Kerala High Court
Padannayil Moideen Koya vs Corporation Of Kozhikode on 17 November, 1989
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 23RD DAY OF FEBRUARY 2017/4TH PHALGUNA, 1938
WP(C).No. 21111 of 2009 (H)
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PETITIONER:
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PADANNAYIL MOIDEEN KOYA,
S/O.PADANNAYIL MAMMAD, 'AYISHA MANZIL',
ELATHOOR AMSOM DESOM, KOZHIKODE TALUK.
BY ADVS.SRI.BECHU KURIAN THOMAS
SMT.INDU SUSAN JACOB
SMT.NISHA JOHN
SRI.PAUL JACOB (P)
SRI.ROSHEN.D.ALEXANDER
SRI.A.RANJITH NARAYANAN
SRI.S.K.SAJU
RESPONDENT(S):
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1. CORPORATION OF KOZHIKODE,
REPRESENTED BY ITS SECRETARY, KOZHIKODE TALUK,
KOZHIKODE DISTRICT.
2. STATE OF KERALA, REPRESENTED BY THE
SECRETARY, DEPARTMENT OF LOCAL ADMINISTRATION,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
R1 BY ADVS SRI.K.D.BABU,SC
SRI.P.V.SURENDRANATH,SC
R2 BY GOVERNMENT PLEADER SMT. MABLE C KURIAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 23-02-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
K.V.
WPC 21111 OF 2009 :
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APPENDIX
PETITIONERS EXHIBITS:
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P1: COPY OF THE BUILDING PERMIT ISSUED TO THE PETITIONER DATED
17/11/1989.
P2: COPY OF THE SALE DEEDS EXECUTED BY THE PETITIONER IN FAVOUR OF
ABDUL MAHAROOF BEARING NO 1209/2004.
P3: COPY OF THE NOTICE DATED 21/12/2006 DATED BY THE 1ST RESPONDENT
NO E4/73344/06 TO THE PETITIONER.
P4; COPY OF THE OBJECTION DATED 5/1/2007 SUBMITTED BY THE
PETITIONER TO THE CORPORATION ALOG WITH ITS ACKNOWLEDGMET
RECEIPT.
P5 COPY OF THE ORDER DATED 22/2/2007 ISSUED BY THE 1ST RESPONDENT
NUMBERED AS E-1 72244/06.
P6: COPY OF THE WRITTEN STATEMENT IN OS 169/2007 BEFORE THE MUNSIFF
COURT, KOZHIKODE
P7: COPY OF THE JUDGMENT DATED 19/2/2009 IN OS NO 169/2007 ON THE
FILES OF THE MUNSIFF COURT, KOZHIKODE.
P8: COPY OF THE LETTER DATED 8/7/2009 SUBMITTED BY THE PETITIONER
TO THE 1ST RESPONDENT.
RESPONDENTS EXHIBITS: NIL
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/TRUE COPY/
P.A.TO JUDGE
K.V.
"CR"
DEVAN RAMACHANDRAN, J.
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W.P.(C) No.21111 of 2009
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Dated this the 23rd day of February, 2017
JUDGMENT
The operational dynamics and the functional realm of Rule 24 of the Kerala Municipalities Building Rules, 1999 (for short, "the Rules") presents in this writ petition for consideration, while appraising and evaluating the facts as have been pleaded by the parties.
2. The constitutive facts essential for the purpose of resolution of the disputes in this case are that the petitioner had constructed a building based on a valid building permit and the said construction, under the provisions of the Rules, obligatorily left certain specified exterior and interior open air spaces around it.
3. The petitioner made the construction in full compliance of such provisions, but subsequently, as per Ext.P2 sale deed, he has apparently sold a portion of the exterior space appurtenant to the construction to another person for consideration.
4. On execution of this sale deed, obviously, the ownership and possession of the petitioner over the property, that was W.P.(C) No.21111 of 2009 2 hither to left as an exterior open air space, attenuated and, therefore, axiomatically, it would appear that the provisions of Section 24 stood thereafter violated.
5. The first respondent - Corporation was notified of this and they immediately took action against the petitioner asking him to demolish certain portions of the construction so as to make it in conformity to the imperative requirement of maintaining sufficient exterior open space, as is mandated under the Rules. The Corporation initially issued Ext.P3 provisional notice, which is seen confirmed in Ext.P5, as per which, the petitioner has been asked to effect such demolition so as to provide for the prescribed exterior space.
6. The petitioner has challenged this on several grounds but primarily on the assertion that the Corporation cannot take such action merely because he sold the property, because, according to him, as per the arrangement in Ext.P2 sale deed, this property will continue to be used as an open space and that the purchaser, shown therein, would not make any construction or reduce it to his own exclusive possession. Thus, according to the petitioner, the terms of Ext.P2 sale deed would show that the W.P.(C) No.21111 of 2009 3 property sold, which was originally part of the exterior open air space, still continues to be so and that it has been retained as an access towards properties situated behind. The petitioner, therefore, on these foundational assertions, maintained that there is no violation of Section 24 as has been alleged by the Corporation and he has assailed Ext.P5 as being illegal and unconstitutional.
7. I have heard Sri.Bechu Kurian Thomas, the learned senior counsel, assisted by Sri.Leo Lukose, appearing for the petitioner, the learned standing counsel appearing for the first respondent and the learned Government Pleader appearing for the second respondent.
