Dismissed

S.Sivarajan v. the City Corporation

Kerala HC14 Jun 2023AS/311/2000

Case brief

AI extract

What is this about?

The Appeals Court dismissed appeals arising from suits for damages filed by a plaintiff who challenged the enforcement of a demolition order and alleged procedural irregularities and delays by the Thiruvananthapuram Corporation. The court held the authorities' actions were protected and allowed claims were unsupported by evidence.

What did the court decide?

The appeals were dismissed; the decrees of the trial court upholding the dismissal of the suits were affirmed.

S.Sivarajan Vs the City Corporation — Property and Title | Kerala HC (2023)

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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 SATHISH NINAN

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WEDNESDAY, THE 14^TH DAY OF JUNE 2023 / 24TH JYAISHTA, 1945

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AS NO. 311 OF 2000

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AGAINST THE JUDGMENT DT. 09.04.1999 IN OS 67/1992 OF PRINCIPAL SUB COURT, TRIVANDRUM

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APPELLANT:

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S.SIVARAJAN T.C 26/322, SECRETARIAT WARD, THIRUVANANTHAPURAM,

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BY ADVS. R.S.KALKURA FAIZAL P.LATHEEF M.S.KALESH S.PRATHIBHA M.R.SARIN

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RESPONDENTS/DEFENDANTS:

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1 THE CITY CORPORATION THIRUVANANTHAPURAM, REPRESENTED BY ITS COMMISSIONER OF CORPORATION THIRUVANANTHAPURAM.

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2 MOHAMMED NAJEEB, FORMER CORPORATION COMMISSIONER, THIRUVANANTHAPURAM NOW WORKING AS SECRETARY, PALAKKAD DEVELOPMENT AUTHORITY, PALAKKAD.

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3 R.KESAVAN NAIR, FORMERLY BUILDING INSPECTOR, THIRUVANANTHAPURAM CORPORATION NOW WORKING AS BUILDING INSPECTOR, NEDUMANGAD MUNICIPALITY, NEDUMANGAD.

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4 R.SUDHAKARAN ASSISTANT TOWN PLANNER, THIRUVANANTHAPURAM CORPORATION, BY ADVS. SRI.SUMAN CHAKRAVARTHY SRI.N.NANDAKUMARA MENON,SC,TVM CORPN.

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THIS APPEAL SUIT HAVING COME UP FOR HEARING ON 14.06.2023, ALONG WITH AS.576/2000, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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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 SATHISH NINAN

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WEDNESDAY, THE 14^TH DAY OF JUNE 2023 / 24TH JYAISHTA, 1945

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AS NO. 576 OF 2000

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AGAINST THE JUDGMENT DT. 09.04.1999 IN OS 472/1994 OF PRINCIPAL SUB COURT, TRIVANDRUM

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APPELLANT/PLAINTIFF:

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S.SIVARAJAN T.C.26/322, SECRETARIAT WARD, THIRUVANANTHAPURAM

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BY ADVS. R.S.KALKURA FAIZAL P.LATHEEF M.S.KALESH S.PRATHIBHA M.R.SARIN

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RESPONDENTS/DEFENDANTS:

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1 THE CITY CORPORATION, THIRUVANANTHAPURAM, REPRESENTED BY ITS COMMISSIONER OF CORPORATION, THIRUVANANTHAPURAM

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2 TRIVANADRUM DEVELOPMENT AUTHORITY, REPRESENTED BY ITS SECRETARY, VELLAYAMBALAM, THIRUVANANTHAPURAM

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BY ADVS.

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SUMAN CHAKRAVARTHY SRI.N.NANDAKUMARA MENONSCTVM CORPN. SRI.K.A.JALEEL SC. TRIDA

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THIS APPEAL SUIT HAVING COME UP FOR HEARING ON 14.06.2023, ALONG WITH AS.311/2000, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SATHISH NINAN, J.

