IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 13TH JANUARY 2010 / 23TH POUSHA 1931 WP(C).No. 37341 of 2008(U) -------------------------- PETITIONER(S): --------------- VIJI MOHANAN,AGED 44 YEARS,W/O.MOHANAN KOLLAMPARAMBIL HOUSE, MULAMTHURUTHI, ERNAKULAM EMPLOYED IN ABU DHABI,NOW RESIDING AT AL-FALAH, NATURAL TREATMENT CENTRE, PO.BOX.NO.26473,REP. BY THE POWER OF ATTORNEY HOLDER MR.MANU,S/O.MOHANAN RESIDING AT VINOD NIVAS, PARAPILLY ROAD,KOCHI-36 BY ADV. SRI.T.B.THANKAPPAN SRI.SAJI PANKAJAKSHAN SRI.T.T.HARIKUMAR RESPONDENT(S): --------------- 1. UDAYAMPEROOR GRAMA PANCHAYATH UDAYAMPEROOR P.O., REPRESENTED BY THE SECRETARY UDAYAMPEROOR GRAMA PANCHAYATH ,UDAYAMPEROOR P.O. ERNAKULAM DISTRICT. 2. ANTONY, S/O. SKARIA, AGED 48 YEARS EMPLOYED IN FOREIGN COMPANY PATHIRAPARAMBIL KOTAMURI P.O., PIN 686 105,KOTAMURI DESOM THRIKODITHANAM VILLAGE, CHANGANACHERRY TALUK. 3. SMT. ALICE ANTONY,W/O. ANTONY AGED 45 YEARS, NURSE, PATHIRAPARAMBIL KOTAMURI P.O., PIN 686 105,KOTAMURI DESOM THRIKODITHANAM VILLAGE, CHANGANACHERRY TALUK. ADV. SRI.PHILIP T.VARGHESE FOR R1 SRI.THOMAS T.VARGHESE FOR R1 SRI.BABU CHERUKARA FOR R2-3 SRI.SEVI VARGHESE FOR R2-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 37341 of 2008 APPENDIX EXHIBITS EXT.P1(a)- TRUE COPY OF SALE DEED NO.3317/03 DATED 26.11.03 OF SRO TRIPUNITURA IN FAVOUR OF PETITIONER EXT.P1(b)- TRUE COPY OF THE SKETCH OF EXT.P1(a) PROPERTY EXT.P2(a)- TRUE COPY OF THE SALE DEED NO.46/02 DATED 4.1.02 OF THE SRO THRIPUNITHURA IN FAVOUR OF 2ND AND 3RD RESPNODENT EXT.P2(b)- TRUE COPY OF THE SKETCH OF THIS EXT.P2(a) PROPERTY RECOVERED FROM 1ST RESPONDENT EXT.P2(c)- TRUE COPY OF THE PLAN APPROVED ON 15.1.08 BY 1ST RESPONDENT IN FAVOUR OF 2ND AND 3RD RESPONDENTS EXT.P2(d)- TRUE COPY OF THE BUILDING PERMIT DATED 15.1.08 ISSUED BY 1ST RESPONDENT TO 2ND AND 3RD RESPONDENTS EXT.P3(a)- TRUE COPY OF THE COMPLAINT DATED 7.7.08 SUBMITTED BY PETITIONER TO 1ST RESPONDENT EXT.P3(b)- TRUE COPY OF THE COMPLAINT DATED 4.11.08 SUBMITTED BY THE PETITIONER TO 1ST RESPONDENT EXT.P3(c)- TRUE COPY OF THE COMPLAINT DATED 13.11.08 SUBMITTED BY THE PETITIONER TO 1ST RESPONDENT EXT.P4- TRUE COPY OF THE LETTER TO EXT.P3 SERIES OF COMPLAINT FROM 1ST RESPONDENT DATED 25.11.08 ISSUED TO THE PETITIONER EXT.P6- TRUE PHOTOSTAT COPY OF THE POWER OF ATTORNEY DEED DATED 21.4.09 EXT.R2(a)- TRUE PHOTOSTAT COPY OF THE SKETCH PREPARED BY THE VILLAGE OFFICER, MANAKKUNNAM EXT.R2(b)- TRUE PHOTOSTAT COPY OF THE RECEIPT DATED 18.12.02 ISSUED BY THE UDAYAMPEROOR GRAMA PANCHAYATH WITH REGARD TO THELICENCE FEE FOR RUNNING WORKSHOP EXT.R2(c)- TRUE PHOTOGRAPH OF THE BUILDING EXT.R2(d)- TRUE PHOTOSTAT COPY OF THE TAX RECEIPT ISSUED BY THE UDAYAMPEROOR GRAMA PANCHAYATH DATED 13.2.09 EXT.R2(f)- TRUE PHOTOSTAT COPY OF THE INTIMATION DATED 26.6.07 ALONG WITH A COVERING LETTER OF THE PANCHAYATH SECRETARY DATED 23.7.09 (TRUE COPY) P.A TO JUDGE ANTONY DOMINIC, J ....................... W.P.(C).37341/2008 ....................... Dated this the 13th day of January, 2010 JUDGMENT 1. Petitioner and respondents 2 and 3 are neighbours. Petitioner owns 1.682 cents of property in Survey No.281/12 in Block No.19 of the Manakunnam Village in Udayamperoor Panchayath. Ext.P1(a) is the title deed and Ext.P1(b) is the survey sketch of his property. 2. Respondents 2 and 3 are owners of 9 cents of land, adjacent to the property of the petitioner. Ext.P2(a) is the title deed and Ext.P2(b) is the survey sketch. 3. According to the petitioner, the Kerala Municipal Building Rules were implemented in the Panchayath area with effect from 6.6.2007 and that subsequent thereto, respondents 2 and 3 obtained Ext.P2(c) plan approved by the Panchayath on 15.1.2008 and Ext.P2(d) building permit also on the same date. It is stated that on the strength of the permit and the approved plan, they commenced construction, in violation of not only the W.P.