CHERIYATH JYOTHI versus SAINUDEEN AND ANR.
[2019] 6 S.C.R. 803, Supreme Court of India, 2019
Outcome: Dismissed (Dismissed)
Segment: Facts
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CHERIYATH JYOTHI
v.
SAINUDEEN AND ANR.
(Civil Appeal No. 1424 of  2016)
APRIL 24, 2019
[A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]
Kerala Panchayath Building Rules, 2011:
Unauthorised structure – Demolition of – Sought by appellant
and also alleging hazardous activities therein – Lok Adalat ordered
for demolition – Appellant filed execution petition seeking execution
of award of Lok Adalat – Execution court directed demolition of
the structure – Respondent challenged the order contending that in
compliance with the award of Lok Adalat the illegal structure was
demolished and thereafter new structure was constructed after
obtaining permission from competent authority – This fact was
verified by the Gram Panchayath as well as by the report of Advocate
Commissioner – High Court rejected the case of the appellant
holding that award was not in the nature of permanent prohibition
for putting up any new construction  – On appeal, held: The finding
of the Execution Court that the structure as it existed at the time of
making of the award was still not demolished was in the teeth of the
documentary evidence – The scope of the award was limited to
removal of the structure as it existed at the relevant time – No
direction was issued to forbear legitimate activities.
Dismissing the appeal, the Court
HELD: 1. As noticed from the representation submitted
by the appellant to the Gram Panchayath, the grievance essentially
was that the structure was in complete violation of
the provisions
and conditions of the Kerala Panchayath Building Rules, 2011
and also contributed to severe health hazards to those living in
the vicinity. However, the Panchayath was essentially concerned
with the unauthorised structure erected on the subject plot by
respondent No.1. That grievance stood redressed by the award
passed by the Lok Adalat recording the assurance given by
respondent No.1 that he would demolish the existing structure
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within a period of three months. The fact that the structure, as it
existed on the date of making of the award, was removed by
respondent No.1 is reinforced from the stand taken by the
Panchayath in its affidavit. Furthermore, respondent No.1
admittedly, constructed a new building on the same plot after
taking prior permission of the competent authority in that regard,
which presupposes that the structure as existed thereat in
August, 2013 was removed, without which the new building could
not have been erected. The fact that permit was granted to
respondent No.1 to construct the new building is not only
supported by the permit dated 9th October, 2013 (Annexure-P8),
but also from the affidavit filed on behalf of the Gram Panchayath
dated 9th January, 2015 and including the factual position stated
in the report of the Advocate Commissioner dated 18th February,
2015. [Para 9][812-B-F]
2. The Executing Court, however, erroneously opined that
the structure, as it existed at the time of making of the award,
was still not demolished. That finding is in the teeth of the
documentary evidence and the assertions made on affidavit by
respondent No.1 as well as the Gram Panchayath and including
the factual position mentioned in the report of the Advocate
Commissioner.  The High Court rightly rejected the argument of
the appellant that the effect of the award was to completely prohibit
putting up of any structure/building on the
stated plot occupied
by respondent No.1, irrespective of the permission granted by
the competent authority in that regard. The High Court was right
in observing that whether respondent No.1 had constructed the
structure as per the permit was a matter to be considered by the
competent authority who had issued such a permit and it would
be open to the appellant to approach that authority for appropriate
reliefs, if so advised. Similarly, insofar as the nuisance likely to
be caused to the appellant due to the activities of the respondent
in the form of air pollution, water pollution, noise pollution or any
other infringement of right, the appellant must take recourse to
the appropriate remedy in that regard. [Para 10][812-G-H;
813-A-C]
3. The scope of the award was limited to removal of the
structure as it existed at the relevant time. No direction has been
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issued to respondent No.1 to forebear from carrying on his
legitimate activities, including business activities, from the stated
plot occupied by him.  If the activities of the respondent are in
violation of any law or regulation, it would be open to the appellant
to approach the concerned statutory authority or appropriate
forum and seek relief in that regard as per law. Thus, there is no
infirmity in the impugned judgment of the High Court.
