Disposed

Satheeshkumar v. Radhamani Amma

Kerala HC13 Jan 2021WP(C)/23299/2020

Case brief

AI extract

What is this about?

Petitioner challenged the Tribunal's order setting aside a building permit issued during a pending boundary dispute with an adjoining owner. The High Court held that since no interdicting order existed and the construction could be regularized, the permit should not have been set aside, directing the Panchayat to provisionally number the building.

What did the court decide?

The second respondent is directed to provisionally number the petitioner's building pending the outcome of the civil suit (O.S. No.316 of 2020). Later regularization or demolition depends on complianc

Satheeshkumar Vs Radhamani Amma — Property and Title | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942

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WP(C).No.23299 OF 2020(J)

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PETITIONER:

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SATHEESHKUMAR, AGED 62 YEARS S/O.CHELAPPAN PILLAI, PARAMESHWARATHU HOUSE, ELAMPALLIL PAYANALLOOR, PATHANAMTHITTA DISTRICT, PIN-691523.

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BY ADVS. SRI.ALIAS M.CHERIAN SRI.K.K.SETHUKUMAR SMT.ANJALY ELIAS

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RESPONDENTS:

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1 RADHAMANI AMMA, AGED 60 YEARS W/O.BHANUBHAKTHAN, MAYA BHAVANAM VEEDU, PAYYANALLOOR P.O., PALAMEL, MAVELIKKARA, PATHANAMTHITTA DISTRICT, PIN-691523.

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2 THE SECRETARY, PALLICKAL GRAMA PANCHAYATH, PALLICKAL P.O., PATHANAMTHITTA DISTRICT, PIN-690504.

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R1 BY ADV. SRI.VINAY RAMDAS R1 BY ADV. SMT.K.B.ANAMIKA R2 BY ADV. SRI.K.SHAJ

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-01-2021, THE COURT ON 13-01-2021 DELIVERED THE FOLLOWING:

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W.P.(C) No.23299 of 2020

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Writ Petition (C) No.23299 of 2020

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J U D G M E N T

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Petitioner owns an item of land measuring 12 Ares in Pallickal village. The first respondent owns the land on the western side of the land of the petitioner. The first respondent instituted O.S. No.174 of 2020 before the Munsiff Court, Adoor against the petitioner alleging that the petitioner is putting up a building in his property without leaving sufficient space from her property and that if the petitioner is permitted to put up the said building, she may not be able to enjoy her property beneficially. Though an application for an order of temporary injunction was filed in the said suit, the court did not grant that relief to the first respondent. Ext.P3 is the report of the Advocate Commissioner appointed in O.S. No.174 of 2020. Later, the petitioner preferred a suit as O.S. No.181 of 2020 against the first respondent and others before the very same court seeking a decree for fixation of the boundary between the properties of the

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W.P.(C) No.23299 of 2020

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petitioner and the first respondent. In the meanwhile, the petitioner preferred an application for building permit before the second respondent, the Secretary of the Panchayat and obtained Ext.P7 building permit on 16.07.2020. The first respondent challenged Ext.P7 building permit before the Tribunal for Local Self Government Institutions (the Tribunal) in Appeal No.319 of 2020, after withdrawing O.S.No.174 of 2020. Ext.P9 is the said appeal. Ext.P11 is the written statement filed by the second respondent in Ext.P9 appeal. Ext.P9 appeal has now been allowed by the Tribunal in terms of Ext.P12 order setting aside Ext.P7 building permit and directing the second respondent to reconsider the application for building permit submitted by the petitioner on the basis of the outcome of the civil suit pending between the parties. Ext.P12 order of the Tribunal is under challenge in the writ petition.

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A counter affidavit has been filed by the first

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respondent.

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Heard the learned counsel for the petitioner, the

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W.P.(C) No.23299 of 2020

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learned counsel for the first respondent as also the learned counsel for the second respondent.

