IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 13211 of 2001(W)
1. N.PURUSHOTHAMAN
... Petitioner
Vs
1. COCHIN CORPORATION
... Respondent
For Petitioner :SRI.P.T.DINESH
For Respondent : SC, COCHIN CORPN.
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :18/01/2010
O R D E R
S. SIRI JAGAN, J.
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O.P. No. 13211 of 2001
&
O.P. No.25723 of 2002
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Dated this the 18th day of January, 2010
J U D G M E N T
These two original petitions are a sequel to a long
standing dispute between two brothers which is even now
pending consideration in O.S. No.87 of 1978 before the Sub
Court, Kochi, pursuant to a remand order passed by this
court in appeals filed against the final decree in that O.S.,
which is a suit for partition. The petitioner in
O.P.No.13211/2001 is the 2nd respondent in the other
original petition, filed by the 4th respondent in O.P.
No.13211/2001. I shall refer to the rank of the parties and
Exhibits as obtaining in O.P.No.13211/2001 unless
otherwise specifically made clear, for convenience. The
petitioner and the 4th respondent herein are, as already
mentioned, brothers. The 4th respondent filed
O.P. No. 13211 of 2001
&
O.P. No.25723 of 2002
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O.S. No.87/1978 before the Sub Court, Ernakulam, for
partition of the properties which devolved on them by
Ext.P1 saswathadharam. The Sub Court passed a
preliminary decree and a final decree in the suit. The final
decree was challenged by the petitioner, in A.S.
No.637/1993 before this court. By Ext.P2 judgment a
learned Judge of this court set aside the final decree and
remanded the case back to the sub court. The 4th
respondent challenged the judgment of the learned Judge in
A.F.A. No.39/1995. In that A.F.A., the 4th respondent filed
C.M.P. No.2040/1999 seeking permission of the court for
reconstruction of his portion of the building, which
according to him was in a dilapidated condition. The
petitioner opposed the same. This court by Ext.P3 order
dated 29.03.1999 in that C.M.P. directed the 4th respondent
to submit a plan before the Cochin Corporation and to
approach this court again for permission, if the plan is
sanctioned by the Corporation. Pursuant thereto, the 4th
O.P. No. 13211 of 2001
&
O.P. No.25723 of 2002
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respondent submitted a plan and applied for a permit
before the Cochin Corporation, for reconstruction of the
building. Before the Corporation also the petitioner herein
objected to the grant of the permit to the 4th respondent.
Despite his objections, Ext.P5 building permit was issued to
the 4th respondent. Producing that permit, the 4th
respondent again filed C.M.P. No.7656/2000 in the A.F.A.,
for permission for reconstruction in accordance with the
permit and plan. On 28.02.2001 a Division Bench of this
court disposed of, A.F.A. No.39/1995 by Ext.P6 judgment.
In that judgment, while upholding the remand order passed
by the learned Single Judge the Division Bench made some
further directions, disagreeing with certain findings of the
learned Single Judge. On the very same day, the Division
Bench passed Ext.P7 order in C.M.P. No.7656/2000,
permitting the 4th respondent to reconstruct the building in
accordance with the permit issued and plan sanctioned by
the Cochin Corporation. In respect of the objections raised
O.P. No. 13211 of 2001
&
O.P. No.25723 of 2002
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by the petitioner with regard to the permit and plan it was
observed that if he has any objection regarding the permit
his responsibility is to challenge the matter before the
appropriate authority. Based on the observations in Ext.P7
order, the petitioner filed objections before the Corporation
seeking cancellation of the permit. The original petition
was filed while that objections were still pending, seeking
the following reliefs:
i. “To declare that sanction given by the 2nd respondent to
reconstruct the building is against the provisions contained in the Kerala
Municipality Building Rules, 1999.
ii. Call for all the records leading to Ext.P5, the illegal sanctioning
of the building permit.
iii. To quash Ext.P5 the permit given by the 2nd respondent by the
issuance of a writ of certiorari or any other appropriate writ, order or
direction as this Hon’ble Court may deem fit to grant.
iv. To quash Certificate No.CR 435/2000 issued by the 3rd
respondent by the issuance of a writ of certiorari or any other writ, order or
direction as this Hon’ble Court may deem fit to grant.
v. Grant such other reliefs as may be prayed for and the court may
deem fit to grant, and
vi. Grant the cost of this original petition.”
