Kerala High Court
Joseph Vattamattom vs Secretary on 6 February, 2013
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:-
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
FRIDAY, THE 30TH DAY OF JUNE 2017/9TH ASHADHA, 1939
W.P(C).No.1775 of 2016 (V)
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PETITIONER(S):-
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JOSEPH VATTAMATTOM, S/O. K.J.VARKEY,
VATTAMATTOM HOUSE, CHENGAMANADU VILLAGE, ALUVA TALUK,
ERNAKULAM, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER,
JOSE C.L., S/O. LONAPPAN, CHAKKLAMATTATHU HOUSE,
NALUKETTU P.O., KORATTY, KEEZHAKKUMURI VILLAGE,
THRISSUR DISTRICT.
BY ADVS.SRI.M.P.MADHAVANKUTTY
SRI.S.RANJIT (KOTTAYAM)
SRI.GOKUL DAS V.V.H.
RESPONDENT(S):-
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1. SECRETARY, CHENGAMANAD GRAMA PANCHAYATH,
PUTHUVASSERRY, NEDUMBASSERRY P.O., ERNAKULAM, PIN-683585.
2. CHENGAMANAD GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY,
CHENGAMANAD GRAMA PANCHAYATH, PUTHUVASSERRY,
NEDUMBASSERRY P.O., ERNAKULAM, PIN-683585.
3. KADER PILLA, S/O. MEETHIAN, AGED ABOUT 68 YEARS,
CHOLLAMBATTU HOUSE, MEETHANAM KARA, ALANGAD VILLAGE,
PARAVUR TALUK, ERNAKULAM DISTRICT, PIN-683511.
4. FATHEEMA, D/O.T.O.ABDULLA, AGED ABOUT 63 YEAQRS,
THARAKANDATHIL HOUSE, ERUMATHALA KARA, ALUVA EAST VILLAGE,
ALUVA TALUK, ERNAKULAM DISTRICT, PIN-683101.
5. STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695001.
R1 & R2 BY STANDING COUNSEL SRI.ANIL K.MUHAMED.
R3 & R4 BY ADV. SRI.S.B.PREMACHANDRA PRABHU
R3 & R4 BY ADV. SRI. ANIL KUMAR K
R5 BY GOVERNMENT PLEADER SRI.RAVIKRISHNAN.
ADVOCATE COMMISSIONER ADV. SMT.V.VIJITHA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.1775 of 2016 (V)
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APPENDIX
PETITIONER(S)' EXHIBITS:-
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EXHIBIT P1- TRUE COPY OF THE BUILDING PERMIT DATED 06-02-2013 BEARING
15/2012-13 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P2- TRUE COPY OF THE REPRESENTATION DATED 22-10-2013 SUBMITTED
BY THE PETITIONER.
EXHIBIT P3- TRUE COPY OF THE JUDGMENT DATED 08-06-2015 IN
WPC NO.12546/2015 BEFORE THIS HON'BLE COURT.
EXHIBIT P4- TRUE COPY OF THE LEGAL NOTICE DATED 29-09-2015 SENT TO THE
1ST RESPONDENT.
EXHIBIT P5- TRUE COPY OF THE ORDER DATED 08-10-2015 BEARING NUMBER
A3-3466/15 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P6- TRUE COPY OF THE PLAN APPROVED BY THE 2ND RESPONDENT
GRAMA PANCHAYATH.
EXHIBIT P7- TRUE COPY OF THE SALE DEED BEARING NO.1162/1992 DT.18.3.1992.
EXHIBIT P8- TRUE COPY OF THE SALE DEED BEARING NO.146/2001
DATED 19.04.2001 EXECUTED IN FAVOUR OF THE PETITIONER AND
HIS WIFE.
EXHIBIT P9- TRUE COPY OF THE RELEASE DEED BEARING NO.618/2002
DATED 13.03.2002 BEFORE THE S.R.O., CHENGAMANADU.
RESPONDENT(S)' EXHIBITS
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EXHIBIT R3(a) TRUE COPIES OF THE OWNERSHIP CERTIFICATES ISSUED
BY THE 1ST RESPONDENT.
EXHIBIT R3(b) TRUE COPIES OF THE PROPERTY TAX RECEIPTS ISSUED BY
THE 1ST RESPONDENT.
EXHIBIT R3(c) TRUE COPY OF THE APPROVED PLAN.
EXHIBIT R3(d) TRUE COPY OF THE LETTER DATED 1.6.2017 ISSUED BY
THE DIVISIONAL OFFICER OF FIRE & RESCUE SERVICES.
EXHIBIT R3(e) TRUE COPY OF THE SKETCH SHOWING THE PLOT WITH THE
BUILDING AND OPEN SPACES ON ALL SIDES.
EXHIBIT R3(f) TRUE COPY OF THE FINAL CERTIFICATE OF APPROVAL
DATED 7.6.2017.
ADVOCATE COMMISSIONER'S EXHIBITS:-
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EXHIBIT C1 THE MEMO DATED 25.11.2016 CONTAINING THE ACKNOWLEDGEMENT OF
RECEIPT BY THE RESPECTIVE COUNSELS.
EXHIBIT C2 TRUE COPY OF THE LINE SKETCH.
Vku/- [ true copy ]
K. Vinod Chandran, J
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W.P.(C).No.1775 of 2016-V
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Dated this the 30th day of June, 2017
JUDGMENT
The petitioner is before this Court challenging the construction carried on by respondents 3 and 4 in their property, which is adjacent to the petitioner's property.
