IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 26TH MARCH 2008 / 6TH CHAITHRA 1930 WP(C).No. 20960 of 2006(T) ------------------------------------- PETITIONERS: -------------------- 1. B. ABBAS HAJI, KUNIYA, PERIYA VILLAGE AND POST, HOSDURG TALUK, KASARAGOD. 2. C.H. ASYA IN -DO- -DO-. 3. B.A. ZIYAD IN -DO- -DO-. 4. B.A. WALEED IN -DO- -DO-. BY ADV. SRI.S.V.BALAKRISHNA IYER SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN PSI.HARISH R. MENON SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON RESPONDENTS: ---------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM. 3. THE KASARAGOD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, KASARAGOD MUNICIPALITY, KASARAGOD. 4. M. BALARAJ, S/O.M.B.K. CHANDRA, GUTTA TEMPLE ROAD, ADUKKATHA BAIL, KASARAGOD. BY ADV. SRI.P.RAVINDRAN - R4 SRI.HARIKRISHNAN RAVINDRAN SRI.V.M.KURIAN - R3 SRI.MATHEW B. KURIAN SRI.K.T.THOMAS BY GOVERNMENT PLEADER SRI.MOHAMMED ANZAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.20960/2006 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE SALE DEED DOC. NO.2382/93 OF SRO KASARAGOD IN FAVOUR OF PETITIONER NO. 1 DT. 30.9.1993. EXT.P2:- COPY OF THE SALE DEED DOC. NO.1544/92 OF SRO KASARAGOD IN FAVOUR OF VENDORS IN EXT.P1 SALE DEED. DT. 6.5.1992. EXT.P3:- COPY OF THE DECREE IN OS. NO.242/1977, PASSED BY THE MUNSIFF COURT, KASARAGOD. DT. 31.8.1981. EXT.P4(a):- COPY OF THE ADVOCATE COMMISSIONER'S REPORT IN OS. 242/1977 ON THE FILE OF THE MUNSIFF COURT, KASARAGOD DT. 6.7.1978. EXT.P4(b):- COPY OF THE PLAN SUBMTITED BY THE ADVOCATE COMMISSIONER WITH HIS REPORT IN OS. 242/1977, M.C., KASARAGOD DT. 6.7.1978. EXT.P5:- COPY OF THE FILED SKETHC IN RESPECT OF FIELD NO.99 OF KASARAGOD TALUK. EXT.P6:- COPY OF THE CONSENT LETTER EXECUTED BY THE IST PETITIONER AS POWER OF ATTORNEY OF THE VENDORS IN EXT.P1 SLAE DEED, PERMITTING THE MUNICIPALITY TO USE THE LAND MEASURING 1.90 METRES FOR WATER CHANNEL DT. 23.11.1992. EXT.P7:- COPY OF THE SITE PLAN SUBMITTED BY THE PETITIONERS ALONG WITH THE APPLICATION FOR BUILDING PERMIT FOR THE PROPOSED CONSTRUCTION DT. 27.2.1996. EXT.P8:- COPY OF THE FORM OF SANCTION FOR BUILDING PERMIT ISSUED TO THE PETITIONERS BY THE 3RD RESPONDENT DT. 4.5.96. EXT.P9:- COPY OF THE BUILDING PERMIT NO.BA 12/96-97 ISSUED TO THE PETITIONERS BY THE 3RD RESPONDENT. DT. 4.5.96. EXT.P10:- COPY OF THE REVISED PLAN APPROVED BY THE 3RD RESPONDENT DT. 19.7.97. EXT.P11:- COPY OF THE ORDER APPROVING THE REVISED PLAN PASSED BY THE 3RD RESPONDENT DT. 19.7.97. EXT.P12:- COPY OF THE ORDER IN IA. NO.806/97 IN OP. NO.136/1997 PASSED BY THE MUNSIFF COURT, KASARAGOD DT. 11.4.97. EXT.P13:- COPY OF THE JUDGMENT IN OS. NO.136/97 PASSED BY THE MUNSIFF COURT, KASARAGOD. EXT.P14(a):- COPY OF THE INTERIM REPORT FILED BY THE ADVOCATE COMMISSIONER IN SO. 136/97 BEFORE THE MUNSIFF COURT, KASARAGOD WP.(C) NO.20960/2006 EXT.P14(b):- COPY OF THE PLAN SUBMTITED BY THE ADVOCATE COMMISSIONER WITH IS INTERIM REPORT IN OS. 136/97 , M.C., KASARAGOD DT. 7.4.97. EXT.P14(c):- COPY OF THE FINAL REPORT FILED BY THE ADVOCATE COMMISSIONER IN OS. 136/97 BEFORE THEMUNSIFF COURT, KASARAGOD. EXT.P15:- COPY OF THE PROCEEDINGS OF THE APPEAL COMMITTEE OF THE KASARAGOD MUNICIPALITY DT. 31.10.97. EXT.P16:- COPY OF THE GOVERNMENT ORDER NO.GO(RT) 2780/99 LAD. DT. 23.9.99. EXT.P17:- COPY OF THE GOVERNMENT ORDER NO.GO(RT) 1063/03/LSGD. ET.P18:- COPY OF THE GOVERNMENT ORDER NO.GO(RT) 4458/03/LSGD DT. 15.12.03. EXT.P19:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC 40614/03. EXT.P20:- COPY OF THE NOTICE BEARING NO.BA 12/96-97 ISSUED TO THE PETITIONER BY THE KASARAGOD MUNICIPALITY. EXT.P.21:- COPY OF THE REPLY SUBMITTED BY THE IST PETITIONERS BEFORE THE KASARAGOD MUNICIPALITY DT. 27.4.06. EXT.P22:- COPY OF THE GENERAL POWER OF ATTORNEY EXECUTED IN FAVOUR OF APPLICANT NO. DT. 10.11.89. EXT.P23:- COPY OF THE GENERAL POWER OF ATTORNEY EXECUTED IN FAVOUR OF THE IST APPLICANT. EXT.P24:- COPY OF THE CONSENT LETTER EXECUTED BY THE IST APPLICANT RESPONDENT'S EXHIBITS EXT.R4(a):- COPY OF THE TELEGRAM . EXT.R4(b):- COPY OF THE ORDER DT. 15.12.03. /TRUE COPY/ P.S. TO JUDGE tss PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No.20960 OF 2006 ----------------------------------------------- Dated this the 26th day of March, 2008 J U D G M E N T The first petitioner, who is the owner of 20 cents of land in Sy.No.99/2C of Kasaragod Village by virtue of Ext.P1 sale document No.2382 of 1993, has filed this writ petition along with his wife second petitioner and children petitioners 3 and 4 challenging Ext.P15 proceedings dated 31.10.1997 of the 3rd respondent Kasaragod Municipality deciding to revoke a building permit which had been issued to the first petitioner and also Ext.P17 order dated 24.3.2003 of the Government endorsing the stand of the Municipality in Ext.P15 and also Ext.P20 notice dated 14.2.2006 issued by the Municipality to the petitioners demanding implementation of Ext.P17 order and directing demolition of a portion of the building constructed by the petitioners. The State of Kerala is the first respondent, Chief Town Planner is the 2nd respondent and one Sri.M.Balaraj. Is the 4th respondent. Ext.P1, as already stated, is a copy of sale deed No. 2382/1993 by which the first petitioner came to have WP(C)N0.20960/06 -2- ownership over 20 cents of land. Ext.P2 is a copy of document No.1544/1002 which is the document of tittle under which the first petitioner's vendors were having title and the executants in Ext.P2 trace their title to the decree in O.S. No.242/1977 on the files of the Munsiff court Kasaragod. Ext.P3 is a copy of the above decree which has attained finality by decree of this court in second appeal. The petitioners submit that the property purchased by the first petitioner under Ext.P1 is the same as decree A schedule property in Ext.P3. The petitioners point out that the 4th respondent is the 3rd judgment debtor in Ext.P3 and that the judgment debtors 1 and 2 in Ext.P3 were his mother and brother respectively and that Ext.P3 is the result of highly contentious suit which was finally disposed of in favour of the plaintiffs accepting their contention that the defendants are having leasehold rights only over 35 cents exclusive of the suit property. The petitioners submit that after the disposal of the suit (O.S.242/1977) the 35 cents of the property, which was found to be covered by lease deed in favour of the defendants, was partitioned amongst the 3rd respondent, his brother and WP(C)N0.20960/06 -3- sister and a substantial portion of the same was alloted in partition to the 3rd respondent, who it is alleged was consistently harassing the decree holders and their assignees like the first petitioner in their peaceful enjoyment of the property delivered in execution of Ext.P3 decree. They submit that it was on account of the various actions taken by the 3rd respondent to thwart putting up construction upon Ext.P1 property that the first petitioner's vendors became compelled to sell the property to the first petitioner though the first petitioner was not aware of this at the time when he purchased the property. Ext.P4 (a) and Ext.P4 (b) produced by the petitioners are copies of the reports submitted by the Commissioner, who had been deputed to demarcate the property, in O.S. No. 242/1977 as well as the plan drawn in accordance with the Survey measurements. The petitioners claim that the property covered by Ext.P2 conforms exactly to the side measurements shown in Ext.P4(b). It is submitted that Ext.P5 is a copy of the Field Sketch of Field No. 99 of Kasaragod Taluk and that the first petitioner's property having 20 cents shown in Ext.P5 is the same as the property WP(C)N0.20960/06 -4- shown in red colour in Ext.P4(b). Referring to Ext.P4(b) and also to the boundaries of the red shaded property shown therein, the petitioners point out that though the western boundary line in RS 99/2C3A has a length of 25 meters from the northern boundary towards south up to which the plaintiffs could have claimed title, there is a physical boundary in the form of a water channel demarcated as “C” (shaded in blue) running in the east-west direction which reduces the length of the western boundary line