IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 16TH JANUARY 2009 / 26TH POUSHA 1930 RSA.No. 61 of 2009() -------------------- AS.42/2007 of III ADDL.SUB COURT, KOZHIKODE OS.357/2004 of PRINCIPAL MUNSIFF'S COURT -I, KOZHIKODE .................... APPELLANTS/ APPELLANTS/PLAINTIFFS:- 1. PATRIC ANTONY FERNANDES,AGED 45 YEARS, S/O.LATE SIMON FERNANDES,PARAKKATTU PARAMBA, MOONNALINGAL,KALATHINKUNNU AMSOM AND DESOM, NEAR BEACH HOSPITAL,KOZHIKODE-32. 2. GLANCY, AGED 40 YEARS,W/O.PATRIC ANTONY FERNANDES,PARAKKATTU PARAMBA, MOONNALINGAL, KALATHINKUNNU AMSOM AND DESOM, NEAR BEACH HOSPITAL, KOZHIKODE-32. BY ADV. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH RESPONDENTS/ RESPONDENTS/ DEFENDANTS:- 1. KOZHIKODE CORPORATION,REP. BY ITS, SECRETARY,KOZHIKODE NAGARAM AMSOM AND DESOM. 2. CHARLEY ARAKKAL, AGED 55 YEARS, PARAKKATTU PARAMBA,MOONNALINGAL, KALATHINKUNNU AMSOM AND DESOM,NEAR BEACH HOSPITAL,KOZHIKODE-32. 3. PHILIMINA JACOB,AGED 57 YRS, W/O.LATE MR.JACOB,MOONNALINGAL,KALATHINKUNNU AMSOM AND DESOM, NEAR BEACH HOSPITAL, KOZHIKODE-32. 4. GLODI VARGHESE,AGED 37 YRS, S/O.VARGHESE, MOONNALINGAL, KALATHINKUNNU AMSOM AND DESOM, NEAR BEACH HOSPITAL, KOZHIKODE-32. BY ADV. SRI.K.D.BABU, SC, KOZHIKODE CORPORATION SRI.P.R.SREEJITH(CAVEATOR) for R2 TO R4 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ========================= R.S.A. No. 61 of 2009 ========================= Dated this the 16th day of January, 2009. JUDGMENT Heard the learned counsel for the appellants and the learned counsel for the Kozhikode Corporation. 2. The two plaintiffs in O.S. No. 357 of 2004 on the file of the court of the Principal Munsiff-I, Kozhikode are the appellants in this Second Appeal. The said suit was one for perpetual injunction restraining the Kozhikode Corporation and three of the plaintiffs' neighbours from demolishing a firewood shed measuring 1.3 x 1.3 meters abutting the residential building of the plaintiffs and situated in the plaint schedule property admeasuing 2.46 cents belonging to the plaintiffs. The suit has been dismissed by both the courts below holding inter alia that the jurisdiction of the Civil Court is ousted under the provisions of the Kerala Municipality Act, 1994 and also that the impugned notice and order are appealable under the said Act. Hence this Second Appeal. 3. The following are the questions of law formulated in the memorandum of Second Appeal:- R.S.A. No. 61 of 2009 : 2 : 1. When an order is issued in violation of specific statutory provisions and also in violation of the principles of natural justice whether the bar created under Section 563 of the Municipalities Act against approaching civil courts operates? 2. Whether the three days time granted to demolish a building is sufficient time which is contemplated under the Municipalities Act? 3. In the absence of sufficient time to approach the appellate authority whether the bar created under Section 563 of the Municipalities Act against approaching civil courts operate? 4. I heard the learned counsel appearing for the appellants/plaintiffs. He made the following further submissions in support of the appeal:- The plaintiffs had sent Ext.A7 reply dated 18.06.2004 to Ext.A6 notice issued by the Secretary of the 1st defendant Corporation alleging that the offending shed is an illegal construction. The offending shed is having a dimension of 1.3 x 1.3 meters and is put up in the plaint schedule property admeasuring 2.46 cents belonging to the plaintiffs. No plan and licence is required for putting up the said temporary shed and such a shed is exempted from the provisions of Chapter 18 of the Kerala Municipality Act r/w Rule 86 of the Kerala Municipality Building Rules, 1999. The proviso to Rule 86 of the said Rules says that the said shed can abut the main R.S.A. No. 61 of 2009 : 3 : building. It is true that Rule 86 of the said Rule is in conflict with Section 409(1) of the Kerala Municipality Act, 1994. In such a case, the benefit of the Rule should be extended to the plaintiffs. The findings of the courts below that the jurisdiction of the Civil Court is ousted by virtue of Section 563 of the Act, is unsustainable due to two reasons. Ext.A9 final order dated 06.07.2004 passed by the Secretary of the 1st defendant Corporation in purported exercise of Section 406(iii) of the Kerala Municipality Act, 1994, gives only three days to the plaintiffs for demolishing the shed which was allegedly constructed in violation of the Act and the Rules. Three days is not a reasonable time as held in Kuriyakose v. Municipal Council, Shertallai (1981 KLT 122). Reasonable time in a case as the present one is ordinarily two weeks. Secondly, Ext.A9 final order was passed without considering the plaintiffs' contention in Ext.A7 reply. So, Ext.A9 final order is an order which has been passed in flagrant violation of principles of judicial procedure. In such a case, the jurisdiction of the civil court under Section 9 C.P.C is not ousted [vide Secretary of State v. Mask & Co. (AIR 1940 P.C 105), Dharni Dhar R.S.A. No. 61 of 2009 : 4 : Bhalla v. District Co-Operative Bank Ltd, (1969 (3) SCC 694) and The State of West Bengal v. The Indian Iron and Steel Co. Ltd., (AIR 1970 SC 1298)]. The view taken by the court below that the plaintiff have an alternative remedy by way of appeal under Section 509(1) of the Kerala Municipality Act is also not correct. In order to attract the bar against seeking of perpetual injunction under Section 41 of the Specific Relief Act, 1963, it should be shown that the plaintiffs have an equally efficacious remedy. When the time for demolition granted under Ext.A9 final order is only three days' time, it cannot be said that the plaintiffs could exercise the right of appeal under Section 509(1) of the Act by moving the Municipal Council. It was physically impossible for the plaintiffs to file an appeal before the Council which will be able to entertain the appeal as well as the application for interim stay only as and when it meets. The courts below were, therefore, not justified in dismissing the suit on the aforesaid grounds. 