[Para 11][813-D-E]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1424
of 2016.
From the Judgment and Order dated 04.03.2015 of the  High
Court of Kerala at Ernakulam in OP (C) No. 1819 of 2014.
Cheriyath Jyothi, Appellant-in-person.
A. Raghunath, Adv. for the Respondents.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J.
1. This appeal takes exception to the judgment and order passed
by the High Court of Kerala at Ernakulam dated 4th March, 2015 in
O.P.(C) No.1819 of 2014 (O).
2. Briefly stated, the appellant made a representation to the
Secretary, Karakulam Gram Panchayath on 6th May, 2013, complaining
that the occupant in the neighbouring plot had erected an unauthorised
building and was using the same as a Plant for making Rubber Sheets on
commercial basis. The appellant claims to be occupying House K.P.
No.V/168 of the Karakulam Gram Panchayath in Survey No.43/2-1-3
of Vattappara Village. The representation reads thus:
“Cheriyath Jyothi B.Sc., M.B.B.S.,
‘the cloister’, nr. Rock Park,
Venkode P.O.,
Vasttappara,
thiruvanathapurm-695028.
No.jyo/cT/01
      May 06, 2013.
To
the secretary, karakulam grama panchayath,
karakulam P.O., Thiruvananthapuram Dt.
ILLEGAL HAZARDOUS BUILDING : REQUEST
DEMOLITION
CHERIYATH JYOTHI v. SAINUDEEN AND ANR.
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Sir,
I.I am the resident of the house KP No.V/168 of the karakulam
panchayath KP No.V/168 as well as the 3.37 are plot in survey
no.43/2-1-3 of vattappara village on which it stands is fully owned
by me.
II. this is to bring to your kind notice the existence of what I
presume an unauthorized building being used as a plant for making
rubber sheets on a commercial basis in the plot adjacent to my
residence(skech enclosed as appendix A).
III. The above building is in complete violation of the provisions
and conditions of the Kerala Panchayath Building Rules 2011 and
is a severe health hazard to those living in the vicinity (as elaborated
in Appendix B).
IV. I feel that in the interests of the public the above structure
ought to be demolished.
V. my complaints on the matter to Mr. Zain-ud-din known to be
the owner of the plant has fallen on deaf ears.
VI. in view of the above it is hereby requested of you to kindly
look into the matter and do the needful at the earliest.
Yours faithfully
     Sd.
(C.Jyothi)
Enclosures: 1. Appendix A vide para II and
2. appendix B vide para III.”
3. That representation was placed before the Lok Adalat organised
by the Thiruvananthapuram District Legal Services Authority, under
Section 19 of the Legal Services Authorities Act, 1987. The Lok Adalat
passed the following Award on 23rd August, 2013:
“LOK ADALAT
Organized by the Thiruvananthapuram District Legal Services
Authority under Section
19 of the Legal Services Authorities Act
(Act 39 of 1987)
THIS THE 23RD DAY OF AUGUST, 2013
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Name of Judicial Officer
: V. Thulseedharan
Name of member
   : N. Gopakumar
Name of member
   : V. Maya
LOK ADALAT CASE No. PL No.2746 of 2013.
From the court/tribunal of
No.
plaintiff
petitioner
claimant
Dr. Cheriyath Jyothi
Vs.
Sainuddin,
Rock park, Vengode
       Rock Park, Vengode
 Defendant/Respondent
Referred under section 20(1) (i) a/20 (1) (i) (b)/20(1) (ii)
of the Legal Services Authorities Act (Act 39 of 1987).