8. Since the entire controversy hinges upon the interpretation of Rule 24 of the Kerala Municipalities Building Rules, it would be convenient to extract the same as under:
"24. Exterior and interior open air spaces. - (1) Every room intended for human habitation shall abut on an exterior open space or verandah open to such exterior or interior open space and such open space shall be maintained for the benefit of the building exclusively and shall be W.P.(C) No.21111 of 2009 4 entirely within the owner's own premises and shall be open to the sky and is barred from being subdivided, partitioned or legally bifurcated or transacted in any manner whatsoever, till such date when the structure itself is demolished and shall be kept free from any erection thereon other than those specially allowed in these rules".
9. It is obvious that the mandate of the said Rule is that there be left a certain specified area as external open space between the boundary and the construction. The Rule says luculently that such space shall be maintained for the benefit of the building exclusively, that it shall be entirely within the owner's own premises and that it shall be open to the sky. The Section is ineluctable that it prohibits that area from being subdivided, partitioned or legally bifurcated or transacted in any manner whatsoever.
10. In the facts of the case at hand, the petitioner has admittedly sold a portion of the exterior space. His contention is that the exterior space sold by him would continue to be used as an exterior space even by the purchaser. I am not sure, going by the strict rigor of the said Rule, whether the explanation of the petitioner would fall forensically tenable. When the Rule says, W.P.(C) No.21111 of 2009 5 without conceding to any exception, that the external open space shall be within the owner's premises and when it prohibits any transaction in any manner, the admitted fact that the petitioner sold the property would obviously have to visit him with necessary consequences.
11. However, I notice that the petitioner's specific case is that he did not sell the property for further construction by the purchaser. According to him, the purchaser could only have an access through that area to his own property situated behind the petitioner's property. The petitioner maintains that it continues to be an open air space and avouches that the purchaser would not make any construction on the said space or reduce it to his own exclusive possession. According to him, the sale deed incorporates the specific clause to that effect and he, therefore, asserts vehemently that as long as that area continues to be an open air space, the consequences under the Rule for not maintaining such space would not apply at all. In fact, he says that no such consequences can even follow because, for him, there cannot be a doubt that the prescription of an open area continues to be satisfied, notwithstanding Ext.P2 sale deed. W.P.(C) No.21111 of 2009 6
12. As I have noticed above, going by the strictest interpretation of Rule 24, this contention may not be completely tenable. The purpose of the said Rule, as is explicit therefrom, is that the owner maintains an exterior space for the benefit of his building exclusively. So what is intended by the Rule is that the petitioner reserves his own area for the benefit of his own building, on the basis of which, he was able to obtain a valid building permit. Obviously therefore, if a portion of the same is alienated or put to another use, the intention behind Rule 24 would stand obliterated. I, therefore, cannot see that the Corporation has acted illegally or unfairly in issuing the orders impugned in this writ petition.
13. The above having been noticed, I propose in equity to consider whether a middle path can be drawn so as to save the building of the petitioner, which, according to him, has been constructed more than 25 years ago. There is no doubt that he has only to blame himself for the imbroglio that he now faces. He has chosen to sell the property with full volition being fully aware that that area was meant to be an open space. Legally, the Corporation cannot be faulted. However, I am only trying to W.P.(C) No.21111 of 2009 7 survey the facts and the law to find out, by way of via-media, if the building can be now allowed to continue in the present status, however, making sure that the rigor of Section 24 is also maintained. I am drawn to conclude in the peculiar facts and circumstances of this case that if the petitioner maintains the area, which was sold as per Ext.P2, as an exterior open space, perhaps then, though not completely within the sanction of law, he can be permitted to maintain the status of his building as long as such area continues to be an open air space. Obviously, this would require the purchaser, shown in Ext.P2, to make a declaration before the Corporation that he is willing to abide by the terms of Ext.P2 sale deed and to maintain the area that was originally part of the open air space as such without making any construction therein, or causing any obstructions thereon and without reducing it exclusively to his own possession. I am of the view that if this is done by the purchaser in Ext.P2, the petitioner can be shown some leniency so as not to cause perdition to his 25 year old construction.
14. In such circumstances, I confirm Ext.P5 order, however, granting liberty to the petitioner to obtain an undertaking in the W.P.(C) No.21111 of 2009 8 form of an affidavit sworn to by the purchaser shown in Ext.P2, before a competent attesting Officer, and place it for consideration before the Secretary of Corporation, who shall inspect the same and being satisfied of the contents of such affidavit, defer all proceedings pursuant to Ext.P5, until such time as the purchaser continues to keep that portion of the area covered by Ext.P2 as an exterior open air space for the benefit of the petitioner's construction. I make it clear that the purchaser cannot be directed by this Court in any manner because he is not a party in this case and also because I don't think this Court would be justified in issuing orders restricting his rights over the property. The directions herein cannot be, therefore, construed as being issued to the purchaser and the affidavit that he may depose to has to be done with his volition. It is, therefore, needless to say that any violation of the undertaking given by him would not entail consequences against him but only against the petitioner and his building. In other words, if the purchaser acts contrary to the undertaking given by him, if it is so given, the Corporation would then be empowered to act against the petitioner, pursuant to Ext.P5 or such other proceedings, for W.P.(C) No.21111 of 2009 9 violation of Rule 24 of the Rules and the petitioner would be then obligated by the terms of this judgment and in terms of the law to obey such lawful and legal dictates as are made to him by the Corporation for such transgressions.
The writ petition is ordered as above. In the nature of the facts and circumstances of the case, I make no order as to costs and the parties are directed to suffer their respective costs.
Sd/- DEVAN RAMACHANDRAN
stu JUDGE