SADASIVAN NAIR Vs. SUJATHA

JUDGEMENT

(1.) Petitioners are challenging Ext. P14 order passed by the Tribunal for Local Self Government Institutions. The facts as disclosed would show that the second respondent purchased an extent of 16 cents of property as per Ext. P4 sale deed and proposed to construct a commercial complex. Initially, he obtained a building permit dated 10.12.2008 for constructing 5 storied building as per Ext. R1(b). The petitioners are the neighboring land owners having property on the southern side of the second respondent's property who challenge the issuance of the building permit by contending that the building permit was issued violating the Kerala Municipality Building Rules (hereinafter referred to as the 'Rules'). An enquiry was conducted in the matter on the basis of Ext. P8, P9 and P10 and it was found that there was some apparent mistake in the building permit issued. It is the contention of the petitioners that the second respondent submitted a revised plan and obtained a fresh building permit. It was then found that the 2nd respondent had included in the revised plan, the pathway which was being used by the petitioners and other persons for their access to the main road as forming part of the 2nd respondent's property. When the matter was brought to the notice of the Town Planning Officer, he issued a stop memo on 12.1.2012 as Ext. P13. This came to be challenged by the second respondent by filing the appeal before the Tribunal for Local Self Government Institutions. The Tribunal stayed the stop memo at Ext. P13, and the 2nd respondent proceeded to construct the building with the building permit issued. It is said that they have completed the construction also. Initially the petitioners were not made parties to the appeal pending before the Tribunal and later they were impleaded by themselves and after considering the matter on merits the Tribunal formed an opinion that the stop memo was issued by some officers from the Town Planning Office without authority as the Secretary alone has the jurisdiction to grant such issuance of stop memo and there is no material to indicate that there is delegation of power. Further it is also held that the pathway in question is only an easement right in favour of the petitioners which need not be excluded for the purpose of preparing the plan for building permit and that the same does not amount to a "street" as defined under the Rules.

(2.) The Tribunal therefore allowed the appeal setting aside Ext. P13 stop memo and confirming the issuance of building permit in favour of the 2nd respondent.

(3.) It is the contention of the petitioners that the existence of the pathway on the eastern side of the 2nd respondent's property was not mentioned in the sale deed Ext. P4. In the original building permit issued on 10.12.2008, this pathway was excluded for the purpose of set back of the building. But when the revised permit was issued this pathway was also included as property belonging to the 2nd respondent. The petitioners refers to Ext. PI judgment of the Civil Court which was finally decided in a Second Appeal judgment produced as Ext. P3. The main contention urged by the petitioners is that the existence of the pathway has been declared by the Civil Court and when such a declaration has been made the said pathway ought to have been excluded from the property as belonging to the petitioners and the set back ought to have been considered after leaving the pathway in terms of Ext. P1 which is confirmed in Ext. P3 judgment. Having not done so constructing the building by including certain portion of pathway is itself clearly illegal and therefore the building permit ought to have been cancelled. The second respondent has proceeded to construct the building after obtaining a stay from the Tribunal and without impleading the petitioners and if they have constructed any building strictly against the provisions of the Rules, the same is liable to be demolished. The petitioners therefore seek a direction for setting aside Ext. P14 and they have also submitted Ext. P15 representation to the Government to take appropriate action in the matter.