Kerala High Court
K.H. Abdul Majeed vs N.A. Sherrifa on 23 April, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
FRIDAY, THE 5TH DAY OF MAY 2017/15TH VAISAKHA, 1939
W.P(C).No.21526 of 2013 (M)
----------------------------
PETITIONER(S):-
---------------
1. K.H. ABDUL MAJEED, S/O. HASSAN,
ILLICKAL HOUSE, ILLICKAL MOIDEEN ROAD,
CHANGAMPUZHA NAGAR P.O., ERNAKULAM, KOCHI-33.
2. K.H.ABDUL SALAM, S/O. HASSAN,
ILLICKAL HOUSE, V.M.B. ROAD, PATHADIPALAM,
CHANGAMPUZHA NAGAR P.O., ERNAKULAM, KOCHI-33.
BY ADVS.SRI.K.JAJU BABU (SR.)
SRI.REJI GEORGE
SRI.PAUL MATHEW (PERUMPILLIL)
SRI.PRASUN.S
SMT.SIJI JOY
RESPONDENT(S):-
----------------
1. N.A. SHERRIFA, W/O. LATE KADHER PILLAI, AGED ABOUT 75 YEARS,
ANJIKATH HOUSE, V.M.B. ROAD, PATHADIPALAM, KOCHI-33.
2. THE SECRETARY,
KALAMASSERY MUNICIPALITY, KALAMASSERY,
CHANGAMPUZHA NAGAR P.O., KOCHI-33.
3. A.K.NAZAR, S/O. LATE KADHER PILLAI,
ANJIKATH HOUSE, V.M.B. ROAD, PATHADIPALAM, KOCHI-33.
R1 & R3 BY ADVS. SRI.DINESH R.SHENOY
SRI.G.HARIKRISHNAN (TRIPUNITHURA)
R2 BY STANDING COUNSEL SRI.M.K.ABOOBACKER.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
06-03-2017, ALONG WITH WP(C).19733/2014-N & WP(C).19911/2015,
THE COURT ON 05-05-2017 DELIVERED THE FOLLOWING:-
W.P(C).No.21526 of 2013 (M)
-----------------------------
APPENDIX
PETITIONER(S)' EXHIBITS:-
-------------------------
EXT.P1 COPY OF RELEASE DEED NO.2071/2003 DATED 23/4/2003
OF S.R.O., EDAPPALLY.
EXT.P2 COPY OF RELEASE DEED NO.2072/2003 DATED 23/4/2003 OF
S.R.O., EDAPPALLY.
EXT.P3 COPY OF PARTITION DEED NO.1570/2003 DATED 19/3/2003 OF
S.R.O., EDAPPALLY.
EXT.P4: COPY OF BASIC TAX RECEIPT NO.4466305 DTD.15.11.2012 OF THE
4.05 ARES OF PROPERTY IN RE.SY.NO.530/05 ISSUED BY THE VILLAGE
OFFICER, THRIKKAKKARA NORTH VILLAGE IN THE NAME OF THE
1ST PETITIONER.
EXT.P4(a): COPY OF BASIC TAX RECEIPT NO.4386624 DTD.21/12/2012 OF THE
3.08 ARES OF PROPERTY IN RE.SY.NO.530/05 ISSUED BY THE VILLAGE
OFFICER, THRIKKAKKARA NORTH VILLAGE IN THE NAME OF THE
1ST PETITIONER.
EXT.P4(b): COPY OF BASIC TAX RECEIPT NO.386620 DTD.21/12/2012 OF THE
1.40 ARES OF PROPERTY IN RE.SY.NO.530/05 ISSUED BY THE VILLAGE
OFFICER, THRIKKAKKARA NORTH VILLAGE IN THE NAME OF THE
1ST PETITIONER.
EXT.P4(c): COPY OF BASIC TAX RECEIPT NO.4394126 DTD.16/3/2013 OF THE
4.25 ARES OF PROPERTY IN RE.SY.NO.530/05 ISSUED BY THE VILLAGE
OFFICER, THRIKKAKKARA NORTH VILLAGE IN THE NAME OF THE
1ST PETITIONER.
EXT.P5: COPY OF POSSESSION CERTIFICATE NO.9838/11(1) OF THE 8.53 ARES
OF PROPERTY IN RE.SY.NO.530/5 ISSUED BY THE VILLAGE OFFICER,
THRIKKAKKARA NORTH VILLAGE DTD.24.11.2011 IN THE NAME OF THE
1ST PETITIONER.
EXT.P5(a): COPY OF THE POSSESSION CERTIFICATE NO.9838/11(2) OF THE
4.25 ARES OF PROPERTY IN RE.SY.NO.530/5 ISSUED BY THE VILLAGE
OFFICER, THRIKKAKKARA NORTH VILLAGE DTD.24.11.2011 IN THE NAME
OF THE 2ND PETITIONER.
EXT.P6: COPY OF THE LOCATION CERTIFICATE NO.9838/11(3) OF THE ENTIRE
12.78 ARES OF PROPERTY IN RE.SY.NO.530/5 ISSUED BY THE VILLAGE
OFFICER, THRIKKAKKARA NORTH VILLAGE, DTD.24.11.2011.
EXT.P7: COPY OF BUILDING PERMIT NO.BA-755/11 DTD.5.12.2012.
EXT.P8: COPY OF APPEAL NO.225/2013 BEFORE THE TRIBUNAL FOR LOCAL SELF
GOVERNMENT INSTITUTIONS.
EXT.P9: COPY OF THE OBJECTION DTD.22.3.2013 FILED BY THE PETITIONERS
IN APPEAL NO.225/2013.
EXT.P10: COPY OF THE WRITTEN OBJECTION FILED BY THE 2ND RESPONDENT IN
APPEAL NO.225/2013.
W.P(C).No.21526 of 2013 (M) - 2 -
EXT.P11: COPY OF THE ORDER DTD.8.7.2013 PASSED BY THE TRIBUNAL IN
APPEAL NO.225/2013.
EXT.P12 COPY OF SALE DEED NO.1775/1957 OF EDAPPALLY SUB REGISTRY
EXECUTED BY SRI.HAMZAKOYA IN FAVOUR OF LATE HASSAN AND
KOCHUNNY.
EXT.P12(a) A READABLE COPY OF EXT.P12 SALE DEED WITH FIGURES WRITTEN IN
ARABIC NUMERALS.
EXT.P13 COPY OF SALE DEED NO.582/1977 OF EDAPPALLY SUB REGISTRY.
EXT.P14 TRUE PHOTOSTAT COPY OF THE LETTER DATED 19.4.2013 ISSUED
BY THE SUB REGISTRAR, EDAPPALLY TO THE PETITIONER.
EXT.P15 TRUE PHOTOSTAT COPY OF THE ORDER DATED 11.12.2O14 IN
W.P(C).19733/2014.
EXT.P16 TRUE PHOTOSTAT COPY OF THE ORDER DT.11.9.2015 IN W.A.
NO.470 OF 2015.
EXT.P17 TRUE PHOTOSTAT COPY OF THE ORDER DATED 2.7.2015 IN
W.P(C) NO.19911 OF 2015.
EXT.P18 TRUE PHOTOSTAT COPY OF THE ORDER DATED 17.9.2015 IN
W.P.(C) NO.19911 OF 2015.
EXT.P19 TRUE PHOTOSTAT COPY OF THE ORDER DATED 9.10.2015 IN
W.P.(C) NO.19911 OF 2015.
EXT.P20 TRUE PHOTOSTAT COPY OF THE OLD SURVEY SKETCH OF 651
OF THRIKKAKARA NORTH VILLAGE.
EXT.P21 TRUE PHOTOSTAT COPY OF THE ORDER DATED 13.6.2008
IN I.A.NO.3547/2008 IN O.S.NO.656/2008.
