BY ADVS.SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA

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RESPONDENTS:

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1. CORPORATION OF KOLLAM REPRESENTED BY ITS SECRETARY

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2. THE TOWN PLANNER, KOLLAM

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3. THE CHIEF TOWN PLANNER THIRUVANANTHAPURAM

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4. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, (RA) SECRETARIAT, THIRUVANANTHAPURAM 695001

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5. SMT. M.K. SHYMA W/O.ANANDARAJAN, AGED 63, PATTATHUVILA VEEDU, PATTATHANAM WARD, VADAKKEVILA PO, VADAKKEVILA VILLAGE, KOLLAM

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ADDITIONAL RESPONDENT IMPLEADED Addl. 6. SHIBU .B S/O BALAN PILLAI, EKAPARNIKA, MKRA-74, THIRUMULLAVARAM P.O., KOLLAM-691012.

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ADDITIONAL R6 IMPLEADED AS PER ORDER DATED 26.10.16 IN I.A. NO.8021/2016

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R1 BY ADV. SRI.M.K.CHANDRA MOHAN DAS,SC,KOLLAM MPT R5 BY ADV. SRI.S.SANTHOSH KUMAR R5 BY ADV. SMT.P.LISSY JOSE. RADDL.6 BY ADV. SRI.SAJU J PANICKER R4 BY SR.GOVERNMENT PLEADER SRI.K.J.MANURAJ

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 12098 of 2016 (J)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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----------------------P1 TRUE COPY OF PROVISIONAL ORDER DATED 19.07.1986 P2 TRUE COPY OF THE ORDER NO. GO(RT) NO.2666/88/LAD DATED 03.08.1988 P3 TRUE COPY OF THE RECEIPT DATED 08.05.1991 ISSUED BY 1ST RESPONDENT TO 5TH RESPONDENT P4 TRUE COPY OF THE LEASE AGREEMENT DATED 03.08.1991 EXECUTED BY PETITIONER IN FAVOUR OF 5TH RESPONDENT P5 TRUE COPY OF THE RECEIPT DATED 03.01.2016 ISSUED ON BEHALF OF 5TH RESPONDENT P6 TRUE COPY OF THE ORDER NO. 13010/RA3/2015/ALSGD DATED 25.01.2016

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RESPONDENT(S)' EXHIBITS -----------------------

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R5(A) TRUE COPY OF EXEMPTION ORDERS DATED 24.05.1984, 2.10.1984, 27.06.1987 AND 03.08.1988 ISSUED BY THE STATE GOVERNMENT R5(B) TRUE COPY OF THE ORDER DATED 14.10.2011 OF THE GOVERNMENT R5(C) TRUE COPY OF THE APPLICATION FOR REGULARIZATION DATED 11.11.2011 R5(D) TRUE COPY OF THE REVIEW PETITION DATED 20.04.2014 R5(E) TRUE COPY OF COMMUNICATION DATED 30.05.2014 FROM THE 4TH RESPONDENT R6(A) THE TRUE COPY OF THE DECREE DATED 5.12.1979 IN A.S.290/1977 OF THIS HON'BLE COURT R6(B) THE TRUE COPY OF THE ORDER IN CMP 5566/81 IN C.M.A.73/81 R6(C) THE TRUE COPY OF THE JUDGMENT IN O.S.870/1986 OF THE ADDL MUNSIFF COURT, KOLLAM

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R6(D) THE TRUE COPY OF THE JUDGMENT IN AS 261/1996 OF THE II ADDITIONAL DISTRICT JUDGE, KOLLAM R6(E) THE TRUE COPY OF THE STATEMENT FILED BY THE 1ST RESPONDENT IN WP(C) 17790/2015

//TRUE COPY//

P.A.TO JUDGE

JJJ

K. VINOD CHANDRAN, J.

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-----------------------------------------W.P.(C) No. 12098 of 2016 (J)

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-----------------------------------------Dated: 3^rd November, 2016

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J U D G M E N T

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The petitioner, a tenant of a building owned by the 5^th respondent, is before this Court challenging Ext.P6 order dated 25.01.2016, of the Government, denying regularisation and directing action against the unauthorised construction, which would result in demolition of the building. The claim of the petitioner in the writ petition is that Ext.P6 is an attempt to deny the tenant the protection granted under the Kerala Buildings (Lease and Rent Control) Act, 1965 ('Rent Control Act' for short) so as to effect demolition and sale of the property, attempted by the 5^th respondent. The Corporation too is colluding with the 5^th respondent to that end, is the contention raised.

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W.P.(C) No. 12098/2016

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-2-

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The additional 6^th respondent, who got

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impleaded in the writ petition, is a nearby property owner, who contends that there is collusion between the 5^th respondent and the petitioner, so as to ensure that the unauthorised construction is not removed. The building completed long back is remaining as such, despite several orders issued by the Government and the Local Self Government Authority. The 6^th respondent also allege encroachment into his property. The Corporation and the 5^th and 6^th respondents also contend that the petitioner, being a tenant, has no locus standi to challenge the impugned order.

