IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930 RSA.No. 174 of 2008() --------------------- AS.58/2003 of PRL.SUB COURT,TRIVANDRUM OS.1760/1999 of I ADDL.M.C.,TRIVANDRUM .................... APPELLANT/PLAINTIFF ------------------------------------ V.KUMARAN NAIR, PANDARAVILAKATHU VEEDU THEKKEKONAM, KOTTUKAL DESOM, NEYYATTINKARA THIRUVANANTHAPURAM. BY ADV. SRI.BIJU BALAKRISHNAN RESPONDENTS: RESPONDENT/DEFENDANT --------------------------------- CITY CORPORATION THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. =============================== R.S.A.174/2008 ================================ Dated this the 25th day of March 2008 JUDGMENT Plaintiff in O.S.1760/1999 on the file of the Munsiff Court, Thiruvananthapuram is the appellant. Respondent is Corporation of Thiruvananthapuram. Suit was filed for permanent prohibitory injunction restraining respondent Corporation from taking any action to remove plaint schedule bunk shop from its present position, or doing any act which would interfere with its peaceful possession and enjoyment by the appellant for the purpose of conducting his business. Case of the appellant was that he is doing business in the plaint schedule bunk from 1972 onwards and respondent has no right to demolish bunk or to shift bunk, on the ground that it is unauthorised structure. Respondent Corporation resisted the suit contending that appellant had earlier filed O.S.328/1994 claiming similar reliefs which was dismissed and R.S.A.174/2008 2 appellant constructed bunk shop on the side of the Corporation road without obtaining licence and it is an unauthorised structure and under Kerala Municipalities Act, when an unauthorised structure is constructed, Corporation is entitled to remove the same and Corporation is only proceeding as provided under the Municipalities Act and therefore appellant is not entitled to the decree as sought for. Learned Munsiff, on the evidence, found that appellant is not entitled to a decree for permanent prohibitory injunction as respondent Corporation is entitled to proceed against unauthorised constructions as provided under Kerala Municipalities Act. But while dismissing the suit, learned Munsiff observed that as provided under the Municipalities Act, appellant can apply for grant of a licence to allow him to continue the bunk and before taking any punitive steps, such application, if filed, is to be disposed by the respondent Corporation and then only thereafter the bunk be removed. Appellant challenged the judgment before Sub Court, R.S.A.174/2008 3 Thiruvananthapuram in A.S.58/2003. The learned Sub Judge on re-appreciation of evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in this appeal. 2. Learned counsel appearing for the appellant submitted that subsequent to the dismissal of the suit, appellant approached this Court by filing O.P.12211/2002 and the writ petition was disposed directing that any steps to remove the bunk shop of the appellant be made by the respondent Corporation only with notice to the appellant and affording him an opportunity of hearing. It was submitted that even if the second appeal is dismissed, the said direction may be retained. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Evidence establish that plaint schedule bunk is an unauthorised construction and appellant did not obtain any licence from the Corporation. When the plaint schedule bunk is an unauthorised construction and appellant did not have any licence, Corporation is entitled R.S.A.174/2008 4 to proceed against the bunk as provided under the provisions of Kerala Municipalities Act to remove the unauthorised structure. Appellant is not entitled to a decree against the Corporation. Courts below rightly dismissed the suit, as appellant cannot claim a decree for injunction restraining the respondent Corporation from acting, in accordance with the provisions of Kerala Municipalities Act. The argument of the learned counsel is that the observation made by the learned Munsiff while dismissing the suit as well as the judgment of this Court in O.P.12211/2002, may be retained. I do not find that there is any necessity for any further direction in the light of the directions given in the judgment in O.P.12211/2002. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR, JUDGE css/