(C).37341/08 2 plan and permit but also the provisions of the Kerala Municipal Building Rules itself. It is pointed out that going by Ext.P2(a), eastern boundary of the property of respondents 2 and 3 is having a length of 6.74 metres, whereas as per Ext.P2(c) approved plan, the eastern boundary of the building is having a length of 6.84 metres. It is alleged that the excess area is constructed trespassing into their property. It is also contended that distance between the building of the petitioner and the one constructed by the respondents is only 15 cms., and that two pillars on the northern side have been constructed trespassing into the petitioner's property. According to him, violation of the building Rules were brought to the notice of the Panchayath by filing Exts.P3(a), (b) and (c) complaints and by Ext.P4, the Panchayat replied stating that the work had commenced prior to 6.6.2007, when the building rules were implemented in the Panchayat area and that the plan submitted was approved and the building permit was granted on that basis and that it was on the strength of such approval, the construction works are going on. It is thereupon the writ petition is filed. 4. The contention raised by the learned counsel for the W.P.(C).37341/08 3 petitioner is that the statement in Ext.P4 is incorrect. According to him, construction was commenced long after the building rules were implemented and that even in respect of constructions which were already commenced before 6.6.2007, its continuance could only be in terms of the guidelines issued by the Government of Kerala vide order dated 20.6.2007, relevant portion of which is extracted in paragraph 10 of the writ petition. It is stated that there is total non compliance of this Government Order as well. 5. Learned counsel also submits that it was not the case pleaded by the party respondents in the counter affidavit filed that the construction started before 6.6.2006 and that it was only an afterthought that they raised this plea in the additional counter affidavit. On this basis, the counsel contends that Exts.P2(c) and P2(b) are illegal and liable to be set aside. 6. Respondents 2 and 3 have filed a counter affidavit and an additional counter affidavit. According to respondents 2 and 3, ground floor of the building was constructed in the year 2002 and therefore, it was evident that the construction work was W.P.(C).37341/08 4 commenced prior to 6.6.2007. Hence therefore they are entitled to continue construction irrespective of the requirements of the Kerala Municipal Building Rules. 7. As far as the allegation of the petitioner regarding encroachment into his property is concerned, respondents have denied the said allegation. According to the respondents, the construction work was carried on only in their property and that too in compliance with the building permit and the approved plan. In support of his contention that the construction was commenced before 6.6.2007, the learned counsel for the respondents referred to Ext.R2(f) letter issued by them to the Panchayat on 26.6.2007, informing the Panchayat of the work that they had already started and requesting for numbering the building as and when the construction work is completed. They also relied on Ext.P4 letter of the Panchayat. Learned counsel for the respondents also submits that in any case they have been issued Ext.P2(c) approved plan and Ext.P2(d) building permit. If anybody was aggrieved thereby, the remedy available to such person was to have invoked the appellate remedy available under Rule 160 of the Kerala Municipal Building Rules. It is stated that W.P.(C).37341/08 5 for these reasons, the prayer sought, against the permit and plan is misconceived and is unsustainable. Answering the contentions of the petitioner that the case of having commenced the construction before 6.6.2007, has not been urged in the counter affidavit filed and that the same has been urged only through the additional counter affidavit by way of an afterthought, it is argued that it was only an inadvertent omission on their part and that it was not deliberate. 