Disposed

Jyothis Balasubramaniyan v. P.a.Rajamma

Kerala HC24 Sept 2019WA/1856/2016

Case brief

AI extract

What is this about?

The Court disposed of a writ appeal challenging building permits as infructuous. It noted that interim orders had led to authority approval of a revised plan for a third floor, and disputes regarding prior undertakings were reserved for separate proceedings without adjudication in this appeal.

What did the court decide?

The writ appeal was disposed of as infructuous; liberty reserved for the petitioner to challenge undertaking compliance in appropriate proceedings.

Jyothis Balasubramaniyan Vs P.a.Rajamma — Property and Title | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE ACTING CHIEF JUSTICE MR.C.K.ABDUL REHIM

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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TUESDAY, THE 24TH DAY OF SEPTEMBER 2019 / 2ND ASWINA, 1941

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WA.No.1856 OF 2016

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AGAINST THE JUDGMENT IN WPC 2234/2015 DATED 12-08-2016 OF HIGH COURT OF KERALA

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APPELLANT/4TH RESPONDENT:

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JYOTHIS BALASUBRAMANIYAN KALAPPURAKKAL HOUSE, AIYAPPANKAVU EAST, COCHIN682018, REP.BY P/A. HOLDER ANTO DAVID P., S/O.DAVID P.I., PULIKOTTIL HOUSE, PUVATHUR PAVARATTY, THRISSUR, NOW RESIDING AT CHERUPUNNATHIL, THOTUMGATHARA ROAD, KADAVANTHRA, KOCHI-20.

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BY ADVS. SRI.M.NARENDRA KUMAR SRI.M.P.MADHAVANKUTTY SMT.M.J.SAJITHA

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RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3:

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1 P.A.RAJAMMA, VELLANAYIL HOUSE, H.NO.68/564, ST.BENEDICT ROAD, COCHIN-18.

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2 CORPORATION OF COCHIN REPRESENTED BY ITS SECRETARY, KOCHI-682 011.

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3 THE SECRETARY CORPORATION OF COCHIN, KOCHI-682011.

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4 TOWN PLANNING OFFICER CORPORATION OF COCHIN, KOCHI-682011.

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R1 BY ADV. SRI.DINESH R.SHENOY R1 BY ADV. SRI.EBIN MATHEW R1 BY ADV. SMT.K.K.JYOTHILAKSHMY R1 BY ADV. SRI.A.JOSEPH GEORGE R2-4 BY ADV. SRI.S.CHANDRASENANSCCOCHIN CORPORATIO R2-4 BY ADV. SRI.V.E.ABDUL GAFOORSCCOCHIN CORPORAT

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A.1856/16

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Dated this the 24^th day of September, 2019

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JUDGMENT

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Abdul Rehim, Ag C.J.

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The above Writ Appeal is preferred against judgment of the single Judge dated 12.8.2016 in W.P(C).2234/15. The appellant is the 4^th respondent and 1^st respondent herein is the writ petitioner. Respondents 2 to 4 herein are respondents 1 to 3 in the writ petition.

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Challenge in the writ petition was against Ext.P2 building

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permit obtained by the appellant for construction of a commercial building, having ground plus 2 floors. During pendency of the writ petition, a building permit was granted in favour of the appellant for construction of 3^rd floor, as per Ext.P8 permit and Ext.P9 approved plan. This was also challenged by way of an amendment effected to the writ petition. At the time of disposal of the writ petition, with

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W.A.1856/16

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respect to the challenge against Ext.P2 building permit, the appellant undertook before the single Judge that there would be a drain provided and the wall on the boundary of the writ petitioner's property would be strengthened to ensure that no damage will be caused to her property. It was also undertaken that the projection on the western side beyond the extent of 60 cms will be demolished. Based on such undertaking made and the direction issued by the single Judge to comply with such undertaking within a period of one month and to report such compliance to the authorities of the Corporation, the challenge against Ext.P2 was declined. However, it was directed that on reporting compliance of the undertaking, the authorities of the Corporation shall examine the site and ensure that the grievance of the writ petitioner is redressed; and then only, the appellant can be permitted with further constructions.