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It is seen that after the institution of this writ petition, the petitioner has withdrawn O.S.No.181 of 2020. It is also seen that when the petitioner withdrew O.S. No.181 of 2020 instituted for fixation of the boundary, the first respondent filed a fresh suit as O.S.No.316 of 2020 seeking a decree for fixation of boundary between the properties of the parties.

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The learned counsel for the petitioner contended that the impugned order has been passed by the Tribunal solely on the premise that there is a boundary dispute between the petitioner and the adjoining property owner, the first respondent and that a building permit cannot be set aside on that ground. It was argued by the learned counsel that a building permit issued in terms of the relevant rules can be set aside by the Tribunal only if it is found that the same has been issued violating the provisions of the rules. It was pointed out by the learned counsel that the Tribunal does not find in

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W.P.(C) No.23299 of 2020

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the impugned order that the permit issued to the petitioner violates the provisions of the Building Rules. It was argued by the learned counsel that if the view taken by the Tribunal is accepted, nobody would be in a position to construct a building if there is a pending suit as regards the boundary of the property where the building is proposed.

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Per contra, the learned counsel for the first respondent contended that the petitioner has in fact started the construction of the building referred to in the writ petition without obtaining a building permit and the application for permit has been submitted later when the dispute arose as to the boundary of the properties. The learned counsel demonstrated the said fact, placing reliance on the materials on record in the matter. According to the learned counsel, the building constructed by the petitioner is an unauthorised one and therefore, it does not matter as to whether the petitioner has obtained a building permit for the same. The argument of the learned counsel, therefore, is that the impugned

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W.P.(C) No.23299 of 2020

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decision is not liable to be interfered with. It was also contended by the learned counsel, placing reliance o n Rule 6(4)(a)(i) of the Kerala Panchayat Building Rules, 2019 that it was the duty of the Secretary of the panchayat to ensure that th e plot where the building is proposed by the applicant is surrounded by well-defined boundaries and insofar as it is found by the Tribunal that the plot where the petitioner has put up the building does not have well-defined boundaries especially on its west, separating the property of the first respondent, the Tribunal cannot be found fault with for having interfered with the building permit.

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No doubt, the materials on record, especially Ext.P3 report of the Advocate Commissioner appointed in O.S.No.174 of 2020, would establish beyond doubt that the petitioner has commenced the construction of the building without obtaining building permit and the building permit has, in fact been, applied for after the commencement of the construction. The view taken by the Tribunal in the impugned order, however, is that since there existed

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W.P.(C) No.23299 of 2020

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a dispute between the petitioner and the first respondent as to the western boundary of the property of the petitioner, building permit ought not have been issued by the panchayat to the petitioner before settlement of the said dispute. I am not examining the correctness of the said stand taken by the Tribunal which was seriously attacked by the learned counsel for the petitioner, since I find that in the absence of any interdicting orders in O.S.No.174 of 2020 as also in Ext.P9 appeal, the petitioner has completed the construction of the building during the pendency of Ext.P9 appeal. The only question to be examined therefore, is as to whether the Tribunal is justified in setting aside the building permit and directing the competent authority to consider the application for building permit submitted by the petitioner after the dispute between the parties as to the western boundary of the property of the petitioner is finally resolved by a competent court. Though the petitioner has withdrawn O.S.No.181 of 2020 filed by him for fixation of the boundary between the properties, as noted, the first respondent has

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W.P.(C) No.23299 of 2020

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now filed a suit as O.S.No.316 of 2020 seeking the very same relief. It is common knowledge that one cannot expect a civil dispute in the nature of one raised by the first respondent in O.S.No.316 of 2020 to be over soon. A building constructed without obtaining a building permit is not liable demolished, if it is one that could be regularised. At the same time, if it is found in the suit that the building is one constructed by the petitioner without leaving sufficient open space in between the building and the property of the first respondent, the construction of the building cannot be regularised and the same, to the extent it violates the requirement of the rule is liable to be demolished. But, a decision on those aspects can be taken only if the pending suit is finally disposed of in one way or other. In so far as the petitioner has constructed the building in the absence of any interdicting orders in any of the pending matters and in the absence of any material to conclude that the construction violates any of the provisions of the Building Rules applicable, I am of the view that it will be inappropriate to refuse to permit the petitioner to occupy the

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W.P.(C) No.23299 of 2020

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building till O.S.No.316 of 2020 is finally disposed of.

