IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 RSA.No. 672 of 2008(E) ---------------------- AS.7/2005 of PRINCIPAL SUB COURT,KOCHI OS.682/2000 of ADDL. MUNSIFF'S COURT, KOCHI. .................... APPELLANT/APPELLANT/ADDL. 3RD DEFENDANT: ------------------------------------------------------- VARADARAJA SHENOY, AGED 45, S/O.SREENIVASA SHENOY, C C 8/2196 A M CROSS ROAD, COCHIN-682 002. BY ADV. SRI.S.SACHITHANANDA PAI RESPONDENTS/RESPONDENTS/PLAINTIFFS/DEFENDANTS 1 AND 2:- --------------------------------------------------------------------------- 1. S.VITTAL RAO, AGED 60, S/O.LATE R.SREEDHARA RAO, C C 8/2195 A, A M CROSS ROAD, COCHIN.682 002. 2. THE CORPORATION OF KOCHI,REP.BY ITS SECRETARY, COCHIN-682 011. 3. THE ASSISTANT EXECUTIVE ENGINEER CORPORATION OF KOCHI, ZONAL OFFICE, KOCHI.682 001. ADV. SRI.K.V.SADANANDA PRABHU FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== R.S.A. No. 672 of 2008 ========================== Dated this the 23rd day of October, 2008. JUDGMENT The third defendant in O.S. No. 682 of 2000 on the file of the Additional Munsiff's Court, Kochi is the appellant in this Second Appeal. The said suit instituted by the 1st respondent herein was one for a declaration that Ext.A4 demolition order issued by the Corporation of Kochi in respect of the plaint schedule building is null and void and for a perpetual injunction restraining the Corporation from obstructing the plaintiff from further constructing the building. 2. Among the various defences raised, it was contented that the suit was not maintainable in view of the bar under the provisions of the Kerala Municipalities Act 1999 (Section 563) and the Kerala Building Rules and also for want of the statutory notice as contemplated under Section 544 of the said Act. The courts below have decreed the suit concurrently after overruling the aforesaid objections. R.S.A. No. 672/2008 : 2: 3. The following are the facts as found by the courts below:- The plaintiff is the owner in exclusive possession and enjoyment of a plot of land admeasuring 3.662 cents comprised in Survey No. 644/1 of Mattancherry village. The plaintiff applied to the 1st defendant Corporation for permission to construct a two storied residential building. As per the plan submitted by the plaintiff, the first defendant issued Ext.A8 draft plan dated 14.12.1990 and Ext. A9 building permit dated 04.02.1991 on the strength of which the plaintiff completed the ground floor portion of the building which was assigned the number C.C.8/2195 A by the first defendant. Thereafter, at the instance of the appellant/3rd defendant, the first defendant Corporation issued demolition orders of certain portions of the building stated to have been constructed illegally. The said orders for demolition were challenged by the plaintiff by filing a suit as O.S. No. 430/1994 before the Munsiff's Court, Kochi. The said suit which was dismissed by the trial court was, on appeal preferred by the plaintiff in A.S. No. 53/96 before the Sub Court, Kochi, decreed R.S.A. No. 672/2008 : 3: declaring that the orders of demolition issued by the 1st defendant are illegal and a decree for a perpetual injunction was granted restraining the defendants from implementing the orders of demolition. Thereafter, the plaintiff informed the first defendant of his intention to continue the construction. Since the first defendant did not send any reply, the plaintiff started construction of the first floor of the building as per the draft plan. Appellant/third defendant again influenced the 1st defendant Corporation which issued Ext.A3 provisional order dated 02.09.2000 directing the demolition of the alleged unlawful construction of the first floor. Even though the plaintiff submitted a reply stating that no unauthorised construction was put up by him and that he was entitled to complete the construction, the first defendant without considering the objection, issued confirmation orders directing demolition. No hearing was also afforded to the plaintiff thereby violating the principles of natural justice. The plaintiff was entitled to continue the construction under Exts.A8 and A9 which had not lapsed and no renewal was necessary in view of the fact that the construction had been R.S.A. No. 672/2008 : 4: commenced within the time limit fixed thereunder. Since Exts.A3 and A6 provisional and final orders were passed by the 1st defendant in gross violation of principles of natural justice, they are null and void. 4. The learned counsel appearing for the appellant/3rd defendant submitted that the following substantial questions of law arise for consideration in this Second Appeal. a. Is not the present suit is barred under Section 563 of the Kerala Municipality Act? b. Whether the suit is maintainable under law without statutory notice contemplated under Section 544 of the Act? c. Whether the courts below justified in decreeing the suit finding that construction is in violation of the approved plan and permit? d. Whether the suit is liable to be dismissed for non renewal of permit and plan as contemplated under Section 394 of the Act? 5. With regard to the questions formulated as 'a' and 'b' above, those are all contentions available to the 1st defendant Corporation and not to the 3rd defendant who has been influencing the Corporation to issue demolition orders and stop memos against the plaintiffs. The other two questions are also answered by the courts below holding that it was unnecessary for R.S.A. No. 672/2008 : 5: the plaintiff to get the renewal of the permit and plan. The courts below have also held that the construction was not carried on by the plaintiff in violation of the draft plan and permit. 6. Even assuming that there was a bar of suit under statute either expressly or by necessary implication, it is well settled that notwithstanding the said bar, if the statutory authorities have passed orders in violation of principles of judicial procedure or principles of natural justice, the jurisdiction of the civil court is not ousted and the civil court can nevertheless go into the legality of the orders passed by the statutory authorities. For that reason also, the judgments and decrees passed by the courts below cannot be faulted. No question of law, much less any substantial question, arises for consideration in this Second Appeal which is accordingly dismissed in limine. Dated this the 23rd day of October, 2008. V. RAMKUMAR, JUDGE. rv R.S.A. No. 672/2008 : 6: