IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 SA.No. 499 of 1993() -------------------- AS.106/1991 of I ADDL.SUB COURT,ERNAKULAM 0S.1480/1988 of MUNSIFF COURT.,ERNAKULAM .................... APPELLANTS/APPELLANTS/PLAINTIFF: -------------- 1. V N SANKARAN, S/o. LATE SRI NARAYANAN, (DIED) DOOR NO.XXXV/318 (NEW NO.XXXIX/1405), COCHIN DEVASWOM BOARD BUILDINGS, PROPRIETOR, TOWN HAIR DRESSERS, VALANJAMBALAM, ERNAKULAM, KOCHI-16 2. P K KARUNAKARAN, S/o. SRI KITTAN DOOR NOS.XXXV/319 AND 320 (NEW NOS.XXXIX/1406 AND 1407), COCHIN DEVASWOM BOARD BUILDINGS, PROPRIETOR, COLOMBO TAILORS, VALANJAMBALAM, ERNAKULAM, KOCHI-16 3. V T ANTONY, S/o. SRI THOMMY, DOOR NO.XXXV/326 (NEW NO.XXXIX/1413), COCHIN DEVASWOM BOARD BUILDINGS, MANAGING PARTNER, MODERN MEDICAL STORES VALANJAMBALAM, ERNAKULAM, KOCHI-16 4. BHAGAVAL DAS, S/o. SRI C P NARAYANAN DOOR NO.XXXV/327( NEW NO.XXXIX/1414) COCHIN DEVASWOM BOARD BUILDINGS, PROPRIETOR, MURALI STORES VALANJAMBALAM, ERNAKULAM, KOCHI-16 *5. RADHA, W/o. LATE V N SANKARAN UMA NIVAS, AROOR P O AROOR MURI, ARROR PAKUTHY CHETHALA TALUK, ALAPPUZHA DISTRICT *6. SHYAMALA, D/o. LATE V N SANKARAN DO - - DO *7. NARAYANANKUTTY, S/o. LATE V N SANKARAN DO – DO *8. UMA KRISHNANKUTTY, D/o. LATE V N SANKARAN AND W/o. KRISHNAN KUTTY SOUPARNIKA HOUSE ASOKAPURAM P O , EDAYAPURAM, ALUVA *9. MINI, D/o. LATE V N SANKARAN W/o. VIJAYAKUMAR, ANIZHAM HOUSE AROOR P O, AROOR MURI, AROOR PAKUTHY, CHERTHALA TALUK ALAPPUZHA DISTRICT BY ADV. SRI.N.HARIDAS FOR A2 TO A4 ADV. P N SASIDHARAN FOR ADDL A5 TO A9 RESPONDENTS/RESPONDENTS/DEFENDANTS: --------------- 1. CORPORATION OF KOCHI, REPRESENTED BY ITS COMMISSIONER 2. COCHIN DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY OFFICE OF THE COCHIN DEVASWOM BOARD THRISSUR ROUND, THRISSUR 3. SUBRAMANIAN S/o. LATE V N SANKARAN UMA NIVAS, AROOR P O, AROOR MURI AROOR PAKUTHY, CHERTHALA TALUK ALAPPUZHA DISTRICT ADV. SRI.K GOPALAKRISHNAKURUP (SC) FOR R2 CORPORATION OF KOCHI AND ANOTHER SRI C A ANUPAMAN FOR ADDL R3 (ADDITIONAL PETITIONERS 5 TO 9 AND ADDITIONAL RESPONDENT no.3 ARE IMPLEADED AS THE LHRS OF DECEASED 1st RESPONDENT AS PER the VIDE SEPARATE ORDER DATED 30-10-2009 IN I A 723/2009.) THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- S.A.No.499 of 1993A --------------------------------------- Dated this 05th day of January, 2010 JUDGMENT Appellants are aggrieved by the concurrent finding entered by the courts below and consequent dismissal of the suit. They claimed to be tenants in occupation of the building belonged to respondent No.2. Originally, the building belonging to V.T.K.Estate and Palace Funds. While appellants were in occupation of the tenanted premises, respondent No.1 issued notices to them directing them to remove what respondent No.1 alleged, unauthorised additional structures put up by them projecting into the public road. Appellants say that they have not put up any such additional structure or encroached into the puramboke land. Hence they sued for a decree for prohibitory injunction against respondent No.1. Respondent No.1 contended that appellants extended plinth area of the building without permission and in violation of the building rules. Appellants constructed veranda encroaching into the puramboke land which is causing obstruction to the public road and hence notice under section 230 of the Kerala Municipal Corporation Act (for short, “the Act”) was issued to the appellants. That notice is valid. Respondent No.2 contended that appellants have no right to effect alterations in the building. Trial court found on evidence that appellants encroached into the public road and made S.A.No.499 of 1993A 2 additional structures on the existing building, there is no challenge to the validity of the notice and hence they are not entitled to the injunction prayed for. Appellate court has confirmed that finding. Hence the second appeal. 2. The following substantial questions of law are framed for a decision. (i) Is it not necessary to establish that unauthorized construction is made on puramboke land in order to initiate proceedings under section 230 of the Kerala Municipal Corporation Act. (ii) Whether the tenants of the building belonging to a statutory body demolish portion of the building put up by the said body. It is contended by learned counsel for appellants that no unauthorised construction has been made by the appellants so that, they should be asked to remove the same. It is also contended that the notice issued is illegal. 3. So far as validity of the notice is concerned, as the learned Munsiff observed its legality is not challenged. The suit is merely for injunction to restrain respondent No.1 from enforcing the notice. Ext.B2(a), plan prepared by the Taluk Surveyor show that the impugned constructions project beyond the plinth area of the building into the puramboke land. There is no case or evidence that the said S.A.No.499 of 1993A 3 additional structures were made with the permission of respondent No.1. Under section 230 of the Act, the owner or occupier of the land is bound to remove the structures. Respondent No.2, the owner of the building does not know who constructed the impugned structures. 4. The jurisdiction of civil court in such matters is limited to look into the question whether notice issued is legal and is in accordance with the statutory provision. The question whether the structures put up are unauthorized or not are issues which the statutory authority mentioned in the Act has to consider. No illegality has been pointed out in the impugned notice. As such courts below are correct in disallowing relief to the appellants. I make it clear that if the relevant Act provides so, it will be open to the appellant to urge their contentions before the statutory authority and, in case there is any delay in making such representation and that delay is liable to be condoned by the statutory authority concerned, such authority shall taken into account the pendency of the suit and the appeals while deciding whether the delay is to be condoned. The substantial questions of law framed above are answered accordingly. With the above observations the second appeal is dismissed. No cost. THOMAS P JOSEPH, JUDGE Sbna/