5. I am afraid that I cannot agree with the above submissions. A shed for keeping fuel or firewood for the R.S.A. No. 61 of 2009 : 5 : domestic use of the owner is exempted from the provisions of Chapter 18 of the Act only if it is wholly detatched from the adjacent building and is situated at a distance of at least 1 meter from such adjacent building. In the present case, the shed in question is attached to the residential house of the plaintiffs. No doubt, the proviso to Rule 86 of the Kerala Municipality Building Rules 1999 may come to the rescue of the plaintiffs since after the amendment effected to the said Rule with effect from 22.02.2001, there can be a shed which may abut the main building. But in these proceedings, this Court is not called upon to consider the apparent conflict, if any, between Section 409(1) of the Act and the proviso to Rule 86 of the Kerala Municipality Building Rules, 1999. I, therefore, leave it there for resolution in appropriate proceedings as and when that question comes up for adjudication. 6. Admittedly, the suit is virtually directed against Ext.A6 statutory notice dated 11.06.2004 and A9 final order dated 06.07.2004 issued by the Secretary to the 1st defendant Corporation under Section 406(iii) of the Kerala Municipality R.S.A. No. 61 of 2009 : 6 : Act, 1994 directing demolition of the shed. Section 509(6) of the Act provides for an appeal to the Tribunal constituted for the local self Government Institutions under Section 271(S) of the Kerala Panchayat Raj Act, 1996 against any notice or order passed by the Secretary under certain provisions of the Act including Section 406 thereof. The Tribunal referred to above is a permanent adjudicatory authority which can be approached with an appeal within 30 days from the date of passing of such order as provided under Section 509(6) of the Act. There does not appear to be any provision to condone the delay. But, having regard to the disputes coming up for adjudication and the nature of adjudication before the Tribunal, there is every reason to assume that the Tribunal is discharging the duties of a Civil Court. The Tribunal referred to above has got the authority to grant a stay of the impugned proceedings as well. Hence, the contention of the appellants that they do not have an equally efficacious remedy under the Act, cannot be countenanced. Hence Ext.A9 order being an appealable order, the plaintiffs were not justified in straightaway approaching the Civil Court seeking the reliefs R.S.A. No. 61 of 2009 : 7 : referred to above. 7. Now coming to the contention that since Ext.A9 order is passed in violation of the principles of judicial proceedings and therefore the civil court can interfere with Ext.A9 order, it cannot be said that merely because the Secretary of the 1st defendant Corporation has passed the order without considering the contentions raised in Ext.A7 reply, the resultant order passed is one passed in violation of the fundamental principles of judicial procedure so as to attract the ratio decidendi in Secretary of State v. Mask & Co., (AIR 1940 P.C. 105) and other related rulings. Hence, I fully agree with the courts below that the suit was not maintainable for the reason that Ext. A9 order is an appealable order and that the jurisdiction of the Civil Court is expressly barred under Section 563 of the Act as was held in Thodupuzha Municipality v. Abraham Philip (2007(4) KLT 972). No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of Second Appeal also do not arise for consideration in this Second Appeal which is R.S.A. No. 61 of 2009 : 8 : accordingly dismissed in limine. 8. The learned counsel appearing for the appellants made a submission that since the plaintiffs were litigating bona fide before the Civil Court, they may be given some time to file an appeal before the Tribunal. I am inclined to accept the said request. In case the appellants/plaintiffs file an appeal before the Tribunal by recourse to Section 509(6) of the Act within three weeks from today, the said appeal shall be treated as filed within time and shall be disposed of on merits in accordance with law. This direction is issued by this Court in exercise of the power under Article 226 of the Constitution of India. The shed in question shall not be demolished by the 1st respondent Corporation for a period of three weeks so as to enable the appellants to file an appeal and obtain interim orders, if any. Dated this the 16th day of January, 2009. V. RAMKUMAR, JUDGE. rv R.S.A. No. 61 of 2009 : 9 : R.S.A. No. 61 of 2009 : 10 :