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In the said view of the matter, the writ petition is disposed of with the following directions :

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(1) The second respondent is directed to number the building of the petitioner provisionally subject to the outcome of O.S.No.316 of 2020 so as to enable the petitioner to occupy the building.

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(2) Once the boundary between the properties is fixed in O.S.No.316 of 2020, the second respondent shall consider whether the construction of the building was in accordance with the relevant provisions of the Building Rules which were in force at the time of construction. If it is found then that the construction was not in accordance with the relevant rules, the second respondent shall treat the building constructed by the

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W.P.(C) No.23299 of 2020

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petitioner as an unauthorised one and initiate proceedings against the petitioner for demolition of the building to the extent it violates the rules. On the other hand, if it is found then that the construction was in accordance with the relevant rules, the petitioner would be free to prefer an application for regularisation of the construction, and in that event, the second respondent shall regularise the construction carried out by the petitioner.

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Sd/P.B.SURESH KUMAR, JUDGE

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ds 13.01.2021

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W.P.(C) No.23299 of 2020

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF SETTLEMENT DEED NO.2065 OF 1990 DATED 27.9.1990 OBTAINED BY THE PETITIONER.
EXHIBIT P2	TRUE COPY OF PLAINT IN O.S.NO.174 OF 2020 BEFORE THE MUNSIFF COURT, ADOOR.
EXHIBIT P3	TRUE COPY OF COMMISSION REPORT DATED 25.6.2020 IN O.S.NO.174 OF 2020 BEFORE THE MUNSIFF COURT, ADOOR.
EXHIBIT P4	TRUE COPY OF PLAINT IN O.S.NO.181 OF 2020 BEFORE THE MUNSIFF COURT, ADOOR.
EXHIBIT P5	TRUE COPY OF COMMISSIONER REPORT DATED 6.7.2020 IN O.S.NO.181 OF 2020 BEFORE THE MUNSIFF COURT, ADOOR.
EXHIBIT P6	TRUE COPY OF COMPLAINT DATED 22.7.2020 FILED BY 1ST RESPONDENT BEFORE THE 2ND RESPONDENT.
EXHIBIT P7	TRUE COPY OF BUILDING PERMIT NO.A3- 3741 DATED 16.7.2020 ISSUED BY 2ND RESPONDENT.
EXHIBIT P8	TRUE COPY OF MEMO DATED NIL FILED BY 1ST RESPONDENT IN O.S.NO.174 OF 2020 BEFORE THE MUNSIFF COURT, ADOOR.
EXHIBIT P9	TRUE COPY OF APPEAL MEMORANDUM NO.319

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W.P.(C) No.23299 of 2020

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OF 2020 BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.

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EXHIBIT P10 TRUE COPY OF WRITTEN STATEMENT DATED 7.9.2020 FILED BY 2ND RESPONDENT IN APPEAL NO.319 OF 2020.

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EXHIBIT P11 TRUE COPY OF PARA-WISE WRITTEN STATEMENT DATED 15.9.20 FILED BY 2ND RESPONDENT IN APPEAL NO.319 OF 2020.

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EXHIBIT P12 TRUE COPY OF ORDER DATED 14.10.2020 IN APPEAL NO.319 OF 2020 PASSED BY TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT R1 A A TRUE COPY OF THE PLAINT DATED IN O.S. NO.316/2020 BEFORE THE MUNSIFF COURT, ADOOR.

Satheeshkumar v. Radhamani Amma

Case brief

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Satheeshkumar v. Radhamani Amma

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