EXT.P22 TRUE PHOTOSTAT COPY OF THE ORDER DATED8.1.2010 IN CMA
NO.59/2008 OF THE DISTRICT COURT, ERNAKULAM.
EXT.P23 TRUE PHOTOSTAT COPY OF THE ORDER DATED 15.2.2010 IN I.A.
NO.9337 IN O.S.NO.962/2009 PASED BY THE SUB COURT,
ERNAKULAM.
EXT.P24 TRUE PHOTOSTAT COPY OF THE ORDER DATED 26.09.2014 IN
C.R.P.NO.325 OF 2013 PASED BY THIS HON'BLE COURT.
EXT.P25 TRUE PHOTOSTAT COPY OF OF THE PLAINT IN O.S.NO.133 OF 2006
FILED BEFORE MUNSIFF'S COURT, ERNAKULAM.
EXT.P26 TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 27.8.2003 IN
O.S.NO.1385/2001.
EXT.P27 TRUE PHOTOSTAT COPY OF THE DECREE DATED 27.8.2003 IN
O.S.NO.1385/2001.
EXT.P28 TRUE PHOTOSTAT COPY OF THE RE-SURVEY THANDAPPER ACCOUNT
NO.8275 OF RE-SURVEY NO.530/5 FOT 80.40 ARES ISSUED FROM
THRIKKAKARA NORTH VILLAGE.
W.P(C).No.21526 of 2013 (M) - 3 -
EXT.P29 TRUE PHOTOSTAT COPY OF THE PURCHASE CERTIFICATE NO.436/2012
ISSUED BY THE LAND TRIBUNAL, TRIPUNITHURA.
EXT.P30 TRUE PHOTOSTAT COPY OF THE ORDER DATED 5.8.2010 IN
W.P.(C) NO.23302 FO 2010.
EXT.P31 TRUE PHOTOSTAT COPY OF THE ORDER PASSED BY THE TRIBUNAL
FOR LSGI, THIRUVANANTHAPURAM IN APPEAL NO.1001/2010.
EXT.P32 A ROUGH SKETCH SHOWING RELATIVE LOCATION OF BUILDINGS
AND SURROUNDINGS WITH BA NO.122/2000, BA NO.759/2007,
BA NO.755/2011.
RESPONDENT(S)' EXHIBITS:-
-------------------------
EXT.R1(a) TRUE PHOTOCOPY OF PARTITION DEED NO.2504 OF 1958,
EDAPPALLY SRO.
EXT.R1(b) TRUE PHOTOCOPY OF THANDAPER NO.1396 IN THE NAME OF LATE
HASSAN AND LATE ABDUL KHADER.
EXT.R1(c) TRUE PHOTOCOPY OF THE DOCUMENT AS PER WHICH IT IS CLAIMED
THAT HASSAN OBTAINED THIS PROPERTY, DOCUMENT NO.2263 OF 1970.
EXT.R1(d) TRUE ORIGINAL COPY OF DOCUMENT NO.470 OF 1971.
EXT.R1(e) TRUE PHOTOCOPY OF REGISTERED BOND NO.1973 OF 1970,
EDAPPALLY SRO.
EXT.R1(f) TRUE PHOTOCOPY OF THE REQUEST DATED 27.04.2011 ISSUED BY
THE MUNICIPALITY TO THE SURVEY AUTHORITIES.
EXT.R1(g) TRUE PHOTOCOPY OF THE JUDGMENT DATED 21.05.2012 IN W.P.(C)
NO.32314/2011.
EXT.R1(h) TRUE PHOTOCOPY OF THE ORDER DATED 2.1.2013
NO.2918/12 TP 2069/11 PASSED BY THE 2ND RESPONDENT.
EXT.R1(i) TRUE PHOTOCOPY OF BUILDING PERMIT NO.BA 122/2000
DATED 19.05.2000.
EXT.R1(j) TRUE PHOTOCOPY OF SITE PLAN APPROVED BY THE MUNICIPALITY
IN BA 122/2000.
EXT.R1(k) TRUE PHOTOCOPY OF ORDER NO.TP 2148/99 DATED 25.5.1999
PASSED BY THE 2ND RESPONDENT.
EXT.R1(l) TRUE PHOTOCOPY OF BA 759/2007 AND THE APPROVED PLAN.
EXT.R1(m) TRUE PHOTOCOPY OF COMPLETION CERTIFICATE DT.25.6.2008.
EXT.R1(n) TRUE PHOTOCOPY OF THE REVISED SITE PLAN ISSUED TO THE
PETITIONERS FOR THE SERVICE CENTRE CUM AUTOMOBILE WORKSHOP BY
THE MUNICIPAL ENGINEER OF 2ND RESPONDENT DATED 29.11.2008.
W.P(C).No.21526 of 2013 (M) - 4 -
EXT.R1(o) TRUE PHOTOCOPY OF LETTER DATED 18.11.2008 ISSUED BY SENIOR
TOWN PLANNER, ERNAKULAM.
EXT.R1(p) TRUE PHOTOCOPY OF ORDER NO.D2/11582/08 DATED 9.2.2009 ISSUED
BY THE CHIEF TOWN PLANNER.
EXT.R1(q) TRUE PHOTOCOPY OF OCCUPANCY CERTIFICATE DATED 21.05.2009
IN BA.719/2008.
EXT.R1(r) TRUE PHOTOCOPY OF REPORT OF STP (VIGILANCE) DT.16.11.2009.
EXT.R1(s) TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE SECRETARY,
LSGD, RB DEPARTMENT DATED 4.12.2009.
EXT.R1(t) TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE SECRETARY,
LSGD (RB) DEPARTMENT DATED 29.3.2010.
EXT.R1(u) TRUE PHOTOCOPY OF LETTER DATED 9.1.2010 SUBMITTED BY
THE PETITIONERS BEFORE THE MUNICIPALITY TOGETHER WITH
AGREEMENT, LOCATION PLAN AND LOCATION CERTIFICATE.
EXT.R1(v) TRUE PHOTOCOPY OF BUILDING PERMIT NO.BA.755/2011.
EXT.R1(w) TRUE PHOTOCOPY OF APPROVED PLANS ISSUED FOR BA.755/2011.
EXT.R1(x) TRUE PHOTOCOPY OF THE APPROVED PLAN ISSUED TO SAINABA
IN BA.NO.715/2005.
EXT.R1(y) TRUE PHOTOCOPY OF THE INTERIM ORDER DATED 5.3.2013 GRANTED
BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS
IN I.A.392/2013 IN APPEAL 225/2013.
EXT.R1(z) TRUE PHOTOCOPY OF REVISED BUILDING PERMIT GRANTED BY THE
2ND RESPONDENT WITH FULL KNOWLEDGE OF EXT.R1(y)
DATED 6.12.2012.
EXT.R1(aa) TRUE PHOTOCOPY OF THE REVISED PLAN SANCTIONED BY THE
2ND RESPONDENT ILLEGALLY IN SPITE OF EXT.R1(y).
EXT.R1(ab) TRUE PHOTOCOPY OF NOTICE NO.BA 755/2011 DATED 17.4.2013.
EXT.R1(ac) TRUE PHOTOCOPY OF JUDGMENT DATED 18.1.2014 IN O.S.
NO.110/2012, SUB COURT, ERNAKULAM.
Vku/- [ true copy ]
K. Vinod Chandran, J
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W.P.(C).Nos.21526 of 2013-M,
19733 of 2014-N &
19911 of 2015-L
-------------------------------------------
Dated this the 05th day of May, 2017
JUDGMENT
The cause of action for the above writ petitions, is the feud between two neighbouring property owners, who assert their respective claims on one another's property. On one side is the wife and two sons of late Kader Pillai and on the other are siblings; sons/legal heirs of late Hassan. The legal heirs of Kader Pillai have filed W.P.(C) No.19733 of 2014 and 19911 of 2015. The legal heirs of Hassan have filed W.P.(C) No.21526 of 2013. A number of cases arose from this dispute; by way of writ petitions, criminal complaints and civil suits. To better understand the dispute, a brief reference to background facts are required.
