IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 17961 of 2010(O)
1. SUDHA, TC 25/3155(1 & 2) M.R.R.A.,
... Petitioner
Vs
1. PRAMOD CHANDRAN,
... Respondent
For Petitioner :SRI.L.MOHANAN
For Respondent :SRI.THOMAS ABRAHAM
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :18/06/2010
O R D E R
THOMAS P.JOSEPH, J.
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W.P(C) No.17961 of 2010
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Dated this the 18th day of June, 2010
J U D G M E N T
Respondent/plaintiff is the owner in possession of plaint A
schedule where he has constructed a building and is residing with
family. On its south, it is not disputed before me is the plot shown
as plaint B schedule which belonged to defendant No.1. It is
also not disputed that three cents towards east of plaint B schedule
was assigned to petitioner/defendant No.2 where she started
construction of a residential building. According to the report
(Ext.P5) of the Advocate Commissioner the ground floor of building
has been completed and petitioner has proceeded to construct its
first floor. At that time respondent filed O.S. No.1446 of 2009 in
the court of learned Munsiff, Thiruvananthapuram complaining that
construction being embarked upon in the three cents is without
obtaining permit and approved plan from the local authority and is
without leaving sufficient space in between plaint A and B
schedules. He also filed I.A. No.7922 of 2009 for an order for
temporary injunction to restrain petitioner from proceeding with
further construction. That application was opposed by petitioner
contending that she has obtained permit and the plan approved
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from the local authority, construction is strictly in accordance with
the plan and permit and that it is not correct to say that the
required space between plaint A and B schedules has not been
left. Learned Munsiff was not impressed by the contentions
raised by respondent, held that there is no violation as
complained by the respondent and dismissed the application.
Respondent took up the matter in appeal – C.M.A. No.13 of 2010
in the court of learned District Judge, Thiruvananthapuram.
Learned District Judge was of view that construction being carried
on by petitioner is not in accordance with the approved plan
(Ext.P4) and permit and hence it has to be stopped. Accordingly
appeal was allowed and petitioner was restrained from making
further construction in the plaint B schedule in violation of the
approved plan and permit except or in accordance with the
modified plan and permit if any to be obtained by the petitioner. It
was also directed that construction if any already made in
violation of the plan and permit granted if not ratified or modified
plan obtained in tune with the present construction from the
authorities concerned will be subject to the result of the suit.
That judgment is under challenge in this Writ Petition. Learned
counsel for petitioner contends that there is no violation of the
Building Rules and learned District Judge has also not found so,
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instead, violation found is for the approved plan, Ext.P4. Learned
counsel would contend that there is no violation and at any rate
even if it is assumed that there is slight variance from the
approved plan, it does not in any way violate the relevant rules
and no safety or nuisance of the public at large is involved. Hence
it is not necessary to stop construction of building at this stage.
According to the learned counsel construction if any made in
violation of the Rules can be directed to be removed by the
learned Munsiff on conclusion of trial. Learned counsel undertook
that in case it is found that construction is in violation of the Rules
petitioner is prepared to rectify the mistake and make the
construction in tune with the relevant statutory provisions.
Learned counsel placed reliance on the decisions in M/s.
Rajatha Enterprises v. S.K. Sharma (AIR 1989 SC 860)
Narahari Rao v. Sate of Kerala (1999 [1] KLJ 969).
Learned counsel for the respondent contends that there is
violation of the Rule in that width of the road in front of plaint A
and B schedules is not left as required in the Rules, not to say that
there is violation of the approved plan in that regard. It is also
contended that learned District Judge was right in concluding that
sufficient rear space has not been left by petitioner in constructing
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the building. Learned counsel contends that there is violation of
the Rules and even regularisation under Rule 143 of the Rules is
not permissible as held by a Division Bench of this Court in
Lazer Robert v. Mohammed Sheriff (2008 [4] KHC
1016)
2. I have gone through the judgment of learned District
Judge and find that there is no finding that any of the provisions
of the Rules has been violated in the matter of construction. On
the other hand the finding is that there is violation of the
approved plan (Ext.P4) in that sufficient rear space as directed in
the approved plan has not been left by the petitioner in
constructing the building. In Ext.P4, approved plan open space
required to be left in between the building of petitioner and the
compound wall of respondent is stated to be one metre on the
one side and 1.10 metres on the other side. Under Rule 62(3) of
the Rules rear side shall have an average space of one metre with
a minimum of 0.50 metre. In other words, even if at a point on
the rear side width of the space is only 0.50 metre it is sufficient
that the average width is one metre.