2. For convenience, the sketch produced by respondents 3 and 4 along with their additional counter affidavit dated 27.06.2017 as Exhibit R3(e) can be referred to. The petitioner's house lies to the north-east corner of the property of respondents 3 and 4. The petitioner has his access from south to north through a pathway which he has purchased absolutely, but subject to the right of the respondent No.4 to use the pathway for access into their property also. Obviously the 4th respondent, wife, owns property lying to the east and the 3rd respondent, husband, owns property lying to the west. The husband and wife together have obtained a building permit, produced as Exhibit P1 to make a construction in the properties owned by both of them. Exhibit P1 building permit was WP(C) No.1775 of 2016 - 2 - revised and the approved plan is produced as Exhibit R3(c). The respondents 3 and 4, on the basis of the building permit, seek to construct a residential complex in the said property.
3. The petitioner's objection is with respect to sub-rules (4) and (5) of Rule 37 and Rule 112 of the Kerala Panchayat Building Rules, 2011 [for brevity "Building Rules of 2011"]. The petitioner also contends that the pathway which he has absolutely purchased cannot be annexed to the access for the building to provide for a common access into the property in which a residential complex is proposed. It is also argued that the residential complex would interfere with the petitioner's right to privacy. There is also considerable arguments addressed on Rule 112 and there being no provision for a 5 metre access on one another side abutting the road from which access to the property is maintained.
4. The learned Counsel for the respondents 3 and 4 submits that the revised plan has been approved by the Panchayat in accordance with the Building Rules of 2011 and there is no deviation effected by the respondents 3 and 4. The learned Counsel would also refer to Exhibits R3(d) and R3(e) to contend that the WP(C) No.1775 of 2016 - 3 - objection raised by the petitioner as to the 5 metre width access being not provided on two sides stand effaced by the document produced as Exhibit R3(f), issued by the Fire and Rescue Services granting certificate of approval.
5. Sub-rules (4) and (5) of Rule 37 are extracted hereunder:
"37. Access.-
xxx xxx xxx (4) No building shall be constructed so as to deprive any other building of an existing access.
(5) The space so set apart as access shall be separately distinguishable from any house gully or open space required to be provided under any other rule".
6. Admittedly the ownership of the pathway leading to the petitioner's property is subject to the right of the 4th respondent to use the said pathway. The right to so use the pathway would also be conferred on any assignee of the 4th respondent. When respondent 4 has conceded her own property to be annexed to the pathway owned by the petitioner, in which the 4th respondent has a right of way; to provide for a 5 metre width access, there can be no illegality WP(C) No.1775 of 2016 - 4 - found. Rule 37(4) as extracted above speaks of deprivation of access to an existing building by the construction of a new building. In the present case, the petitioner has not been deprived access to his building through the pathway which he owns. Sub-rule (5) of Rule 37 also does not help the petitioner insofar as the same is not applicable in the present case. The 4th respondent has laid a pathway only through his property which is annexed to the pathway in which she has a right to use. Together there is 5 metre width access to the residential complex. This Court does not find any violation of the aforesaid Rules.
7. The further contention is with respect to Rule 112 of the Building Rules of 2011, which is extracted hereunder:
"112. Open spaces.- (1) A clear motorable open space of minimum 5 metres width shall be provided for the building at the front side as well as at any one of its sides contiguous to the road abutting it, so as to facilitate fire fighting, which shall be kept free of vehicle parking or any other erections or projections thereon, other than projections of roof or weather shade or cornices of not more than 75 centimetres width.
xxx xxx xxx"
Rule 112 provides for a clear motorable open space of minimum 5 metres width for a building at the front side as well as at any one of WP(C) No.1775 of 2016 - 5 - its sides contiguous to the road abutting it. In the present case, the National Highway is on the south of the property. The entrance to the property as now laid by the respondents 3 and 4 proceeds from the south to the north through the eastern boundary of respondents 3 and 4, then it proceeds to the east and then to the south and again to the east. There is said to be an access of 5 metre width around the residential apartment built almost in the middle of the property owned by respondents 3 and 4.
8. The argument addressed by the petitioner relying on the Advocate Commissioner's report is that on the south there is no open space into the complex and this is what is prescribed under Rule 112 of the Rules. Going by the Commissioner's report and also by the sketch produced by the respondents 3 and 4, the access to the building is only through the National Highway on the southern side of the property of respondents 3 and 4. Hence, the access has to be over the entire length with a clear motorable open space of 5 metre provided contiguous to the National Highway. There has to be maintained 5 metre width pathway across the southern boundary of the respondents 3 and 4. The Commissioner in her report has WP(C) No.1775 of 2016 - 6 - noticed that at many points the pathway does not have the 5 metre open space.
9. The respondents 3 and 4 have filed an objection to the Commission Report, pointing out that there is a retaining wall constructed on a portion of the southern side of the property of respondents 3 and 4 and the same is intended to be kept open for the recreation of the persons who purchases apartments in the complex. However, that may not be sufficient, since the open space should be such that it provides free access to a vehicle across the entire length of the open space. The requirement is to ensure the passage of a fire-engine into the property with access to the entire building having multiple floors; to minimize casualties in the wake of a fire disaster. It is pertinent that the Fire and Rescue Services has ensured such provision by issuance of Exhibit R3(d) communication to the respondents 3 and 4, wherein it is specified that "the motorable open space in front and one side contiguous to the front should be a minimum of 5 meters width". Subsequent to that, the Fire and Rescue Services has also issued a Certificate of Approval, at Exhibit R3(f).
WP(C) No.1775 of 2016 - 7 -
In the above circumstances, the writ petition is dismissed only with the observation that the 5 metre width open space on the southern boundary of respondents shall be in such a manner which provide free access to a vehicle across the entire length. As to right of privacy, claimed by the petitioner this Court does not find any legal basis for such a contention. There shall be no order as to costs.
Sd/-
K.Vinod Chandran Judge.
vku/-
[ true copy ]