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The petitioner's contention is that the commencement of construction of the building was in the year 1983 when the Kerala Municipality Building Rules, 1968, was applicable. However, the building was not completed even when the Kerala Building

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W.P.(C) No. 12098/2016

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Rules, 1984, came into force and hence the 5^th

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respondent was issued with Ext.P1 provisional order against the unauthorised construction carried on by the 5^th respondent. The unauthorised construction was regularised by Ext.P2 and in such circumstance, there could be no subsequent notice issued for demolition is the contention raised. The petitioner, admittedly, was put in possession of two shop rooms by virtue of Ext.P4 agreement. The building itself was completed in the year 1990 with a cellar, ground floor and three floors and there could be no allegation of unauthorised construction raised at this point, is the contention.

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The petitioner's compelling contentions raised in the writ petition has been successfully countered by the 5^th respondent in a detailed counter affidavit. The various proceedings belie the allegation of collusion between the 5^th respondent and the Corporation. The 5^th

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W.P.(C) No. 12098/2016

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respondent admits that the building is situated in a plot having uneven shape with a width of 6.5 meters and for effectuating the construction, the 5^th respondent necessarily had to deviate from the plan submitted before the authority. However, the 5^th respondent had been consistently before the authorities for regularisation, which was initially granted by the Government by Ext.R5(a) series dated 24.05.1984, 25.10.1984 and 27.06.1987, all of which were on conditions, which could not be satisfied.

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Looking at the orders produced, it has to be noticed that the order of regularisation with conditions is seen at Exts.R5(a) and Ext.P2 is a subsequent approval to the revised plan which order also reads the order dated 27.06.1987. After Ext.R5(a) order dated 27.06.1987, the petitioner filed a revised plan before the authorities which was approved by Ext.P2 dated

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W.P.(C) No. 12098/2016

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03.08.1988. Hence, the regularisation found in Ext.P2 has to be referenced back to the order produced as Ext.R5(a)/3 dated 27.06.1987.

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The 5^th respondent was again before the Government seeking regularisation, which was rejected by Ext.R5(b). If the conditions in the earlier order were complied with there need not have been any subsequent application by the 5^th respondent in the year 2011 for regularisation. The petitioner cannot also contend that there was an ill-will against the petitioner or an attempt to evict the petitioner, de hors the provisions of the Rent Control Act in the year 2011. The further applications for regularisation and review filed before the Government are also produced by the 5^th respondent as Exts.R5(c) and R5(d). Again, by Ext.R5 (e) communication dated 30.05.2014, the 5^th respondent was informed of the unauthorised construction not

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W.P.(C) No. 12098/2016

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being entitled to be regularised since it does not comply with the entitlement criteria as per the rules of regularisation.

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In this context the contention of the additional 6^th respondent has also to be noticed. The additional 6^th respondent alleged encroachment into his property in the quite distant past, when a suit was filed against the 5^th respondent numbered as O.S. No.870/1986, which was decreed as per Ext.R6(c). An appeal filed by the 5^th respondent also ended in dismissal with Ext.R6(d). A Second Appeal is said to be pending against the decree of the trial Court as affirmed by the Appellate Court, both Courts having concurrently ordered demolition of the building of the petitioner.

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The Corporation also asserts that the 5^th respondent had made an unauthorised construction and had been inducting tenants into the said construction

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without sanction from the Corporation. It is also to be noticed that the 5^th respondent and additional 6^th respondent has specifically contended that the petitioner does not have a license issued by the Corporation to carry on the business of a 'lab and clinic' in the building of the 5^th respondent,. The contention raised by the 5^th and 6^th respondents in their counter affidavit, remains un-controverted by the petitioner.

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Obviously the 5^th respondent had been consistently before the Government with various regularisation applications which were all initially allowed on conditions. Unable to satisfy the conditions the 5^th respondent again submitted repeated applications which has effectively stalled the coercive steps against the unauthorised construction. It is crystal clear that the construction made by the 5^th respondent was unauthorised and many regularisation orders were

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issued by the Government, which had specific conditions. The final order issued by the Government also has to be related to the conditional orders issued earlier since Ext.P2, which is said to be an order of regularisation merely approves the revised plan. The 5^th respondent herself admits that the conditions could not be complied with and it was hence the 5^th respondent had been repeatedly before the Government with regularisation applications even after Ext.P2. All these applications filed in the year 2011 and 2014 already stood rejected which was not challenged by the 5^th respondent. The present notice issued and impugned in the writ petition dated 25.01.2016 hence cannot be found to be a result of a collusive attempt on the part of the respondents to evict the petitioner without permitting her to raise the contentions available to a tenant under the Rent Control Act. The

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W.P.(C) No. 12098/2016

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petitioner as a tenant cannot also challenge the coercive action against the building owned by the 5^th respondent.

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The writ petition, hence, would stand dismissed. Parties to suffer their respective costs.

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Sd/K.VINOD CHANDRAN, JUDGE

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jjj 3/11/16

Smt.K.G.Rajani v. Corporation of Kollam

Case brief

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Smt.K.G.Rajani v. Corporation of Kollam

Case brief

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