This cause referred to the Lok Adalath organized by the
Thiruvananthapuram District Legal Services Authority under
Section 19 of the Legal Services Authorities Act (Act 39 of 1987),
coming on before us for endeavours for settlement of the dispute
between the parties, being subject matter of this cause, in the
presence of the parties and their counsel, and after a full and
frank discussion of all issues factual and legal arising from the
cause, the parties having agreed before us that there shall be an
award / order / decree in terms of settlement hereto made and
the parties and their counsel herein having, in acceptance of the
same signed this in our presence, it is decreed / ordered:-
Both parties present. Respondent ready to demolish the
existing building possessing the rubber sheeting machinery
within a period of 3 months. Failing which the petitioner
may approach the appropriate authority for executing the
award.
            (sd.)
(sd.)
     (sd.)
JUDICIAL OFFICER
      MEMBER
 MEMBER
CHERIYATH JYOTHI v. SAINUDEEN AND ANR.
[A. M.
KHANWILKAR, J.]
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(sd.)
        (sd.)
Plaintiff/Petitioner
        Defendant/Respondent
Claimant/Appellant
   Counsel for
Plaintiff/Petitioner
Claimant/Appellant
Counsel for
  Defendant/Respondent”
(emphasis supplied)
4. Notably, from the original order sheet it is noticed that, initially,
the description of the property belonging to the respondent was given as
“temporary shed”, which was struck of and instead, was described as
“existing building”. Be that as it may, the appellant then approached the
Court of Principal Munsif, Nedumangad, by way of E.P. No.10/2014 in
PL No.2726/2013 for executing the award passed by the Lok Adalat.
The Executing Court accepted the grievance of the appellant and issued
directions for removal of the structure in the neighbouring plot belonging
to the respondent. The operative order passed by the Court of Principal
Munsif reads thus:
“6. Thus the circumstances under which the petitioner filed this
petition before the Lok Adalath and circumstances under which
the award was passed reveal that what was intended by the parties
is nothing but to demolish it for ever. Admittedly the structure was
not demolished. That was born out from the photographs produced
in this case. In such circumstances I find that the award is to be
executed through process of court. The decree holder has to take
necessary steps for executing the award and arrange men and
machinery to execute the award.
Amin is directed to execute
award on 22/07/2014 and file report
before Court on 23/07/2014.”
5. The respondent assailed the said order before the High Court,
inter alia contending that after the award was passed by the Lok Adalat,
he had demolished the “temporary shed”, a position which was verified
by the Panchayat authorities. He has placed reliance on photographs in
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support of this plea. The respondent asserted that he had thereafter
applied for permission to construct the structure as per the prescribed
norms, and pursuant to the building plan submitted by him, the same was
approved by the competent authority and permit came to be issued on
9th October, 2013. The respondent asserts that he was permitted to
construct the new shed, having plinth area of 9.49 Sq.Mts., after leaving
statutory open space, as provided in the approved plan. In conformity
with the said approved plan, the respondent constructed a new structure
which was compliant with the requirements specified as per the permit
issued in his favour in that regard. The stand taken by the respondent
found support from the affidavit filed by the Secretary, Karakullam Gram
Panchayat, Nedumangad, Thiruvalla. The relevant portion of the said
affidavit filed on 9th January, 2015, on behalf of the Panchayat, reads
thus:
“3. It is submitted that as per the above Ext.P3 order petitioner
demolished the existing building and applied for a building permit
to construct 9.49 sq. meter of building. The plan submitted by the
petitioner was approved and Ext.P7 permit was issued. As per
the Ext.P7 a petitioner constructed the building in accordance
with the approved plan and permit. The construction was made
by the petitioner in accordance with the approved plan and permit
issued by the 2nd Respondent. The 2nd Respondent has not noted
any violation of the provisions of the
Kerala Panchayath Building
Rules, 2011 in the construction, and hence the above building was
numbered as K.P. 11/982-A. In Ext. P7 permit there was a mistake
that instead of stating commercial purpose it were mistakenly
stated as residential purpose. When it was brought into the notice
of this respondent, it was rectified as commercial purpose by order
dated 1.12.2014.
