IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 18TH JUNE 2010 / 28TH JYAISTHA 1932 WP(C).No. 21361 of 2009(M) ----------------------------------------- PETITIONER(S): ------------------------- K.CHANDRIKA, AGED 59 YEARS, W/O.P.RAVEENDRAN, KAMALKRISHNA, T/C14/683 (2) NANDAVANAM ROAD,PALAYAM,THIRUVANANTHAPURAM. BY ADV. SRI.V.S.BABU GIREESAN RESPONDENT(S): --------------------------- 1. THE SECRETARY TO GOVERNMENT, URBAN AFFAIRS, LOCAL SELF GOVERNMENT, STATE OF KERALA, THIRUVANANTHAPURAM. 2. THE SECRETARY, CITY CORPORATION, THIRUVANANTHAPURAM. 3. VAMADEVAN, AGED 60 YEARS, MARX BHAVAN, NANDAVANAM ROAD, THIRUVANANTHAPURAM. 4. SUNATHA,W/O.VAMADEVAN, DO..DO... R1 BY GOVERNMENT PLEADER SMT. N.SUDHADEVI R2 BY SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE, BY ADV. SRI.P.K.MANOJKUMAR. R3 & R4 BY ADV.SRI.DINESH R.SHENOY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/06/2010, THE COURT ON 18/06/2010 DAY DELIVERED THE FOLLOWING: Kss WPC.NO.21361/2009 M APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF COMPLAINT FILED BY THE PETITIONER'S HUSBAND ON 16/5/08. P2: COPY OF ORDER DTD. 17/06/2008 OF THE 1ST RESPONDENT. P3: COPY OF COMPLAINT NO.671/08 OF THE LOKAYUKTA. P4: COPY OF ORDER DTD. 27/06/2008 OF THE LOKAYUKTA. P5: COPY OF STATEMENT FILED BY TRIDA IN 15/07/2008 IN COMPLAINT NO.671/08. P7: COPY OF ORDER DTD. 05/07/08 OF THE LOKAYUKTA. P8: COPY OF THE WRIT PETITION NO.29294/08. P9: COPY OF THE JUDGMENT DTD. 13/10/08 IN WPC.NO.29294/08. P10: COPY OF THE ORDER DTD. 22/07/08 OF THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: R3(A): COPY OF CERTIFICATE DTD. 16/09/2008 ISSUED BY SPECIAL TAHSILDAR, LA (GENERAL). R3(B): COPY OF THE NOTICE DTD. 8/01/2009. R3(C): COPY OF NOTICE DTD. 9/03/2009. R3(D): COPY OF AFFIDAVIT DTD. 14/07/2009 FILED BY RESPONDENTS 3 AND 4 BEFORE THE 2ND RESPONDENT. R3(E): COPY OF THE CERTIFICATE DTD. 20/11/2009 ISSUED BY THE SECRETARY 'TRIDA'. /TRUE COPY/ P.S.TO JUDGE Kss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.21361 of 2009-M - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of June, 2010. JUDGMENT The issue raised herein is regarding the validity of the building permit issued by the Corporation in favour of respondents 3 and 4. The relevant facts revealed from the pleadings of the parties, show the following: 2. Respondents 3 and 4 had, in their ownership and possession, 1.800 cents of land with a building. 0.13 ares of the land was acquired for widening of Nandavanam - Bakery - Thampanoor over bridge. The building therein was also acquired and compensation was paid. 3. Thereafter, respondents 3 and 4 tried to obtain permit for construction of upper floor and for roof changing, which was objected to by the petitioner, resulting in filing a complaint before the Corporation. A stop memo was issued in the matter by the Corporation till a new permit is obtained. A complaint was filed before the Kerala Lok Ayuktha which was disposed of by Ext.P7 recording the statement made by the Corporation that the building permit granted to respondents 3 and 4 in the disputed plot, has been cancelled. wpc 21361/2009 2 4. The cancellation of the permit was challenged by respondents 3 and 4 in a writ petition before this Court and by Ext.P9 judgment, this Court found that the said order is passed in violation of the principles of natural justice. Fresh proceedings were directed to be issued after hearing the parties. Ext.P10 is the permission granted by the corporation thereafter which is under challenge herein. 5. Heard learned counsel for the petitioner, learned counsel appearing for respondents 3 and 4 and learned Standing Counsel for the Corporation. What is alleged by the learned counsel for the petitioner is that Ext.P6 permit was issued totally in violation of the building rules. The entire extent of 1.800 cents including the acquired portion was shown by respondents 3 and 4 in the plan, to obtain the permit. Therefore, it is submitted that the permit has been obtained by fraud. It is submitted that proper set backs have not been shown also. My attention was drawn to the statement filed before the Lok Ayuktha on behalf of the Thiruvananthapuram Development Authority, which shows that a part of the property to the extent of 0.13 ares was acquired. One thing that is clear from the statement, Ext.P5, is that the building therein was demolished and possession was handed over to P.W.D. on 30.11.2006. It is further