IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 WP(C).No. 1517 of 2010(O) ------------------------------------- OS.541/2009 of MUNSIFF COURT, ALAPPUZHA .................... PETITIONER(S): ----------------------- PATRIC D'COUTHA, AGED 42, S/O.LATE JOHN D'COUTHA, JANATHA QUARTERS, SEA VIEW WARD, ALAPPUZHA, REP.BY HIS POWER OF ATTORNEY, ALPHONSE FIGARUS, PALLATH HOUSE, PUNNAYAM P.O., PERUMBAVOOR. BY MR.K.P.DANDAPANI, SENIOR ADVOCATE, ADV. MR.ADEEP ANWAR, MR.PRAVEEN K. JOY. RESPONDENT(S): ------------------------- 1. FLORA CHRISTHUDAS, W/O.CHRISTHUDAS, AGED 73, RESIDING AT JANATHA QUARTERS, SEAVIEW WARD, ALAPPUZHA. 2. L.F. SANTHA KUMARI, W/O.P.B. NANDAKUMARAN, AGED 56, JANATHA QUARTERS, SEAVIEW WARD, ALAPPUZHA. 3. IRIN PADMALATHA, W/O.MEGREGORY, AGED 55, JANATHA QUARTERS, SEAVIEW WARD, ALAPPUZHA. 4. HELEN VALANTEEN CHRISTEENA, AGED 41, JANATHA QUARTERS, SEAVIEW WARD, ALAPPUZHA. 5. ALAPPUZHA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, ALAPPUZHA. R1 TO R4 BY ADV. MR.M.D.SASIKUMARAN, MR.K.S.HARIHARAPUTHRAN, MR.GEORGE MATHEW . R5 BY ADV. MR.M.K. CHANDRAMOHAN DAS, SC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 1517/2010-O APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE POWER OF ATTORNEY DATED 31/08/2009. EXT.P2: COPY OF THE PLAINT IN OS NO.541/2009 BEFORE THE MUNSIFF'S COURT ALAPPUZHA. EXT.P3: COPY OF THE IA NO.4014/2009 IN OS NO.541/2009 BEFORE THE MUNSIFF'S COURT, ALAPPUZHA. EXT.P4: COPY OF THE COUNTER AFFIDAVIT IN IA NO.4014/2009 BEFORE THE MUNSIFF'S COURT, ALAPPUZHA. EXT.P5: COPY OF THE INTERLOCUTORY APPLICATION AS IA NO.5550/2009 FOR VACATING THE EXPARTE ORDER IN OS.541/2009 BEFORE THE MUNSIFF'S COURT, ALAPPUZHA. EXT.P6: COPY OF THE WRITTEN STATEMENT IN OS NO.541/2009 BEFORE MUNSIFF'S COURT, ALAPPUZHA. EXT.P7: COPY OF THE APPLICATION FOR RAISING MAINTAINABILITY AS IA NO.6081/2009 IN OS NO.541/2009 BEFORE MUNSIFF'S COURT, ALAPPUZHA. EXT.P8: COPY OF THE COMMON ORDER ON 04/01/2010 IN IA NO.6081/2009, 4014/2009, 5550/2009 IN OS NO.541/2009. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 1517 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of March, 2010. JUDGMENT In this petition filed under Article 227 of the Constitution of India the petitioner seeks to have the order in I.A. 6081 of 2009 in O.S.541 of 2009 passed by the Munsiff's Court, Alappuzha set aside. 2. The suit was instituted by respondents 1 to 4 herein seeking a permanent prohibitory injunction restraining the defendants in the suit, who are the petitioner and the fifth respondent herein from proceeding with the construction in the plaint schedule property in violation of the provisions of the Kerala Municipality Act and the Kerala Municipality Building Rules and the approved plan, licence and permit issued by the third defendant. 3. Copy of the plaint is produced as Ext.P2. In the plaint it is averred that plaint item No.1 belonged to be plaintiffs and they are in absolute possession and WPC. 1517/2010. 2 enjoyment of the same. The first defendant owned property on the northern side of plaint item No.1 and it is described in the plaint as item No.2. It is alleged in the plaint that defendants 1 and 2 have started to construct a multi storied building in plaint item No.2 property. According to the plaintiffs, it is in blatant violation of the mandatory provisions of the Kerala Municipality Act and the Kerala Municipality Building Rules and also the permit and licence granted by the Municipality. They have detailed the various violations under the provisions of the Act and the Rules. The main grievance is that the defendants are continuing the construction in violation of the terms of licence issued by the Municipality. 4. Along with the suit, it seems that the plaintiffs filed I.A.4014 of 2009 for interim injunction. The respondents entered appearance and filed their detailed counter. In the counter affidavit, they pointed out that the court has no jurisdiction to entertain the suit and it is barred by Section 563 of the Kerala Municipality Act. They have WPC. 1517/2010. 