RADHAKRISHNAN NAIR v. TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS

BY ADV SRI.S.RANJIT (KOTTAYAM) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 21789 OF 2012 2 P.V.KUNHIKRISHNAN, J --------------------------------------- W.P.(C.) No. 21789 of 2012 -------------------------------------- Dated this the 19th day of January, 2024 JUDGMENT The petitioners are aggrieved by an order passed by the 1st respondent – Tribunal in appeal No. 486/2012. It is submitted that the 2nd petitioner, wife of 1st petitioner is in possession of 66 sq.m land and a shop room situated in the ground floor and the first floor above the same in the middle of a double storied tiled roofed line building which is situated near Pathanamthitta-Kumbazha road. Ext.P1 is the title deed. It is submitted that the 4th respondent is conducting business under the name and style of 'Leo Footwear'. It is further submitted that the western boundary of the above said building is the property of the Pathanamthitta Mini Civil Station. According to the petitioners, there is a vacant land wherein the staircase to the first floor is situated. In the year 2010, it is stated that the 4th respondent high-handedly grabbed the said portion by WP(C) NO. 21789 OF 2012 3 constructing a compound wall through the northern boundary of the above said double storied line building from the western compound wall belongs to Civil Station upto his shop's frontage and enclosed the said area, wherein the staircase is also situated into his fold illegally without producing his documents showing ownership over the property and other documents under the Kerala Municipal Building Rules, 1999.

2. It is submitted that the 1st petitioner filed a complaint before the 2nd respondent Municipality and after conducting inspection and investigation the 2nd respondent issued Ext.P2 order as per Section 406(1) of Kerala Municipality Act directing the 4th respondent to stop all further illegal constructions. The 4th respondent submitted a reply to the 3rd respondent as evident by Ext.P5. Thereafter, the 3rd respondent passed an order confirming Ext.P2. It is submitted that, thereafter no steps are taken by the Municipality to implement the same. The grievance of the petitioners is that the 1st respondent Tribunal allowed the appeal filed by the 4th respondent as per Ext.P8 without giving WP(C) NO. 21789 OF 2012 4 an opportunity of hearing to the petitioner. Aggrieved by Ext.P8, this writ petition is filed.

3. Heard the learned counsel appearing for the petitioners, the learned counsel appearing for the 4th respondent and also the learned counsel appearing for the Municipality.

4. The short point raised by the petitioners is that Ext.P8 is an order passed by the Tribunal without giving an opportunity of hearing to the petitioner. A counter affidavit is filed by the 4th respondent and the contentions of the 4th respondent is narrated in paragraph Nos. 4 and 5 of the counter affidavit. It will be better to extract paragraph Nos.4 and 5 of the counter affidavit; “4. It is respectfully submitted that the averments contained in paragraphs number 1 and 2 are all false and hence denied. The averment contained in paragraph number 1 that the area enclosed by compound wall is jointly owned by the petitioners herein and other owners of the double storied building along with me, is absolutely false and hence denied specifically. I am the absolute owner in possession and enjoyment of 2 Cents (0.81 sq meters) with extra extent (virivu) of property along with the building therein comprised in Survey no: 218/12-2-1 of WP(C) NO. 21789 OF 2012 5 Pathanamthitta Village which is having thandapper no: 22675, and the same having been obtained by him as per Sale deed bearing no: 1817/1998 of S.R.O Pathanamthitta. A true copy of the Sale Deed bearing no: 1817/1998 dated

06.08.1998 of the S.R.O., Pathanamthitta is produced herewith and the same is marked for identification as Exhibit - R4(a). As per Exhibit R4(a) sale deed, I purchased the property five years prior to the purchase of the property by the petitioners and even prior to the purchase of the property by the predecessors in interest of the petitioners. At the time of sale of the property to me, the original sellers had not reserved any rights whatsoever and the sale made in my favour was an absolute one. After the sale of the property as per Exhibit R4(a), the sellers were not at all having any right whatsoever and I became the absolute owner of the property and the building therein free from any impediments whatsoever. Thus, after Exhibit R4(a), the original vendors of the petitioners are not at all having any sort of right to be allegedly provided to the petitioners as per Exhibit P1 either as an easement, grant or any license. Contrary to that, even if anything is incorporated at the instance of the petitioners in their Exhibit P1 sale deed, that will not create any right in their favour and the same will not in no way affect or bind me or my property in any manner whatsoever. The vendors of the petitioners had only the right to sell what remained after execution of Exhibit R4(a) sale deed. Anything done in excess of that as per Exhibit P1 sale deed will not create any right in favour of the petitioners. Apart from that, the further allegation that the 2nd petitioner, wife of the 1st WP(C) NO. 21789 OF 2012 6 petitioner, owns 66 sq. meter of land and a shop room situated in the ground floor and the first floor room above the same in the middle of a double storied tiled roofed line building having 5 rooms lying in east west direction facing towards north, wherein Pathanamthitta - Kumbazha road is situated along with right to use the staircase situated on the western and eastern side of the building, for ingress egress to the the floor along with undivided interest in the vacant land on all four sides of the building and common area situated in an extent of 27 cents lying in Sy. No. P218/12/1 and P218/12/2 in Pathanamithitta Village, within the jurisdiction of the Pathanamthitta Municipality, the 2 and 3 respondent herein, as per sale deed No. 2952/2003 of the S.R.O., Pathanamthitta is false, incorrect and illegal and hence denied specifically. The document produced as Exhibit P1 does not even contain any recitals to that effect. There is no question of any undivided shares or property Actually there are six rooms in the row building and not five as is stated. My vendors sold the portions of the property now owned by the petitioners in the year 1999 only and at that point of time, they only could enter into any sale transaction pertaining to what remains, only after excluding the property covered by Exhibit R4(a) sale deed, which is of the year 1998. Hence any recitals pertaining to the use of any staircase along with the alleged rights in the undivided interest in the vacant land on all four sides and common area are all unsustainable in law and the same will not bind me or my property covered by Exhibit R4(a). Thus the petitioners have no legal right whatsoever to raise any claim or right in the property covered by Exhibit R4(a) and WP(C) NO. 21789 OF 2012 7 the reliefs so claimed does not deserve any consideration in this writ petition and hence on that score alone, the writ petition is only liable to be dismissed in-limine.

