IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 18TH JANUARY 2010 / 28TH POUSHA 1931 OP.No. 13211 of 2001(W) --------------------------------- PETITIONER(S): ---------------------- N.PURUSHOTHAMA MALLAYA, S/O. NARAYANA MALLAYA AGED 72 YEARS, RESIDING AT VI/2061. PALACE ROAD, MATTANCHERY, COCHIN 2. BY MR.P.BALAGANGADHARA MENON, SENIOR ADVOCATE BY ADV. SMT.SUSMITHA P.MALLAYA MR.S.SREEKUMAR RESPONDENT(S): ------------------------- 1. COCHIN CORPORATION REP.BY SECRETARY, COCHIN CORPORATION, ERNAKULAM , COCHIN 16. 2. ASSISTANT EXECUTIVE ENGINEER, ZONAL OFFICE, CORPORATION OF COCHIN, FORT COCHIN. 3. VILLAGE OFFICER, MATTANCHERY. 4. N.PRABHAKARA MALLAYA, S/O. NARAYANA MALLAYA, VI/1516. KOTHUWAL LANE, PALACE ROAD, MATTANCHERY, COCHIN – 2. R1 & R2 BY ADV.MR.V.B.UNNIRAJ R4 BY ADVS. MR.S.SREEKUMAR BY MR.P.T.DINESH MR.K.R.SUNIL THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/01/2010, ALONG WITH OP NO. 25723 OF 2002 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.60072/2001, 21011/2001 IN OP. NO.13211/2001 DISMISSED 18/01/2010 SD/- S.SIRI JAGAN, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE SASWATHADHARAM. P2:- COPY OF THE JUDGMENT IN AS. NO.637/1993 DTD. 5.6.1995 ON THE FILE OF THIS HONOURABLE COURT. P3:- COPY OF THE ORDER DTD. 29.3.1999 IN CMP. 2040/99 ON THE FILE OF THIS HONOURABLE COURT. P4:- COPY OF THE REPRESENTATION DTD. 12.4.1999 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P5:- COPY OF THE PERMIT AND PLAN SANCTIONED BY THE 2ND RESPONDENT. P6:- COPY OF THE JUDGMENT IN A.F.A. NO.39/05 DTD. 28.2.01 ON THE FILE OF THIS HONOURABLE COURT. P7:- COPY OF THE ORDER DTD. 28.2.01 IN CMP. 7656/2000 ON THE FILE FO THIS HONOURABLE COURT. P8:- COPY OF THE REPRESENTATION DTD. 27.3.2001 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT. P9:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE DISTRICT COLLECTOR, ERNAKULAM DTD. 3.4.01. P10:- COPY OF THE PATTAYAM DTD. 16.6.2000 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE COCHIN CORPORATION. P11:- COPY OF THE CERTIFICATE NO.CR 435/2000 DT. 8.5.2000 BY THE VILLAGE OFFICER, MATTANCHERY. P12:- COPY OF THE CERTIFICATE (SAKSHYAPATRAM) ISSUED BY THE VILLAGE OFFICER, MATTANCHERY TO THE 4TH RESPONDENT. P13:- COPY OF THE YADHAST NO.124/85 DTD. MALAYALAM ERA OF 19.1.85 BY THE TAHSILDAR OF COCHIN KANAYANNUR TALUK. OP. NO.13211/2001 P14:- COPY OF THE RECEIPT OF THE LAND TAX. P15:- COPY OF THE ORDER NO.F.C.P. 2/241/200 DTD. 31.1.02 THE SECRETARY, COCHIN CORPORATION. P16:- COPY OF THE RELEVANT PART OF THE PRELIMINARY JUDGMENT OF THE PRINCIPAL SUB JUDGE, COCHIN IN OS. 87/78. P17:- COPY OF THE FINAL JUDGMENT BY THE PRINCIPAL SUB JUDGE, KOCHI IN OS. NO.87/78. TRUE COPY P.A. TO JUDGE tss S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - O.P. No. 13211 of 2001 & O.P. No.25723 of 2002 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of January, 2010 J U D G M E N T These two original petitions are a sequel to a long standing dispute between two brothers which is even now pending consideration in O.S. No.87 of 1978 before the Sub Court, Kochi, pursuant to a remand order passed by this court in appeals filed against the final decree in that O.S., which is a suit for partition. The petitioner in O.P.No.13211/2001 is the 2nd respondent in the other original petition, filed by the 4th respondent in O.P. No.13211/2001. I shall refer to the rank of the parties and Exhibits as obtaining in O.P.No.13211/2001 unless otherwise specifically made clear, for convenience. The petitioner and the 4th respondent herein are, as already mentioned, brothers. The 4th respondent filed O.P. No. 13211 of 2001 & O.P. No.25723 of 2002 -2- O.S. No.87/1978 before the Sub Court, Ernakulam, for partition of the properties which devolved on them by Ext.P1 saswathadharam. The Sub Court passed a preliminary decree and a final decree in the suit. The final decree was challenged by the petitioner, in A.S. No.637/1993 before this court. By Ext.P2 judgment a learned Judge of this court set aside the final decree and remanded the case back to the sub court. The 4th respondent challenged the judgment of the learned Judge in A.F.A. No.39/1995. In that A.F.A., the 4th respondent filed C.M.P. No.2040/1999 seeking permission of the court for reconstruction of his portion of the building, which according to him was in a dilapidated condition. The petitioner opposed the same. This court by Ext.P3 order