Kerala High Court
Sudheesh Raj.M.R vs Apple A Day Properties Pvt.Ltd on 19 February, 2010
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 778 of 2010(O)
1. SUDHEESH RAJ.M.R., THAPASYA,
... Petitioner
2. PRADEEP.K., PANEKATTUPARAMBIL,
3. KUTTAPPAN.V.K., VELIPARAMBIL, -DO-,
Vs
1. APPLE A DAY PROPERTIES PVT.LTD.,
... Respondent
For Petitioner :SRI.J.OM PRAKASH
For Respondent :SRI.A.V.THOMAS
The Hon'ble MR. Justice P.BHAVADASAN
Dated :19/02/2010
O R D E R
P. BHAVADASAN, J.
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W.P.(C) No. 778 of 2010
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Dated this the 19th day of February, 2010
JUDGMENT
This is a petition filed under Article 227 of the Constitution of India to have Exts.P6 and P7 quashed and also to restrain the respondent from constructing any multi- storied building in the plaint schedule property. When respondent started putting up a multi-storied building, troubles began and lot of litigations arose. One of them is the present case.
2. It appears that builder applied for licence on 25-3- 2007 to the panchayat and at that time, the Building Rules were not applicable to the panchayat area. The Building Rules were made applicable on 1-6-2007. Thereafter, rules were being followed by the panchayat. The panchayat found that there was no violation of the Rules and permit was granted.
W.P.(C) No. 778/2010 2
3. The petitioners contend that the permit is granted in violation of rule 33 of the Kerala Municipality Building Rules and that the construction will cause damage to their building. Suit was filed on those allegations. I.A. No. 2884 of 2008 in the suit was moved for temporary injunction.
4. The respondent/builder entered appearance and contested the I.A. The Munsiff's Court, which was seized in the matter, on the basis of the materials produced before it, came to the conclusion that there was no prima facie case in favour of the petitioner. The trial court, after going through the document produced, found that there was no violation of rule 33 of the Rules and accordingly dismissed the petition. Aggrieved by the dismissal of the the petition by the Munsiff's Court, the petitioners took up the matter to the District Court. The District Court after considering all the materials concurred with the findings of the Munsiff's Court and dismissed the appeal.
5. The petitioners reiterate the very same arguments before this Court also. Ext.P18 produced by the builder W.P.(C) No. 778/2010 3 shows that the disputed pathway had only width of 5 metres. The contention before this Court is that the Commissioner deputed by the court has found that the width of the pathway is below the minimum width required under law. Both the courts below have concurrently held that the respondent has produced extract from the relevant register maintained by the panchayat. That shows that the width of the pathway is 5 metres.
6. The contention of the petitioners is that the date mentioned by the panchayat is not relevant and the report submitted by the Commissioner should have been adopted as the criterian. It is difficult to accept the contention put forward by the petitioners. The official records of the panchayat will have to be given preference. The Commissioner report may depend upon various facts which may not be relevant in the context. At any rate, it cannot have precedence over official record.
7. The petitioners' case is that builder colluded with the panchayat and obtained the permit. If so, the panchayat W.P.(C) No. 778/2010 4 ought to have been made a party to the suit. Without making them on the party array, the said issue cannot be looked into at all.
8. Coming to the question of granting interim injunction, it is well settled that three ingredients will have to be satisfied by the person who seeks interim injunction.
(1) Existence of prima facie case, necessitating protection of plaintiff's rights by issue of a temporary injunction; (2) Comparative hardship or balance of convenience and (3) Irreparable loss or injury being caused to the plaintiff, if the temporary injunction is not granted.
9. It is seen that the construction has gone up a long way and that if injunction is granted now, irreparable injury will be caused to the respondent. As far as the petitioners are concerned, any construction made will be subject to the result of the suit. Stopping of construction will only be to the detriment of the respondent and is not warranted, when there is prima facie nothing to show that there is any violation of rules, permits or licence granted to them. W.P.(C) No. 778/2010 5
10. There is no merits in the writ petition and it is accordingly dismissed.
P.BHAVADASAN, JUDGE.
mn.