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With respect to challenge against Exts.P8 and P9, on the basis of the report submitted by the Advocate Commissioner, the learned single Judge found that there exists a violation of Rules 24(8) and (11) of the Kerala Municipality Building Rules;

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W.A.1856/16

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and therefore the permit cannot be sustained. However, on the request of the appellant herein, the single Judge had left open his remedy to seek permit for construction of the 3^rd floor with a revised proposal by leaving the open space required as provided in the Building Rules, based on the findings arrived by this court.

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The Writ Appeal is filed to the extent it quashed Exts.P8 and P9.

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During pendency of the Writ Appeal, the 1^st respondent herein filed an interim application as I.A.1270/16 seeking direction against the appellant to comply with the undertaking made, which are recorded in paragraphs 5 and 13 of the impugned judgment and a further direction to the authorities of the Corporation to ensure compliance of the same. Through an order passed in the above interim application on 15.11.2016, this court observed that Annexure R2 document produced along with that interim application would reveal that

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the Assistant Executive Engineer of the Corporation had visited the spot and confirmed that the compound wall

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W.A.1856/16

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separating the property of the appellant and the 1^st respondent had been corrected and strengthened to prevent seepage of water into the property of the writ petitioner. Therefore, this court observed that there exist no ground to overrule the findings of fact arrived at by the Assistant Executive Engineer, which is reflected in the report submitted based on an inspection conducted in the presence of both the parties. However, this court reserved liberty to the 1^st respondent to approach the senior officials, if she is having a consistent stand that the Annexure R2 report of the Assistant Executive Engineer is factually incorrect.

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It is also revealed that, in another interim application filed by the appellant in the Writ Appeal as I.A.1489/16, this court issued an interim order on 19.2.2018 to the 4^th respondent herein to consider the revised plan submitted with respect to the construction of proposed 3^rd floor, in accordance with law and to pass orders thereon, with notice to the 1^st respondent.

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Learned counsel for the appellant submitted that in view of the interim order granted in I.A.1489/16, the authorities of the

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W.A.1856/16

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Corporation had approved the revised plan and permitted construction of the additional 3^rd floor. It is further submitted that the construction of the 3^rd floor stands completed and as of now, the appellant has no grievance against the impugned judgment and that the writ appeal has become practically infructuous.

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However, learned counsel for the 1^st respondent submitted that there exists a dispute with respect to compliance of the undertaking made by the appellant, which are recorded in paragraphs 5 and 13 of the impugned judgment. It is further brought to our notice that, by raising such dispute the 1^st respondent had already filed a writ petition, challenging validity of Annexure R2 produced along with I.A.1270/16. On that basis, it is contended that the irregularities in Ext.P2 permit still sustain and the construction of the ground plus 2 floors need to be considered as illegal. Learned counsel for the 1^st respondent had placed for our perusal an interim order passed in W.P(C).18510/17, filed in this regard, wherein the 'CTP Vigilance' was directed to carry out an inspection in the

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W.A.1856/16

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property with notice to both sides.

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We are of the considered opinion that the dispute relating to proper compliance of the undertaking made by the appellant recorded in paragraphs 5 and 13 of the impugned judgment, is a matter which need not be considered and adjudicated in this writ appeal, in view of the findings recorded as above. The 1^st respondent will be at liberty to pursue the challenges based on such dispute in appropriate proceedings admissible under law.

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Hence, above Writ Appeal is hereby disposed of as infructuous, leaving open the liberty of the 1^st respondent as mentioned above.

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C.K. ABDUL REHIM Acting Chief Justice

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R. NARAYANA PISHARADI Judge.

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kkb.

Jyothis Balasubramaniyan v. P.a.Rajamma

Case brief

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Jyothis Balasubramaniyan v. P.a.Rajamma

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