CHANDRASEKHARAN PILLAI Vs. STATE OF KERALA AND ORS

JUDGEMENT

(1.) Petitioner challenges Ext.P13 order passed by the Tribunal for Local Self Government Institutions by which the building permit issued by the Municipal Corporation in his favour came to be cancelled. Ext.P13 order was passed in an appeal filed by the 7th respondent who is the tenant of the petitioner. The petitioner, being the owner of the property having an extent of 5.65 Ares in Re-Survey No.24 of Kollam East village obtained a building permit dated 25/01/2009. He sought for eviction of the tenants in the building which was allowed on the ground of reconstruction. However when the matter was considered by this Court in RCR Nos.453/2011, 465/2011 and 476/2011, this Court observed in RCR.No.453 of 2011 that it shall be open for the revision petitioner who is the 7th respondent herein to prosecute Appeal No.150 of 2011 pending before the Tribunal for Local Self Government Institutions and if the appeal is allowed and the building permit granted to the petitioner is interfered, it was open for the revision petitioners to appraise the matter before the Execution court and the Execution Court shall order delivery only after ensuring that the respondents are having a current valid building permit for carrying out the proposed construction.

(2.) The Tribunal, while considering the appeal filed by the 7th respondent found that the access to the property sold is not correct as property in Re-survey No.21 is shown as Government puramboke and therefore the petitioner could not have a proper access to the road and hence the building permit cannot be issued in favour of the petitioner. It was also found that the Town Planning Officer who had issued the permit did not have proper authority to issue the permit.

(3.) The petitioner contends that the appeal itself was barred by limitation as it is filed beyond 30 days from the date of Ext.P2 building permit. The building permit was produced before the Rent Control Court on 26/11/2009 along with the application for eviction and therefore the petitioner was well aware of the existence of a building permit. The appeal Ext.P7 is filed only on 18/02/2011. Reference is made to Section 509(7) of the Municipal Corporation Act and Rule 8(3) of the Tribunal for the Kerala Local Self Government Institutions Rules, 1999. It is contended that no application was filed to condone the delay in filing the appeal. A further contention had been raised stating that a tenant is not entitled to question the right of the landlord to have access to the property as the tenant himself is using the very same access for ingress and egress. Reference is made to Section 116 of the Evidence Act in order to contend that no tenant of immovable property shall be entitled to deny the title of the landlord. Further it is contended that the property in Resurvey No.20 is lying as a public road. The property in the Resurvey No.21 is lying contiguous to the property in Resurvey No.20 and is being used as a public road from time immemorial and the same is the only access to several buildings situated therein.