2. Shereefa and her sons; legal heirs of Kader Pillai assert title and possession over 116 cents in Survey No.651/8A, 651/8B and 651/8C of Thrikkakara North Village. They claim title to this property, tracing it to the jenmom right vested in Thekke WP(C) No.21526 of 2013 & - 2 - connected cases Samoohamadhom; which changed hands by way of lease and proper sale, culminating in the title and possession to be on Kader Pillai, the deceased husband of Shereefa. 49 cents was assigned to Shereefa and after the death of Kader Pillai in 1980, the remaining was partitioned among his legal heirs. Abdul Majeed and his siblings, including spouse of a deceased brother, the legal heirs of Hassan; sought cancellation of the partition deed, registered as document No.362/82, in O.S.No.617 of 2007 filed before the Sub Court, Ernakulam. Shereefa and her sons filed a criminal complaint alleging fabrication of documents produced in O.S.No.617 of 2007. Yet another suit, O.S.No.744 of 2010 was filed by Abdul Majeed in the Munsiff Court, Ernakulam to cancel document No.8782 of 2004, which was a transfer of property made by Shereefa to her son, Nazar. Shereefa and her sons asserted that; a partition suit, filed as O.S.No.222 of 1981 by Mohammed, brother of Kader Pillai, concluded with judgment in S.A.No.136 of 1994; wherein Kader Pillai's exclusive title was found, negativing the contention of the plaintiff therein that it was a mere tenancy. Abdul Majeed and his siblings, on the contrary, asserted that the property in the hands of WP(C) No.21526 of 2013 & - 3 - connected cases Shereefa and her sons actually belonged to Hassan.
3. Abdul Salam, another son of Hassan, filed a petition before the District Collector alleging mutation to have been wrongly effected in the name of Shereefa and her sons. It was their contention that the property which was conveyed, had jenmom vested in Elangalloor Swaroopam. Thandaper Nos.9365, 9366 and 9367 stood canceled by the Revenue authorities, which was stated to have been acquired by Hassan, their father. Shereefa and her sons filed W.P.(C) No.19431 of 2013 alleging collusion of various officials of the Revenue Department, at the instigation of the Gunman of the erstwhile Chief Minister. In the said writ petition by judgment dated 28.03.2014, an enquiry by the Central Bureau of Investigation [CBI] was directed. As of now, the issue, is pending consideration before the Civil Court and also is one of the issues referred to the CBI; with which we are not concerned. The subject matter of the instant writ petitions is the objection of Shereefa and her children against the constructions carried on in the property of Abdul Majeed and siblings and the claim for recovery of a portion of the property in their possession. The parties on the one hand are WP(C) No.21526 of 2013 & - 4 - connected cases referred as Abdul Majeed and on the other as Shereefa, though the various proceedings have been initiated by different individuals of the respective group. The lawyers too represent various parties in the two groups and their arguments are recorded as of the respective group.
4. Abdul Majeed sought for a building permit before the Municipality, which was granted by the local authority and building constructed. Allegations were raised by Shereefa against the use of building No.191/1A in Survey No.530/5. The building permitted to be constructed as a margin free shop, was later leased out to an automobile dealer for establishing a service centre and workshop. A writ petition was filed by Shereefa against the occupancy being changed. Eventually the matter reached the Tribunal for Local Self Government Institutions [for brevity "Tribunal"]. The Tribunal in Appeal No.655 of 2008 by order dated 11.12.2008, found that there is no reason to cancel the occupancy certificate as per the approved plan and permit, merely on an apprehension that a workshop is intended to be commenced. It was also observed that if there is an illegal alteration or conversion of permit, any person could bring it to WP(C) No.21526 of 2013 & - 5 - connected cases the notice of the Secretary of the Municipality.
5. Abdul Majeed filed an application for change of occupancy, which issue was referred to the Chief Town Planner (CTP). The CTP issued an order for change of occupancy, which was not challenged. The Pollution Control Board also issued consent and the Secretary of the Municipality issued certificate for the changed occupancy. The occupancy certificate issued by the Municipality was not challenged. The Secretary granted an order for establishment of the service station on conditions. The firm who wanted such establishment, being RF Motors Private Limited, filed an appeal to the Council. The Council reversed the conditions imposed by the Secretary. A revision was taken before the Tribunal for Local Self Government Institutions, which was numbered as R.P.100/2009. This was heard along with another revision filed by a Nationalised Bank which had security interest over the property. The revisions were disposed of by order dated 25.10.2009, finding that the Secretary of the local authority did not have the jurisdiction to grant permission to establish; which was conferred on the Council, under Section 448 of the Kerala Municipality Act, 1994. The duty of WP(C) No.21526 of 2013 & - 6 - connected cases the Secretary, on submission of an application for permission to establish, was only to make a report to the Municipal Council. The Tribunal set aside the order issued by the Secretary and the Council and directed proper procedure as indicated in Section 448 to be carried out.
6. Shereefa then filed O.S.No.962 of 2009 before the Sub Court, Ernakulam; where an ex-parte injunction was obtained against the functioning of the workshop. Later, by order dated 15.02.2010, the injunction was vacated on the finding that the petitioners who were only attempting to harass the counter petitioners, had come to Court with unclean hands to somehow prevent the establishment of the automobile workshop-cum-service station. The injunction was vacated and interim application dismissed with compensatory cost of Rs.3,000/- and a further deposit mandated of Rs.25,000/- towards security for costs under Order XXV Rule 1 of the CPC. The proceedings were found to be mala fide and vindictive, by the trial Court. That order is said to have been affirmed by this Court too, on a challenge made and the suit was finally withdrawn.
WP(C) No.21526 of 2013 & - 7 - connected cases
7. Simultaneous to this, in a writ petition filed by RF Motors Private Limited, this Court {order dated 22.01.2010 in W.P. (C) No.35470/2009} directed the Municipal Council to consider the application for permission to establish, deeming the earlier order passed by the Secretary to be a report under Section 448. Shereefa then challenged the NOC issued by the District Medical Officer on grounds of it having noticed incorrect facts. Eventually the said proceedings reached the Tribunal, which passed an order dated 21.07.2010 in Appeal No.455 of 2010 setting aside the decision of the Municipal Council and directing a fresh application to be filed under Section 448; which, if filed, was directed to be considered in accordance with law. The said order of the Tribunal was challenged in W.P(C) No.23302 of 2010 by RF Motors Private Limited. The establishment was allowed to function on specific conditions, by interim order of this Court dated 05.08.2010 in the said writ petition. The said writ petition was also posted for hearing along with the present writ petitions. However, RF Motors Private Limited moved away from the said building and Abdul Majeed has demolished the said building. Hence the said writ petition was dismissed as WP(C) No.21526 of 2013 & - 8 - connected cases infructuous. Later Abdul Majeed filed another application for building permit to construct a new building in their property; which has given rise to the present three writ petitions.
8. The application for new building permit sought to be constructed in the property of Abdul Majeed also reached the Tribunal in Appeal No.255 of 2013, filed by Shereefa challenging permit No. B.A 755/11 dated 5/6-12-2012 of the Secretary, Kalamassery Municipality. The appellate order of the Tribunal produced as Exhibit P11 is challenged in W.P.(C) No.21526 of 2013. A.K.Nazar, S/o.Shereefa, filed W.P.(C) No.19733 of 2014 by seeking (i) action by the Director, Vigilance and Anti-Corruption Bureau (3rd respondent) on Exhibit P20 complaint, (ii) the 4th respondent, Secretary to inspect and measure the property and pass final orders on Exhibits P19 and P20 complaints after obtaining a survey report from the Tahsildar, Kanayanoor Taluk. It is also prayed that no fresh building permit be granted to Abdul Majeed till the disposal of Exhibit P19 and P20. Obviously, the said writ petition is a counter-blast to W.P.(C) No.21526 of 2013 filed against the order of the Tribunal.
