IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26760 of 2004(I)
1. KARUNAKARAN PILLAI, S/O.KANNAN PILLAI,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY ITS SECRETARY
... Respondent
2. THE CORPORATION OF THIRUVANANTHAPURAM,
3. SREEKUMARAN NAIR, S/O.RAGHAVAN PILLAI,
For Petitioner :SRI.BLAZE K.JOSE
For Respondent :SRI.N.NANDAKUMARA MENON,SC,TVM CORPN.
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
Dated :02/06/2009
O R D E R
C.N. RAMACHANDRAN NAIR, J.
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W.P.C. NO. 26760 OF 2004
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Dated this the 2nd day of June, 2009
JUDGMENT
Writ Petition is filed challenging Ext.P9 order issued by the
Government holding that petitioner’s building is constructed partly in
violation of Building Rules and consequently directing the petitioner to
demolish a stair-case and sun-shade constructed by the petitioner. I
heard counsel appearing for the petitioner and standing counsel
appearing for the Trivandrum Corporation and counsel appearing for
the third respondent.
2. It is seen that petitioner as well as third respondent acquired
the property simultaneously from the original owner through Ext.P1
sale deed which retains 5 links wide road for use by both the parties.
Petitioner is stated to have constructed a building in 1979 and
according to him after 20 years, he constructed first floor. It is seen
that for the construction of the first floor the third respondent has given
his consent to the petitioner in 1999 which is evident from Ext.P3. The
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photographs produced in court show that the pathway is retained very
clearly and that the construction is a pucca two storied concrete
building. The Municipal Corporation on objection by the third
respondent got the width of the pathway measured and they found that
average of 1.5 metres wide pathway is retained which is more than 5
links pathway provided in the sale deed obtained by the petitioner and
third respondent. The Corporation has observed that even if the
window doors in the ground floor are open, still one metre wide
pathway is available for easy use of the pathway by the petitioner and
third respondent. On going through the photographs produced in the
WPC, I am of the view that the facts stated in the Corporation
proceedings, namely, Ext.P6 cannot be wrong. Third respondent has
not produced any evidence to prove that the width of the pathway
retained is less than the width referred to in Ext.P6 proceedings.
Therefore there is no violation of the conditions provided in the sale
deed by which petitioner and third respondent acquired the property.
When the third respondent approved the construction of the first floor,
it goes without staying that he has no objection about the ground floor
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in the way in which it was constructed and retained by the petitioner. I
do not think third respondent has any right to object to construction of
the ground floor which was completed 20 years prior to completion of
construction of the first floor by the petitioner. So far as objection by
the Corporation is concerned, counsel pointed out that petitioner has
constructed metal fabricated stair case for access to the first floor from
outside. It is seen from the photographs that the stair case is located on
the southern side and within the compound of the petitioner. I do not
think Corporation can raise objection against existing stair case about
which even the third respondent has no objection.
In the circumstances, W.P. is allowed vacating Ext.P9 order and
upholding Ext.P6 order issued by the Corporation.
(C.N. RAMACHANDRAN NAIR)
Judge
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