IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 WP(C).No. 32862 of 2010(G) ------------------------------------------ PETITIONER(S): ------------------------- K.E.MOIDU, HILLTOP BUNGALOW, PUTHIYARA, KOZHIKODE. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENT(S): --------------------------- 1. P.ABOOBACKER HAJI, DIRECTOR (ADMINISTRATION), HILLTOP PUBLIC SCHOOL, PUTHIYARA, KOZHIKODE-673 004. 2. CORPORATION OF KOZHIKODE, REPRESENTED BY ITS SECRETARY, KOZHIKODE-673 001. 3. THE SECRETARY, CORPORATION OF KOZHIKODE, KOZHIKODE-673 001. R1 BY ADVS.SRI.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI. R2 & R3 BY ADV. SRI.K.D.BABU,SC,KOZHIKODE CORPORATION. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.32862/2010 G APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER PASSED BY THE TRIBUNAL DTD. 18/03/2009. P2: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WP(C) NO.13027/09. P3: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN RP.NO.502/2009 IN WP(C) NO.13027/09. P4: COPY OF THE WRITTEN SUBMISSION GIVEN BY THE PETITIONER TO THE SECRETARY, KOZHIKODE CORPORATION ON 12/08/2009. P5: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WP(C) NO.11700 OF 2010 DTD. 7/04/2010. P6: COPY OF THE ORDER DTD. 02/06/2010 PASSED BY THE 2ND RESPONDENT. P7: COPY OF THE APPEAL FILED BYTHE 1ST RESPONDENT BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, TVM, P8: COPY OF THE ORDER PASSED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS DTD. 18/08/2010 IN APPEAL NO. 571/2010. P9: COPY OF THE REPORT OF THE TOWN PLANNING OFFICER OF THE CORPORATION OF CALICUT DTD. 17TH MARCH, 2009. P10 SERIES:PHOTOGRAPHS SHOWING THE LIE OF THE BUILDING WITH THE DEMOLISHED PORTIONS. P11: COPY OF THE COMPLAINT DTD.2/06/2008 SUBMITTED BY THE PETITIONER BEFORE THE CALICUT CORPORATION. Kss .2./- ..2... WPC.NO.32862/2010 G P12: COPY OF THE ORDER ISSUED BY THE CALICUT CORPORATION IN 2007 UNDER SEC. 406 (1)(2) OF THE MUNICIPALITIES ACT TO THE 1ST RESPONDENT. P13: COPY OF THE COMPLAINT DTD. 14/07/2008 MADE BY THE PETITIONER BEFORE THE CHIEF TOWN PLANNING OFFICER, TRIVANDRUM WITH COPY TO THE REGIONAL TOWN PLANNING OFFICER, KOZHIKODE. P14: COPY OF THE LETTER DTD. 25/06/2008 SENT BY THE REGIONAL TOWN PLANNING OFFICER TO THE C.T.P., TRIVANDRUM. P15: COPY OF THE ORDER DTD. 13/01/2000 ISSUED BY THE CBSE TO THE FIRST RESPONDENT. P16: COPY OF THE LETTER SENT BY THE SCHOOL TO THE CBSE DTD. 15/11/2001. P17: COPY OF THE DOCUMENTS OF THE CBSE CONCERNING THE FIRST RESPONDENTS SCHOOL WITH THE DETAILS OF THE PROPERTIES. P18: COPY OF THE SALE DEED DTD. 21/10/1994 EXECUTED BY AHAMMED ROLLER FLOOR MILLS PVT.LTD. IN FAVOUR OF THE PETITIONER. P19: COPY OF THE CERTIFICATE DTD. 2/11/2002 ISSUED BY THE VILLAGE OFFICER, KOTTOOLI CERTIFYING THE LAND IN POSSESSION OF THE FIRST RESPONDENT. P20: COPY OF THE SALE DEED BEARING NO.5059/1004 DTD. 26/10/1994 OF SRO, CHEVAYUR. P21: COPY OF THE SALE DEED BEARING NO.5060/1994 DTD. 26/10/1994 OF SRO, CHEVAYUR. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No. 32862 of 2010 ------------------------------- Dated this the 6th day of December, 2010 J U D G M E N T The petitioner owns a parcel of land, 63 cents in extent, situated in R.S.No.16/2 of Kottooli amsom, Parayancheri desom, Kozhikode Taluk, Kozhikode District. A building bearing Door No.27/2303 of Kozhikode Corporation is situate therein. The said parcel of land was part of a common holding, the southern portion of which, having an area of 98 cents, belongs to the first respondent who is the Director of an educational institution known as Hilltop Public School. The access to the land belonging to the petitioner and the land in the possession of the first respondent is through a pathway having a total area of 27 cents. The owners of the northern and southern portions have equal rights over the said pathway. 2. With a view to put a building in the land possessed by the school, the first respondent submitted Ext.R1(a) application dated 18.10.2006 to the Secretary of Kozhikode Corporation. In that application, in column 4, the extent of the land was mentioned as 1.25 acres in R.Sy.No.16/2. It appears, the said application was processed by the Town Planning Officer of Kozhikode Corporation who forwarded it to the Chief Town Planner for approval of the site and the layout along with letter dated 13.3.2008, a copy of which is produced W.P.(C) No.32862 of 2010 2 as Ext.R1(c). The Chief Town Planner thereupon passed Ext.R1(d) order dated 19.8.2008 granting approval for the site and layout subject to the conditions stipulated therein. One among the conditions was that the existing building should be demolished and removed and that the new building should be in accordance with the provisions contained in the Kerala Municipality Building Rules, 1999. 3. The petitioner alleges that even before the layout and site plan were approved and the building permit was issued, the first respondent commenced construction, that he thereupon complained to the Secretary of the local authority, that a personal hearing was conducted in the matter and a provisional order under section 406(1) of the Kerala Municipality Act was issued along with a stop memo, and that thereafter, the first respondent was heard and the Town Planning Officer issued Ext.R1(e) memo dated 22.11.08 stating that the dispute has been resolved. Aggrieved by Ext.R1(e) memo dated 22.11.08, the petitioner filed Appeal No.53 of 2009 before the Tribunal for Local Self Government Institutions. By Ext.P1 order passed on 18.3.2009, after notice to and hearing the petitioner and the respondents herein, the Tribunal for Local Self Government Institutions allowed the appeal and set aside Ext.R1(b) on the ground that the Town Planning Officer was incompetent to pass orders in the W.P.