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= = = = = = = = = = = = = = = = = = A.S. Nos.311 & 576 of 2000

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= = = = = = = = = = = = = = = = = = Dated this the 14^th day of June, 2023

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J U D G M E N T

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The suits for damages, were jointly tried and dismissed by the trial court. The plaintiff is in appeal.

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The property of the plaintiff is situated at a

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depth of 12 feet from the adjoining road. For construction of a building in the property, he obtained a building permit dated 18.07.1990 from the Corporation. Since the property was at a depth of 12 feet, he had to construct a staircase for taking materials. Accordingly, a staircase was constructed on the northern portion of

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the property. According to the plaintiff, the northern property owner who is a highly influential person was

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not on good terms with him. At his instance the Corporation issued a stop memo pointing out that the construction of the staircase was illegal. Thereupon the plaintiff approached the Government which issued an

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A.S. Nos.311 & 576 of 2000 -: 2 :-

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order dated 17.12.1990 permitting such construction on

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executing an agreement with the Corporation that, on completion of the ground floor, the staircase will be demolished. In July, 1991, the plaintiff stopped the construction due to paucity of funds. However, he started occupying the incomplete ground floor. Thereupon the Corporation issued Ext.A1 notice dated 15.07.1991 proposing to initiate prosecution proceedings. This was followed by Ext.A3 final order dated 19.07.1991 for demolition of the staircase. The order was served at 4.30 p.m. in the evening of 19.07.1991 requiring compliance with the order within three days. The next three days were public holidays. On 23.07.1991, the plaintiff filed appeal in which he was granted an order of stay. However, on 23.07.1991 itself the authorities enforced the order of demolition. OS 67/1992 from which AS 3/11 was filed seeking compensation on various heads including cost of material, labour, loss of reputation etc. OS 472/1994 was filed seeking damages alleging that

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A.S. Nos.311 & 576 of 2000

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-: 3 :-

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there was wilful delay in the issuance of building

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permit consequent to which there occurred rise in prices

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for materials.

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The defendants denied the allegations levelled

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and it was contended that their action was bonafide and strictly in accordance with law.

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Trial court dismissed both the suits.

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Heard Sri.R.S.Kalkura, learned counsel for the

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appellant, and Sri.Suman Chakravarthy and Sri.K.A. Jaleel, learned counsel on behalf of the respondents.

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Sri.R.S.Kalkura, the learned counsel for the

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appellant, would raise mainly the following arguments :- (i) Ext.A3 order of demolition was served on the eve of ensuing three consecutive holidays and requiring compliance within three days. Immediately after the expiry of three days, on the very next working day morning, the authorities caused enforcement of the order. The action is patently malafide and without justification. They are liable to compensate him for the

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A.S. Nos.311 & 576 of 2000

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-: 4 :-

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loss sustained to the property and reputation.

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(ii) Ext.A3 order was not preceded by a provisional order as is mandated under the statute. Therefore, Ext.A3 is bad in law. The action being illegal, the plaintiff is liable to be compensated.

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(iii) Even according to the defendant, on demolition about 20 kilograms of iron rods were taken and kept in the Corporation office. A decree ought to have been granted at least for its value.

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(iv) Evidently there had been inordinate delay in the grant of building permit. The rise in the prices consequent on the delay ought to have been granted as damages.

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Section 263 of the Kerala Municipal Corporations Act, 1961, reads thus:-

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“263. Demolition or alteration of building or well-work unlawfully commenced, carried on or completed .—(1) If the commissioner is satisfied—

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(i) that the construction or re-construction of any building or well—

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A.S. Nos.311 & 576 of 2000

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-: 5 :-

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(a) has been commenced without obtaining the permission of the commissioner or, where an appeal or reference has been made to the standing committee, in contravention of any order passed by the standing committee, or

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(b) is being carried on, or has been completed otherwise than in accordance with the plans or particulars on which such permission or order was based, or