dated 29.03.1999 in that C.M.P. directed the 4th respondent to submit a plan before the Cochin Corporation and to approach this court again for permission, if the plan is sanctioned by the Corporation. Pursuant thereto, the 4th O.P. No. 13211 of 2001 & O.P. No.25723 of 2002 -3- respondent submitted a plan and applied for a permit before the Cochin Corporation, for reconstruction of the building. Before the Corporation also the petitioner herein objected to the grant of the permit to the 4th respondent. Despite his objections, Ext.P5 building permit was issued to the 4th respondent. Producing that permit, the 4th respondent again filed C.M.P. No.7656/2000 in the A.F.A., for permission for reconstruction in accordance with the permit and plan. On 28.02.2001 a Division Bench of this court disposed of, A.F.A. No.39/1995 by Ext.P6 judgment. In that judgment, while upholding the remand order passed by the learned Single Judge the Division Bench made some further directions, disagreeing with certain findings of the learned Single Judge. On the very same day, the Division Bench passed Ext.P7 order in C.M.P. No.7656/2000, permitting the 4th respondent to reconstruct the building in accordance with the permit issued and plan sanctioned by the Cochin Corporation. In respect of the objections raised O.P. No. 13211 of 2001 & O.P. No.25723 of 2002 -4- by the petitioner with regard to the permit and plan it was observed that if he has any objection regarding the permit his responsibility is to challenge the matter before the appropriate authority. Based on the observations in Ext.P7 order, the petitioner filed objections before the Corporation seeking cancellation of the permit. The original petition was filed while that objections were still pending, seeking the following reliefs: i. “To declare that sanction given by the 2nd respondent to reconstruct the building is against the provisions contained in the Kerala Municipality Building Rules, 1999. ii. Call for all the records leading to Ext.P5, the illegal sanctioning of the building permit. iii. To quash Ext.P5 the permit given by the 2nd respondent by the issuance of a writ of certiorari or any other appropriate writ, order or direction as this Hon'ble Court may deem fit to grant. iv. To quash Certificate No.CR 435/2000 issued by the 3rd respondent by the issuance of a writ of certiorari or any other writ, order or direction as this Hon'ble Court may deem fit to grant. v. Grant such other reliefs as may be prayed for and the court may deem fit to grant, and vi. Grant the cost of this original petition.” 2. In the meanwhile the Corporation considered the objections of the petitioner and passed Ext.P15 order O.P. No. 13211 of 2001 & O.P. No.25723 of 2002 -5- suspending the permit issued to the 4th respondent for construction of the building. Ext.P15, produced as Ext.P3 in O.P.No.25723/2002 is under challenge in that original petition. 3. Petitioner's contention is that despite the permission granted by this court to the 4th respondent for construction of the building, that permission is subject to the validity of the permit issued for such construction by the Corporation. He would submit that for giving a valid permit for construction of a building the Corporation should first look into the question of ownership and without the concurrence of the owner of the property, in which the construction is proposed, the Corporation could not validly issue a permit for construction. According to the petitioner, neither the petitioner nor the 4th respondent is the owner of the land. They have only right of possession of the building and to reside therein. That being so, without the concurrence of the owners of the building, no building O.P. No. 13211 of 2001 & O.P. No.25723 of 2002 -6- permit could have been validly issued to the 4th respondent, is the contention of the petitioner. He also alleges that the permit has been obtained by the 4th respondent by misrepresenting before the Corporation that he is the owner of the building and going by Rule 16 of the Kerala Municipality Building Rules, 1999, the permit obtained by fraud or misrepresentation is liable to be suspended. He also refers to the definition of the term “owner” in the Kerala Municipality Building Rules as well as the Kerala Municipalities Act, to argue that the 4th respondent does not answer the definition of “owner” therein. The petitioner therefore submits that the permit and plan issued to the 4th respondent by the Corporation is not only liable to be suspended but also liable to be revoked. 