IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 WP(C).No. 26760 of 2004(I) -------------------------- PETITIONER(S): --------------- KARUNAKARAN PILLAI, S/O.KANNAN PILLAI, AGED 60 YEARS, LEKSHMI VIHAR, T.C.31/990, PALKULANGARA P.O. THIRUVANANTHAPURAM. BY ADV. SRI.BLAZE K.JOSE RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CORPORATION OF THIRUVANANTHAPURAM, REP. BY ITS SECRETARY, THIRUVANANTHAPURAM. 3. SREEKUMARAN NAIR, S/O.RAGHAVAN PILLAI, T.C.31/991, PALKULANGARA, THIRUVANANTHAPURAM. ADV. SRI.N.NANDAKUMARA MENON,SC,TVM CORPN. FOR R2 SRI.K.P.SREEKUMAR FOR R3 R1 BY GOVERNMENT PLEADER SRI. P.K. RAVIKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF SALE DEED NO. 4872 OF 1979 OF THIRUVANANTHAPURAM SUB REGISTRAR'S OFFICE. EXT.P2 TRUE COPY OF THE NOTICE OF ASSESSMENT OF ;BUILDING TAX DATED 19.12.1981 OF THE 2ND RESPONDENT. EXT.P3 TRUE COPY OF THE CONSENT AFFIDAVIT DATED 4.1.1999 EXT.P4 TRUE COPY OF THE COMMENCEMENT CERTIFICATE DATED 7.1.1999 EXT.P5 TRUE COPY OF THE BUILDING PERMIT NO. LR 4726/SW8/98 DATED 8.2.99 OF THE 2ND RESPONDENT CORPORATION. EXT.P6 TRUE COPY OF THE ORDER NO. TPT/10304/99 EXT.P7 TRUE COPY OF THE TREATMENT CARD OF MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM. EXT.P8 TRUE COPY OF THE MRI SCAN REPORT OF SREE CHITHIRA TIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY DATED 3.4.2000 EXT.P9 TRUE COPY OF THE ORDER NO. G.O.(Rt) NO. 598/2004/LSGD DATED 11.2.2004 EXT.P10 TRUE COPY OF THE RECEIPT OF APPLICATION FOR REGULARISATION DATED 2.8.2004 EXT.P1 TRUE COPY OF THE PHOTOGRAPHS. THIRD RESPONDENT'S EXHIBITS: EXT.R3(a) TRUE COPY OF THE APPLICATION DATED 5.7.2004 FILED BY THE THIRD RESPONDENT BEFORE THE FIRST RESPONDENT. EXT.R3(b) TRUE COPY OF THE APPLICATION FILED BY THE THIRD RESPONDENT BEFORE THE 2ND RESPONDENT DATED 31.3.2001 EXT.R3(c) TRUE COPY OF THE COMMON JUDGMENT DATED 28.2.2007 IN OS NO. 1015 OF 2005 AND 1064 OF 2005 TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- W.P.C. NO. 26760 OF 2004 -------------------------------------------- Dated this the 2nd day of June, 2009 JUDGMENT Writ Petition is filed challenging Ext.P9 order issued by the Government holding that petitioner's building is constructed partly in violation of Building Rules and consequently directing the petitioner to demolish a stair-case and sun-shade constructed by the petitioner. I heard counsel appearing for the petitioner and standing counsel appearing for the Trivandrum Corporation and counsel appearing for the third respondent. 2. It is seen that petitioner as well as third respondent acquired the property simultaneously from the original owner through Ext.P1 sale deed which retains 5 links wide road for use by both the parties. Petitioner is stated to have constructed a building in 1979 and according to him after 20 years, he constructed first floor. It is seen that for the construction of the first floor the third respondent has given his consent to the petitioner in 1999 which is evident from Ext.P3. The 2 photographs produced in court show that the pathway is retained very clearly and that the construction is a pucca two storied concrete building. The Municipal Corporation on objection by the third respondent got the width of the pathway measured and they found that average of 1.5 metres wide pathway is retained which is more than 5 links pathway provided in the sale deed obtained by the petitioner and third respondent. The Corporation has observed that even if the window doors in the ground floor are open, still one metre wide pathway is available for easy use of the pathway by the petitioner and third respondent. On going through the photographs produced in the WPC, I am of the view that the facts stated in the Corporation proceedings, namely, Ext.P6 cannot be wrong. Third respondent has not produced any evidence to prove that the width of the pathway retained is less than the width referred to in Ext.P6 proceedings. Therefore there is no violation of the conditions provided in the sale deed by which petitioner and third respondent acquired the property. When the third respondent approved the construction of the first floor, it goes without staying that he has no objection about the ground floor 3 in the way in which it was constructed and retained by the petitioner. I do not think third respondent has any right to object to construction of the ground floor which was completed 20 years prior to completion of construction of the first floor by the petitioner. So far as objection by the Corporation is concerned, counsel pointed out that petitioner has constructed metal fabricated stair case for access to the first floor from outside. It is seen from the photographs that the stair case is located on the southern side and within the compound of the petitioner. I do not think Corporation can raise objection against existing stair case about which even the third respondent has no objection. In the circumstances, W.P. is allowed vacating Ext.P9 order and upholding Ext.P6 order issued by the Corporation. (C.N. RAMACHANDRAN NAIR) Judge kk 4