IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30466 of 2009(O)
1. ANIKKIL MANOHARAN NAIR, AGED 48 YEARS,
... Petitioner
Vs
1. KIZHAKKAN KOZHUVEL DEVELOPMENT
... Respondent
2. M.RAJAGOPAL, AGED 48 YEARS,
For Petitioner :SRI.SURESH KUMAR KODOTH
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :29/06/2010
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) No.30466 of 2009
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Dated this the 29th day of June, 2010.
JUDGMENT
Petitioner before me is the plaintiff in O.S.No.259 of 2008 of the court of
learned Munsiff, Hosdurg. He is the owner in possession of plaint A schedule,
three cents in extent. On its east is plaint B schedule belonging to respondent
No.1. In the plaint B schedule there is already a building in existence and as part
of its development activities respondent No.1 wanted to construct another floor
over it. Respondent No.1 is said to have obtained approved plan and permit
from the local authority and when it started with construction of first floor
petitioner filed O.S.No.259 of 2008 alleging that construction is in violation of the
relevant Building Rules. A commission was taken in the trial court who filed an
interim report. Based on that interim report learned Munsiff allowed I.A.No.2646
of 2008 and restrained respondent No.1 from making any addition to the existing
building on the finding that the construction violated Rule 100 (5) of the Kerala
Municipality Building Rules (for short, “the Rules”). Respondent No.1 took up the
matter in C.M.A.No.15 of 2008 before the learned Sub Judge, Hosdurg who
relying on Ext.P3, approved plan found that prima facie there is no violation of
Rule 100(5) of the Rules and accordingly, allowing C.M.Appeal set aside order
of injunction. Judgment of learned Sub Judge is under challenge in this Writ
Petition. While admitting Writ Petition this Court directed respondent No.1 to
maintain status quo until disposal of the Writ Petition. That order remains in
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force even now. It is contended by learned counsel for petitioner that the
appellate court has not taken into account Ext.P2, report of the Advocate
Commissioner which indicated that construction in plaint B schedule abutted its
western boundary ie. eastern boundary of plaint A schedule and thus there is
violation of Rule 100(5) of the Rules. Learned counsel for respondent No.1
contended that there is no violation in that, Ext.P3, approved plan shows that
there is a minimum distance of 75 cms from the structure already in existence in
plaint B schedule to the western boundary of plaint B schedule and as such
learned Sub Judge was correct in holding that there is no violation of Rule 100
(5) of the Rules.
2. Rule 100(5) of the Rules states that in the case of residential or
special residential or mercantile/commercial buildings alteration or addition
(extension) of floor(s) or conversion of roof shall be permitted only if the existing
building and the proposed floor(s) have average 60 ms open space from the
boundaries of all the plots on its sides including rear. Rule 3(d) of the Rules says
that where addition or extension is made to a building, the rules shall apply to the
addition or extension only, but for calculation of floor area ratio and coverage
permissible and for calculation of required off street parking area to be provided,
the whole building (existing and the proposed) shall be taken into account. A
reading of Rules 3(d) and 100(5) of the Rules make it clear that when addition is
proposed for the existing building such existing building should have a minimum
space as referred to in Rule 100(5) of the Rules.
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3. Then the question is whether the impugned construction violated
Rule 100(5) of the Rules. While learned counsel for respondent No.1 maintained
that average space of 60 cms has been left as provided under Rule 100(5) of the
Rules learned counsel for petitioner asserted and relying on Ext.P2, report
claimed that the structure already in existence in plaint B schedule is constructed
abutting the western boundary of plaint B schedule. Learned counsel has invited
my attention to paragraph No.4 of Ext.P2. In paragraph No.4 it is stated that
plaint A schedule property is three cents in area with a residential building in it
and that on its east plaint B schedule with the building is situated. Western wall
of the building forms part of eastern physical boundary that separates A
schedule property from B schedule building.
4. It has to be ascertained whether the structure which is already in
existence in plaint B schedule is in compliance of Rule 100(5) of the Rules in
that the said construction is made leaving an average space of 60 cms from the
boundary of plaint B schedule. If it is found that the average space of 60 cms is
not left, certainly there is violation of Rule 100(5) of the Rules in which case
respondent No.1 will not be justified in claiming that it is entitled to proceed with
the construction. Therefore, it has to be ascertained with the assistance of an
Advocate Commissioner whether in between the building which is already in
existence in plaint B schedule and its western boundary average space of 60
cms is left. Decision on I.A.No.2646 of 2008 will depend upon that finding.
Going through Ext.P2 I am unable to find whether that average space of 60 cms
has been left. As such proper course is to direct trial court to get a report from
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the Advocate Commissioner if possible by deputing the very same
commissioner on the question whether existing structure in plaint B schedule is
constructed after leaving an average space of 60 cms from the western
boundary of plaint B schedule.
5. In view of above facts, judgment of the appellate court or the order
of the trial court cannot be sustained.
Resultantly this Writ Petition is allowed and judgment in C.M.A.No.15 of
2008 as well as order on I.A.No.2646 of 2008 are set aside and, that application
is remitted to the trial court for fresh disposal in the light of the observations
made above and in accordance with the law in force. I direct that interim order
passed by this Court on 28.10.2009 will remain in force until I.A.No.2646 of
2008 is disposed of. Trial court shall expedite disposal of I.A.No.2646 of 2008.
THOMAS P.JOSEPH,
Judge.
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