4. The 4th respondent opposes the contentions of the petitioner. According to him, allotment of various parts of the building to the sharers have already been made in the decree in the O.S. That allotment is still intact and even in O.P. No. 13211 of 2001 & O.P. No.25723 of 2002 -7- the appeal this court has not interfered with the same. The matter has been remanded to the Sub Court for consideration of the question of allotment of the appurtenant land only and as such the question of ownership of the building or right to possess the same is not in dispute at all. The respondent approached this court for permission to reconstruct the building alloted to him, since that building was in a dilapidated condition. This court originally directed the petitioner to file application for permit for reconstruction of the building and to approach this court again along with the permit for permission to re-construct. Accordingly the 4th respondent again approached this court by filing C.M.P. No.7656/2000 producing the plan sanctioned by the Corporation and the building permit issued to the petitioner, seeking permission to construct in accordance with the plan and permit. In that petition the Division Bench of this court specifically found that there is no justification in not giving permission O.P. No. 13211 of 2001 & O.P. No.25723 of 2002 -8- to the petitioner for reconstruction in accordance with the plan and permit. According to the 4th respondent, this court only observed that if the respondents have any objection regarding the permit, it is his responsibility to challenge the matter before the appropriate authorities. He would submit that his right to reconstruct the building has been upheld by the Division Bench, by giving him permission to reconstruct the building in accordance with the plan and building permit. That being so, the only objection that can be looked into by the Corporation is as to whether the plan submitted by the 4th respondent is in accordance with the building rules, for considering which ownership is irrelevant in so far as this court has permitted the 4th respondent to reconstruct the building. The 4th respondent would further submit that the right to reconstruct the building having been upheld by this court and he having been permitted to reconstruct the building in accordance with plan and building permit, the petitioner cannot now take a stand that the permit granted O.P. No. 13211 of 2001 & O.P. No.25723 of 2002 -9- for reconstruction is not in accordance with the Kerala Municipality Building Rules 1999. He would therefore submit that Ext.P15 order which is the same as Ext.P3 in O.P.No.25723/2002 is unsustainable and is liable to be quashed. 5. I have considered the rival contention in detail. 6. It is not disputed before me that various parts of the building have been alloted to various sharers as per the preliminary decree. From the judgment in A.S. and AFA before this court, I find that the issue decided therein was on the question of allotment of appurtenant land to various sharers and no change has been made in the decree regarding the entitlement of each sharer to possess the particular part of the building alloted to each of them. That being so, I do not think that the petitioner can now raise a dispute regarding the ownership of the building alloted to each of the sharers at least for the purpose of obtaining building permit for re-construction. The 4th respondent has O.P. No. 13211 of 2001 & O.P. No.25723 of 2002 -10- approached this court with a petition seeking reconstruction of the building alloted to him. This court initially directed him to obtain permit from the Corporation for construction and then to seek permission from the court again along with the copies of the permit and plan for reconstruction. He did exactly that by filing CMP No.7656/2000. In that a Division Bench of this court passed Ext.P7 order which reads as follows: “This C.M.P. has been filed for permission to the petitioner in accordance with Annexure B and C plan. In the affidavit accompanying the petition, it is stated as follows: “The building in which I am residing has been allotted to me. The building is very old and in a dilapidated condition.” He filed C.M.P. No.2040/99 seeking permission to reconstruct the building. By order dated 29-3-1999, the Hon'ble court permitted him to submit the plan for approval before the local authority for construction. It was further held that if the plan is sanctioned, the same shall be produced in Court. According to the petitioner, he has obtained the plan and permit. Annexure B and C are the sanctioned plan and building permit. Hence, he prays that, he may be given permission to construct in accordance with plan and permit. 