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(c) is being carried on, or has been completed in breach of any of the provisions of this Act or of any rule or bye-law made under this Act or of any direction or requisition lawfully given or made under this Act or such rules or bye-laws; or

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(ii) that any alterations required by any notice issued under section 252 have not been duly made; or

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(iii) that any alteration of, or additions to, any building or any other work made or done for any purpose, in, to, or upon any building has been commenced or is being carried on or has been completed in breach of section 262,

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he may make a provisional order requiring the owner or the builder to demolish the work done, or so much of it as, in the opinion of the commissioner, has been unlawfully executed or to make such alterations as may, in the opinion of the commissioner, be necessary to bring the work into conformity with the Act, rules, bye-laws, direction or requisition as aforesaid, or with the plans or particulars on which such permission or order was based, and may also direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building or well.

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(2) The commissioner shall serve a copy of the provisional order made under sub-section (1) on the owner of the building or well together with a notice requiring him to

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A.S. Nos.311 & 576 of 2000

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-: 6 :-

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show cause within a reasonable time to be named such notice why the order should not be confirmed.

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(3) If the owner fails to show cause to the satisfaction of the commissioner, the commissioner may confirm the order with any modification he may think fit to make and such order shall then be binding on the owner.”

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The provision does not contemplate grant of any

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particular period in an order under Section 263(3) for compliance. Though three days time was granted to the plaintiff, it happened to be holidays. It is true that on the very next working day, the order was enforced. It could be viewed that the course adopted was unreasonable. However, the plaintiff does not have a case that after receipt of Ext.A3 order and at any time

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before demolition or even at the time when the authorities came to the spot to enforce the order they were informed that the plaintiff has already filed an appeal challenging the said order or at least that he proposes to challenge the same and that he may be granted some time. By the time an order of stay was granted by the authorities, the order was already

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A.S. Nos.311 & 576 of 2000

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-: 7 :-

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enforced. In the light of the above, it could not be

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held that the action was unreasonable and malafide. As held by the trial court the action of the authorities is

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in the above circumstances protected under Section 426 of the Act.

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As regards the contention that Ext.A3 order of demolition was not preceded by a provisional order, while it is true that copy of such provisional order was not produced before the court, even according to the plaintiff the Corporation had issued a notice against construction of the staircase whereupon the plaintiff was compelled to approach the Government. Without there being such a provisional order, the plaintiff need not have taken any steps to get permission from the Government. Ext.A3 order refers to the provisional order dated 11.12.1990. Even going by the plaintiff's case, the order passed by the Government is dated 17.12.1990.

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Therefore, the contention of the plaintiff that Ext.A3 was not preceded by a provisional order cannot be

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A.S. Nos.311 & 576 of 2000

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-: 8 :-

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accepted.

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As regards the value of iron rods removed from

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the site after the demolition, the plaintiff could have very well approached the authorities seeking return of the same. There is no case that, in spite of request being made to the authorities the same were not returned. Without taking such steps, the plaintiff cannot sue for its value. Moreover, there is no evidence regarding the value of the said materials. Therefore, the rejection of the claim by the trial court cannot be faulted.

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As regards the claim for damages due to the rise in prices consequent on the alleged delay in issuance of permit, as is evident from the records, there were series of litigation. It was on the interpretation of an order of exemption that ultimately the permit was issued. Moreover, even assuming that there was wilful delay from the part of the authorities, there is absolutely no evidence on record to indicate

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A.S. Nos.311 & 576 of 2000

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-: 9 :-

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quantum of rise in prices if any, and the consequent damage. In the absence thereof, the plaintiff is not entitled for a decree. The claim was rightly rejected by the court.

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The decree and judgment of the trial court is on a proper appreciation of materials on record.

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The appeals fail and are dismissed.

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Sd/-

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SATHISH NINAN JUDGE

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kns/-

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//True Copy//

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P.S. to Judge

S.Sivarajan v. the City Corporation

Case brief

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S.Sivarajan v. the City Corporation

Case brief

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