4. It is submitted that E.P.No.10/2014 was filed by the 1st
Respondent to execute the award of Lok Adalat in PL No.2746/
2013. This Respondent is not a party in the above E.P. And hence
this respondent is not aware of the Ext. P10 order. Since this
Respondent is not a party to the above E.P. proceedings, this
Respondent could not bring the correct facts to the notice of the
Munsiff Court, Nedumangaud.
5. Under the above circumstances this Hon’ble Court may be
pleased to accept this statement and order accordingly.”
CHERIYATH JYOTHI v. SAINUDEEN AND ANR.
[A. M. KHANWILKAR, J.]
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6. Since the appellant contested the factual position stated by the
respondent, as well as mentioned in the affidavit filed on behalf of the
Panchayat, the High Court deemed it appropriate to appoint an Advocate
Commissioner. The Advocate Commissioner visited the site and submitted
his report on 18th February, 2015, which reads thus:
“BEFORE THE HONOURABLE HIGH COURT OF
Kerala
AT ERNAKULAM
O.P. (c) 1819 OF 2014
Report and rough sketch submitted by Advocate M.M. Bashir
as per the order of the Hon’ble family court Nedumangadu in EP
No.10/2014 dated 11.2.2015.
As per the order of the Hon’ble Family Court Nedumangadu
directing me to prepare a sketch and to submit a report regarding
the building in question and also the activities being carried on
there. I have visited the disputed property on 13.02.2015 for
executing the order of the Hon’ble court at about 3:30 PM with
the presence of both the parties and filing this report with true
sense. The disputed property is situated in Vattappara village which
is 5kms far from the Nedumangad court center.
I have prepared a rough plan regarding the disputed property
and mentioned the disputed building as (1). The disputed building
is a new one when I was visited the property and having an age
of nearly 1.5 years and not working for the same period. The
building was made with the permission of the Karakulam Grama
Panchayath. The property if the respondent is lying on the western
side of the disputed building. Separating these two properties a
compound wall is there which is constructed of granite and cement
hollow bricks having a height of 1.70 meters.
The disputed building is a shed constructed by granite and cement
hollow bricks with oralium sheet roof which is used for Rubber
Sheet making. In the shed there are two rubber sheet making
machines are fixed and made an open waste water canal which
is going to the bio gas tank. The said tank is having an age of
more than 25 years. The difference between the bio gas tank and
the disputed shed is 3.70 meters. The shed is situated in the
petitioner’s property having a difference of 1.25 meters on the
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north-western side and 2.10 meters on the south-western side
from the property of the respondent. There is compound wall
separating the properties of the petitioner and the respondent.
The temporary residential structure of the respondent is situated
2.35 meters far from the above compound wall. At the time of my
visit it is very well noted that there is no harm to the respondent
due to the non working of the disputed shed. It is presume that
there will be no damage or harm to the respondent at the present
stage. The property of the petitioner is filled with yielding rubber
which is not taking yield for the last 1.5 years. The number of
trees is nearly 50.
This report is submitting before Hon’ble family court
nedumangad along with order and the rough plan.
Dated this the 18th day of February 2015.
         sd.
              M.M. Bashir
Advocate Commissioner”
7. Indeed, the appellant contested the correctness of the said
report. However, the High Court after taking into account the relevant
material and including the report submitted by the Advocate Commissioner,
concluded that the purport of the award passed by the Lok Adalat did
not preclude the respondent from constructing a new structure after
taking due permission from the competent authority in that regard. The
High Court rejected the argument of the appellant that the award was in
the nature of a permanent prohibition from putting up any construction
on the plot occupied by the respondent. Having so
held, the High Court,
taking note of the apprehension of the appellant that the respondent may
start operating Rubber Sheet-making machinery, which would inevitably
cause air and water pollution, granted liberty to the appellant to take
recourse to the remedy as may be permissible in law. The High Court
also observed that such proceedings be decided on its own merits and in
accordance with law. The view so taken by the High Court is the subject
matter of challenge in this appeal.