marginally and that length of 25 meters shown in Ext.P4 (b) and Ext.P5 Survey Field Plan correspond to 123 links and the length of the western boundary line as shown in Ext.P2 title deed is only 115 links and the difference is an indication of the fact that the property conveyed, is the property bounded by the thodu on the south. In short, the claim is that the property, which was taken delivery of in O.S. No.242/1977, was an extent of 20 cents in R.S. No. 99/2C 3A (red shaded portion in Ext.P4 plan) and the same is bounded on the south by a water channel (blue shaded in Ext.P4 plan) running in the east-west direction flowing in the very same survey sub division, and in fact leaving a narrow strip WP(C)N0.20960/06 -5- of land in the same survey sub division to the south of the water channel to its entire length from east to west shown as merged with the southern property in R.S. No.99/2C 3B. 2. The petitioners submit that while so the first petitioner's vendors were approached by the 3rd respondent Municipality to surrender a narrow strip of land having a width of 1.90 metres along the southern margin of their property measuring 20 cents and along the northern periphery of the channel so as to widen the water channel which formed the southern boundary of their property as aforesaid. The first petitioner 's vendors were threatened that if they do not surrender the land, required extent of land will be acquired under the provisions for compulsory Acquisition. They agreed to permit the Municipality to use the required extent for widening the existing water channel on condition that the entire width of the water channel inclusive of the width of the water channel which originally existed will be treated by the Municipality as open space for purposes of putting up further constructions in the remaining property to the north. The petitioners, therefore, claim that the WP(C)N0.20960/06 -6- Municipality's demand for surrender was declined and the proposal of the first petitioner's vendors to grant permission to the Municipality subject to the above conditions was accepted. The petitioners submit that their predecessors in interest became obliged to agree for such a course since if the title was to pass to the Municipality by land acquisition proceedings, the width occupied by the original channel (i.e.0.50 metres) and the additional width sought (1.90 metres) along with the northern side of their property, development of the remaining area would not become viable at their hands since after leaving the statutory open space, there will be hardly no space for construction. Accordingly, the first petitioner's predecessors permitted the Municipality to use an area having width of 2.40 metres inclusive of the width of the existing channel along the entire southern side measuring a length of 43 meters and also along the eastern side. Ext.P6 dated 23.11.1992 is a letter issued by the first petitioner in his capacity as the power of attorney holders of his vendors under Ext.P1. Ext.P1 document was executed a little after Ext.P6 and it is claimed that under Ext.P1 the entire area of WP(C)N0.20960/06 -7- 20 cents including the area permitted to be used by the Municipality for the widened water channel as per Ext.P6 was conveyed to the first petitioner. It is contended that by virtue of Ext.P1, the first petitioner became entitled to the benefit under Ext.P6 to compel the Municipality to treat the width of 2.40 metres occupied by the widened water channel as open space in the rear side of his property for the purpose of building construction. After Ext.P1, the petitioners proposed to put up a double storied commercial building on their property having 13 rooms in the ground floor facing the National Highway on the north. Ext.P7 is a copy of the site plan dated 27.2.1996 submitted in that regard. In Ext.P7 plan open space on the rear side of the building was shown consistent with the stand of the petitioners that the entire width of 2.40 metres occupied by the water channel belongs to the petitioners and that his land in R.S. 99/2C3 lies even