WP(C) No.21526 of 2013 & - 9 - connected cases
9. W.P.(C) No.19911 of 2015 is also filed by Shereefa, to restrain respondents 3 and 4 (the Tahsildar and the Additional Tahsildar, Kanayanoor) from considering the application filed by one Naseema Kareem, W/o. Late Abdul Kareem (another son of Hassan); for transfer of Registry of 11.97 ares (34 cents) comprised in Re-survey No.530 (old Survey No.651/7A) in Block No.5 of Thrikkakara North Village in her name and the application filed by 11th respondent, one Kerala Institute of Medical Sciences for issuance of possession certificate in its favour with respect to 31.09 ares (87 cents) comprised in Re-survey No.530 (old Survey No.651/7A) in Block No.5 of Thrikkakara North Village.
10. W.P.(C).Nos.21526 of 2013 and 19733 of 2014 are more or less inter-connected. In the former, Abdul Majeed challenge the order of the Tribunal, produced at Exhibit P11, which suspended the operation of the building permit bearing No.B.A.755/2011 for a period of three months in an appeal filed by Shereefa. Since the ownership over the property was disputed, there was a further direction to the Secretary of the local authority to verify the bona fides of ownership claimed by Abdul Majeed and others, which was WP(C) No.21526 of 2013 & - 10 - connected cases found to be a legal mandate under Rule 11 of the Kerala Municipality Building Rules. The verification was directed to be done in the presence of the parties belonging to the two groups of Shereefa and Abdul Majeed. The Secretary was also directed to call for any further documents or plan, if necessary, from Abdul Majeed and others. The construction was directed to be kept in abeyance till a proper order is passed by the Secretary as directed by the Tribunal.
11. W.P.(C).Nos.21526 of 2013 was admitted and when it was pending, W.P.(C) No.19733 of 2014 was filed. As was noticed, the said writ petition was a counter-blast against the writ petition filed challenging the Tribunal's order and essentially sought for a stay of the consideration directed by the Tribunal. There were also complaints filed before the Director of Vigilance and the Secretary of the Municipality, alleging collusion of the public authorities with Abdul Majeed and others. In the said writ petition, on 01.08.2014 there was a direction to the Municipality not to carry out the consideration directed by the Tribunal without disposing of Exhibits P19 and P20 representations. Later, Abdul Majeed sought WP(C) No.21526 of 2013 & - 11 - connected cases for vacation of the interim order. By order dated 11.12.2014 in W.P. (C) No.19733 of 2014, the prayer of Abdul Majeed to consider a fresh building permit application was allowed.
12. The learned Single Judge who considered the interim application, found that there were four building permits in all which had been obtained by Abdul Majeed. On 19.05.2000, B.A.122/2000 was obtained by Abdul Majeed on the strength of which was constructed, a godown building. On 15.02.2008, B.A.759/2007 was obtained, based on which a building was constructed to house a margin free supermarket, which was later converted into a workshop-cum-service centre; which conversion was permitted by B.A.719/2008. The building permits of 2007 & 2008 were interfered with by the Tribunal; the proceeding leading to which has been discussed in the earlier part of this judgment {the writ filed by R.F. Motors Ltd}. W.P.(C) No.23302 of 2010 was filed by the lessee of the building, R.F. Motors Ltd, who was intending to carry on the workshop and service centre. Based on an interim order, the workshop and service centre was commenced and continued. Later, the lessee vacated the premises and Abdul WP(C) No.21526 of 2013 & - 12 - connected cases Majeed demolished the building also. The complaints and allegations with respect to B.A.No. 759/2007 and B.A.No.719/2008 hence no longer survives and W.P.(C) No.23302 of 2010 was rendered infructuous. There is no complaint about B.A.No.122/2000, based on which a godown was constructed and which still exists in the property.
13. Subsequent to the demolition of the said buildings [B.A.No.759/2007 and B.A.No.719/2008], Abdul Majeed again sought for a fresh building permit, which was granted as per B.A.No.755/11 dated 05.12.2012, which has given rise to the above two writ petitions. The learned Single Judge, in W.P.(C) No.19733 of 2014 by the above referred interim order, permitted Abdul Majeed to submit a fresh building permit application. The reasoning of the learned Single Judge was that there was no objection raised to the building permit obtained by Abdul Majeed; i.e., B.A.No.759/2007 which was validly granted. The objection of Shereefa was only on account of the change in occupancy permitted by B.A.No.719/2008. Finding that the earlier building permit was validly granted, the learned Single Judge thought it fit to permit Abdul Majeed to make a WP(C) No.21526 of 2013 & - 13 - connected cases fresh application so as to ensure that the building is constructed only in that property which is owned and possessed by Abdul Majeed.
14. The above matter was taken up in appeal before the Division Bench, by W.A.No.470 of 2015. Noticing the rival contentions of the parties and also the apprehension expressed as to the measurement not being carried out in a proper and timely manner, the Division Bench appointed an Advocate Commissioner to carry out the measurement. The Division Bench after such appointment; disposed of the case making it clear that they are not expressing anything on merits. The Commissioner was directed to file the report in the writ petition. The Division Bench also observed that the learned Single Judge would consider the matter, including the scope of the scrutiny under Article 226 of the Constitution and the relief, if at all, to be moulded with respect to the Civil Suits which were stated as pending. The Court also noticed that there were connected matters which were pending, being W.P.(C) Nos.23302 of 2010 and 21526 of 2013, which could be considered along with W.P. (C) No.19733 of 2014.
WP(C) No.21526 of 2013 & - 14 - connected cases
15. On remand, in the three writ petitions connected together, an interim order was passed on 18.11.2015 by a learned Single Judge permitting the petitioners in W.P.(C) No.21526 of 2013 to go ahead with the construction in the property covered by Exhibit P6 plan and Exhibit P7 building permit produced in the above case. This order was challenged again by Shereefa and Nazar before the Division Bench by W.A. No. 2647/2016. There was a stay of the interim order granted, at the time of admission. The Commissioner's inspection, as directed in W.A.No.470/2015 and related proceedings, continued when the writ appeal was pending. Eventually W.A.No.2647/2016 was also disposed off without any observation on merits. The issues were left to be considered in the Writ Petitions. The Commissioner's Report was placed in the writ appeal and the Judges-papers were directed to be placed before the Single Judge hearing the matters. It is in this background, the three writ petitions are to be considered.
16. The petitioners (Abdul Majeed) in W.P.(C) No.21526 of 2013 submitted that the construction intended by the petitioners have been interdicted based on the frivolous complaints made by WP(C) No.21526 of 2013 & - 15 - connected cases Shereefa. Shereefa, occupying the neighbouring property on the southern side of the petitioner's property, has been freely enjoying the property without any hindrance despite the petitioners having filed two suits for cancellation of the deeds by which the respondents are now holding and enjoying the property. There are also Civil Suits filed by Shereefa against the petitioners, which are pending consideration before the proper Civil Court and in such circumstances, there could be no consideration of the boundaries of the respective properties by this Court under Article 226 of the Constitution. It is also submitted that Shereefa has been blowing hot and cold and it is not clear as to the exact measurement of the property they assert title in. Even now, going by the pleadings in the suit for recovery, filed by them, they claim only 17 cents of property in their northern boundary, which, they assert, lies in the southern boundary of the petitioners' property. The specious allegations made by Shereefa cannot lead to denial of enjoyment of the property owned and possessed by Abdul Majeed. It is also agreed that any construction carried on would be subject to the final result of the suits filed. Abdul Majeed and others agree to pull down any WP(C) No.21526 of 2013 & - 16 - connected cases objectionable construction, if eventually found in the suit to be in land; on which the ownership claim, raised by Shereefa, is upheld by the Civil Court.