8. The appellant has argued the matter in person. Although the
respondents have been served and respondent No.2 is represented through
counsel, none appeared when the matter was called out for hearing.
CHERIYATH JYOTHI v. SAINUDEEN AND ANR.
[A. M. KHANWILKAR, J.]
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9. We have considered the relevant material placed on record
and on considering the same in its proper perspective, we find no reason
to interfere with the final conclusion recorded by the High Court in
allowing the writ petition and setting aside the order passed by the
Executing Court. As noticed from the representation submitted by the
appellant to the Gram Panchayath, the core grievance was with regard
to the unauthorised structure erected on the plot occupied by the
respondent and which was being used as a Plant for making Rubber
Sheets on a commercial basis. The grievance essentially was that the
structure was in complete violation of the provisions and conditions of
the Kerala Panchayath Building Rules, 2011 and also contributed to severe
health hazards to those living in the vicinity. However, the Panchayath
was essentially concerned with the unauthorised structure erected on
the subject plot by respondent No.1. That grievance stood redressed by
the award passed by the Lok Adalat recording the assurance given by
respondent No.1 that he would demolish the existing structure within a
period of three months. The fact that the structure, as it existed on the
date of making of the award, was removed by respondent No.1 is
reinforced from the stand taken by the Panchayath in its affidavit.
Furthermore, respondent No.1 admittedly, constructed a new building
on the same plot after taking prior permission of the
competent authority
in that regard, which presupposes that the structure as existed thereat in
August, 2013 was removed, without which the new building could not
have been erected. The fact that permit was granted to respondent No.1
to construct the new building is not only supported by the permit dated
9th October, 2013 (Annexure-P8), but also from the affidavit filed on
behalf of the Gram Panchayath dated 9th January, 2015 and including
the factual position stated in the report of the Advocate Commissioner
dated 18th February, 2015.
10. The moot question is the width of the award passed by the
Lok Adalat dated 23rd August, 2013. It is, in our opinion,  obviously limited
to removal of the existing structure on the stated plot occupied by
respondent No.1 within three months. That structure, as aforesaid, came
to be removed, which fact is reinforced from the circumstances discussed
hitherto. The Executing Court, however, erroneously opined that the
structure, as it existed at the time of making of the award, was still not
demolished. That finding is in the teeth of the documentary evidence
and the assertions made on affidavit by respondent No.1 as well as the
Gram Panchayath and including the factual position mentioned in the
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report of the Advocate Commissioner.  The High Court rightly rejected
the argument of the appellant that the effect of the award was to
completely prohibit putting up of any structure/building on the stated plot
occupied by respondent No.1, irrespective of the permission granted by
the competent authority in that regard. The High Court was right in
observing that whether respondent No.1 had constructed the structure
as per the permit was a matter to be considered by the competent
authority who had issued such a permit and it would be open to the
appellant to approach that authority for appropriate reliefs, if so advised.
Similarly, insofar as the nuisance likely to be caused to the appellant due
to the activities of the respondent in the form of air pollution, water
pollution, noise pollution or any other infringement of right, the appellant
must take recourse to the appropriate remedy in that regard. Further,
those proceedings will have to be decided on its own merits. The view
so taken by the High Court is, in our opinion, unexceptional.
11. We hold that the scope of the award was limited to removal of
the structure as it existed at the relevant time. No direction has been
issued to respondent No.1 to forebear from carrying on his legitimate
activities, including business activities, from the stated plot occupied by
him.  If the activities of the respondent are in violation of any law or
regulation, it would be open to the appellant to approach the
concerned
statutory authority or appropriate forum and seek relief in that regard as
per law. Thus, we find no infirmity in the impugned judgment of the High
Court.
12. In view of the above, this appeal is dismissed but with the
observations made hitherto. No order as to costs.
All applications are also disposed of.
Kalpana K. Tripathy
Appeal dismissed.
CHERIYATH JYOTHI v. SAINUDEEN AND ANR.
[A. M. KHANWILKAR, J.]