3. Now I shall refer to the report of Advocate Commissioner on which both sides place reliance. It is seen
from page 2 of the report that plaint A schedule property is well
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bounded by compound wall on all sides. Plaint B schedule is on
its southern side with the three cents belonging to the petitioner
being on the eastern side of plaint B schedule. In page 4 of Ext.P5
there is reference to width of open space between the compound
wall of plaint A schedule and plaint B schedule as 88 cms. but it
is further stated that distance from the pillar of the building in
plaint B schedule (constructed by the petitioner) to the compound
wall of plaint A schedule is 97 cms. There is no reference to the
average width of the rear space on that side. Learned counsel for
respondent has invited my attention to the objection filed by
petitioner to Ext.P5, report where it is stated that distance
between northern side of plaint B schedule is 90 cms. According
to the learned counsel for respondent in the light of that stand, it
is idle for petitioner to contend relying on what is stated in
Ext.P5, report about distance from the pillar to the compound
wall of plaint A schedule as 97 cms. It is argued by learned
counsel that the outer line of the construction in plaint B schedule
goes beyond the pillars and hence distance between the outer line
of the building and compound wall of plaint A schedule is less than
97 cms.
4. As of now what is revealed from Ext.P5 is that though
it is stated that distance from plaint A schedule is 88 cms., the
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distance from the pillar of construction in plaint B schedule to the
compound wall of plaint A schedule is 97 cms. Concededly both
the above descriptions are in excess of the minimum requirement
of 0.50 metre referred to in Rule 62(3) of the Rules which
provided that the average width shall not be less than one metre.
But report of Advocate Commissioner (Ext.P5) does not reveal
that average width of the open space between construction in
plaint B schedule and compound wall of plaint A schedule is less
than one metre. I do not forget that in the sketch accompanying
Ext.P5, report also Advocate Commissioner has shown distance as
88 cms, as sated in page 4 of Ext.P5. But it is not clear from the
sketch whether the said 88 cms is from the pillar in pliant B
schedule to the compound wall in plaint A schedule. Further down
in Ext.P5 Advocate Commissioner has categorically stated that
open space is 97 cms. Either way there is no material on record
to conclude that average width is less than one metre. Therefore
relying on Ext.P5 it is not possible to say now that there is
violation of Rule 62(3) of the Rules.
5. Now I shall come to alleged violation of the approved
plan (Ext.P4). No doubt as per that plan space to be left in
between plaint A and B schedules should be one metre on one
side and 1.10 metres on the other and going by Ext.P5 that
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distance has not been left since that even according to the
Advocate Commissioner, width from the pillar of building in plaint
B schedule and compound wall of plaint A schedule is 97 cms (or
88 cms as learned counsel for respondent would urge) and to that
extent there is a prima facie a variation from the approved plan.
6. Learned counsel for respondent has a further
contention that in putting up compound wall in front of plaint B
schedule petitioner has not left that much width on the public line
abutting that compound wall as indicated in the approved plan but
learned counsel was fair enough to concede that the Advocate
Commissioner was neither requested nor has reported the width
of the said pathway. If that be so that matter is not to be
considered in this proceeding.
7. Learned counsel for respondent contended that since
construction is at variance with the approved plan further
construction of the building is to be prevented. Decision (Lazer
Robert v. Mohammed Sheriff – supra) relied on by learned
counsel for the respondent states that when there is violation of
the relevant Rules no question of regularisation under Rule 143 of
the Rules arose. But that question does not arise for
consideration for the time being since at present there is only a
variation of the approved plan and permit but not in any way
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violating the relevant Rules and it is well within the power of the
authority concerned to regularise the same. The Supreme Court
in M/s.Rajatha Enterprises v. S.K. Sharma (AIR 1989
SC 860) and a Division Bench of this Court in Narahari Rao v.
Sate of Kerala (1999 [1] KLJ 969) stated that when there is no
violation of Rules and what is made out is only a variance with
the approved plan and it is not shown that construction has in
any way caused danger or nuisance to the public at large it is not
necessary that civil court should interfere and direct demolition of
the structure. I do not forget in those cases issue considered
was whether construction which was not in violation of the
relevant Rules but in variance with the approved plan and permit
should be pulled down. Here is a case where petitioner has
invested substantial amount and going by the report of the
Advocate Commissioner construction of ground floor has been
completed and petitioner is proceeding with construction of first
floor. I must also bear in mind that extent of land in the
ownership, possession and control of petitioner is only three cents
where the construction is being made. Petitioner has the
opportunity to seek regularisation of the construction if violation is
only of the approved plan. In these circumstances I do not think
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it necessary that at this stage the court has to interfere with
construction of the building. After all if ultimately it is found that
construction made by petitioner in any way violated the relevant
Rules or petitioner is not able to get regularisation of the
construction and it is necessary in the interest of justice to do so
the civil court has authority to direct petitioner to demolish the
construction. At this stage I bear in mind the undertaking made
by learned counsel for petitioner that if the construction is found
to be in violation of the relevant Rules petitioner is prepared to
demolish such portion which violated the Rules. Undertaking
made by the learned counsel on behalf of petitioner is recorded.
In the light of what I have stated above I am not persuaded to
think that petitioner should be prevented from further
construction of the building until the suit is disposed of. As such
the impugned judgment is liable to be set aside.
Resultantly, this Writ petition succeeds. Judgment in C.M.A.
No.13 of 2010 of learned District Judge, Thiruvananthapuram is
set aside and the order passed by the learned Munsiff is
restored.
THOMAS P. JOSEPH, JUDGE.
vsv