wpc 21361/2009 3 mentioned that no encroachment of the acquired land is noticed till the handing over of possession and now it is to be looked into by the P.W.D. 6. In the counter affidavit filed by respondents 3 and 4, it is pointed out that approximately 1.400 cents is in their possession after acquisition of about 0.400 cents for widening the road. It is pointed out that there is no foul play in granting the permit. Ext.R3(a) is the certificate issued by the Special Tahsildar (LA) which is produced in support of the plea that in the portion of the property acquired, respondents 3 and 4 are not making any construction. A reading of Ext.R3(a) shows that in the acquired portion no constructions are being made. It is further pointed out by respondents 3 and 4 that in spite of service of notice to the petitioner herself or her husband did not appear before the Corporation to raise his objections, if any, in the matter, after this Court in Ext.P9 judgment directed reconsideration of the matter. A site inspection was conducted by the Assistant Executive Engineer of the Corporation to find out whether there is any violation. It was confirmed that there is no violation and as directed, respondents 3 and 4 have filed an affidavit as Ext.R3(d) agreeing to demolish the portion of the newly constructed building if the Government acquires any portion of the property, that too without any claim for compensation. The petitioner has wpc 21361/2009 4 not chosen to file a reply affidavit traversing the averments in the counter affidavit. 7. The counter affidavit filed by the second respondent also shows that the Corporation had issued a permit dated 16.2.2008 to construct two additional floors to the existing building. Later, they demolished the existing building and started the construction of a new building. A stop memo was issued and a provisional order was issued. A revised building permit was applied for by them. Later, the building permit was cancelled. After the judgment in W.P.(C) No.29294/2008 Ext.P10 order was issued after hearing respondents 3 and 4. They have furnished an undertaking also before the Corporation, to demolish the building, if necessary, at the time of widening of the main road. 8. Learned counsel for respondents 3 and 4 also submitted that the measurement in the plan will show that it will tally with the extent of property in their possession and therefore nothing turns upon the argument raised by the learned counsel for the petitioner that the entire 1.8000 cents have been shown in the plan. It is submitted that the petitioner is objecting to the construction without any valid reasons. 9. It is therefore clear from the pleadings and going by Ext.R3(a) that wpc 21361/2009 5 respondents 3 and 4 have not encroached upon the acquired portion of the land to make any construction. In fact, they have also undertaken before the Corporation that in future, if any portion of the property is acquired, they are prepared to demolish the portion of the building. 10. The order passed by the Lok Ayuktha is dated 25.7.2008. The complaint raised by the petitioner, as evident from Ext.P3 is that the entire building was subject to acquisition and therefore any construction over it cannot be permitted. In fact, that was prevented by the Corporation at that point of time. What is now being constructed is based on the building permit later issued. Apart from the vague allegations raised in the petition, the petitioner has not pointed out any specific violation of the building rules. As pointed out already, what is projected is that they have shown the area which was acquired for the purpose of obtaining a building permit. But that controversy is no longer relevant in the light of the affidavit filed before the corporation in the matter as well as the stand taken by the TRIDA and the Special Tahsidlar that no constructions are being made encroaching upon the area. In that view of the matter, I do not find any reason to interfere with Ext.P10 order passed by the corporation or Ext.P6 permit. Hence, the writ petition is dismissed. But it is made clear that if, in wpc 21361/2009 6 future, any specific violation with regard to the construction is pointed out by the petitioner during the course of the construction by respondents 3 and 4, that will be looked into by the Corporation at the relevant time. No costs. (T.R. Ramachandran Nair, Judge.) kav/ wpc 21361/2009 7