(C) No.32862 of 2010 3 matter. The Tribunal held that under section 406 of the Kerala Municipality Act, it is the Secretary of the local authority who is competent to pass orders. The Tribunal accordingly directed the Secretary of Kozhikode Corporation to conduct a local inspection directly or through competent officers, to enquire into the complaint submitted by the petitioner, verify whether the first respondent is unauthorisedly constructing any building and to initiate proceedings, if grounds exists therefor, under section 406 of the Kerala Municipality Act. The Tribunal also directed that if the decision is in favour of the first respondent, the Secretary shall disclose why proceedings are not being initiated. The Tribunal also fixed an outer limit of two months for initiating fresh action. 4. The first respondent did not challenge Ext.P1 order. Instead, he filed W.P.(C) No.13027 of 2009 in this Court seeking a direction to the Corporation of Kozhikode to consider his application for building permit [(Ext.R1(a)] and to take an appropriate decision thereon within a time limit to be fixed by this Court. It was contended that the Chief Town Planner has approved the site and the lay out of the building and there is no reason why the application for building permit should be kept pending. In that writ petition, the first respondent did not join the petitioner as a party. By Ext.P2 judgment W.P.(C) No.32862 of 2010 4 delivered on 30.4.2009, this Court directed the Corporation of Kozhikode to consider the first respondent's application for building permit and to take appropriate decision thereon, within three weeks from the date of receipt of a copy of the judgment. On coming to know of Ext.P2 judgment, the petitioner filed R.P.No.502 of 2009. By Ext.P3 order passed on 9.6.2009, the learned single Judge disposed of the review petition with the observation that the Corporation shall while considering the application for building permit also take note of the directions issued by the Tribunal in Ext.P1. The petitioner thereupon filed Ext.P4 representation before the Secretary of Kozhikode Corporation objecting to the grant of the building permit applied for by the first respondent. 5. It appears, the Corporation did not pass orders on the petitioner's application for building permit notwithstanding the directions issued by this Court in Ext.P2 judgment. The first respondent thereupon filed W.P.(C) No.11700 of 2010 in this Court for an order directing the Secretary of the Kozhikode Corporation to consider his application for building permit and pass orders thereon. Taking note of the fact that the application for building permit was submitted on 17.7.2006, this Court directed that if orders have not been passed on the date of production of a copy of the judgment, the W.P.(C) No.32862 of 2010 5 Secretary of the Corporation shall refer the first respondent's app ication to the Corporation of Kozhikode, as provided under sec ion 392 of the Kerala Municipality Act, and thereupon the Cor oration of Kozhikode shall consider the same and pass orders the eon in accordance with law, within a period of four weeks from thet date of production of the judgment. 6. The petitioner herein was joined as the third respondent in that writ petition, but the said writ petition was disposed of at the stage of admission without notice to him. Though this Court had directed the Council of the Kozhikode Corporation to consider the first respondent's application for building permit, the Secretary considered it and rejected it by Ext.P6 order dated 2.6.2010. Aggrieved by Ext.P6, the first respondent filed Ext.P7 appeal before the Tribunal for Local Self Government Institutions. By Ext.P8 order passed on 18.8.2010, the Tribunal allowed the appeal, set aside Ext.P6 and held that by virtue of the provisions contained in sub-section (2) of section 392 of the Kerala Municipality Act, as the application for building permit submitted by the first respondent on 19.10.2006 was not rejected within the period of 30 days, the first respondent became entitled to a deemed permit. The Tribunal accordingly permitted the first respondent to proceed to execute the W.P.(C) No.32862 of 2010 6 work, but without contravening any of the provisions of the Kerala Municipality Act or the rules framed thereunder. Ext.P8 is under challenge in this writ petition. 7. The petitioner contends that in view of the directions issued by the Tribunal for Local Self Government Institutions in Ext.P1 order and by this Court in Ext.P3 judgment, the petitioner ought to have been joined as a party to Ext.P7 appeal and that having not been done, Ext.P8 is liable to be set aside. The petitioner also challenges Ext.P8 order on the merits. It is contended that the finding of the Tribunal that the first respondent has become entitled to a deemed permit is not sustainable in law and that on the facts of the case, section 392(2) is not attracted. 