beyond the south of the southern ridge of the widened water channel. Ext.P7 and the building permit application was submitted before the Municipality through the Kasaragod Development Authority. After perusing the WP(C)N0.20960/06 -8- application and the site plan and on physical verification, the Kasaragod Development Authority sanctioned the development permit. Thereafter, the matter was placed before the Municipality. The Municipality on finding that the proposed construction would abut the National Highway, forwarded the building plans/site plans to the National Highway Authority for their remarks. The Executive Engineer, NH Division, Kannur, after perusing the plan, building plan and site plans and after physical verification at site, issued no objection certificate for the construction as per his letter dated 2.5.1996. Thereafter, the Municipality being satisfied with the building plan in terms of the building Rules 1984 granted the building permit, noticing that the proposed building is a commercial building for which the rear set back need have an open space of only 1.5 meters as per Rule 35 (3) and that there is open space of 0.60 metres and further width of 2.4 metres occupied by the water channel covered by concrete slabs and that in terms of Ext.P6 accepted by the Municipality, there was clear compliance with the statutory provision. Ext.P8 is a copy of the form of Sanction for building WP(C)N0.20960/06 -9- permit dated 4.5.1996 and Ext.P9 is a copy of the building permit issued pursuant to Ext.P8 sanction. In Exts.P8 and P9 sufficient conditions were incorporated so as to ensure that the flow of dirt water through the drains will not be obstructed and the Municipality will always be able to keep clean and maintain the drain for the disposal of dirt water as and when required. Before the commencement of the constructions a revised plan without change of the external alignment of the proposed building was submitted along with the application and the revised plan was approved by the Municipality. Ext.P10 is a copy of the revised plan and Ext.P11 is a copy of the order dated 19.7.1997 of the Municipality approving the revised plan. 3. The petitioners submit that when the petitioners commenced digging of pits for putting up concrete walls on the basis of Ext.P9 original permit, the 4th respondent attempted to block the construction by filing O.S. No.136/1997 on the files of the Munsifff Court Kasaragod. The contention raised in the suit was that the building proposed by the petitioners did not have sufficient rear set back and that the statutory requirement is that WP(C)N0.20960/06 -10- there must be three meters open space in the rear side. It was also alleged that pit dug for erecting 13 pillars along the southern side of the property is almost touching the northern wall of the water channel and therefore, the construction will be in violation of the Kerala Building Rules. Along with the suit an interim injunction application was also filed seeking to restrain the first petitioner from putting up the construction. The learned Munisff dismissed the I.A. Vide Ext.P12 dated 11.4.1997 inter alia it is held in Ext.P5 that there is enough evidence to show that the building is constructed strictly in terms of form of sanction and permit marked as Exts.P8 and P9. C.M.A. No. 14/1997 preferred against the order of the 4th respondent was dismissed on 13.6.1997 and the said order has become final. Ultimately when Ext.P10 revised plan was approved by Ext.P11, the suit itself was got dismissed as withdrawn by Ext.P13 judgment. After Ext.P13, the 4th respondent started persuing his remedies under the Municipalities Act 1994 leading to the present writ petition. The petitioners point out that the 4th respondent has no case any where when that extra width of land utilized by the 3rd WP(C)N0.20960/06 -11- respondent Municipality for widening the water channel was taken from his holding, or that it was taken from the southern side of the original water channel, which had roughly a width of 0.50 meters. In this context, the petitioners