IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 22ND MAY 2008 / 1ST JYAISHTA 1930 WP(C).No. 13772 of 2008(M) -------------------------- PETITIONER: ------------ PRAKASH, S/O.LATE GOPAL, AGED 36, PROPRIETOR, HOTEL AARYAS, TC 9/676, VELLAYAMBALAM, THIRUVANANTHAPURAM. BY ADV. SRI.R.T.PRADEEP SRI.N.CHANDRASEKHARAN NAIR RESPONDENTS: ------------- 1. THE SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SENIOR TOWN PLANNER (VIGILANCE) DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT (ANNEXE), THIRUVANANTHAPURAM. 3. THE SECRETARY, CORPORATION OF THIRUVANANTHAPURAM. 4. SENIOR SUPERINTENDENT (TOWN PLANNING) CORPORATION OF THIRUVANANTHAPURAM. 5. K.PARAMESWARAN NAIR, NILAMEL VEEDU, VATTIYOORKAVU, THIRUVANANTHAPURAM. 6. VALAMAMGAI NATCHIAR, T.C.23/430, KADAPATHALA, KOWDIAR. 7. SUDHARMA, TC-7/25, PANGODU, THIRUVANANTHAPURAM. 8. RAMESH.R., TC-4/330 (2) AMBALA NAGAR, KOWDIAR. R1 & 2 BY GOVT. PLEADER SRI.K.V.MANOJ KUMAR. WP(C).No. 13772 of 2008(M) -2- BY ADV. SRI.N.NANDAKUMARA MENON (SR.) FOR R3,4 R3 & R4 BY .STANDING COUNSEL SRI.P.K.MANOJKUMAR SRI.RAM MOHAN.G. FOR R6 TO R8 SRI.G.P.SHINOD FOR R6 TO R8 SRI.MANU V. FOR R6 TO R8 SRI.PIRAPPANCODE V.SREEDHARAN NAIR FOR R.5 SRI.PIRAPPANCODE V.S.SUDHIR FOR R.5 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------------------ W.P.(C) 13772 of 2008 ------------------------------------- Dated: MAY 22, 2008 JUDGMENT Petitioner is a tenant of a room belonging to the 5th respondent and bearing Door No.TC 9/676 of the Thiruvananthapuram Corporation. In the said room petitioner claims to be conducting a hotel by name “Aaryas”. 2. According to the petitioner, his landlord was objecting to renewal of his licence and that led to Ext.P1order by the Tribunal for Local Self Government Institutions. It is stated that as a result of Ext.P1, the licence was also renewed. Despite Ext.P1order and the renewal of licence, petitioner submits that the landlord continued his endeavour to get him evicted from the room. It is stated that as part thereof the landlord and the owners of the remaining rooms of the building, who are respondents 6 to 8, have made a joint application before the respondent Corporation for a building permit. While the application for the permit was under consideration, respondents 5 to 8 have given Ext.P3 undertaking that they will WP(C) 13772/08 2 undertake construction retaining the existing structure. 3. It is stated that thereafter Ext.P4 building permit was granted and Ext.P5 plan was also approved. According to the petitioner, despite the undertaking that was given in pursuance to Exts.P4 and P5, the landlords resorted to excavation in such a manner so as to endanger the portion of the building occupied by the petitioner and it is thereupon that this writ petition was filed. 4. At the time of admission this court passed an order on 29.4.2008 directing the 3rd respondent to inspect the premises in question and that if the inspection reveals that the excavation of the adjoining soil is being carried out in such a manner as to endanger the building having door No.TC 9/676, further works should be stopped. It is stated that in pursuance to thereof, an inspection was conducted by the 3rd respondent and a stop memo was also issued as a result of which the excavation work was stopped. 5. Counsel for the petitioner complains that by Ext.P3 undertaking, respondents 5 to 8 have undertaken to retain the entire old structure as such and therefore anything that they do to disturb the present structure has to be held as one in violation of WP(C) 13772/08 3 the undertaking. It is also stated that so long as such undertaking is not reflected in Exts.P4 and P5, the building permit and the plan are also liable to be invalidated on that ground itself. 6. On behalf of the Corporation it is submitted that they processed the application of the respondents in the light of the undertaking that was given and that respondents 5 to 8 are bound by the undertaking. 7. The 5th respondent, on the other hand, submits that he has not done any construction work in pursuance to the permit obtained and it is also pointed out that the right of the petitioner to continue the business itself is in dispute in a writ petition filed by him challenging Ext.P1. Therefore, what he pleads is that he has not done anything disturbing the undertaking that was given by him. 8. Respondents 6 to 8 claim to be the really affected parties in as much as according to them they are the owners of the neighbouring portions of the land. It is stated that without disturbing the structure occupied by the petitioner, it is possible to complete the construction work undertaken by them and therefore the stop memo should not stand in the way of continuing their WP(C) 13772/08 4 work. Photographs also have been produced before me to impress upon this court that even while the soil excavation work was done, sufficient clearance has been left to ensure the safety of the structure occupied by the petitioner. 9. I have heard the counsel for all sides. 10. True, Ext.P3 is an undertaking by respondents 5 to 8. But, however, the fact remains that the petitioner is occupying only one room owned by the 5th respondent, having door No. TC 9/676 of the Thiruvananthapuram Corporation. If that be so, the right of the petitioner has to be confined only with respect to that particular room and cannot extend beyond the limits thereof affecting the proprietary right of respondents 6 to 8. I am not inclined to accept the plea of the petitioner that in view of the terms of Ext.P3, respondents 6 to 8 also should be restrained from touching the structure owned by them irrespective of whether it really affects the petitioner or not. In my view, though the 5th respondent has to be pinned down to the undertaking that has been given by him, respondents 6 to 8 should be permitted to continue the work without in any manner affecting the undertaking that has been WP(C) 13772/08 5 given by the 5th respondent, provided such construction is possible and without disturbing the possession of the petitioner over the room bearing No. TC 9/676. 11. Counsel for the petitioner contended that Ext.P3 undertaking is not seen reflected in Exts.P4 and P5 and therefore the permit and the plan are liable to be interfered with. Since the Corporation has submitted before me that they have approved the plan and granted the permit in the light of the undertaking that was given, there is no necessity for examining the correctness or otherwise of the claim of the petitioner. 12. In view of the above, I dispose of this writ petition directing that while it will be open to respondents 6 to 8 to continue the construction in pursuance to Exts.P4 and P5, without in any manner disturbing the safety and the possession and enjoyment of the premises occupied by the petitioner ( TC 9/676), the 5th respondent shall not do anything affecting the structure owned by him and under due occupation of the petitioner. It is clarified that the relief that is granted as against the 5th respondent will certainly be subject to the orders that will be passed in the writ petition filed WP(C) 13772/08 6 by him challenging Ext.P1. Needless to say that it will be the responsibility of the 3rd respondent to conduct periodical inspection of the premises as and when informed by the petitioner to ensure that the structure under his occupation is not affected by the construction. It is directed that if the construction is found to be affecting the petitioner, it will be open to the 3rd respondent to issue orders to safeguard the interests of the petitioner. ANTONY DOMINIC, JUDGE mt/-