IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 4TH MARCH 2010 / 13TH PHALGUNA 1931 WP(C).No. 5377 of 2007(M) ------------------------- PETITIONER(S): ------------------ MRS. V.K.RADHAMANI AMMA, AGED 64 YEARS, W/O. K.A.NARAYANA PILLAI,KALIKURUMBATHARAYIL HOUSE PADIVATTOM, EDAPPALLY, COCHIN-682024. BY ADV. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.JAGAN GEORGE SMT.P.A.ANEESHA RESPONDENT(S): ------------------- 1. CORPORATION OF KOCHI, ERNAKULAM, REPRESENTED BY ITS SECRETARY,CORPORATION OFFICE, ERNAKULAM. 2. ASSISTANT EXECUTIVE ENGINEER, CORPORATION OF KOCHI, ZONAL OFFICE, EDAPPALLY. 3. V.K. RAMACHANDRAN NAIR, RAMAJAYA HOUSE, NETAJI ROAD, PADIVATTOM,KOCHI-24. 4. V.K. MADHUSOODANAN NAIR, RAMAJAYA HOUSE, NETAJI ROAD, PADIVATTOM, KOCHI-24. ADV. SRI.K.ANAND, SC, COCHIN CORPN. FOR R1,2 SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.5377/07 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE APPROVED PLAN BEARING PERMIT NO.GP1- 14/96 DT.10.1.96 ISSUED BY THE 1ST RESPONDENT. EXT.P2: TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT. EXT.P3: TRUE COPY OF THE NOTICE DTD.1.4.2006 ISSUED BY THE 2ND RESPONDENT. EXT.P4: TRUE COPY OF THE REPLY DT 7.4.2006. EXT.P5: TRUE COPY OF THE ORDER DT 15.5.2006 ISSUED BY THE 2ND RESPONDENT. EXT.P6: TRUE COPY OF the REPLY NOTICE DT 23.6.2006 ISSUED TO THE 2ND RESPONDENT. EXT.P7: TRUE COPY OF THE NOTICE DTD.13.9.2006 PROPOSING THE HEARING ON 10.10.2006. EXT.P8: TRUE COPY OF THE NOTICE DTD.27.11.2006. EXT.P9: TRUE COPY OF THE REPLY NOTICE DT 9.1.2007 ISSUED TO THE 2ND RESPONDENT. EXT.P10: TRUE COPY OF THE NOTICE DTD.8.1.2007 ISSUED BY THE 2ND RESPONDENT. EXT.P11: TRUE COPY OF THE NOTICE DATED 23.1.2007. EXT.P12: A TRUE COPY OF THE SAID ORDER DATED 24.6.2006 ISSUED BY THE 2ND RESPONDENT. EXTS. OF R3 EXT.R3: TRUE COPY OF THE SALEDEED NO1362/93 DTD.20.3.93. EXT.R3(a): TRUE COPY OF THE REPORT DATED 4.12.2007 FILED BY THE 2ND RESPONDENT. EXT.R3(b): TRUE COPY OF THE LETTER DATED 29.12.2007 ISSUED BY THE DEPUTY SECRETARY. EXT.R3(c): PHOTOGRAPHS OF THE COMPOUND WALL FROM 3RD RESPONDENT'S PROPERTY. //TRUE COPY// Rp PA TO JUDGE ANTONY DOMINIC, J. ================ W.P.(C) NO. 5377 OF 2007 (M) ===================== Dated this the 4th day of March, 2010 J U D G M E N T Petitioner submits that she owns 14.55 cents of land in Sy.No.128/5 of Edappally South Village. In so far as this writ petition is concerned, the controversy is concerning the compound wall on the western side of her property. 2. According to the petitioner, soon after the property was purchased, the compound wall was constructed with a height of 210 cms. It is stated that subsequently in 1996, petitioner obtained permit from the Corporation for construction of the compound wall on the northern side as it was abutting the public road. At that stage,the 4th respondent, who is the brother of the 3rd respondent, who owns the property on the western side, made complaints to the Corporation on the allegation that the petitioner increased the height of the compound wall of the western side of her property without obtaining permits. This led to the issuance of Ext.P2 notice by the Corporation followed by Ext.P3 described as a final notice requiring the petitioner to remove the increased height of the compound wall. WPC No.5377/07 :2 : 3. Petitioner states that on receipt thereof, she submitted Ext.P13 reply enclosing a copy of Ext.P1 plan and contending that the compound wall in question is on the western side of her property, which does not abut public road, and therefore the provisions of the Municipality Act are inapplicable. It was also her case that much prior to 1996, the compound wall was already constructed, and therefore, the allegation that she increased the height of the property was also denied. Later on, Ext.P5 provisional order under Section 406(1) was issued by the Corporation alleging that the petitioner increased the height of the compound wall on the western side of her property by 90 cms without obtaining any permit and requiring the petitioner to remove the unauthorized construction or to show cause why the provisional order shall not be confirmed. Petitioner submitted Ext.P6 explanation. However, by Ext.P12 order dated 24/6/06, Ext.P5 order was confirmed by the Corporation, which according to the petitioner was without considering her objection and without giving her an opportunity of hearing. 4. Petitioner states that on coming to know of Ext.P12, she appraised the Secretary of the illegality of Ext.P12 and that WPC No.5377/07 :3 : thereupon she was issued Ext.P7 notice affording her an opportunity of hearing in the matter. It is stated that she was heard, and thereafter, Ext.P8 order was issued informing the petitioner that, on inspection, it was found that the compound wall was not having structural stability and it being in a dangerous condition, the height of the compound wall should be reduced to 180 cms. On receipt of Ext.P8, petitioner again submitted Ext.P9 explanation reiterating her earlier contentions and also contending that the compound wall in her property does not have structural instability as alleged. 