3 also stated that they have not carried out any construction in violation of the Rules and the provisions of the Act or against the permit and licence granted by the Municipality. According to them since the suit is not maintainable, there is no justification for entertaining the I.A. 5. The court below, after an elaborate hearing, passed the order, which reads as follows: “(a) The defendants 1 and 2 are restrained by an order of temporary prohibitory injunction order from effecting further constructions in plaint schedule itemNo.2 property in violation of the provisions of the Kerala Municipality Act and Kerala Municipal Building Rules and the approved plan, licence and permit issued by the third defendant. (b) The prohibitory order (a) above shall in no way bind the third defendant in proceeding with any legal actions if any against Building Rules violations and violations of licence and permit issued for construction to the defendants.” It is the said order that is objected to in this writ petition. It is stated that the order is an appealable one, so no writ lies. WPC. 1517/2010. 4 The emphasis is on the issue regarding the jurisdiction to entertain the suit. 6. Learned counsel appearing for the petitioner reiterated the same contentions raised by the defendants in the court below. It is contended that the suit itself is not maintainable and therefore there is no justification in passing an order on the application. Learned counsel relied on Section 563 of the Municipality Act and the decision reported in Noushad v. Kayamkulam Municipality (2006 (2) K.L.T. 319). It is contended that any act by the Municipality or its officers is not assailable before a court of law has been laid down by the above decision and if that be so, the present proceedings are incompetent. 7. Learned counsel appearing for the respondents on the other hand contended that he is not challenging any act of the Municipality or its officers, but only challenging the act of the petitioner in carrying on the construction in violation of the Act and Rules and Section 563 of the Act has no application. WPC. 1517/2010. 5 8. Section 563 reads as follows: “563. Jurisdiction of Civil Courts barred.- No civil Court shall have jurisdiction to entertain any suit, application or petition challenging the legality or propriety of any action taken by or under the authority of the Secretary under any provisions comprised in Chapters XVII, XVIII and XIX or the rules and regulations, if any, made thereunder.” 9. True in the plaint, one of the reliefs sought for is as follows: “A. Of perpetual injunction restraining the defendants 1 and 2 and persons claiming under them from proceeding with the construction in the plaint schedule 2 property in violation of the provisions of the Kerala Municipality Act and Kerala Municipal Building Rules and the approved plan, licence and permit issued by the 3rd defendant.” Even though there is such a prayer, it is unnecessary to go into that aspect in detail, in view of the written statement stated to have been filed by the Municipality in the court below. In paragraph 4 of their written statement it is stated as follows: WPC. 1517/2010. 6 “It is submitted that on getting complaint from the plaintiff this defendant made enquiry and came to know that the 1st defendant had constructed the building violating the Municipality Building Rules. Hence this defendant issued notice under Sec.406(2) of the Municipality Act. But as the matter is pending before this court, this defendant has not taken any further steps.” 10. Prima facie, the view of the court below that Section 563 of the Municipality Act may not have application cannot be faulted. But that requires detailed scrutiny and examination. The present order prohibits the petitioner from carrying on the construction in violation of the terms of the licence and the permit granted by the Municipality. All that is now shown is that there is illegal construction being carried on by the defendant. 11. The construction is not in terms of the licence and permit granted by the Municipality is evident from the written statement filed by the Municipality and it is also averred that they are not taking any steps in view of the pendency of the suit. WPC. 1517/2010. 7 12. There is no bar for the Municipality in taking such steps as are available to them under the Act and the order of the court below granting injunction shall not stand in the way of the Municipality in doing so. But it is difficult to accept the plea of the petitioner that as of now the proceedings are not maintainable before the civil court. Any way that question is left open to be decided as and when required. All that is now required is to direct that the Municipality will be free to consider the application before it or such other matters as are relevant for the purpose of considering the complaint regarding the construction and take a decision in accordance with law. With this observation, this writ petition is disposed of. P. BHAVADASAN, JUDGE sb.