17. The learned Counsel appearing for Nazar (Shareefa) in W.P.(C) No.19733 of 2014 however would urge that even if the construction as permitted in B.A.No.755/11 dated 05/06.12.2012 is carried out or a fresh application directed to be made, then it would go against the specific order made by the Chief Town Planner, requiring pathway of a width of 8 meters, to be laid for the purpose of constructing godown covered by B.A.No.122/2000; the first permit obtained by the legal heirs of Hassan. Though Abdul Majeed and others contend that they have laid an alternate pathway for the godown, it is factually incorrect and the same cannot be permitted for reason of the construction of the godown having been carried out in accordance with the specific conditions stipulated by the Chief Town Planner. Allegations are also raised about the extent of property now in the possession of Abdul Majeed.
18. Abdul Majeed and others obtained the properties by virtue of their status of legal heirs of one Hassan. Hassan together WP(C) No.21526 of 2013 & - 17 - connected cases with one Abdul Kareem had purchased 2.52 acres of property from one Sulekha; out of which 57 cents were given to Abdul Kareem and the balance 1.95 acres retained with Hassan. Out of this, 15 cents was sold to one Sainabha, 10 cents assigned to one Kudikidappukaran Hydrose and 5 cents surrendered for the purpose of laying V.P.Marakkar Road. Hence, as of now, there could be possession, only of 1.65 acres at the most and going by the Commissioner's report, they are in possession of 202.569 cents, far in excess of their entitlement. This includes Government puramboke land also, is the contention of Shereefa. The legal heirs of Hassan being in possession of far larger extent than that they can validly assert title on, cannot freely enjoy the property, is the argument.
19. Both groups have filed objections to the Commissioner's Report {C.R.}. The objection filed by Shereefa to the C.R. points out the fact that admittedly only 2.52 Acres in Sy. No. 651/7A was purchased, jointly by Hassan and Abdul Khader, out of which 57 was allotted to the latter on partition. Hassan retained 195 cents out of which 15 cents was sold to Sainaba, 9 cents lost on kudikidappu and 5 cents surrendered for the road; which left only WP(C) No.21526 of 2013 & - 18 - connected cases 166 cents in the hands of the legal heirs of Hassan. The CR shows the possession of Abdul Majeed to be 202.569, which is in excess by 36.5 cents. It is further contented that the Thandaper Account with respect to Sy.No.651/7A shows a total extent of only 1.89.50 Acres, which reduced by 57 cents allotted to Abdul Khader would be 1.32 Acres. A further reduction of 29 cents will have to be made on the subsequent sale, kudikidappu and surrender effected. This would indicate that Abdul Majeed was in possession of an excess of 99 cents (wrongly indicated as 91) as per revenue records. It is also pointed out that the legal heirs on whom the properties devolved, after the death of Hassan, executed almost 22 documents; which properties with reference to the documents are un-identifiable. The statement in the CR that the shortage if at all in the property of Shereefa is only 3.202 cents is seriously disputed. It is asserted that Shereefa had 116 cents and there was an additional 14 cents purchased; which later extent has also been included in the CR along with 116 cents; erroneously. Shereefa's claim over the properties in possession of Abdul Majeed would be more than 17 cents is the further objection. Immediately it is to be noticed that, but WP(C) No.21526 of 2013 & - 19 - connected cases for the bland assertion, there is no proceeding initiated for recovery of anything more than 17 cents.
20. The objection filed by Nazar also emphasise the above discrepancies, with different extents noticed. An application, supported by an affidavit, filed by Nazar to set aside the CR, is opposed with a counter-affidavit by Abdul Majeed. Abdul Majeed in his counter dated 27.06.2016 contends that there are only minor discrepancies, which could be supplemented by a further inspection. But objections dated 23.06.2016 too are placed on record by Abdul Majeed seeking a direction to construct the building in the property found to be in their possession subject to the result of the Civil Suit. With respect to the objection of Shereefa, in calculating the extent of land as per the revenue records, if at all there is reduction in the actual extent, the extent allotted to Abdul Khader is also to be proportionately reduced. The objection of Nazar at para 10 admits the Basic Thandapper register as showing a total of 2.52 acres available in Sy.No. 651/7A. Further the CR, based on a measurement with total station equipment carried out by the Revenue Officials shows the extent in the possession of Abdul WP(C) No.21526 of 2013 & - 20 - connected cases Majeed in Sy.Nos.651/7A and 651/8B; with only 6.424 cents in Sy.No. 651/8B. Shereefa does not have any claim over the land covered by Sy. No. 651/7A and their claim is only on property comprised in Sy. No. 651/8B
21. Before proceeding further it is to be noticed that the extent of the properties and the portions to which the respective parties have ownership is beyond the scope of these petitions under Article 226. The Division Bench which directed a Commission to be taken out for measurement of the properties specifically observed that the Court hearing the writ petition would consider the efficacy of the scrutiny under Article 226 and mould the relief, keeping in mind the pending civil cases. It cannot but be stated at the outset that, this Court would be disabled from finding the ownership of the properties on one or the other, in these petitions under Article 226. The reliefs sought are also not to that extent and are; simply put, for and against the building permit applied for and obtained, and against the mutation sought for a portion of the property. The parties have made a mountain out of a mole hill, when the issues agitated and argued could have very well been urged and contested in the WP(C) No.21526 of 2013 & - 21 - connected cases civil court. This Court would desist from examining the various documents filed to find ownership and would confine itself to the subject matter in issue. The elaborate pleadings and production of various title deeds only serve to intimidate the Court and divert attention from the main issue and thwart a proper consideration. Both parties seem to revel in litigation, more to wreck personal vengeance than seek an amicable solution.
22. The Tribunal considering the building permit having number BA 755/11, in the impugned order, found fault insofar as the Secretary of the local authority having not examined the issue of ownership under Rule 11 of the Municipality Building Rules. It is to be emphasised that the Secretary examining the ownership of the property, on which a building is sought to be constructed is not adjudicating rival claims and is only prima facie satisfying himself of the party, applying for the permit, having valid title and possession over the land. The question of ownership & title would be best left to the civil courts which are conferred with the power to take evidence and adjudicate such disputes. It is also of significant import that there are civil suits pending before the lower courts with regard to WP(C) No.21526 of 2013 & - 22 - connected cases the various disputes attempted to be urged herein.
23. O.S. 617/2007 (Sub-Court Ernakulam) and O.S. 744/2010 (Munsiffs Court Ernakulam) are suits filed by the legal heirs of Hassan (Abdul Majeed & Ors:) to set aside partition deed 362/1982 executed by the legal heirs of Kadar Pillai (Shereefa & Ors:) and the sale deed 8782/2004 executed by Shereefa in favour of her son Nazar. We are not concerned with the same since it deals with the property asserted to be of Kader Pillai and that was the subject matter of W.P.(C) No.19431 of 2013; wherein a CBI enquiry too was directed into the cancellation of transfer of registry carried out.