rely on the unobjected Commission reports of the Advocate Commissioner and plan in O.S. No. 136/1997, which are marked as Ext.P14 (a) and Ext.P14 (b) respectively. Ext.P14(c) is the final report of the Advocate Commissioner. It is submitted on the basis of Ext.P14 (a), (b) and (c) that extent of the property in the possession of the first petitioner, exclusive of the width of the widened water channel is only 17.5 cents. The length of the western boundary line (exclusive of water channel) is indicated as 19 meters corresponding to 95 links. The length of the eastern boundary line is indicated as 9.16 meters corresponding to links. On the above basis, it is contended that there is no room for doubt that it was on the petitioners' property that the Municipality was permitted to possess the required width of land for widening the water channel. The writ petition goes on to describe details of other materials including admissions which would show that it is WP(C)N0.20960/06 -12- the petitioners' property which is being used by the Municipality as the widened water channel. Even before the passing of the adverse injunction order, the 4th respondent filed a petition before the 3rd respondent Municipality on 29.3.1997 complaining that Ext.P9 permit is irregular and is obtained by misleading the Municipality about the correct lie of the southern boundary of the petitioner's property. Though stop memo was issued agaisnt the petitioners, later after inspection and fixation of the boundaries of the property with reference to the title document, sketch, etc. it was found that there was no substance in the complaint and the petitioners were permitted to continue the construction and stop memo was withdrawn. Aggrieved by the rejection of the complaint, the 4th respondent preferred appeal before the Municipal Council and he rushed to this court for early disposal of the appeal. Though the petitioners were made parties in the writ petition, they were got deleted and this court directed the Municipality to dispose of the appeal within one month. The appeal committee of the Municipality, which consisted of three members namely, K.Sundar Rao, K.Ravi and Koppal Abdulla, WP(C)N0.20960/06 -13- allowed the appeal vide Ext.P15 by majority. The petitioners point out that the reason which weighed the majority is that it was the first petitioner not having title over the canal (having the width of 3 metres) through which the water channel passes and therefore, the same cannot be treated as open space and the open space left is only 0.60 metres. The other reason was the compound wall having a height of 2 ½ feet built by the 4th respondent is exactly along the southern boundary of the channel and that the plan submitted indicating the presence of some land belonging to petitioner No. 1 measuring 1 to 1.53 metres in width, left as open space to the further south of the channel is irregular. The petitioners complain that all other relevant materials including Ext.P6 consent letter were ignored by the appeal committee. The petitioners took up the matter in revision before the Government. The Government, after hearing both sides, having obtained the report of the Chief Town Planner and on satisfying that the rear open space which is available ranges between three metres to 3.15 metres as against the legal requirement of 1.5. metres, allowed the revision vide Ext.P16 WP(C)N0.20960/06 -14- order dated 23.9.1999. These two points found favour with the learned judgment who considered the original petition, who accordingly set aside Ext.P16 and remitted the matter to the Government for fresh consideration. After remand, the Government passed Ext.P17 order dismissing the revision filed by the petitioners and confirming the appellate order Ext.P15 of the Municipality. 