8. The first respondent has filed a counter affidavit justifying the order of the Tribunal. It is stated that after Ext.R1(e) order was passed by the Chief Town Planner approving the layout and the site of the building, the first respondent had pulled down a portion of the existing building and that it was thereafter that the petitioner moved the Tribunal by filing an appeal challenging Ext.R1(e) order passed by the Town Planner on the ground that the Town Planner erred in dropping the action initiated under section 406 of the Kerala Municipality Act and the Town Planner is not competent to take a W.P.(C) No.32862 of 2010 7 decision in the matter. It is contended that pursuant to the order impugned in this writ petition (Ext.P8), the building has been demolished in its entirety and that this writ petition was filed when the first respondent was about to commence the construction on the strength of Ext.P8 order. It is stated that as the portion of the old building which shared a party wall with the petitioner's building has been demolished and no damage has been caused to the petitioner's building and there is sufficient space between the boundary of the petitioner's land and the site where the school building is proposed to be put up, the petitioner has no reason to be aggrieved by Ext.P8. 9. I heard Sri.K.Jayakumar, the learned Senior Advocate, appearing for the petitioner, Sri.K.Jaju Babu, the learned counsel appearing for the first respondent and Sri.K.D.Babu, the learned standing counsel appearing for the Corporation of Kozhikode. I have also gone through the pleadings and the materials on record. It is not in dispute that the first respondent has title over only 98 cents of land situated in R.Sy.No.16/2 of Kottooli amsom, Parayancheri desom, Kozhikode Taluk, Kozhikode District. It forms the southern part of a common holding which originally belonged to the Comtrust. The petitioner owns 63 cents in the northern portion. The access to both properties is through the pathway having an extent of 27 cents. The W.P.(C) No.32862 of 2010 8 pleadings disclose that though the first respondent is the owner of 98 cents of land, in the application for building permit [Ext.R1(a)] he had claimed that the site where he proposes to put up the building has an extent of 1 Acre 25 cents, which evidently includes the area of the pathway also. In the plan appended to Ext.R1(a) also, the land where the first respondent proposes to put up the building is shown as situated in R.Sy.No.16/2 of Kottooli amsom, Parayancheri desom, Kozhikode Taluk, Kozhikode District. Though it is admitted at the Bar that the building standing in the land belonging to the petitioner and the building standing in the land belonging to the first respondent shared a party wall, in the plan filed by the first respondent, the building situate in the land owned by the petitioner is shown as situated far away from the boundary separating the two properties. Ext.P16 series photographs produced by the petitioner show that a building is in existence along the boundary separating the northern and southern portions belonging to the petitioner and the first respondent respectively, though at other places, the properties are separated by a compound wall. It is therefore evident that the first respondent's application for building permit was made on the premise that the land where the building is proposed to be put up has an area of 1.25 acres. On the other hand, it is evident from the materials on W.P.(C) No.32862 of 2010 9 record that the land where the school is situate has an area of only 98 cents. Under the provisions of the Kerala Municipality Building Rules, 1999, the extent of the land where the building is proposed to be put up is a relevant factor. It is not clear from the pleadings as to whether the proposed building can be put up in a parcel of land which has an extent of only 98 cents. In such circumstances, I am of the opinion that notwithstanding the fact that the petitioner was entitled to be heard, in view of the earlier orders passed by the Tribunal itself and Ext.P8 is liable to be set aside on that short ground, instead of driving the parties to another round of litigation, the first respondent should be permitted to submit a fresh application for building permit showing the extent of land where he proposes to put up the building as 98 cents instead of 1.25 acres. No doubt, it will be open to the first respondent to claim that the pathway providing access to his land jointly belongs to him and the first petitioner and has an extent of 27 cents, but that pathway cannot be taken note of for the purpose of determining the floor area ratio or for determining the maximum permissible coverage. Having regard to the fact that nearly four years have passed after the first respondent applied for a building permit, I am of the opinion that in the event of the first respondent applying for a building permit afresh showing the extent of the land W.P.(C) No.32862 of 2010 10 as 98 cents, the Secretary of Kozhikode Corporation should take an expeditious decision thereon. In the result, I allow the writ petition, quash Ext.P8 and the orders passed by the Secretary of Kozhikode Corporation on the first respondent's application for building permit and direct that in the event of the first respondent applying for a building permit afresh in respect of the 98 cents of land referred to above, the Secretary of Kozhikode Corporation shall take a decision thereon within 15 days from the date on which the application complete in all aspects is submitted before him. It is clarified that the first respondent need not seek fresh approval of the site and the layout from the Chief Town Planner. P.N. RAVINDRAN, JUDGE. nj.