8. I have considered the submissions made. The first contention of the petitioner is that there is an encroachment on the eastern boundary, that the distance between the two buildings is only 15 cms and that two pillars have been constructed inside the northern boundary of the petitioner's property. This allegation of the petitioner has been denied in the counter affidavit filed by respondents 2 and 3. If the correctness of this allegation is to be ascertained, necessarily it will require appreciation of evidence including production of survey plan and such other documents. This exercise cannot be undertaken in a proceedings under Article 226 of the Constitution of India. Therefore, if at all the petitioner had a case that respondents 2 W.P.(C).37341/08 6 and 3 have trespassed into their property and made any construction, it is upto the petitioner to move the competent Civil Court by filing a Suit, adduce evidence and seek appropriate reliefs. Therefore, this contention cannot be entertained in this proceedings. 9. The other contention of the petitioner is regarding invalidity of Ext.P2(c) approved plan and Ext.P2(d) building permit issued by the 1st respondent Panchayath. On this issue, serious dispute has been raised by both sides. While the petitioner contends that the stand taken by the Panchayath in Ext.P4 letter and the party respondents in the additional counter affidavit that the construction had commenced prior to 6.6.2007 is incorrect, both the Panchayat and the party respondents are stand by such contention. Petitioner has not produced any independent material to show that the construction was not started prior to 6.6.2007. On the other hand, he wants this Court to infer the incorrectness of the contention of the Panchayath and the party respondents relying on Ext.P4 and the materials produced in this writ petition. Party respondents refer to Ext.R2(f) letter issued to the Panchayath way back on 26.6.2007 informing the W.P.(C).37341/08 7 Panchayath of the construction undertaken. Similarly respondents are also relying on Ext.P4 and the averments in the additional counter affidavit. It has not been conclusively established that the construction of the building was not started prior to 6.6.2007 contrary to what is stated in Ext.P4 and in the additional counter affidavit. Therefore, on the materials I cannot accept the case of the petitioner regarding the invalidity of Exts.P2(c) and P2(d). 10. In such circumstances, having regard to the nature of the contention, it must be held that these are also not issues which can be decided in a writ petition. Hence, it was only appropriate for the petitioner to avail of the appellate remedy available under the provisions of Rule 160 of the Kerala Municipal Building Rules which remedy has not been so far pursued by the petitioner. 11. Petitioner submits that even if the construction was started prior to 6.6.2007, the construction could have been continued after 6.6.2007 only if the requirements of Circular No.24136/RA 1/07 LSGD dated 20.6.2007 have been complied with. This W.P.(C).37341/08 8 circular requires the Panchayath to comply with the requirements laid down therein. In this case, there is no material to conclude that these requirements have been complied with. The fact that the Panchayath has not complied with the requirements of the Circular by itself caused result in a situation where respondents 2 and 3 are deprived of their right to continue construction. Therefore, this argument does not impress me in any manner. 12. In the result, leaving open the remedy of the petitioner to approach the competent forums to redress his grievance, the writ petition is disposed of. ANTONY DOMINIC, Judge mrcs