5. It is respectfully submitted that all the allegations contained in paragraph 3 and 4 of the writ petition are all false and hence denied. It is true that the western boundary of my property is the property of Government / Pathanamthitta mini civil station. The southern boundary of my property is also the property of Government/ Pathanamthitta mini civil station, which were shown as government lands in Exhibit R4(a). The allegation that in the year 2010, I had highhandedly grabbed the said portion by constructing a compound wall through the northern boundary of the above said double storied line building from the western compound wall belongs to civil station upto his shops frontage and enclosed the said area, wherein the staircase is situated into his fold illegally without producing his documents showing ownership over the property and the documents under the Kerala Municipal Building Rules, 1999 is absolutely incorrect and hence denied. I had already submitted a detailed reply to the 3rd respondent narrating the real state of affairs. The true copy of the reply dated 16.11.2011 submitted by me before the 3rd respondent is produced herewith and marked for identification as Exhibit R4(b). It is respectfully submitted that on the north western corner of my property covered by Exhibit R4(a), there is a small gap between the civil station's boundary wall and the building owned by me which was then lying enclosed by a very old wall. During the year 2011, the said wall collapsed due to rain and the WP(C) NO. 21789 OF 2012 8 said portion had become open and had become accessible to the public from the northern main road. Since a lot of people are coming to the mini civil station, they started using this gap portion for fulfilling their basic needs, and it had become practically impossible for me to continue with his business due to foul smell and dirt. Thus, because of the aforesaid nuisance, I was perforced to reconstruct that portion. The said construction is hardly around Two meters in length. It is at that point of time, the petitioners taking advantage of the situation raised false complaints against me. I have every reason now to suspect that the demolition of the said portion of the wall was done by them with oblique motive. Along with Exhibit R4(b), I had also produced the supporting documents like title deed, rough sketch from village, survey plan, etc. The allegations contrary to the said facts are all false and hence denied. It is respectfully submitted that Exhibit P5 is only a reply given to the 3rd respondent in answer to a communication dated 15.03.2011. Exhibit R4(b) is the detailed reply submitted by me along with the supporting documents as required by the 3rd respondent as per his notice dated

09.11.2011 and same bears No: E2-16196/2010. Exhibit P2 was only a provisional order. Exhibit P6 was the final order.”

5. The above counter would show that there is a dispute between parties about the title. Fourth respondent claimed the title. If the petitioner has got better title, he has to WP(C) NO. 21789 OF 2012 9 prove it before a civil court. Moreover, a perusal of the order passed by the Municipality would not show that it is an order passed based on the complaint filed by the petitioners. Therefore, this Court cannot set aside Ext.P8 order stating that it is an order passed without giving an opportunity of hearing to the petitioners. There is nothing in the order passed by the Municipality to show that the proceedings were initiated at the instance of the petitioners. A perusal of the counter affidavit filed by the 4th respondent would show that there is some dispute between the petitioners and the 4th respondent. If that be the case, the petitioners have to redress the same by filing appropriate proceedings against the 4th respondent before the competent Civil Court. This Court need not interfere with Ext.P8 order passed by the Tribunal. Therefore, granting liberty to the petitioners to approach the competent civil court against the 4th respondent, if they advise so, this writ petition can be dismissed. Therefore, this writ petition is dismissed, granting liberty to the petitioners to approach the competent civil court WP(C) NO. 21789 OF 2012 10 against the 4th respondent, if there is any grievance to the petitioners against the 4th respondent. SKS/nvj sd/- P.V.KUNHIKRISHNAN JUDGE WP(C) NO. 21789 OF 2012 11 APPENDIX OF WP(C) 21789/2012 RESPONDENT EXHIBITS EXHIBIT R4 A TRUE COPY OF THE SALE DEED BEARING NO. 1817/1998 DATED 06.08.1998 OF THE S.R.O., PATHANAMTHITTA EXHIBIT R4 B TRUE COPY OF THE REPLY DATED 16.11.2011 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 3RD RESPONDENT.