5. Corporation thereafter issued Ext.P10 notice alleging that the compound wall on the western side was constructed by the petitioner close to the compound wall on the eastern side of the 3rd respondent's property and in some portions encroaching into his property. On this basis, it was alleged that the construction made by the petitioner was in violation of Rule 96 of the Kerala Municipality Building Rules, and therefore, the unauthorised construction should be removed within seven days. It was also informed that if the petitioner does not comply with the direction in Ext.P10, action will be taken for the removal of WPC No.5377/07 :4 : the unauthorized construction at the risk and cost of the petitioner. Ext.P10 was followed by Ext.P11 notice requiring the petitioner to produce building permit, if any, obtained by her in so far as the western compound wall is concerned and further informing that in case it is not so produced, further action will be taken without any notice to the petitioner. It was thereupon the writ petition is filed challenging Exts.P10 to P12. 6. In this writ petition, the main contention raised by the petitioner is that the compound wall on the western side of her property, which is the disputed one is not one bounding or abutting any public street and therefore is not a building as defined in the Kerala Municipality Act, and therefore, the provisions of the Municipalities Act are inapplicable. Yet another contention raised is that the compound wall in question was constructed by the petitioner within the boundaries of her property and that the allegation that the same has been constructed encroaching into the property of the 3rd respondent is incorrect and the proceedings initiated on that basis is illegal. 7. The Corporation has filed a statement. According to them, the dispute is regarding the raising of the compound wall WPC No.5377/07 :5 : on the western side of the property of the petitioner and the existing compound wall on the western boundary belongs to the 3rd respondent. Therefore, according to the Corporation, the height of the compound wall on the western side belonging to the 3rd respondent has been increased by the petitioner and it is therefore that the impugned proceedings were initiated. 8. The 3rd respondent has filed a counter affidavit. According to the 3rd respondent, he acquired the property by Ext.R3 sale deed dated 20th of March, 1993. It is stated that the compound wall in question is situated in his property and this contention is sought to be supported by referring to the schedule to Ext.R3 sale deed. It is stated that the petitioner unauthorisedly increased the height of the compound wall in the property of the 3rd respondent, as a result of which, his rights to enjoy his property has been adversely affected. Therefore, it is submitted that the Corporation was justified in requiring the petitioner to remove the offending construction. It is also contended that if the petitioner is aggrieved by either Exts.P10, P11 or P12, the course open to the petitioner is to pursue the appellate remedies provided under Section 509 of the Kerala Municipalities Act and WPC No.5377/07 :6 : therefore, the writ petition is liable to be dismissed.. 9. I have considered the submissions made. 10. The first contention raised by the counsel for the petitioner is that the compound wall in question is situated in her property and that therefore, dispute raised by the 3rd respondent is a civil dispute which can be resolved only by a Civil Court and therefore proceedings under the Kerala Municipality Act is unwarranted and illegal. According to the petitioner, soon after the property was purchased, she constructed the compound wall demarcating her boundary with the property now held by the 3rd respondent. It is stated that the construction allegedly made by her is entirely on the compound wall constructed by her, and that, on this wall, the 3rd respondent or anybody else has no legitimate claim. It is also pointed out that even as per Exts.P10 and P11, the allegation is that she made construction near to the compound wall of the 3rd respondent. On the other hand, learned senior counsel appearing for the 3rd respondent referred me to Ext.R3 title deed of the 3rd respondent, the schedule of which contains a recital that the property purchased by the 3rd respondent includes the compound wall on the eastern side of the WPC No.5377/07 :7 : property. It is also shown from Ext.P10 communication issued by the Corporation, that it is alleged that certain construction has been made by the petitioner encroaching into the property of the 3rd respondent. Therefore, the 3rd respondent contends that the petitioner increased height of her compound wall. 11. From the above, therefore, it is evident that the parties are at loggerheads on the issue of ownership of the compound wall. This is not a dispute, which can be resolved either by the Corporation or by this Court in a proceedings under Article 226 of the Constitution of India. If the parties want to have this disputed issue resolved, necessarily, the matter has to be taken to the Civil Court and it is only that Court, which can resolve such disputed questions of title. Therefore, in my view, considering the nature of the controversy between the parties, proceedings under the Kerala Municipality Act are misconceived. 