IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 WP(C).No. 30466 of 2009(O) -------------------------- CMA.15/2008 of SUB COURT, HOSDRUG IA NO.2646/2008 IN OS.259/2008 of MUNSIFF COURT, HOSDRUG .................... PETITIONER(S): --------------- ANIKKIL MANOHARAN NAIR, AGED 48 YEARS, S/O.ARAMANA KRISHNAN NAIR, RESIDING AT KIZHAKKANKOZHUVIL, NEELESWAR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.SURESH KUMAR KODOTH SMT.P.S.SETHULEKSHMY RESPONDENT(S): --------------- 1. KIZHAKKAN KOZHUVEL DEVELOPMENT COMMITTEE, REPRESENTED BY ITS SECRETARY, P.K.SURENDRAN, AGED 48 YEARS, S/O.RAGHAVAN MASTER, KIZHAKKAN KOZHUVAL, NEELESWAR, HOSDURG TALUK. 2. M.RAJAGOPAL, AGED 48 YEARS, S/O.LATE KUNHAPPA NAIR, PRESIDENT, KIZHAKKAN KOZHUVEL DEVELOPMENT COMMITTEE, NEELESWAR VILLAGE, HOSDURG VILLAGE, KASARAGOD DISTRICT. ADV. SRI.KODOTH SREEDHARAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.30466/2009 APPENDIX PETITIONER'S EXIBITS: EXT.P1 TRUE COPY OF THE ORDER DATED 4.9.2009 EXT.P2 TRUE COPY OF INTERIM REPORT DATED 14.8.2008 EXT.P3 TRUE COPY OF BUILDING PERMIT EXT.P4 TRUE COPY OF ORDER DATED 5.10.2009 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.30466 of 2009 -------------------------------------- Dated this the 29th day of June, 2010. JUDGMENT Petitioner before me is the plaintiff in O.S.No.259 of 2008 of the court of learned Munsiff, Hosdurg. He is the owner in possession of plaint A schedule, three cents in extent. On its east is plaint B schedule belonging to respondent No.1. In the plaint B schedule there is already a building in existence and as part of its development activities respondent No.1 wanted to construct another floor over it. Respondent No.1 is said to have obtained approved plan and permit from the local authority and when it started with construction of first floor petitioner filed O.S.No.259 of 2008 alleging that construction is in violation of the relevant Building Rules. A commission was taken in the trial court who filed an interim report. Based on that interim report learned Munsiff allowed I.A.No.2646 of 2008 and restrained respondent No.1 from making any addition to the existing building on the finding that the construction violated Rule 100 (5) of the Kerala Municipality Building Rules (for short, “the Rules”). Respondent No.1 took up the matter in C.M.A.No.15 of 2008 before the learned Sub Judge, Hosdurg who relying on Ext.P3, approved plan found that prima facie there is no violation of Rule 100(5) of the Rules and accordingly, allowing C.M.Appeal set aside order of injunction. Judgment of learned Sub Judge is under challenge in this Writ Petition. While admitting Writ Petition this Court directed respondent No.1 to maintain status quo until disposal of the Writ Petition. That order remains in WP(C) No.30466/2009 2 force even now. It is contended by learned counsel for petitioner that the appellate court has not taken into account Ext.P2, report of the Advocate Commissioner which indicated that construction in plaint B schedule abutted its western boundary ie. eastern boundary of plaint A schedule and thus there is violation of Rule 100(5) of the Rules. Learned counsel for respondent No.1 contended that there is no violation in that, Ext.P3, approved plan shows that there is a minimum distance of 75 cms from the structure already in existence in plaint B schedule to the western boundary of plaint B schedule and as such learned Sub Judge was correct in holding that there is no violation of Rule 100 (5) of the Rules. 2. Rule 100(5) of the Rules states that in the case of residential or special residential or mercantile/commercial buildings alteration or addition (extension) of floor(s) or conversion of roof shall be permitted only if the existing building and the proposed floor(s) have average 60 ms open space from the boundaries of all the plots on its sides including rear. Rule 3(d) of the Rules says that where addition or extension is made to a building, the rules shall apply to the addition or extension only, but for calculation of floor area ratio and coverage permissible and for calculation of required off street parking area to be provided, the whole building (existing and the proposed) shall be taken into account. A reading of Rules 3(d) and 100(5) of the Rules make it clear that when addition is proposed for the existing building such existing building should have a minimum space as referred to in Rule 100(5) of the Rules. WP(C) No.30466/2009 3 3. Then the question is whether the impugned construction violated Rule 100(5) of the Rules. While learned counsel for respondent No.1 maintained that average space of 60 cms has been left as provided under Rule 100(5) of the Rules learned counsel for petitioner asserted and relying on Ext.P2, report claimed that the structure already in existence in plaint B schedule is constructed abutting the western boundary of plaint B schedule. Learned counsel has invited my attention to paragraph No.4 of Ext.P2. In paragraph No.4 it is stated that plaint A schedule property is three cents in area with a residential building in it and that on its east plaint B schedule with the building is situated. Western wall of the building forms part of eastern physical boundary that separates A schedule property from B schedule building. 4. It has to be ascertained whether the structure which is already in existence in plaint B schedule is in compliance of Rule 100(5) of the Rules in that the said construction is made leaving an average space of 60 cms from the boundary of plaint B schedule. If it is found that the average space of 60 cms is not left, certainly there is violation of Rule 100(5) of the Rules in which case respondent No.1 will not be justified in claiming that it is entitled to proceed with the construction. Therefore, it has to be ascertained with the assistance of an Advocate Commissioner whether in between the building which is already in existence in plaint B schedule and its western boundary average space of 60 cms is left. Decision on I.A.No.2646 of 2008 will depend upon that finding. Going through Ext.P2 I am unable to find whether that average space of 60 cms has been left. As such proper course is to direct trial court to get a report from WP(C) No.30466/2009 4 the Advocate Commissioner if possible by deputing the very same commissioner on the question whether existing structure in plaint B schedule is constructed after leaving an average space of 60 cms from the western boundary of plaint B schedule. 5. In view of above facts, judgment of the appellate court or the order of the trial court cannot be sustained. Resultantly this Writ Petition is allowed and judgment in C.M.A.No.15 of 2008 as well as order on I.A.No.2646 of 2008 are set aside and, that application is remitted to the trial court for fresh disposal in the light of the observations made above and in accordance with the law in force. I direct that interim order passed by this Court on 28.10.2009 will remain in force until I.A.No.2646 of 2008 is disposed of. Trial court shall expedite disposal of I.A.No.2646 of 2008. THOMAS P.JOSEPH, Judge. cks