IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28535 of 2008(V)
1. S.SOMARAJ, S/O.V.K.RAMAKRISHNAN,
... Petitioner
Vs
1. M.N.RAMANAN, S/O.NARAYANAN, PULICKAL
... Respondent
2. PUTHUPPALLY GRAMA PANCHAYATH,
For Petitioner :SRI.SARVOTHAMAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :26/09/2008
O R D E R
V. RAMKUMAR, J.
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W.P.(C) No. 28535 of 2008
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Dated: 26-09-2008
JUDGMENT
The plaintiff in O.S. 57 of 2008 on the file of the Principal
Munsiff’s Court, Kottayam is the petitioner in this Writ Petition filed
under Article 227 of the Constitution of India. The said suit was filed
for a perpetual prohibitory injunction restraining the first defendant
from making a construction in his property without maintaining the
side yard of 75 cms. from the southern boundary of his plot and in
any way violating the Kerala Municipality Building Rules and restraining
the 2nd defendant Puthuppally Grama Panchayath from granting
permit to the first defendant for constructing a building in the first
defendant’s property in violation of the Kerala Municipalities Building
Rules (hereafter “the Building Rules” for short) and for a mandatory
injunction directing the defendants to remove the obstruction caused
in the plaint schedule item No. II described as a drain and to realise
the cost from the defendants. Along with the suit, the
petitioner/plaintiff filed an application for temporary injunction as I.A.
No. 416 of 2008. The prayer in that petition was for a temporary
prohibitory injunction restraining the first defendant from making
W.P.(C) No. 28535 of 2008 -:2:-
further construction in violation of the Building Rules and the 2nd
defendant from issuing permit to the first defendant for effecting the
construction against the Building Rules.
2. It is admitted that the 2nd prayer in the suit as well as
application for temporary injunction has become infructous because
the permit has already been issued by the Grama Panchayath for
effecting the construction in the property of the first defendant. The
trial court, after hearing both sides granted the temporary prohibitory
injunction as prayed for on 22-3-2008. Aggrieved by the said final
order passed by the trial court, the first defendant filed an appeal
before the District Court Kottayam as C.M.A. 20 of 2008. Pending the
said appeal he sought a stay of the impugned order passed by the trial
court. As per Ext.P4 order dated 11-4-2008, the lower appellate court
granted a stay as prayed for after hearing both sides. The said order
was challenged by the plaintiff by filing W.P.(C) 13422 of 2008 before
this Court. As per Ext.P5 judgment dated 23-5-2008 this Court
directed the lower appellate court to dispose of the C.M. Appeal
itself untrammeled by the observations in the order of stay.
Thereafter, the lower appellate court passed Ext.P6 judgment allowing
appeal and dismissing the application for temporary prohibitory
injunction. Hence, this Writ Petition.
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3. The learned counsel appearing for the petitioner made the
following submissions before me:
As per the Building Rules the set off which should have been
left by the first defendant towards the southern side was 75 cms. But
Exts. C1 report and C2 plan show that actually he has left a set off
of 43 cms only. The trial court had found that the distance rule
regarding the side yard has been violated since the first defendant has
not left 75 cms. from the drainage running east-west in between
along the southern boundary of the first defendant’s property and the
northern boundary of the plaintiff’s property. The trial court had also
found prima facie that the drain does not belong to the first
defendant. In fact, the 2nd defendant Grama Panchayath has claimed
that the drain belongs to the Grama Panchayath. The lower appellate
court has held that the drain does not belong to the Grama
Panchayath and is running through the property of the first defendant
and therefore if so the sideyard has a total length of 86 cms. which
is far in excess of the statutory minimum of 75 cms. Such a
finding should not have been recorded at the interlocutory stage and
the lower appellate court should not have interfered with the order of
prohibitory injunction passed by the lower appellate court.
4. I am afraid that I cannot agree with the above
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submissions. The findings recorded by the lower appellate court are
only tentative finding only for the disposal of the interlocutory
application. Prima facie, the lower appellate court has observed that
going by the provisions of the Kerala Panchayath Raj Act the drain
does not appear to have vested in the Grama Panchayath. If so, the
property of the first defendant extends up to the southern wall of the
drain and in that case the southern side yard have a width of 86 cms.
It is only if the drain is lying outside the property of the first defendant
that the width of the side yard will come to 43 cms. It is also
pertinent to note that the very same drain which has a width of 43
cms. becomes reduced to 14 cms. from a point situated further to
the east of the offending construction and there is also a shop room
belonging to the first defendant abutting the said narrow drain having
a width of 14 cms. This also has been taken note of by the lower
appellate court. It is pertinent to note that in the building permit
which has been issued to the first defendant by the 2nd defendant
Grama Panchayath the only two conditions are that a tank necessary
for collection of rain water should be installed and the construction
shall not cause any obstruction to the water flowing along the drain
which passes through the property of the first defendant. Even the
grama panchayath had treated the drain as one passing through the
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property of the first defendant. It was taking note of these aspects
that the lower appellate court vacated the prohibitory injunction
granted by the trial court. I do not find any good ground for
interfering with the said order sitting in the rarefied jurisdiction of
this Court under Art. 227 of the Constitution of India. It goes without
saying that the observations and findings of the lower appellate court
are only tentative and the suit will have to be disposed of on the basis
of the legal and factual aspects coming up for consideration.
This Petition is accordingly dismissed.
Dated this the 26th day of September 2008.
V. RAMKUMAR,
(JUDGE)
ani.