2. In the meanwhile the Corporation considered the
objections of the petitioner and passed Ext.P15 order
O.P. No. 13211 of 2001
&
O.P. No.25723 of 2002
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suspending the permit issued to the 4th respondent for
construction of the building. Ext.P15, produced as Ext.P3 in
O.P.No.25723/2002 is under challenge in that original
petition.
3. Petitioner’s contention is that despite the
permission granted by this court to the 4th respondent for
construction of the building, that permission is subject to
the validity of the permit issued for such construction by the
Corporation. He would submit that for giving a valid permit
for construction of a building the Corporation should first
look into the question of ownership and without the
concurrence of the owner of the property, in which the
construction is proposed, the Corporation could not validly
issue a permit for construction. According to the petitioner,
neither the petitioner nor the 4th respondent is the owner of
the land. They have only right of possession of the building
and to reside therein. That being so, without the
concurrence of the owners of the building, no building
O.P. No. 13211 of 2001
&
O.P. No.25723 of 2002
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permit could have been validly issued to the 4th
respondent, is the contention of the petitioner. He also
alleges that the permit has been obtained by the 4th
respondent by misrepresenting before the Corporation that
he is the owner of the building and going by Rule 16 of the
Kerala Municipality Building Rules, 1999, the permit
obtained by fraud or misrepresentation is liable to be
suspended. He also refers to the definition of the term
“owner” in the Kerala Municipality Building Rules as well as
the Kerala Municipalities Act, to argue that the
4th respondent does not answer the definition of “owner”
therein. The petitioner therefore submits that the permit
and plan issued to the 4th respondent by the Corporation is
not only liable to be suspended but also liable to be revoked.
4. The 4th respondent opposes the contentions of the
petitioner. According to him, allotment of various parts of
the building to the sharers have already been made in the
decree in the O.S. That allotment is still intact and even in
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&
O.P. No.25723 of 2002
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the appeal this court has not interfered with the same. The
matter has been remanded to the Sub Court for
consideration of the question of allotment of the
appurtenant land only and as such the question of
ownership of the building or right to possess the same is not
in dispute at all. The respondent approached this court for
permission to reconstruct the building alloted to him, since
that building was in a dilapidated condition. This court
originally directed the petitioner to file application for
permit for reconstruction of the building and to approach
this court again along with the permit for permission to
re-construct. Accordingly the 4th respondent again
approached this court by filing C.M.P. No.7656/2000
producing the plan sanctioned by the Corporation and the
building permit issued to the petitioner, seeking permission
to construct in accordance with the plan and permit. In
that petition the Division Bench of this court specifically
found that there is no justification in not giving permission
O.P. No. 13211 of 2001
&
O.P. No.25723 of 2002
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to the petitioner for reconstruction in accordance with the
plan and permit. According to the 4th respondent, this court
only observed that if the respondents have any objection
regarding the permit, it is his responsibility to challenge the
matter before the appropriate authorities. He would submit
that his right to reconstruct the building has been upheld by
the Division Bench, by giving him permission to reconstruct
the building in accordance with the plan and building
permit. That being so, the only objection that can be looked
into by the Corporation is as to whether the plan submitted
by the 4th respondent is in accordance with the building
rules, for considering which ownership is irrelevant in so far
as this court has permitted the 4th respondent to reconstruct
the building. The 4th respondent would further submit that
the right to reconstruct the building having been upheld by
this court and he having been permitted to reconstruct the
building in accordance with plan and building permit, the
petitioner cannot now take a stand that the permit granted
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&
O.P. No.25723 of 2002
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for reconstruction is not in accordance with the Kerala
Municipality Building Rules 1999. He would therefore
submit that Ext.P15 order which is the same as Ext.P3 in
O.P.No.25723/2002 is unsustainable and is liable to be
quashed.