12. Coming to the contention of the counsel for the petitioner regarding the applicability of the provisions of the Kerala Municipality Act and the Kerala Municipality Building Rules to the compound wall in question is concerned, learned counsel for the petitioner made reference to Section 387 of the Act and WPC No.5377/07 :8 : Rule 96 of the Rules, which are extracted below for reference. 387. Application to construct or reconstruct building:-(1) Where any person intends to construct or reconstruct a building other than a hut within a municipal area, he shall send to the Secretary- (a) an application in writing together with a site plan of the land for the approval of the site; and (b) an application in writing together with a ground plan, elevation and sections of the building and specification of the work for permission to execute the work. Explanation: Building in this sub-section shall include a wall or fence of whatever height bounting or abutting on any public street. (2) Every document furnished under sub-section(1) shall contain such particulars and be prepared in such manner as may be required under the rules or bye-laws made under this Act. 96. Prohibition of commencement of work:- The construction or reconstruction of any wall or fence of whatever height bounding or abutting on any public street (or public property or public water course) shall not be begun unless and until the Secretary has granted permission for the execution of the work. Provided that any gate or grill or door or other structure shall not open or project into the adjacent property or street. A reading of Section 387 of the Act shows that a wall or fence is included in the expression building by virtue of the explanation to Section 387. But however, only such walls or fences which are bounting or abutting in public street, are included in the expression building. Similar is the indication if reference is made WPC No.5377/07 :9 : to Rule 96 of the Building Rules as well. 13. The specific case of the petitioner is that the compound wall on the western side does not abut any public street and it is on that basis contention has been raised by the counsel that Section 387 and Rule 96 are inapplicable and therefore the Corporation has no jurisdiction to interfere in the matter. Nothing has been placed by either the Corporation or by the 3rd respondent to discredit the contention of the counsel for the petitioner that the compound wall does not abut any public street. Therefore, on the materials produced, I should necessarily accept the contention of the counsel for the petitioner that the compound wall is not one abutting a public street. If that be the position, the provisions are inapplicable and the issue cannot be resolved under the provisions of the Kerala Municipalities Act or the Building Rules, and if so, for that reason the impugned orders are without jurisdiction. 14. Learned senior counsel for the 3rd respondent raised the contention that the writ petition is not maintainable. According to the learned senior counsel, Exts.P10, P11 and P12 are the proceedings issued under the Kerala Municipalities Act, WPC No.5377/07 :10 : and that the Municipalities Act itself provides remedies against such orders. True, under Section 509, appellate remedies are provided against a person aggrieved by proceedings issued by the Corporation. However, fact remains that the writ petition challenging Exts.P10 and P11 was filed as early as in February, 2007. It was admitted, various interim orders were passed, parties have filed their counter affidavits and arguments were also raised on the entire controversy and by now the appellate remedy provided under the Act has also become time barred. In so far as Ext.P12 is concerned, it is true that this document was produced only by a recent amendment. However, it is seen that after the said order was issued, the Corporation again issued notice to the petitioner, heard her and passed fresh orders in the matter. Therefore, the contention that this order has attained finality and hence cannot be challenged at this distance of time is without any substance. 15. Therefore, having regard to all this, I do not think this Court will be justified in relegating the petitioner to pursue the statutory appellate remedy, which has now become time barred. For these reasons, I am not inclined to accept the contention WPC No.5377/07 :11 : raised by the learned senior counsel for the 3rd respondent. 16. In the result, writ petition will stand allowed. Exts.P10, P11 and P12 will stand set aside. But, however, this judgment shall be without prejudice to the rights of the 3rd respondent to get his claim over the compound wall in question adjudicated by a Civil Court. It is clarified that if a Civil Suit is filed, the Court shall decide the dispute untramelled by any of the observations made in this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp