IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 21ST MAY 2010 / 31ST VAISAKHA 1932 WP(C).No. 15610 of 2010(O) -------------------------- CMA.10/2010 of II-ADDL. DISTRICT COURT, KOZHIKODE OS.49/2010 of MUNSIFF'S COURT-II, KOZHIKODE .................... PETITIONER: --------------- P.K.VASUDEVAN NAIR, AGED 63 YEARS S/O.GOVINDAN NAIR, SREYAS, PUTHALATH PARAMBA NELLLIKKODE AMSOM DESOM,KOZHIKODE TALUK. BY ADV. SRI.NIRMAL. S RESPONDENTS: --------------- 1. U.MUHAMMED FARIS, AGED 42 YEARS S/O.BASHEER, OOTTERI HOUSE, KOTTOOLI AMSOM DESOM, KOZHIKODE TALUK. 2. U.MUHAMMED NADHIL, AGED 40 YEARS S/O.BASHEER, OOTTERI HOUSE, KOTTOOLI AMSOM DESOM, KOZHIKODE TALUK. 3. THE SECRETARY KOZHIKODE CORPORATION, KOZHIKODE. ADV. SRI.K.D.BABU,SC,KOZHIKODE CORPORATION FOR R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.15610 of 2010 --------------------------------------- Dated this 21st day of May, 2010 JUDGMENT Petitioner and respondents are neighbours owning adjascent lands, respondents having acquired right, title, interest and possession of their property as per assignment deeds dated 21-01-2009 and 28-01-2009. Following those assignment deeds respondents embarked on construction of a multi storied building in their property. Petitioner, alleging that property of the respondents which was originally paddy field has been reclaimed without authority and in violation of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short, “the Act”) and that on account of the mud and filth collected by the respondents from the drainage being deposited in their property drinking water in the well in the property of petitioner has been contaminated, filed O.S.No.49 of 2010 for prohibitory injunction to restrain respondent Nos.1 and 2 from reclaiming plaint B schedule and putting up structures therein. They also contended that respondent No.3/defendant No.3 has in violation of statutory provision granted permit and license to respondent Nos.1 and 2 for construction of the building. There was an application for W.P.C.No.15610 of 2010 : 2 : temporary injunction in the above line. Respondent Nos.1 and 2 contended that there was no conversion of paddy land at their instance and that plaint B schedule property was in its present state even as on the dates they acquired right, title and interest over the property. In fact, their predecessor-in-interest, even in the year 2008 obtained permit and license from the local authority for construction of building in the said property and after the acquisition by them, they have obtained fresh plan and permit from the local authority for construction. They denied that on account of any act of theirs the drinking water in the well of petitioner has been contaminated. Respondent No.3 did not file counter. Learned Munsiff considered the contentions and held that in view of section 563 of the Kerala Municipalities Act, jurisdiction of the civil court to interfere with the plan and permit granted by the local authority is ousted and hence question of grant of temporary injunction did not arise. Learned Munsiff made it clear that in the light of the above finding, claim of the parties on merit is not being considered. Accordingly the application for injunction was dismissed. Petitioner took up the matter in appeal (C.M.Appeal No.10 of 2010 pending before the learned Additional District Judge-II, Kozhikode) and in that C.M.Appeal, filed I.A.No.525 of 2010 for an order of temporary W.P.C.No.15610 of 2010 : 3 : injunction. Learned Additional District Judge after hearing both sides dismissed that application. That order is under challenge in this writ petition. Learned counsel for petitioner contends that finding of the courts below that no injunction could be granted in view of section 563 of the Kerala Municipalities Act is incorrect. According to the learned counsel, when permit and plan are issued in violation of the statutory provisions, such plan and license must deemed to be without authority and hence null and void in which case even on the face of an express provision civil court has the jurisdiction to interfere since permit and plan are nothing but null and void. Learned counsel has placed reliance on the decision in Thodupuzha Municipality Vs. Abraham Philip (2007 (4) KLT 972). Learned counsel for respondent Nos.1 and 2 would support the order of the court below. 2. So far as jurisdiction of the civil court is concerned, it is settled position of law that when a right not available at common law is created by a statute and the remedy is also provided in that statute, then, even in the absence of an express provision jurisdiction of the civil court is ousted impliedly and party aggrieved has to resort to the provisions of the special statute. But, when a right available at common law is also provided in the special statute, jurisdiction of the civil court is not W.P.C.No.15610 of 2010 : 4 : ousted unless there is an express ouster. Even when there is an ouster of jurisdiction of the civil court it can interfere when the tribunal has not acted in accordance with the statute or violated the provisions of the statute. Section 563 of the Kerala Municipalities Act is pressed into service by learned counsel for respondent Nos.1 and 2 to support the contention that the suit and application for injunction are not maintainable. True, that provision refers to bar of the jurisdiction of civil court concerning matters referred to therein including Chapter 18 which deals with grant of permit and license for construction of building. According to learned counsel for petitioner the plan and permit granted to respondent Nos.1 and 2 are null and void being in violation of section 14 of the Act. That provision says that notwithstanding anything contained in the Kerala Panchayath Raj Act, 1994 or in the Kerala Municipalities Act, no local authority shall grant any license or permit under the said Act for carrying out any activity or construction in paddy land or wetland converted or reclaimed in contravention of the provision of the Act. Section 3 of the Act deals with prohibition of conversion and states that on and from the date of commencement of the Act there shall not be any conversion or reclamation of the paddy field except in accordance with the provisions of that Act. The W.P.C.No.15610 of 2010 : 5 : Act came into force on 12-08-2008. Respondents purchased the property as per assignment deeds dated 21-08-2009. Learned counsel for petitioner would submit that at the time of those assignment deeds plaint B schedule was paddy field, but learned counsel for respondent Nos.1 and 2 asserted that the property was in the same state as it is now when they purchased it on 21- 08-2009 and 28-01-2009. It is not very much in dispute that even before that purchase predecessor-in-interest of respondent Nos.1 and 2 had obtained permit and plan from the local authority for construction of the building. This according to learned counsel for respondent Nos.1 and 2 would show that even then it was not paddy field but, it had already been converted or reclaimed and as such section 3 of the Act has no application. 3. These aspects of the matter were not considered by the courts below. The question whether permit and plan given to respondent Nos.1 and 2 are null and void being in contravention of section 14 of the Act depends on the question whether the alleged reclamation/conversion of plaint B schedule was after commencement of the Act on 12-08-2008. Appellate court necessarily has to consider these aspects before deciding whether the civil court has jurisdiction to interfere in the matter. 4. Learned Additional District Judge has refused to grant W.P.C.No.15610 of 2010 : 6 : temporary injunction in the C.M.Appeal. Apprehension of petitioner is that taking advantage of dismissal of the application for temporary injunction by the learned Additional District Judge respondent Nos.1 and 2 might put filth and mud in plaint B schedule which would further contaminate the drinking water in the well in the suit property. Respondent Nos.1 and 2 submits that except construction of the building as permitted by the plan and permit, no other work will be done in plaint B schedule which would result in contamination of the drinking water in the well in plaint A schedule. That submission is recorded. In the above circumstances, there is no reason why I should interfere with the order under challenge in this proceeding. I however direct the learned Additional District Judge to consider all aspects of the matter in the light of the contentions raised by the parties as stated above while deciding C.M.Appeal and pass appropriate orders thereon. With the above direction the writ petition is disposed of. (THOMAS P JOSEPH, JUDGE) Sbna/-