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2025 Supreme(Online)(Ker) 46463
IN THE HIGH COURT OF KERALA AT ERNAKULAM
S.MANU, J
P.SUJATHAN S/O.PADMANABHAN P.S.HARDWARES – Appellant
Versus
G.ASOKAN – Respondent
WP(C) NO. 18195 OF 2010 | WP(C) NO. 780 OF 2011
For the Appellants/Petitioners: SHRI.S.SOMAN, SRI.N.N.SUGUNAPALAN (SR.), SHRI.V.JOHN MANI, SMT.NITA.N.S., SRI.S.SUJIN
For the Respondents: SHRI.SIJU KAMALASANAN, SRI.AYYAPPAN SANKAR, SMT.NITA.N.S., SRI.S.SUJIN, ADV RASHMI K M, SR.GP
The Tribunal erred by remitting the matter instead of resolving the consent issue based on available materials.
Headnote:(A) Kerala Municipality Act, 1994 - Issue of Unauthorized Construction - The matter arises from multiple appeals concerning unauthorized construction and municipal regulations. The Tribunal’s directives regarding consents and municipality permits were contested. (Paras 2, 7, 8)
(B) Legal Requirement for Consent - Government order required consent from neighbouring property owners for regularization; non-compliance led to multiple appeals. Court found the Tribunal’s decision to rely on Secretary's satisfaction over Municipality's requirement fallacious. (Paras 5, 8)
Facts of the case:
The disputes began in 1996 regarding the construction of a building by the respondent on boundaries affecting the petitioner’s property rights, leading to numerous court orders and appeals.
Findings of Court:
The court held that the Tribunal improperly remitted the matter back instead of resolving consent issues based on evidence.
Issues: Whether the consent of the previous owner for construction abutting the petitioner’s property boundary was obtained.
Ratio Decidendi: The court stated that the Tribunal erred in remitting the matter when it could have settled based on available evidence, thus restoring the appeal for proper adjudication.
Result: The Tribunal’s order is set aside, and the appeal is restored for fresh consideration.
| Table of Content |
|---|
| 1. details of surrounding parties and initial disputes regarding construction. (Para 1 , 2) |
| 2. multiple rounds of appeals and key orders from authorities. (Para 3 , 4 , 5) |
| 3. arguments presented by both parties regarding consent. (Para 6 , 7) |
| 4. court's observation on tribunal's decision and required actions. (Para 8) |
| 5. final court order and directives for the tribunal. (Para 9 , 10) |
JUDGMENT
Subject matter of this litigation is construction of a building happened in 1996. In both writ petitions an order passed by the Tribunal for Local Self Government Institutions is under challenge. As the parties are common and the challenge is also common these writ petitions were heard together and are being disposed of by this common judgment. Parties are referred in this judgment as per the cause title in W.P.(C)No.18195/2010. Reference to the documents, unless otherwise specified, is also in the order in which they are marked in W.P.(C)No.18195/2010.
2. Petitioner and the 1st respondent are neighbouring property owners. When the respondent attempted to construct building on the eastern boundary wall of the petitioner, the petitioner approached this Court in O.P.No.13808/1996. Allegedly in defiance to the orders of this Court on 16.11.1996 from 10 pm to 5 am, the 1st respondent conducted construction activities over the eastern boundary wall of the petitioner. Petitioner thereafter approached this Court in O.P.No.18876/96. This Court deputed an Advocate Commissioner who filed a report on 5.12.1996. During the pendency of the writ petition the 1st respondent approached the Government for regularization and exemption. Taking note of the said development the original petition was disposed of. Government thereafter passed an order on 31.12.2005, produced as Ext.P5. Government accorded sanction to the Secretary of the respondent Municipality to regularize the unauthorised construction of first floor to the existing building of the 1st respondent subject to the following conditions:-
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i) Car parking space required as per KMBR 99 should be provided in the site. The Municipality should ensure the possibility of vehicle parking in the site.
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ii) Set back of 3 M should be provided in the side adjoining to the road. If 3M set back is not available, necessary demolition should be done to get the required set back.
iii) Consent from the owners of the nearby site should be obtained and produced before the local body; otherwise necessary portion of the building should be demolished in both sides so as to get 75 cm set back.
iv) An amount of Rs.27,000/- (Rupees Twenty seven thousand only) should be remitted as compounding fee for the regularisation.
v) The regularisation should be subject to the final result of O.P.No.6615/2000 pending before the Hon'ble High Court.
3. Though the 1st respondent sought a review of Ext.P5 order that was rejected by the Government. The Secretary of the respondent Municipality proceeded by issuing a notice to the 1st respondent. First respondent then approached this Court in W.P.(C)No.845/2007. It was later withdrawn on 22.9.2008. Thereafter, the Secretary heard both sides and passed Ext.P8 order on 26.12.2008 directing the 1st respondent to demolish a portion of the first floor of the building so as to keep open space of 75 cm. from the western boundary. First respondent challenged the said order in Appeal No.33/2009 filed before the Tribunal for LSG Institutions. The Tribunal set aside Ext.P8 order and directed the Secretary to make proper local inspection with respect to the approved permits and plans and to verify whether there are any unauthorised or illegal constructions and to initiate proceedings under Section 406 of the Kerala Municipality Act ,1994, if there are illegal constructions or to pass a reasoned order explaining as to why proceedings need not be initiated. The Secretary again heard the parties after making an inspection and verification. On 6.8.2009, order was passed directing the 1st respondent
