SHEELA Vs. CORPORATION OF THIRUVANANTHAPURAM

JUDGEMENT

(1.) This writ petition is filed challenging Ext. P4 order of the 4th respondent Tribunal, by which an appeal filed by the petitioner against Ext.P3 order of the Ist respondent Corporation is dismissed. The complaint of the petitioner is that construction made by the 3rd respondent on the neighbouring property is in deviation from the approved plan, based on which building permit was issued. There is no sufficient space left on the southern side of the 3rd respondents building as required under the Kerala Municipality Building Rules (hereinafter referred as Building Rules for short). The specific allegation is that the sunshade on the southern side of the 3rd respondent is constructed in such a manner that rain water will splash into the petitioner's building causing inconvenience to him. On the basis of Ext. P1 complaint in this regard, the Ist respondent initiated action as contemplated under Section 406 of the Kerala Municipality Act 1994 (hereinafter referred as the Act for short) against the 3rd respondent and a provisional order along with a show cause notice was issued. Eventhough Ext.P2 is referred as the show cause notice, copy of Ext. P2 produced in the writ petition is not a notice issued to the 3rd respondent.

(2.) Ext. P3 is the order passed by the Secretary of the Ist respondent Corporation after hearing objections of the 3rd respondent. From Ext. P3 it is evident that a previous order issued in this regard was already set aside in Appeal No. 34/04 of the 4th respondent and the matter was remanded for fresh consideration. The Ist respondent in Ext. P3 found that, the construction made by the 3rd respondent is not in accordance with the approved plan as much as the basement floor as shown in the plan is not constructed and instead of clearance shown on the southern side ranging from 110 cm to 100 cm the actual clearance provided is only ranging from 104 cm to 112 cm. Further on the back side also instead of 1 m to 2.60 M shown in the plan the clearance left is only 1.30 m to 2.20 m. Inspite of findings arrived about the irregularities, without pursuing any action as provided under Section 406(3) of the Act, the Ist respondent arrived at a conclusion that construction can be regularised because the construction does not contravene any of the provisions and specifications does not contravene any of the provisions and specifications contained in the Building Rules. Therefore the 3rd respondent was directed to submit application for regularisation along with fresh plan, providing some measures on the southern sunshade in order to prevent falling of water info the property of the petitioner.

(3.) Being aggrieved by Ext. P3 order, the petitioner preferred appeal before the 4th respondent. The main contention against. Ext.P3 is that the findings of the Secretary that the construction is not violative of any provision of the Building Rules, is not correct. According to the petitioner there is no set backs provided as required under the Building Rules, especially on the southern side which is the common boundary of both parties. the further contention is that such a finding arrived in a proceedings initiated under Section 406 was not proper, especially without considering merits of any regularisation application submitted along with fresh plan, and without collecting any compounding fee there on. On the contrary respondents 1 and 3 contended before the Tribunal that the construction in question will not in any way violate the provisions of Building Rules and therefore the directions issued by the Ist respondent to regularise the construction was perfectly legal and in order.