IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 18TH JUNE 2010 / 28TH JYAISTHA 1932 WP(C).NO. 17961 OF 2010(O) ---------------------------------------- I.A. NO.7922 OF 200 9IN O.S. NO.1446 OF 2009, MUNSIFF'S COURT, THIRUVANANTHAPURAM CMA.13/2010 OF DISTRICT COURT,TRIVANDRUM .................... PETITIONER(S): ---------------------- SUDHA, TC 25/3155(1 & 2) M.R.R.A., A3, THOPPIL LANE, VANCHIYOOR, THIRUVANANTHAPURAM. BY ADV. SRI.L.MOHANAN SMT.LIGEY ANTONY RESPONDENT(S): --------------------------- PRAMOD CHANDRAN, TC 25/315(1 & 2) M.R.R.A, 3, THOPPIL LANE, VANCHIYOOR, THIRUVANANTHAPURAM. ADV. SRI.THOMAS ABRAHAM FOR R-1 SRI.DIPU.R FOR R-1 SMT.MERCIAMMA MATHEW FOR R-1 SRI.K.S.HARIDAS FOR R-1 SRI.V.RENJITH KUMAR FOR R-1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.17961 of 2010 ==================================== Dated this the 18th day of June, 2010 J U D G M E N T Respondent/plaintiff is the owner in possession of plaint A schedule where he has constructed a building and is residing with family. On its south, it is not disputed before me is the plot shown as plaint B schedule which belonged to defendant No.1. It is also not disputed that three cents towards east of plaint B schedule was assigned to petitioner/defendant No.2 where she started construction of a residential building. According to the report (Ext.P5) of the Advocate Commissioner the ground floor of building has been completed and petitioner has proceeded to construct its first floor. At that time respondent filed O.S. No.1446 of 2009 in the court of learned Munsiff, Thiruvananthapuram complaining that construction being embarked upon in the three cents is without obtaining permit and approved plan from the local authority and is without leaving sufficient space in between plaint A and B schedules. He also filed I.A. No.7922 of 2009 for an order for temporary injunction to restrain petitioner from proceeding with further construction. That application was opposed by petitioner contending that she has obtained permit and the plan approved W.P(C) No.17961 of 2010 -: 2 :- from the local authority, construction is strictly in accordance with the plan and permit and that it is not correct to say that the required space between plaint A and B schedules has not been left. Learned Munsiff was not impressed by the contentions raised by respondent, held that there is no violation as complained by the respondent and dismissed the application. Respondent took up the matter in appeal – C.M.A. No.13 of 2010 in the court of learned District Judge, Thiruvananthapuram. Learned District Judge was of view that construction being carried on by petitioner is not in accordance with the approved plan (Ext.P4) and permit and hence it has to be stopped. Accordingly appeal was allowed and petitioner was restrained from making further construction in the plaint B schedule in violation of the approved plan and permit except or in accordance with the modified plan and permit if any to be obtained by the petitioner. It was also directed that construction if any already made in violation of the plan and permit granted if not ratified or modified plan obtained in tune with the present construction from the authorities concerned will be subject to the result of the suit. That judgment is under challenge in this Writ Petition. Learned counsel for petitioner contends that there is no violation of the Building Rules and learned District Judge has also not found so, W.P(C) No.17961 of 2010 -: 3 :- instead, violation found is for the approved plan, Ext.P4. Learned counsel would contend that there is no violation and at any rate even if it is assumed that there is slight variance from the approved plan, it does not in any way violate the relevant rules and no safety or nuisance of the public at large is involved. Hence it is not necessary to stop construction of building at this stage. According to the learned counsel construction if any made in violation of the Rules can be directed to be removed by the learned Munsiff on conclusion of trial. Learned counsel undertook that in case it is found that construction is in violation of the Rules petitioner is prepared to rectify the mistake and make the construction in tune with the relevant statutory provisions. Learned counsel placed reliance on the decisions in M/s. Rajatha Enterprises v. S.K. Sharma (AIR 1989 SC 860) Narahari Rao v. Sate of Kerala (1999 [1] KLJ 969). Learned counsel for the respondent contends that there is violation of the Rule in that width of the road in front of plaint A and B schedules is not left as required in the Rules, not to say that there is violation of the approved plan in that regard. It is also contended that learned District Judge was right in concluding that sufficient rear space has not been left by petitioner in constructing W.P(C) No.17961 of 2010 -: 4 :- the building. Learned counsel contends that there is violation of the Rules and even regularisation under Rule 143 of the Rules is not permissible as held by a Division Bench of this Court in Lazer Robert v. Mohammed Sheriff (2008 [4] KHC 1016) 2. I have gone through the judgment of learned District Judge and find that there is no finding that any of the provisions of the Rules has been violated in the matter of construction. On the other hand the finding is that there is violation of the approved plan (Ext.P4) in that sufficient rear space as directed in the approved plan has not been left by the petitioner in constructing the building. In Ext.P4, approved plan open space required to be left in between the building of petitioner and the compound wall of respondent is stated to be one metre on the one side and 1.10 metres on the other side. Under Rule 62(3) of the Rules rear side shall have an average space of one metre with a minimum of 0.50 metre. In other words, even if at a point on the rear side width of the space is only 0.50 metre it is sufficient that the average width is one metre. 