JUDGMENT

K.Vinod Chandran, J.

The genesis of the proceedings initiated by the respondent-Corporation, is a complaint filed against the residential building of the appellant, by the 2nd respondent, who is his neighbour. The complainant alleged that there is no sufficient set back to the building on its eastern side, on which boundary, the 1st respondent has her residence. The sunshade of the appellant's house, on the eastern side, also projects over the retaining/compound wall of the 2nd respondent. The Corporation, after inspection, issued Ext.P2 notice and after considering the objections, issued Ext.P3 final order.

2. The impugned order of the Corporation, produced at Ext.P2, finds 70 cms open space on the south-western corner and 1.25 meter on the south- eastern corner. The sunshade is said to be projecting 65 cms into the open space. Ext.P2 also raised two further objections with respect to the construction in the property of the appellant. Ext.P2 finds that, on the eastern side an additional construction of pipes and sheets was erected with toilet and work area having 6-meter length and 1.6-meter width. This violates the set off mandated under R.24(4) for rear side, which is 1.5 meters. It is also found that the front open space requires 3 meters, while the additional construction made thereon, with length and width of 2.5 meters, intrudes into the mandatory open space.

The additional constructions were found to be unauthorized and in violation of R.24(3) & (5) of the Kerala Municipality Building Rules, 1999 (for brevity 'KBR 1999'). The constructions in front of the kitchen and work area were stated to be on the eastern side; which appears to be a mistake. The Corporation's order does not examine the matter in the correct perspective. Both The Tribunal for Local Self Government Institutions [herein after, 'the Tribunal'] and the learned Single Judge affirmed the order of the Corporation.

3. The Tribunal found, in Ext.P1 order that the height of the building, according to the plan, is 5.50 meters and that the 3rd proviso to R.24(4) applies only when there are no openings, by way of windows and doors on the rear side of the building. It was found that the 3rd proviso is not applicable since there are openings present on the rear side of the subject building and the 4th proviso can be availed of, only if there is a consent from the neighbouring property owner. It was found that the additional constructions made are not included in the original plan and there is violation of R.24(3) & (5). The weather shade on the eastern side also had a width of 65 cms, which indicates violation of R.24(11). The learned Single Judge also found additional unauthorized construction having been made, consequent to which the violation of the building rules arose. The order of the Tribunal was confirmed, but liberty was reserved to the appellant to make an application before the Government for regularization of the unauthorized construction, if a notification under S.407 of the Act of 1994 is in force.

4. We heard Abhijett Lessli, learned Counsel for the appellant, Sri.Suman Chakravarthy, learned Standing Counsel for the 1st respondent Corporation and Sri.G.S.Reghunath, learned Counsel appearing for the 2nd respondent.

5. It was argued by the appellant that a permit was issued in the year 2006 as per Ext.P7; the approved plan to which permit was appended; produced as Ext.P8. There were some deviations from the plan, which was regularized by Ext.P9 issued on 24.11.2007. It was much later, in 2009 that a complaint was made as per Ext.R2(a) by the 2nd respondent. It is pointed out that the findings in the impugned order are quite contrary to the findings in Ext. P10, which is also a report prepared by the Building Inspector. It is pointed out that S.R.O.No.95/2018 had been brought out under S.407 of the Act of 1994, which, however, expired as little before the judgment of the learned Single Judge. It is argued that the additional constructions made, of s