4. The petitioners submit that Ext.P17 order of the Government is vitiated by errors apparent and was passed without considering relevant aspects and ignoring positions which were evident and admitted. Against Ext.P17, the petitioner preferred a review petition before the Government. The Government allowed the review petition by Ext.P18 order dated 15.12.2003 and permitted the petitioners to complete the construction of the building after setting aside Ext.P17 order. Under Ext.P18 the Government has taken note of the Taluk Surveyor's report that the width occupied by the widened water channel is held by the first petitioner in his own name and that the same has not been surrendered to the Municipality by virtue WP(C)N0.20960/06 -15- of any document. The Government also noticed that the Municipality does not have a case that the title over the widened channel vest in it and accordingly found that more than three metres space is available as rear open space as against the legal requirement to leave 1.50 metres. Against Ext.P18 the 4th respondent approached this court again by filing W.P.(C) No.40614/2003. The only ground of attack against Ext.P18 was that the Government exercising powers under Section 509 of the Municipalities Act as a statutory authority, did not have power for review since such a power had not been conferred on the Government under the statute. This court accordingly quashed Ext.P18 by Ext.P19 judgment. Copy of Ext.P19 is obtained by the petitioners only on 1.8.2006. In the meanwhile, the Municipality has issued Ext.P20 notice asking the petitioners to demolish the portion of the construction already made so as to have open width of 1.50 metres to the north of the width occupied by the water channel. In view of Ext.P19 judgment, Ext.P17 order has become operative and partial demolition of the building is mandatory. To Ext.P20 notice the petitioners have WP(C)N0.20960/06 -16- submitted Ext.P21 reply. Ext.P20, the petitioners allege has been issued at the instance of the 4th respondent who was successful party in Ext.P19 judgment . Since Ext.P18 order of review is no longer in force, in view of Ext.P19, life is breathed into Ext.P17 order and it has become compulsive for the petitioners to challenge Ext.P19. The vigor of Ext.P17 order has resurfaced only on 3.8.2005 when Ext.P19 judgment was rendered and the petitioners claim that the present writ petition is filed within a reasonable time after obtaining copy of Ext.P19 judgment. The writ petition contains averments explaining the apparent delay on the part of the petitioners in filing the writ petition challenging Ext.P17 order. Various grounds have been raised by the writ petitioners challenging Ext.P17 order and pray for the following reliefs in the writ petition. i). call for the records relating to Ext.P16 and quash Ext.P15 proceedings, Ext.P17 order and Ext.P 20 notice by a writ of certiorari. ii). Declare that the petitioners are entitled to build in terms of Ext.P10 revised plan and Ext.P11 permit and direct WP(C)N0.20960/06 -17- respondent No. 3 to renew the said permit enabling the petitioners to complete the constructions. iii). Declare that Ext.P10 revised plan and Ext.P11 revised permit are valid and direct respondents 1 to 3 not to entertain any further complaint from the 4th respondent and extend the aid of the 3rd respondent to complete the construction. iv). In the event of the court finding that the Ext.P10 revised plan and Ext.P11 revised permit are not legal, direct the 3rd respondent to put the petitioners back in possession of the entire width of the water channel in R.S. No. 99/2C3A having width of 2.40 metres occupied by the water channel. 5. The 3rd respondent Municipality has filed a counter affidavit. It is contended therein that Exts.P10 and P11 building permits were issued to the petitioners for construction of a two storied commercial building in the property purchased by the first petitioner as per Ext.P1 sale deed. The extent conveyed as per Ext.P1 sale deed is 20 cents with its eastern and southern boundary as thodu in the same Sy.No.99/2C3. The first petitioner who was holding power of attorney from his vendors WP(C)N0.20960/06 -18- Sri.T.K.Ibrahim and others executed Ext.P6 document dated 23.11.1992 granting consent to the Municipality to construct concrete drain (for disposal of waste water) for a length of 43 M along