SADASIVAN NAIR Vs. SUJATHA K , SUJATHA MANDIRAM

JUDGEMENT

(1.) EXT .P14 order passed by the Tribunal for Local Self Government Institutions, Thiruvananthapuram and Ext.P18 order passed by the 5th respondent are under challenge in this writ petition. The petitioners have also sought for a direction against the 5th respondent to take immediate action for demolishing the building constructed by respondents 1 and 2.

(2.) THE petitioners are the owners of 21 cents of land comprised in different survey numbers of Vanchiyoor Village, which is lying as single plot. Respondents 1 and 2 are the adjacent owners. The petitioners allege that there is a lane having a width of 3.3 metres passing through the eastern side of property of respondents 1 and 2, which is being used by a large number of people of the locality. The petitioners allege that the said right is declared in Ext.P1 judgment and the appeals arose therefrom. The grievance of the petitioners is that respondents 1 and 2 constructed a building abutting the said lane and encroaching into the same by obtaining a plan suppressing the existence of the said lane and by obtaining an illegal order from the 5th respondent Tribunal. The petitioner challenged the order of the Tribunal in WP(C) No.30532/2012, wherein this Court directed the 5th respondent to consider the petition filed by the petitioners praying for demolition of the building. The petitioners allege that the 5th respondent, without complying with the directions of this Court, passed an order giving some directions to respondents 1 and 2 without adverting to the provisions of law applicable to the matter and without giving an opportunity to the petitioners to be heard. It is with this background, the petitioners have come up before this Court.

(3.) IN the counter affidavit filed by respondents 1 and 2, they would contend that the 2nd respondent is the owner of 16 cents of land, which is lying adjacent to the petitioners' property. They would contend that building permit was sanctioned to the respondents for construction of a five storied building in the said property as per Ext.R1(b) permit. However, while the construction was going on, they decided to cut short the approved plan and permit by giving up the 2nd floor and decided to retain the basement floor, ground floor and first floor owing to financial difficulties. Accordingly, they submitted a revised plan after removing the 2nd floor. In the meanwhile, the 4th respondent, who is the Town Planning Officer, issued a stop memo alleging that the occupancy certificate of the building is not ascertainable and respondents 1 and 2 violated Rule 25(1) of the Kerala Municipality Building Rules. Ext.R1(c) is the copy of the said stop memo. According to them, it is evident from Ext.R1(c) that the same was issued at the instance of somebody else and the 4th respondent was not authorized to issue same. Respondents 1 and 2 submitted Ext.R1(d) reply; and as the 4th respondent did not take any action, they filed a petition before the learned Ombudsman for the Local Self Government Institutions, who passed Ext.R1(e) order directing the 4th respondent to dispose of the matter within 15 days. But, the 4th respondent did not take any action. Instead, the 3rd respondent issued a preliminary order under Section 406(1) of the Kerala Municipality Act stating that there is no sufficient set back left at the eastern side for the access to the single residence and rear side and lack of sufficient car parking facilities under Rule 34 of the Kerala Municipality Building Rules. Ext.R1(f) is the copy of the said order. The respondents gave Ext.R1(g) reply stating that they have left 3.2 metres width as could be used for pathway, which may be treated as the set back. As respondents 3 and 4 were not satisfied with the reply given by them, they sought legal opinion from their Standing Counsel as per Ext.R1(h). The learned Standing Counsel for the Corporation opined as per Ext.R1(i), observing that the petitioners have only an easement over the pathway. On the basis of Ext.R1(i) legal opinion, the 3rd respondent revoked the preliminary order and sanctioned the revised plan and permit after a lapse of 14 months. Ext.R1(j) is the copy of the said revised permit. When the respondents resumed the construction, the 4th respondent issued Ext.R1(k) stop memo on 28.12.2011. The respondents produced Ext.R1(j) building permit and the 4th respondent assured that he would revoke the stop memo and allow respondents 1 and 2 to continue with the construction. However, again, the 4th respondent issued Ext.R1(l) stop memo dated 12.01.2012 directing to stop the work and to produce the licence and approved plan within three days. This was on the basis of the complaint received by the 3rd respondent. The 2nd respondent challenged Ext.R1(l) before the Tribunal for Local Self Government Institutions in Appeal No.36/2012. The same was allowed and the notice by the 4th respondent was set aside. It was found by the learned Tribunal that there are no legal impediments for respondents 1 and 2 for proceeding with the construction. Ext.P14 is the said order passed by the learned Tribunal. As the order of the 4th respondent was stayed by the learned Tribunal, respondents 1 and 2 completed the construction as per the approved permit and plan. However, the petitioners challenged Ext.P14 before this Court in WP(C) No.30532/2012, which was allowed. As it is found that respondents 1 and 2 completed the construction, this Court directed the Government to take a decision as to whether the construction could be regularized. It is on the basis of Ext.P16 judgment, the Government passed Ext.P18 order. Before issuing Ext.P18 order, the Senior Town Planner conducted a personal inspection on the site and satisfied that the respondents have set apart more than 3.5 metres pathway on the eastern side of their property, which is being used exclusively by the petitioners. They have put up a gate at the entrance and therefore, nobody else could use the said pathway. After inspection, the Chief Town Planner suggested that respondents 1 and 2 should remove the glass panels in front of the building by 3 feet, which also was done by respondents 1 and 2. Respondents 1 and 2 further allege that the construction was done after availing four crores of rupees from a bank. The complex consists of five floors and the entire construction is now over. Therefore, they prayed for a dismissal of the writ petition.