Appeals against dismissal of suits for damages were dismissed. The High Court upheld the authorities' action in enforcing a demolition order despite a holiday period, ruled a prior provisional order was not essential since a Government order existed, and noted lack of evidence for price-escalation damages.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
WEDNESDAY, THE 14TH DAY OF JUNE 2023 / 24TH JYAISHTA, 1945
AS NO. 311 OF 2000
AGAINST THE JUDGMENT DT. 09.04.1999 IN OS 67/1992 OF PRINCIPAL SUB COURT, TRIVANDRUM
APPELLANT:
S.SIVARAJAN T.C 26/322, SECRETARIAT WARD, THIRUVANANTHAPURAM,
BY ADVS. R.S.KALKURA FAIZAL P.LATHEEF M.S.KALESH S.PRATHIBHA M.R.SARIN
RESPONDENTS/DEFENDANTS:
1 THE CITY CORPORATION THIRUVANANTHAPURAM, REPRESENTED BY ITS COMMISSIONER OF CORPORATION THIRUVANANTHAPURAM.
2 MOHAMMED NAJEEB, FORMER CORPORATION COMMISSIONER, THIRUVANANTHAPURAM NOW WORKING AS SECRETARY, PALAKKAD DEVELOPMENT AUTHORITY, PALAKKAD.
3 R.KESAVAN NAIR, FORMERLY BUILDING INSPECTOR, THIRUVANANTHAPURAM CORPORATION NOW WORKING AS BUILDING INSPECTOR, NEDUMANGAD MUNICIPALITY, NEDUMANGAD.
4 R.SUDHAKARAN ASSISTANT TOWN PLANNER, THIRUVANANTHAPURAM CORPORATION, BY ADVS. SRI.SUMAN CHAKRAVARTHY SRI.N.NANDAKUMARA MENON,SC,TVM CORPN.
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:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
WEDNESDAY, THE 14TH DAY OF JUNE 2023 / 24TH JYAISHTA, 1945
AS NO. 576 OF 2000
AGAINST THE JUDGMENT DT. 09.04.1999 IN OS 472/1994 OF PRINCIPAL SUB COURT, TRIVANDRUM
APPELLANT/PLAINTIFF:
S.SIVARAJAN T.C.26/322, SECRETARIAT WARD, THIRUVANANTHAPURAM
BY ADVS. R.S.KALKURA FAIZAL P.LATHEEF M.S.KALESH S.PRATHIBHA M.R.SARIN
RESPONDENTS/DEFENDANTS:
1 THE CITY CORPORATION, THIRUVANANTHAPURAM, REPRESENTED BY ITS COMMISSIONER OF CORPORATION, THIRUVANANTHAPURAM
2 TRIVANADRUM DEVELOPMENT AUTHORITY, REPRESENTED BY ITS SECRETARY, VELLAYAMBALAM, THIRUVANANTHAPURAM
BY ADVS.
SUMAN CHAKRAVARTHY SRI.N.NANDAKUMARA MENONSCTVM CORPN. SRI.K.A.JALEEL SC. TRIDA
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:
SATHISH NINAN, J.
= = = = = = = = = = = = = = = = = = A.S. Nos.311 & 576 of 2000
= = = = = = = = = = = = = = = = = = Dated this the 14th day of June, 2023
J U D G M E N T
The suits for damages, were jointly tried and dismissed by the trial court. The plaintiff is in appeal.
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
the property. According to the plaintiff, the northern property owner who is a highly influential person was
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
A.S. Nos.311 & 576 of 2000 -: 2 :-
order dated 17.12.1990 permitting such construction on
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
A.S. Nos.311 & 576 of 2000
-: 3 :-
there was wilful delay in the issuance of building
permit consequent to which there occurred rise in prices
for materials.
and it was contended that their action was bonafide and strictly in accordance with law.
appellant, and Sri.Suman Chakravarthy and Sri.K.A. Jaleel, learned counsel on behalf of the respondents.
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
A.S. Nos.311 & 576 of 2000
-: 4 :-
loss sustained to the property and reputation.
(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.
(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.
(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.
“263. Demolition or alteration of building or well-work unlawfully commenced, carried on or completed .—(1) If the commissioner is satisfied—
(i) that the construction or re-construction of any building or well—
A.S. Nos.311 & 576 of 2000
-: 5 :-
(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
(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
(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
(ii) that any alterations required by any notice issued under section 252 have not been duly made; or
(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,
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.
(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
A.S. Nos.311 & 576 of 2000
-: 6 :-
show cause within a reasonable time to be named such notice why the order should not be confirmed.
(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.”
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
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
A.S. Nos.311 & 576 of 2000
-: 7 :-
enforced. In the light of the above, it could not be
held that the action was unreasonable and malafide. As held by the trial court the action of the authorities is
in the above circumstances protected under Section 426 of the Act.
Therefore, the contention of the plaintiff that Ext.A3 was not preceded by a provisional order cannot be
A.S. Nos.311 & 576 of 2000
-: 8 :-
accepted.
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.
A.S. Nos.311 & 576 of 2000
-: 9 :-
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.
The appeals fail and are dismissed.
Sd/-
SATHISH NINAN JUDGE
kns/-
//True Copy//
P.S. to Judge
3 issues framed by the court
Whether enforcement of demolition order immediately after holidays was malafide and voidable.
Whether demolition order issued without prior provisional order under Section 263 of KMC Act.
Whether plaintiff could sue for value of iron rods removed during demolition without prior application for return.
S.Sivaraajan
City Corporation Thiruvananthapuram
Trivandrum Development Authority
Sathish Ninan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