3. Now I shall refer to the report of Advocate Commissioner on which both sides place reliance. It is seen from page 2 of the report that plaint A schedule property is well W.P(C) No.17961 of 2010 -: 5 :- bounded by compound wall on all sides. Plaint B schedule is on its southern side with the three cents belonging to the petitioner being on the eastern side of plaint B schedule. In page 4 of Ext.P5 there is reference to width of open space between the compound wall of plaint A schedule and plaint B schedule as 88 cms. but it is further stated that distance from the pillar of the building in plaint B schedule (constructed by the petitioner) to the compound wall of plaint A schedule is 97 cms. There is no reference to the average width of the rear space on that side. Learned counsel for respondent has invited my attention to the objection filed by petitioner to Ext.P5, report where it is stated that distance between northern side of plaint B schedule is 90 cms. According to the learned counsel for respondent in the light of that stand, it is idle for petitioner to contend relying on what is stated in Ext.P5, report about distance from the pillar to the compound wall of plaint A schedule as 97 cms. It is argued by learned counsel that the outer line of the construction in plaint B schedule goes beyond the pillars and hence distance between the outer line of the building and compound wall of plaint A schedule is less than 97 cms. 4. As of now what is revealed from Ext.P5 is that though it is stated that distance from plaint A schedule is 88 cms., the W.P(C) No.17961 of 2010 -: 6 :- distance from the pillar of construction in plaint B schedule to the compound wall of plaint A schedule is 97 cms. Concededly both the above descriptions are in excess of the minimum requirement of 0.50 metre referred to in Rule 62(3) of the Rules which provided that the average width shall not be less than one metre. But report of Advocate Commissioner (Ext.P5) does not reveal that average width of the open space between construction in plaint B schedule and compound wall of plaint A schedule is less than one metre. I do not forget that in the sketch accompanying Ext.P5, report also Advocate Commissioner has shown distance as 88 cms, as sated in page 4 of Ext.P5. But it is not clear from the sketch whether the said 88 cms is from the pillar in pliant B schedule to the compound wall in plaint A schedule. Further down in Ext.P5 Advocate Commissioner has categorically stated that open space is 97 cms. Either way there is no material on record to conclude that average width is less than one metre. Therefore relying on Ext.P5 it is not possible to say now that there is violation of Rule 62(3) of the Rules. 5. Now I shall come to alleged violation of the approved plan (Ext.P4). No doubt as per that plan space to be left in between plaint A and B schedules should be one metre on one side and 1.10 metres on the other and going by Ext.P5 that W.P(C) No.17961 of 2010 -: 7 :- distance has not been left since that even according to the Advocate Commissioner, width from the pillar of building in plaint B schedule and compound wall of plaint A schedule is 97 cms (or 88 cms as learned counsel for respondent would urge) and to that extent there is a prima facie a variation from the approved plan. 6. Learned counsel for respondent has a further contention that in putting up compound wall in front of plaint B schedule petitioner has not left that much width on the public line abutting that compound wall as indicated in the approved plan but learned counsel was fair enough to concede that the Advocate Commissioner was neither requested nor has reported the width of the said pathway. If that be so that matter is not to be considered in this proceeding. 7. Learned counsel for respondent contended that since construction is at variance with the approved plan further construction of the building is to be prevented. Decision (Lazer Robert v. Mohammed Sheriff - supra) relied on by learned counsel for the respondent states that when there is violation of the relevant Rules no question of regularisation under Rule 143 of the Rules arose. But that question does not arise for consideration for the time being since at present there is only a variation of the approved plan and permit but not in any way W.P(C) No.17961 of 2010 -: 8 :- violating the relevant Rules and it is well within the power of the authority concerned to regularise the same. The Supreme Court in M/s.Rajatha Enterprises v. S.K. Sharma (AIR 1989 SC 860) and a Division Bench of this Court in Narahari Rao v. Sate of Kerala (1999 [1] KLJ 969) stated that when there is no violation of Rules and what is made out is only a variance with the approved plan and it is not shown that construction has in any way caused danger or nuisance to the public at large it is not necessary that civil court should interfere and direct demolition of the structure. I do not forget in those cases issue considered was whether construction which was not in violation of the relevant Rules but in variance with the approved plan and permit should be pulled down. Here is a case where petitioner has invested substantial amount and going by the report of the Advocate Commissioner construction of ground floor has been completed and petitioner is proceeding with construction of first floor. I must also bear in mind that extent of land in the ownership, possession and control of petitioner is only three cents where the construction is being made. Petitioner has the opportunity to seek regularisation of the construction if violation is only of the approved plan. In these circumstances I do not think W.P(C) No.17961 of 2010 -: 9 :- it necessary that at this stage the court has to interfere with construction of the building. After all if ultimately it is found that construction made by petitioner in any way violated the relevant Rules or petitioner is not able to get regularisation of the construction and it is necessary in the interest of justice to do so the civil court has authority to direct petitioner to demolish the construction. At this stage I bear in mind the undertaking made by learned counsel for petitioner that if the construction is found to be in violation of the relevant Rules petitioner is prepared to demolish such portion which violated the Rules. Undertaking made by the learned counsel on behalf of petitioner is recorded. In the light of what I have stated above I am not persuaded to think that petitioner should be prevented from further construction of the building until the suit is disposed of. As such the impugned judgment is liable to be set aside. Resultantly, this Writ petition succeeds. Judgment in C.M.A. No.13 of 2010 of learned District Judge, Thiruvananthapuram is set aside and the order passed by the learned Munsiff is restored. THOMAS P. JOSEPH, JUDGE. vsv