IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 RSA.NO. 517 OF 2009() --------------------- AS.102/2004 OF II ADDL. DISTRICT COURT, PALAKKAD OS.100/2003 OF MUNSIFF COURT, ALATHUR .................... APPELLANT – APPELLANT - PLAINTIFF: ----------------------------------------------------- KUMARAN, S/O.LATE BALAKRISHNAN NAIR, RESIDING AT `KAUTHUBAM', THEKKETHARA, THENKURUSSI AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENT(S) – RESPONDENTS - DEFENDANTS: ----------------------------------------------------------------------- 1. SECRETARY, THENKURUSSI GRAMA PANCHAYATH, THEKKETHARA, THENKURUSSI, ALATHUR TALUK, PALAKKAD DISTRICT. 2. JALAJA KRISHNAKUMAR, W/O.KRISHNAKUMAR, RESIDING AT REMA NIVAS, THEKKETHARA, THENKURUSSI AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.517 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 2nd day of November, 2009 J U D G M E N T ---------------------- This Second Appeal arises from judgment and decree of learned Second Additional District Judge, Palakkad in A.S. No.102 of 2004 confirming judgment and decree of learned Munsiff, Alathur in O.S. No.100 of 2003. Appellant and respondent are neighbours and both owned property on the western side of Thekkethara Mahalikudam- Ambalanada Panchayat road in Thenkurussi Grama Panchayat. Appellant has already constructed his house and compound wall abutting road and when respondent No.2 started construction of his house appellant preferred complaint to respondent No.1, Thenkurussi Grama Panchayat represented by its Secretary alleging that construction of respondent No.2 violates provisions of Kerala Building Rules in that sufficient space is not left from the road margin which would affect future development of the road and construction of the drain. According to the appellant, respondent No.1 did not initiate action and thereon he brought the suit for mandatory injunction to direct respondent No.2 to remove the alleged offending construction. Respondent No.1 contended that respondent No.2 had applied to the Panchayat on 17.6.2002 for a no objection certificate for construction R.S.A. NO.517 of 2009 -: 2 :- of the house and after due enquiry no objection certificate was granted to respondent No.2 (NOC 336/02-03). Respondent No.1 asserted that Kerala Building Rules are not made applicable to that Panchayat. It is its further contention that on getting complaint from the appellant, respondent No.1 made enquiry and notice was given to respondent No.2 to which latter gave reply dated 15.11.2002. Respondent No.2 was directed to stop construction as per the Kerala Panchayat Building Construction Rules on 14.7.1997. The road in front of the house of appellant and respondent No.2 is not one notified by the Government as required under Section 220(b) of the Kerala Panchayat Raj Act (for short, “the Act”) to make the provisions of the Kerala Municipalities Building Rules applicable to that Panchayat as required under Sec.274 of the Act. Respondent No.2 raised similar contentions. Learned Munsiff found that there is nothing on record to show that either the Kerala Building Rules or the Kerala Municipalities Building Rules is made applicable to the Panchayat or the road in question so that, respondent No.2 is obliged to leave space as contended by the appellant while putting up compound wall and house. Accordingly the suit was dismissed. Appellant preferred appeal in the court of learned Second Additional District Judge. First appellate court observed that evidence is required to prove the application of Kerala Municipalities Building Rules, such evidence is lacking and hence concurred with the R.S.A. NO.517 of 2009 -: 3 :- judgment and decree of the learned Munsiff. Appellant, not being satisfied has preferred the Second Appeal urging the following as substantial questions of law. (i) Whether the courts below were justified in law in dismissing the suit for mandatory injunction for demolition of an unauthorised structure constructed by respondent No.2 on the ground that property of the appellant has not been identified by a survey sketch? (ii) Have not the courts below erred in dismissing the suit when the only issue that arose for consideration was whether the structure put up by respondent No.2 offends the Kerala Panchayat Raj Act and the Kerala Municipality Building Rules as applicable? (iii) Whether the lower appellate court was correct in law in not considering as to whether the Kerala Panchayat Raj Act and Section 220(b) thereof applies to the building in question and whether the Kerala Municipality Building Rules have been extended to the area? (iv) Should not have the lower appellate R.S.A. NO.517 of 2009 -: 4 :- court remitted the case to the trial court for getting the report of the advocate commissioner remitted if there was a distant doubt that the property of the appellant and respondent No.2 as well as the road are to be more specifically measured? It is contended by learned counsel that finding of the courts below are not correct and that report of the Advocate Commissioner would show that construction is without leaving three metres as required under the Building Rules. Learned counsel placed before me for perusal letter No.A4-08/08 dated 10.12.2008 issued by respondent No.1 to the appellant stating that Kerala Building Rules have been made applicable to the Panchayat from June, 2008 onwards and that Sec.220(b) of the Act has been made applicable to the Panchayat from 1995 onwards. According to the learned counsel the said document would show that Sec.220(b) of the Act has been made applicable to the road in question from 1995 onwards. 2. So far as application of the Kerala Building Rules to respondent No.1, the Panchayat is concerned even as per the document produced by learned counsel that Rule is made applicable only from June, 2008 onwards whereas suit is of the year 2003 and the impugned construction comes before that. Respondent No.1 asserted R.S.A. NO.517 of 2009 -: 5 :- in its written statement and its Secretary has given evidence as D.W.1 that during the relevant time the Building Rules had not been made applicable to respondent No.1. So far as the application of the Kerala Municipality Building Rule is concerned, Sec.220(b) of the Act prohibits construction of structures other than compound walls abutting among other things, roads notified by the Village Panchayat within a distance of three metres from the boundary of his land. Section 274 of the Act states that the Government may whether at the request of the Panchayat or otherwise, by notification in the Gazette declare that any of the provisions of the law relating to Municipalities in the State in force for the time being or any Rules made thereunder shall be extended to, and be in force for any Panchayat area or any specified place therein. In this case there is no evidence to show that so far as the road in question is concerned any notification has been issued as required under Secs.220(b) and 274 of the Act. Courts below have correctly found that there is nothing on record to show that the road in question is principally within the notification referred to in Sec.220(b) of the Act. The document relied on by learned counsel and referred to above of course says about notification under Sec.220(b) referred to above being in force in the Panchayat from 1995 onwards, but there is nothing to show that the reference is to the road in question. D.W.1 has stated that the road in question has not been notified during the R.S.A. NO.517 of 2009 -: 6 :- relevant time. Nor do I think that in the proved facts and circumstances, a remand of the case is needed. 3. A further fact which comes to my notice is that as per the report of the Advocate Commissioner the compound wall constructed by the appellant projects into the road by 0.6 metres more than the compound wall constructed by respondent No.2. Still, appellant complaints that the construction made by respondent No.2 would hinder development of the road in future and construction of drainage. It is not social commitment but personal ill-will or spite that provoked appellant to bring the suit. Conduct of appellant reminds me of a passage in the New Testament: “...Why do you see the speck in your neighbour's eye, but do not notice the log in your own eye? Or how can you say to your neighbour, 'Let me take the speck out of your eye, while the log is in your own eye...... first take the log out of your own eye, and then you will see clearly to take the speck out of your neighbour's eye....” (Mathew: 6, 37-42) Let appellant remove the log in his own eye and then think of R.S.A. NO.517 of 2009 -: 7 :- removing the speck in his neighbour's eye! 4. There is no question of law, much less any substantial question of law involved in this Second Appeal requiring its admission. Second Appeal is dismissed in limine. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. NO.517 of 2009 -: 8 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO.517 OF 2009 =================== J U D G M E N T 2ND NOVEMBER, 2009