5. I have considered the rival contention in detail.
6. It is not disputed before me that various parts of
the building have been alloted to various sharers as per the
preliminary decree. From the judgment in A.S. and AFA
before this court, I find that the issue decided therein was
on the question of allotment of appurtenant land to various
sharers and no change has been made in the decree
regarding the entitlement of each sharer to possess the
particular part of the building alloted to each of them. That
being so, I do not think that the petitioner can now raise a
dispute regarding the ownership of the building alloted to
each of the sharers at least for the purpose of obtaining
building permit for re-construction. The 4th respondent has
O.P. No. 13211 of 2001
&
O.P. No.25723 of 2002
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approached this court with a petition seeking
reconstruction of the building alloted to him. This court
initially directed him to obtain permit from the Corporation
for construction and then to seek permission from the court
again along with the copies of the permit and plan for
reconstruction. He did exactly that by filing CMP
No.7656/2000. In that a Division Bench of this court passed
Ext.P7 order which reads as follows:
“This C.M.P. has been filed for permission to the petitioner in
accordance with Annexure B and C plan. In the affidavit accompanying the
petition, it is stated as follows:
“The building in which I am residing has been allotted to me. The
building is very old and in a dilapidated condition.”
He filed C.M.P. No.2040/99 seeking permission to reconstruct the
building. By order dated 29-3-1999, the Hon’ble court permitted him to
submit the plan for approval before the local authority for construction. It
was further held that if the plan is sanctioned, the same shall be produced in
Court. According to the petitioner, he has obtained the plan and permit.
Annexure B and C are the sanctioned plan and building permit. Hence, he
prays that, he may be given permission to construct in accordance with plan
and permit.
2. This petition was opposed by the respondent. It was submitted
that they had objection to the issue of permit, but they were not heard by
the licencing authority. Further, it is brought to our notice that the
condition in the plan that the petitioner will be responsible for the structural
suitability of the building of the Corporation. After hearing both parties, we
do not find any justification in not giving permission to the petitioner. The
local authority has granted the requisite plan and permit. In so far as the
plan and permit is there, petitioner can very well proceed with the
construction as per the permit. If the respondents have any objection
O.P. No. 13211 of 2001
&
O.P. No.25723 of 2002
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regarding the permit, it is their responsibility to challenge the matter before
the appropriate authorities. The building can be reconstructed in
accordance with the plan and the building permit.
The petition is allowed.”
7. Nobody can dispute that in that order the Division
Bench had permitted the petitioner to reconstruct the
building in accordance with the plan and permit. Therefore
the right of the 4th respondent to reconstruct the building
has been upheld by this court. When this court has upheld
the right of the 4th respondent to reconstruct the building, I
am of the opinion that as far as the Corporation is
concerned they are not expected to look into the ownership
or possession of the property for the purpose of sanctioning
permit. The only question that can be looked into by the
Corporation is as to whether the plan submitted by the
4th respondent is in accordance with the Kerala Municipality
Building Rules 1999. Apart from the contention that since
the 4th respondent does not have ownership over the
property in which he proposes to construct the building, the
O.P. No. 13211 of 2001
&
O.P. No.25723 of 2002
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petitioner has not put forward any objection regarding the
plan to the effect that it is violative of any of the provisions
of the Kerala Municipality Building Rules, 1999. Therefore I
am of the opinion that the fact that the final decree
proceedings are still pending consideration of the sub court,
in the suit, is totally irrelevant for the purpose of deciding
the question as to whether the 4th respondent can
reconstruct the building as permitted by this court by
Ext.P7. In Ext.P15 order, the Corporation has held as
follows:
“The undersigned gone through the relevant records and files and
seen that the building permit is given after scrutiny by the concerned
officers, relying upon the documents produced by the respondent and finds
nothing irregular. But it is learnt that the question of ownership of the land
is still pending decision in the Hon’ble Courts. In the circumstances, I find
no reason for not suspending the license already granted. Hence Building
permit No.FC.P2/241/2000 dated 22.09.2000 granted to Sri. N.Prabhakara
Mallaya, Kothuval Lane, Palace Road, Cochin is hereby stands suspended
with immediate effect. All petitions filed by the petitioner is hereby disposed
off with the above direction.”
8. From a reading of the same it is abundantly clear
that there is nothing wrong with the plan, but he has passed
that order only because of the dispute regarding the
O.P. No. 13211 of 2001
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ownership raised by the petitioner. As I have already found
that the question of ownership is not a fact relevant for
consideration of the issue involved, Ext.P15 order, which is
the same as Ext.P3 in O.P.No.25723/2002, is clearly against
the permission granted by this court. Accordingly the same
is quashed. It is declared that the petitioner cannot have
any objection for reconstruction of the building by the
4th respondent in accordance with the plan approved and
permit issued by the Corporation since Ext.P7 order has
become final. These original petitions are disposed of as
above.
S. SIRI JAGAN
JUDGE
shg/