High Court Kerala High Court

Sudha vs Pramod Chandran on 18 June, 2010

Kerala High Court
Sudha vs Pramod Chandran on 18 June, 2010
       

  

  

 
 
  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.
            ====================================
                     W.P(C) No.17961 of 2010
            ====================================
             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,

W.P(C) No.17961 of 2010
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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

W.P(C) No.17961 of 2010
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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

W.P(C) No.17961 of 2010
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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

W.P(C) No.17961 of 2010
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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

W.P(C) No.17961 of 2010
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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

W.P(C) No.17961 of 2010
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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

W.P(C) No.17961 of 2010
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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