IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 WP(C).No. 28535 of 2008(V) -------------------------- CMA.20/2008 of ADDL.DISTRICT COURT,KOTTAYAM OS.57/2008 of PRINCIPAL MUNSIFF'S COURT, KOTTAYAM .................... PETITIONER --------------- S.SOMARAJ, S/O.V.K.RAMAKRISHNAN, AYYAKOYIKKAL HOUSE, PUTHUPPALLY KARA, KOTTAYAM. BY ADV. SRI.SARVOTHAMAN RESPONDENT(S): --------------- 1. M.N.RAMANAN, S/O.NARAYANAN, PULICKAL HOUSE,PUTHUPPALLY KARA, KOTTAYAM. 2. PUTHUPPALLY GRAMA PANCHAYATH, PUTHUPPALLY VILLAGE, KOTTAYAM TALUK, KOTTAYAM, REP. BY ITS SECRETARY. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXTS: EXT.P1: PHOTOCOPY OF THE PLAINT IN O.S. NO. 57 OF 2008 FILED BEFORE THE MUNSIFF'S COURT, KOTTAYAM EXT.P2: TRUE COPY OF THE OBJECTION FILED BY THE 2ND RESPONDENT-PANCHAYAT AGAINST THE I.A. IN O.S. 57 OF 2008 BEFORE THE MUNSIFF'S COURT, KOTTAYAM EXT.P3: TRUE COPY OF ORDER DATED 22-3-2008 IN I.A. 416 OF 2008 IN O.S. 57 OF 2008 EXT.P4: TRUE COPY OF ORDER DATED 11-4-2008 IN I.A. 441 OF 2008 IN C.M.A.NO. 20 OF 2008 OF THE ADDL. DISTRICT COURT, KOTTAYAM EXT.P5: TRUE COPY OF JUDGMENT DATED 23-5-2008 IN W.P.(C) NO. 13422 OF 2008 OF THIS HON'BLE COURT EXT.P6: TRUE COPY OF JUDGMENT DATED 16-6-2008 V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * W.P.(C) No. 28535 of 2008 * * * * * * * * * * * * * * * * * * Dated: 26-09-2008 JUDGMENT The plaintiff in O.S. 57 of 2008 on the file of the Principal Munsiff's Court, Kottayam is the petitioner in this Writ Petition filed under Article 227 of the Constitution of India. The said suit was filed for a perpetual prohibitory injunction restraining the first defendant from making a construction in his property without maintaining the side yard of 75 cms. from the southern boundary of his plot and in any way violating the Kerala Municipality Building Rules and restraining the 2nd defendant Puthuppally Grama Panchayath from granting permit to the first defendant for constructing a building in the first defendant's property in violation of the Kerala Municipalities Building Rules (hereafter “the Building Rules” for short) and for a mandatory injunction directing the defendants to remove the obstruction caused in the plaint schedule item No. II described as a drain and to realise the cost from the defendants. Along with the suit, the petitioner/plaintiff filed an application for temporary injunction as I.A. No. 416 of 2008. The prayer in that petition was for a temporary prohibitory injunction restraining the first defendant from making W.P.(C) No. 28535 of 2008 -:2:- further construction in violation of the Building Rules and the 2nd defendant from issuing permit to the first defendant for effecting the construction against the Building Rules. 2. It is admitted that the 2nd prayer in the suit as well as application for temporary injunction has become infructous because the permit has already been issued by the Grama Panchayath for effecting the construction in the property of the first defendant. The trial court, after hearing both sides granted the temporary prohibitory injunction as prayed for on 22-3-2008. Aggrieved by the said final order passed by the trial court, the first defendant filed an appeal before the District Court Kottayam as C.M.A. 20 of 2008. Pending the said appeal he sought a stay of the impugned order passed by the trial court. As per Ext.P4 order dated 11-4-2008, the lower appellate court granted a stay as prayed for after hearing both sides. The said order was challenged by the plaintiff by filing W.P.(C) 13422 of 2008 before this Court. As per Ext.P5 judgment dated 23-5-2008 this Court directed the lower appellate court to dispose of the C.M. Appeal itself untrammeled by the observations in the order of stay. Thereafter, the lower appellate court passed Ext.P6 judgment allowing appeal and dismissing the application for temporary prohibitory injunction. Hence, this Writ Petition. W.P.(C) No. 28535 of 2008 -:3:- 3. The learned counsel appearing for the petitioner made the following submissions before me: As per the Building Rules the set off which should have been left by the first defendant towards the southern side was 75 cms. But Exts. C1 report and C2 plan show that actually he has left a set off of 43 cms only. The trial court had found that the distance rule regarding the side yard has been violated since the first defendant has not left 75 cms. from the drainage running east-west in between along the southern boundary of the first defendant's property and the northern boundary of the plaintiff's property. The trial court had also found prima facie that the drain does not belong to the first defendant. In fact, the 2nd defendant Grama Panchayath has claimed that the drain belongs to the Grama Panchayath. The lower appellate court has held that the drain does not belong to the Grama Panchayath and is running through the property of the first defendant and therefore if so the sideyard has a total length of 86 cms. which is far in excess of the statutory minimum of 75 cms. Such a finding should not have been recorded at the interlocutory stage and the lower appellate court should not have interfered with the order of prohibitory injunction passed by the lower appellate court. 4. I am afraid that I cannot agree with the above W.P.(C) No. 28535 of 2008 -:4:- submissions. The findings recorded by the lower appellate court are only tentative finding only for the disposal of the interlocutory application. Prima facie, the lower appellate court has observed that going by the provisions of the Kerala Panchayath Raj Act the drain does not appear to have vested in the Grama Panchayath. If so, the property of the first defendant extends up to the southern wall of the drain and in that case the southern side yard have a width of 86 cms. It is only if the drain is lying outside the property of the first defendant that the width of the side yard will come to 43 cms. It is also pertinent to note that the very same drain which has a width of 43 cms. becomes reduced to 14 cms. from a point situated further to the east of the offending construction and there is also a shop room belonging to the first defendant abutting the said narrow drain having a width of 14 cms. This also has been taken note of by the lower appellate court. It is pertinent to note that in the building permit which has been issued to the first defendant by the 2nd defendant Grama Panchayath the only two conditions are that a tank necessary for collection of rain water should be installed and the construction shall not cause any obstruction to the water flowing along the drain which passes through the property of the first defendant. Even the grama panchayath had treated the drain as one passing through the W.P.(C) No. 28535 of 2008 -:5:- property of the first defendant. It was taking note of these aspects that the lower appellate court vacated the prohibitory injunction granted by the trial court. I do not find any good ground for interfering with the said order sitting in the rarefied jurisdiction of this Court under Art. 227 of the Constitution of India. It goes without saying that the observations and findings of the lower appellate court are only tentative and the suit will have to be disposed of on the basis of the legal and factual aspects coming up for consideration. This Petition is accordingly dismissed. Dated this the 26th day of September 2008. V. RAMKUMAR, (JUDGE) ani.