2. This petition was opposed by the respondent. It was submitted that they had objection to the issue of permit, but they were not heard by the licencing authority. Further, it is brought to our notice that the condition in the plan that the petitioner will be responsible for the structural suitability of the building of the Corporation. After hearing both parties, we do not find any justification in not giving permission to the petitioner. The local authority has granted the requisite plan and permit. In so far as the plan and permit is there, petitioner can very well proceed with the construction as per the permit. If the respondents have any objection O.P. No. 13211 of 2001 & O.P. No.25723 of 2002 -11- regarding the permit, it is their responsibility to challenge the matter before the appropriate authorities. The building can be reconstructed in accordance with the plan and the building permit. The petition is allowed.” 7. Nobody can dispute that in that order the Division Bench had permitted the petitioner to reconstruct the building in accordance with the plan and permit. Therefore the right of the 4th respondent to reconstruct the building has been upheld by this court. When this court has upheld the right of the 4th respondent to reconstruct the building, I am of the opinion that as far as the Corporation is concerned they are not expected to look into the ownership or possession of the property for the purpose of sanctioning permit. The only question that can be looked into by the Corporation is as to whether the plan submitted by the 4th respondent is in accordance with the Kerala Municipality Building Rules 1999. Apart from the contention that since the 4th respondent does not have ownership over the property in which he proposes to construct the building, the O.P. No. 13211 of 2001 & O.P. No.25723 of 2002 -12- petitioner has not put forward any objection regarding the plan to the effect that it is violative of any of the provisions of the Kerala Municipality Building Rules, 1999. Therefore I am of the opinion that the fact that the final decree proceedings are still pending consideration of the sub court, in the suit, is totally irrelevant for the purpose of deciding the question as to whether the 4th respondent can reconstruct the building as permitted by this court by Ext.P7. In Ext.P15 order, the Corporation has held as follows: “The undersigned gone through the relevant records and files and seen that the building permit is given after scrutiny by the concerned officers, relying upon the documents produced by the respondent and finds nothing irregular. But it is learnt that the question of ownership of the land is still pending decision in the Hon'ble Courts. In the circumstances, I find no reason for not suspending the license already granted. Hence Building permit No.FC.P2/241/2000 dated 22.09.2000 granted to Sri. N.Prabhakara Mallaya, Kothuval Lane, Palace Road, Cochin is hereby stands suspended with immediate effect. All petitions filed by the petitioner is hereby disposed off with the above direction.” 8. From a reading of the same it is abundantly clear that there is nothing wrong with the plan, but he has passed that order only because of the dispute regarding the O.P. No. 13211 of 2001 & O.P. No.25723 of 2002 -13- ownership raised by the petitioner. As I have already found that the question of ownership is not a fact relevant for consideration of the issue involved, Ext.P15 order, which is the same as Ext.P3 in O.P.No.25723/2002, is clearly against the permission granted by this court. Accordingly the same is quashed. It is declared that the petitioner cannot have any objection for reconstruction of the building by the 4th respondent in accordance with the plan approved and permit issued by the Corporation since Ext.P7 order has become final. These original petitions are disposed of as above. S. SIRI JAGAN JUDGE shg/