24. Sharefa and Ors: have filed O.S 133/2006, seeking permanent prohibitory injunction against damaging the southern (actually northern) boundary wall of their property. O.S 617/2007 is filed by the very same parties for recovery of 17 cents of property described as Schedule B in the plaint. The plaint in O.S. 133/2006 is produced as Ext. R-8(5) in W.P.(C).19911/2015. The relief sought for are (i) permanent prohibitory injunction restraining the defendants, ie: Abdul Majeed and others from causing damage to WP(C) No.21526 of 2013 & - 23 - connected cases the southern boundary of plaint A Schedule property (wrongly shown as southern boundary, since plaint A schedule indicates that the defendants (Abdul Majeed's) property is on the northern side and the plaintiff ought to have sought for protection of their northern boundary) and (ii) permanent mandatory injunction directing the defendants to fill up the pits dug along the southern boundary wall (presumably of the defendant's property). Plaint A Schedule property, is that owned and possessed by Shereefa and others and by its description is seen to have a total extent of 99.827 cents (admittedly) in Sy.No.530/6 of Thrikkakkara North Village. Plaint B Schedule property is stated to be that lying to the north of the plaintiff's property (A Schedule), which is stated to be owned and possessed by the defendants, the description of which, as admitted by the plaintiffs, is an extent of 2 acres lying in Sy. No. 651/7 A of Thrikkakkara North Village. These admissions run contrary to the assertions now made by Shareefa as to the extent of the respective properties.
25. The subject matter of O.S.656/2008 is discernible from Exhibit R-8 (11) produced in W.P. (C) 19911/2015. The plaintiff WP(C) No.21526 of 2013 & - 24 - connected cases therein was Shereefa and the defendants, the legal heirs of Hassan. The plaintiff claimed that she along with her children was in possession of 116 cents of land, described as plaint A Schedule, out of which 17 cents was encroached upon by the defendants; which encroachment was shown as B Schedule. The suit was filed for recovery of the property alleged to have been encroached upon by the defendants at the northern boundary of plaint A Schedule property. The interim application for injunction considered by the lower court and rejected in Exhibit R-8 (11), was with respect to the construction alleged to be carried on in plaint B Schedule property. The lower court found that the plaintiff (Shereefa) right from 1996, in the various suits filed against the defendants, had a consistent case that the plaintiff was in possession of 99. 827 cents of property. The lower Court relied on the earlier suits to find the present claim to be prima facie unacceptable. The plaint in O.S 87/96 {Ext. R-8 (13)} was produced as Ext. B1, in O.S. 656/2008. Exhibit B2, was the plaint in O.S 1385/01 {judgment in which dismissing the suit is Ext.R-8(7)}, filed by Nazar against the defendants. Ext. B3 was the plaint in O.S 133/06 filed by Shereefa and her sons against the very WP(C) No.21526 of 2013 & - 25 - connected cases same defendants. Exhibits B1, B2 & B3; all consistently showed the plaintiffs to be claiming possession of only 99.827 cents and nothing more. An alternate claim of adverse possession was also raised by the defendants, which the Court below, rightly found to be not possible of consideration at the interlocutory stage. All the same considering (i) the consistent plea of the plaintiffs (Shareefa & others), in the earlier suits as to the extent of property in their possession, (ii) the fact that the plaintiffs had been consistently trying to thwart the development attempted by the defendants in their property and also (iii) the fact that there was considerable construction carried on without any protest raised by the plaintiffs, the interim application was rejected. The suit is still pending and so is the claim of recovery of 17 cents of property. This Court has also taken note of yet another suit filed as O.S.962/09, where a similar attempt to stop a workshop-cum-service station was attempted; which resulted in the dismissal of the interim application with costs {Ext.R-8 (9) in W.P. (C) 19911/2015}. That suit stood withdrawn after the appeal against the vacation of interim injunction also stood dismissed.
WP(C) No.21526 of 2013 & - 26 - connected cases
26. It is apposite to recollect at this point, that the building permit granted to Abdul Majeed as B.A.No.759/2007, was not challenged by Shereefa and the conversion of occupancy effected by B.A.No.719/2008 was alone objected to. The building permit obtained for a margin free market did not at any point attract the wrath of the neighbours, nor was a dispute raised as to the ownership of the property owned by Abdul Majeed. It was also noticed, when looking at the facts relating to W.P (C) 23302 of 2010 filed by R.F. Motors Ltd., that the objection was against the conversion of occupancy, to carry on a workshop-cum-service station. A suit was filed (O.S. No. 962/2009), and an injunction obtained against the carrying on of workshop-cum-service station, which interlocutory application stood rejected with costs. A C.M.A. filed from the above order was rejected and later the suit itself was withdrawn after remitting the costs. The interlocutory application filed in O.S 656/2008 (suit for recovery of 17 cents), for injunction against the earlier construction carried on by Abdul Majeed, also stood rejected and the appeal filed as C.M.A.59 of 2008 too stood dismissed. There could hence be no defect found to the WP(C) No.21526 of 2013 & - 27 - connected cases construction carried on earlier, though the same now stands demolished. The objection of Shereefa on the conversion of occupancy was the specific question gone into by the Tribunal, in the order impugned by R.F. Motors Ltd. Abdul Majeed was also directed to take fresh steps to file an application under Section 448 of the Kerala Municipality Act, 1994. The objection raised on the question of ownership was a new-found one, not raised in the plethora of suits filed against Abdul Majeed at the earlier instances, every time a construction or an industry was sought to be commenced and carried on in their property.
27. W.P. (C) 19733 of 2014 is filed, basing the cause of action on Exhibits P19 and P20 complaints filed before the Secretary of the local authority and the Senior Town Planner (Vigilance). Exhibits P19 speaks of BA 759 of 2007 and the building constructed based on the said permit; which building is now demolished. As was noticed earlier, the objection against that construction was only on the change in occupancy sought for by Abdul Majeed. The said building is now demolished and hence Exhibit P19 complaint does not survive.
WP(C) No.21526 of 2013 & - 28 - connected cases
28. It is also to be noticed that the petitioners in W.P.(C) No.19733 of 2014, have subsequently filed I.A.No.17119 of 2014 seeking amendment of the prayers and to substitute Exhibits P19 and P20 with Exhibit P45. The said amendment application is not seen to have been allowed by this Court; nor is an amended writ petition filed. In any event, the amendment was necessitated only since the respondent contended that Exhibit P20 was a copy; which is not admitted to have been received by the official respondents. Exhibit P45 is a complaint, which is a verbatim reproduction of Exhibit P20, the receipt of which is sought to be evidenced by Exhibit P46. In such circumstance, this Court does not find any need for an amendment and Exhibit P20 as such could be considered.
29. Exhibit P20 inter-alia speaks of the permit BA 122/2000, on the strength of which a godown was constructed. The main allegation is that the said godown has been constructed un-authorisedly and the business carried on without license; which grounds, as of now are too belated. There were also suits filed against the said construction and the establishment of the business, WP(C) No.21526 of 2013 & - 29 - connected cases which were either settled or withdrawn by Shereefa.
30. In Exhibit P20 complaint, Nazar, son of Shereefa raise further objection as to the extent of the property held by Abdul Majeed. The title admittedly is traced to Hassan and the various transactions effected of the said properties have been detailed to allege that Hassan's legal heirs are holding more property than they are really entitled to. The discrepancy with respect to the extent, on the admitted transfers and that revealed from the revenue records were earlier noticed, which plea raised by Shereefa and Nazar were found to be inconsistent with each other. Be that as it may, it is pertinent to notice that Shereefa does not have any claim over the said properties, other than the 17 cents claimed in OS 656//2008. The learned Counsel appearing for Shereefa and Nazar also contended that Government Puramboke has been annexed to the property and it is hence the Commissioner appointed by this Court too, has found more property in their possession than that admittedly held by them, as devolved from Hassan and left, after the various transfers effected.
31. It is not for Shereefa to question the entire WP(C) No.21526 of 2013 & - 30 - connected cases possession of Abdul Majeed when actually their claim is confined to 17 cents. If the Government or any other neighbour has a claim over the property held by Abdul Majeed, then it is for such aggrieved party to take appropriate proceedings. The present writ petition is not a public interest litigation and Shereefa or Nazar cannot be allowed to agitate causes which do not present them with a clear and immediate grievance. Obviously the attempt is to put spokes into the full enjoyment of the property in the possession of Abdul Majeed; consistent with their conduct at the earlier instances, when suits were filed at every instance when an activity was intended in that property. As has been noticed the various actions initiated did not eventually bear fruit and also resulted in adverse order of costs being passed against the plaintiff.
