HIGH COURT OF KERALA
DAMA SESHADRI NAIDU, J.
Karakunnummal Babu & Others – Appellant
Versus
T.P. Raghavan & Others – Respondent
WP(C).No. 18127 of 2014 (M)
Decided On : 05-03-2015
Kerala Municipality Building Rules 1999 - Rule 89 - Right to enjoy - Construction of wall - Building permission - Renewal - Whether owner of property has indefeasible right to enjoy his property the way he wants, when his right to enjoy the same has been declared by Civil Court - Whether Objectors termed as necessary parties before the Tribunal when right to enjoy property by owner is established by Civil Court - Challenged - Held, owner of property has indefeasible right to enjoy his property the way he wants, when his right to enjoy the same has been declared by Civil Court - Third parties cannot be heard to say that the construction of compound wall would shorten the pathway thus causing inconvenience to them and hence permit cannot be granted - Building Permit renewed twice earlier Panchayat unable to renew and Fresh application for building permit - cannot be refused as it amounts to reviewing its own decision - Fact that there was protest raised by third parties cannot assume importance as Civil Court has already decided right of petitioner over his property - Renewal of building permit refused by Panchayat on ground of objection by third parties
1. The first respondent, being the owner of certain property, has an anodyne desire of raising a compound wall around his property. He began his efforts in 2005 and could not fulfill that to this day.
2. The petitioners, the neighbours, contend that if the first respondent is to construct a compound wall around his property, that may come in the way of their enjoying the only pathway leading to their properties, for the construction would lead to shortening of the pathway. In fact, the first respondent has been driven to multiple rounds of litigation, the present writ petition being the only exception, since it is filed by the neighbours, rather than the first respondent himself.
3. The facts, stated in brief to the extent necessary, are that the petitioners, 9 in number, are neighbours to the first respondent, making use of the pathway to the west of the first respondent's property. Initially, the first respondent filed a suit against respondents 1 and 4 herein and others and obtained a decree for perpetual injunction against those persons from interfering with his right to enjoy his property. Later, the first respondent approached this Court complaining of delay on the part of the respondent Grama Panchayath in considering his application for grant of permission to raise the compound wall. In fact, this Court rendered Ext.P2 judgment in W.P.(C) No. 10871 of 2005, directing the respondent Grama Panchayath to take appropriate decision within a stipulated time. That judgment was rendered on 01.04.2005.
4. Once again the first respondent filed W.P.(C) No. 18743 of 2005, which was disposed of through Ext.P3 judgment by this Court on 02.06.2008, holding that the petitioner can raise his compound wall based on the report and the sketch to be prepared and submitted by the Revenue Divisional Officer, who was added as additional 3rd respondent suo motu by the Court.
5. Based on Ext.P4 report and sketch submitted by the Revenue Divisional Officer, on 28.10.2009 the respondent Grama Panchayath issued to the first respondent the necessary permission, which had been renewed from time to time.
6. Once again, the first respondent and his son approached this Court by filing W.P.(C) No. 27079 of 2011, which was disposed of by a learned Division Bench of this Court through Ext.P5 judgment dated 08.03.2012. Evidently, complaining of unabated obstruction by the petitioners, the first respondent along with his son filed the said writ petition. This Court has, however, observed that the petitioners herein, if aggrieved by the first respondent's construction of the compound wall, can approach the civil court on account of the shortening of pathway owing to what is said to be the alleged encroachment by the first respondent. At any rate, a direction was also given in the said writ petition that the police are required to interfere, if the law and order problem arises owing to any interference by the petitioners.
7. The first respondent, once again, approached the civil court and filed O.S No. 202 of 2012 seeking a mandatory injunction, for he took a plea that the compound wall constructed by the first respondent pursuant to the permission granted by the respondent Grama Panchayath had been demolished in part by the petitioners. In response to Ext.P7 plaint filed in O.S. No. 202 of 2012, the petitioners are also said to have filed their written statement through Ext.P8.
8. While the civil proceedings are pending, understandably, based on the protest made by the petitioners, the respondent Grama Panchayath issued Ext.R1(d) notice on 25.05.2013 refusing to renew the building permit. It appears that the Grama Panchayath insisted that the first respondent submit a fresh application supported by a survey sketch. Assailing Ext.R1(d) notice issued by the respondent Grama Panchayath, the petitioner filed an appeal in Appeal No. 603 of 2013 before the Tribunal for Local Self Government Institutions, Thiruvananthapuram ('the Tribunal' for brevity) a
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