32. In addition to the allegation raised on the actual extent now in the possession of Abdul Majeed, Ext.P20 also raised an objection with respect to a pathway of 8 meters. It is stated that by G.O.(Rt) No.424/2000/LSGD dated 31.01.2000, Abdul Majeed had obtained exemption from zoning regulation. In obtaining the permit for the godown, B.A.No.122/2000 {Ext. R1-(i) in W.P.(C) No. WP(C) No.21526 of 2013 & - 31 - connected cases 21526/2013} and site plan {Ext. R1-(j) in W.P.(C) No. 21526/2013} the pathway of 8 meter width was shown as access to the property of Abdul Majeed from Vaikom Muhammed Basheer Road; towards the west. The extent of 115.50 cents as asserted to be in their possession at the time of issuance of B.A.No.122/2000 is alleged to be wrong. It is also alleged that the other buildings in the plot were not shown in the site plan while making the application for building permit. This Court does not see any justification in the challenge made to the building permit issued as early as in 2000, on the strength of which a building was constructed and a godown is being carried on. There were also various litigations pending before the different forums, initiated by Shereefa against the various activities attempted by Abdul Majeed. There is no order in any of such cases against the construction or the activity of godown carried on in the building constructed as per B.A.No.122/2000. It is too late in the day to challenge the construction of the godown or its continuance. The sole only sustainable objection would be against the non- preservation of the conditions as prescribed in the building rules and that specified, in the exemption, if any. This could very well be WP(C) No.21526 of 2013 & - 32 - connected cases examined by the Secretary of the Municipality, when considering the new application for building permit.
33. The contention based on the exemption granted from the zoning regulation is that the 8 meter pathway, which was shown as made available for the godown building, is subsequently shown as an open area when the Margin Free-cum-Residential building was sought to be constructed. This Court need not look into that aspect now, since admittedly the building constructed on the strength of B.A.No.759/2007, in which occupancy was subsequently converted as per B.A.No.719/2008, stands demolished. It is also pertinent that the learned Counsel appearing for Shereefa was not able to point out how the maintenance of a pathway of 8 meter width was a condition of the exemption granted. Nor is the prescription available in the Building Rules. The learned Counsel would point to Exhibit P17 (W.P.(C) 19733/2014), which is a copy of the enquiry report of the Senior Town Planner (Vigilance). The enquiry report only indicates that the open space on the northern side has been shown including a lane and that there is requirement for submission of a fresh plan, indicating the lane and showing the correct set back WP(C) No.21526 of 2013 & - 33 - connected cases and measurements. Again it is pertinent that Exhibit P17 is also with respect to B.A.No.759/2007 and B.A.No.719/2008. The said building having been demolished, there could be no surviving ground on the set back shown with respect to that building permit.
34. The further contention taken by Shareefa is that the 8 meter pathway was provided for the godown, which cannot be meddled with or converted as long as the godown is in existence. Abdul Majeed, in defence, contends that there is an alternate pathway provided from the northern boundary of their property, which enables access into the godown. This is a factual matter which would have to be looked into by the Secretary of the local authority. However, at the risk of repetition, it is to be emphasised that there is no requirement shown from the exemption order for providing an 8 meter width pathway; nor is there such a stipulation in the Building Rules.
35. This Court has noticed that W.P.(C) Nos.21526 of 2013 and 19733 of 2014 are with respect to the very same issue, i.e., the permit granted by the Municipality for construction of a building, bearing building permit No.B.A.755/2011 dated 5/6-12- WP(C) No.21526 of 2013 & - 34 - connected cases 2012. The only contention urged before the Tribunal by Shereefa; which was found favour with, was with respect to the dispute on ownership of the property, which was directed to be examined under Rule 11 of the Kerala Building Tax Rules. The Tribunal had expressed doubts as to proper verification having been done by the Secretary, only on the finding that Abdul Majeed was not able to substantiate the extent as shown in the application. The issue of the actual extent in possession of Abdul Majeed was directed to be reported by the Advocate Commissioner appointed by a Division Bench of this Court. It is pertinent that but for Shereefa none of the other neighbours challenged the possession of the property now in the hands of Abdul Majeed and others. Shereefa too has a claim, over such properties of Abdul Majeed, only to the extent of 17 cents to their northern boundary, i.e., to the southern boundary of Abdul Majeed. There is a suit pending as O.S.No.656 of 2008; renumbered as O.S.No.293 of 2010, before the Sub Court, Ernakulam for recovery of the said 17 cents. The question to be looked into is as to whether the construction activity of Abdul Majeed has to be interdicted till the disposal of the said suit. WP(C) No.21526 of 2013 & - 35 - connected cases
36. Admittedly the Interlocutory application filed in the said suit for the very same prayer stood rejected. In such circumstance, this Court does not find any reason to take a different view in a writ petition under Article 226 of the Constitution on the wider plea raised as to the exact extent to which Abdul Majeed can claim ownership. This Court would look at whether, as of now Abdul Majeed could be allowed to carry on the construction; for which useful reference can be made to the Commissioner's report. The Commissioner has inspected the properties and measured it out with the help of Surveyors using "total station equipment". It has been found that Abdul Majeed and others are in possession of 202.569 cents in Survey Nos.651/7A and 651/8B. It is also stated that the said property is in excess of the extent covered by their title deeds, which evidence their right to possess a total of only 195.00 cents. A total of 6.424 cents in Survey No.,651/8B is the excess area found in the possession of Abdul Majeed, which alone, if at all, could be claimed by Shereefa. The remaining 1.145 cents in Sy. No. 651/7A cannot fall under the claim of Shereefa, is the report of the Commissioner. The Commissioner found so, since the entire claim WP(C) No.21526 of 2013 & - 36 - connected cases of Shareefa is confined to the land comprised in Sy. No.651/7A.
37. On verification of the re-survey records, the excess land in possession of Abdul Majeed and others were found to be 0.864 cents. As far as the possession of Shereefa and others, they are said to be in possession of 112.798 cents; falling short by 3.202 cents out of the total claim of 116 cents. This is also in excess of that admittedly to be in their possession, as revealed from the various suits filed by Shareefa. Three sketches have also been produced along with the report. Sketch No.I shows the properties marked in black ink as per the survey records and in red ink as per the title deeds of the respective parties. Sketch No.II shows the properties in black ink as per the survey records and in red ink as per the actual possession. Sketch No.III shows the properties in black ink as per the re-survey records and in red ink as per the actual possession of the parties. Admittedly the property in the possession of Abdul Majeed and others are in Survey No.651/7A. The encroachment, if at all, into the property of Shereefa by Abdul Majeed is minimal, as is seen from the sketches and also the report. This Court is of the opinion that the construction of Abdul Majeed WP(C) No.21526 of 2013 & - 37 - connected cases need not wait till the disposal of the suit for recovery of 17 cents, especially on the undertaking made by Abdul Majeed and others that the construction would be subject to the result of the suit and any construction carried on in the property would be removed, if any extent, in which the building stands, is directed to be conceded to Shereefa and others by the Civil Court.
38. The history of the litigation also does not commend an interdiction of the construction activity till the suit for recovery of possession is concluded. Shereefa and others approached the Civil Court and failed to obtain an injunction restraining such construction. Going by the Commission Report, ownership and possession of the property in survey No.651/7A by Abdul Majeed and others cannot be disputed. The allegation now raised is also of Abdul Majeed being in possession of more properties than that acquired by his predecressor, Hassan. The claim of title and recovery, of Shareefa, is confined to 17 cents; from that possessed by Abdul Majeed. The Commissioner has reported that the properties as transacted by the various documents executed by the legal heirs of Hassan; are not identifiable. That cannot, however, WP(C) No.21526 of 2013 & - 38 - connected cases create a cloud on the title of the legal heirs of Hassan, which devolved on them, on the death of Hassan. The legal heirs of Hassan have no dispute between themselves. In such circumstance, there cannot be a refusal to consider the building permit.
39. This Court is fortified in taking such view, by the decision of the Hon'ble Supreme Court, in Rame Gowda Vs. M.Varadappa [(2004) 1 SCC 768], which dealt with the vital issue of a valid possession even in the teeth of absence of title. Two individuals, owning adjoining properties, had disputes with respect to the dimensions, extent and boundaries of each others property and particularly with respect to the possession of a strip of land lying in between. The person who was in admitted possession of the disputed property, who was attempting to make a construction thereon, filed a suit seeking an injunction against the obstruction caused by the defendant. The trial court decreed the suit, granting the injunction sought, despite finding that the plaintiff was unable to establish title, but holding the plaintiff to have established possession. The finding that the plaintiff was entitled to protection of WP(C) No.21526 of 2013 & - 39 - connected cases his possession unless interfered with by due process of law was upheld by the High Court and the Supreme Court; but leaving open the dispute in title to be decided in appropriate proceedings. The facts are almost similar here and differ only to the extent of there being a suit initiated for recovery of 17 cents of property, over which, it is apprehended, the persons in possession would make constructions. An injunction sought for in that suit remains declined. The host of litigations between the parties over more than two decades indicates the plaintiff (Shareefa) having claimed and asserted possession only on an extent; which is minus the 17 cents now sought to be recovered. The defendants (Abdul Majeed) also have a claim of adverse possession.
40. Apposite would be the following extract from Rame Gowda:
"8. It is thus clear that so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake WP(C) No.21526 of 2013 & - 40 - connected cases possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner. WP(C) No.21526 of 2013 & - 41 - connected cases
9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram v. Delhi Admn. [AIR 1968 SC 702], Puran Singh v. State of Punjab [(1975) 4 SCC 518] and Ram Rattan v. State of U.P. [(1977) 1 SCC 188]. The authorities need not be multiplied. In Munshi Ram case it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner WP(C) No.21526 of 2013 & - 42 - connected cases may re-enter and reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh case the Court clarified that it is difficult to lay down any hard-and-fast rule as to when the possession of a trespasser can mature into settled possession. The "settled possession" must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase "settled possession" does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The Court laid down the following tests which may be adopted as a working rule for determining the attributes of "settled possession" (SCC p. 527, para 12):
(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;
WP(C) No.21526 of 2013 & - 43 -
connected cases
(ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;
(iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and
(iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner, has no right to destroy the crop grown by the trespasser and take forcible possession".
That is not to say that the findings of this Court would conclude the controversy on title, which has to be agitated before the Civil Court.
41. As was noticed, under Rule 11, the Secretary of the local authority does not enter into an adjudication as to ownership and has to merely satisfy himself prima facie of the title of the WP(C) No.21526 of 2013 & - 44 - connected cases applicant who proposes to make the construction. There can be no defect in title found on the various contentions raised by Shereefa and her children. The claim raised by Shareefa is only with respect to 17 cents of property on the southern boundary of Abdul Majeed and others. Abdul Majeed could either carry on the construction as permitted in B.A.No.755/2011 or file a fresh application for construction; which could be considered in accordance with the Kerala Municipality Building Rules as it exists now. As of now since the Commissioner's Report and demarcation of properties, on Survey conducted by the revenue officials, is on record, suffice it to direct a fresh application to be filed by Abdul Majeed and others.
42. The Secretary considering the fresh application filed would also ensure that the godown building existing in survey No.651/7A has an access as was required under the Building Rules, which existed as on 2000. It will also be ensured that the building which is being constructed has set back and open space as provided in the Building Rules. The complaint with respect to polluting industries carried on in the property as attempted to be raised in W.P.(C) No.19733 of 2014 could be agitated before the WP(C) No.21526 of 2013 & - 45 - connected cases appropriate authorities. W.P.(C) No.21526 of 2013 stands allowed, setting aside the order of the Tribunal and directing the local authority to act in accordance with the directions herein above issued. The Secretary could also direct the production of a certified copy of the Commission Report and Sketch, as filed herein so as to enable a proper consideration of the location plan appended to the application for building permit. W.P.(C) No.19733 of 2014 would stand dismissed, leaving open the contentions with respect to polluting industries to be taken up before the appropriate authority.
43. W.P (C) No.19911 of 2015 seeks to restrain the transfer of registry sought by respondent No.9 and the request of issuance of possession certificate sought by respondent No.11. Exhibit P27 representation is said to have been filed, which, according to the petitioner, has to be first considered before the transfer of registry is considered. Exhibit P27 again speaks of the additional extent of property in the possession of Abdul Majeed and others and also lays emphasis on the CBI enquiry ordered in W.P. (C) No.19431 of 2013 with respect to the attempt of Abdul Majeed and others to establish ownership over the property in the WP(C) No.21526 of 2013 & - 46 - connected cases possession of Shereefa and others. That need not influence the consideration of the contentions now raised by Shereefa and others as to the ownership, possession and construction attempted in the property owned by Abdul Majeed and others. Shereefa has a claim over such property in the hands of Abdul Majeed only to the extent of 17 cents, which is pending consideration in a suit filed before the Sub Court, Ernakulam. Hence, there is no warrant to direct consideration of Exhibit P27.
44. As to the mutation sought for and possession certificate claimed, the original authority has to first look into the same. The complaint in Exhibit P27 is with respect to Abdul Majeed and others having possession of larger extent, than on which they can claim ownership; while there are landless people in the State. This again takes the colour of public interest; which, as evident from the facts as detailed herein above, is motivated by personal enmity. There is no warrant for issuance of any mandamus to consider an ill-motivated representation as found in Exhibit P27. This Court would hasten to add that the District Collector or any appropriate Officer of the Government, could independently examine the issue, WP(C) No.21526 of 2013 & - 47 - connected cases as to any encroachment into Government lands. This judgment would not stop such officer in taking action against any encroachment of government lands and also not act against any person who is not a party to the above writ petitions.Transfer of registry or mutation has to be considered by the respondents 3 and 4, in accordance with law, and this Court need not pre-empt such consideration at this stage. Needless to say that the construction and mutation effected would be subject to the result of the suits filed before the Civil Court. W.P.(C) No.19911 of 2015 would stand dismissed with the above reservation.
45. This Court makes it clear that this Court has merely permitted the construction to be carried on by Abdul Majeed and others in the property they possess in Survey No.651/7A of Thrikkakara North Village subject to the Building Rules and subject to the result of the suits filed before the Civil Court. The undertaking of Abdul Majeed and others that they would demolish any constructions made; if eventually it is found to be in the property, which are permitted to be recovered by Shereefa from Abdul Majeed in O.S.No.656of 2008; is recorded. Neither the construction carried WP(C) No.21526 of 2013 & - 48 - connected cases on by Abdul Majeed and others nor the observations herein would confer any ownership on the entire extent now possessed by Abdul Majeed and others; which if disputed will have to be established by due process of law. The direction to consider the building permit application is only on the undisputed possession of the properties in Sy.No 651/7A of Thrikkakara North Village and the counter-claim raised, as of now, on title, also being confined to 17 cents at its southern boundary. The parties would be free to obtain a certified copy of the Commission Report and sketches and produce the same before the Court below; the acceptance of which, would be strictly at the discretion of the Civil Court after due consideration of the objections of the respective parties and examination of the Commissioner, as procedurally delienated.
Ordered accordingly. Parties are left to suffer their respective costs.
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K.Vinod Chandran Judge.
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