Kerala High Court
G.Ashokan vs P.Sujathan on 27 August, 2025
2025:KER:65800
W.P.(C).Nos.18195 of 2010 & 780 of 2011
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE S.MANU
WEDNESDAY, THE 27TH DAY OF AUGUST 2025 / 5TH BHADRA, 1947
WP(C) NO. 18195 OF 2010
PETITIONER:
P.SUJATHAN
S/O.PADMANABHAN
P.S.HARDWARES, MARKET ROAD, ATTINGAL, PIN-695101.
BY ADV SHRI.S.SOMAN
RESPONDENTS:
1 G.ASOKAN,
DHANYA HARDWARES,MARKET ROAD, ATTINGAL, PIN 695101.
2 THE SECRETARY,
ATTINGAL MUNICIPALITY
MUNICIPAL OFFICE, ATTINGAL.
3 THE ATTINGAL MUNCIPALITY REPRESENTED
BY ITS SECRETARY, MUNICIPAL OFFICE, ATTINGAL.
4 THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS,
TRIDA BUILDING, MEDICAL COLLEGE P.O.,
THIRUVANANTHAPURAM.
5 STATE OF KERALA REPRESENTED BY ITS
PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT
DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM.
2025:KER:65800
W.P.(C).Nos.18195 of 2010 & 780 of 2011
2
BY ADVS.
SHRI.SIJU KAMALASANAN, SC, ATTINGAL MUNICIPALITY
SRI.AYYAPPAN SANKAR
SMT.NITA.N.S.
SRI.S.SUJIN
OTHER PRESENT:
ADV RASHMI K M, SR.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
27.08.2025, ALONG WITH WP(C).780/2011, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2025:KER:65800
W.P.(C).Nos.18195 of 2010 & 780 of 2011
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE S.MANU
WEDNESDAY, THE 27TH DAY OF AUGUST 2025 / 5TH BHADRA, 1947
WP(C) NO. 780 OF 2011
PETITIONER:
G.ASHOKAN
S/O.GOPALAN,
JYOTHI NIVAS, ATTINGAL, PIN-695101,
THIRUVANANTHAPURAM DISTRICT.
BY ADVS.
SRI.N.N.SUGUNAPALAN (SR.)
SHRI.V.JOHN MANI
SMT.NITA.N.S.
SRI.S.SUJIN
RESPONDENTS:
1 P.SUJATHAN
M/S.P.S.HARDWARES, MARKET ROAD, ATTINGAL, PIN-695101.
2 ATTINGAL MUNICIPALITY MUNICIPAL OFFICE
ATTINGAL, PIN-695101., REPRESENTED BY ITS SECRETARY.
3 STATE OF KERALA REPRESENTED BY
CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
BY ADVS.
SHRI.SIJU KAMALASANAN, SC, ATTINGAL MUNICIPALITY
SHRI.MOHAN C.MENON
ADV RASHMI K M, SR.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
27.08.2025, ALONG WITH WP(C).18195/2010, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
2025:KER:65800
W.P.(C).Nos.18195 of 2010 & 780 of 2011
4
S.MANU, J.
--------------------------------------------------
W.P.(C).Nos.18195 of 2010 & 780 of 2011
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Dated this the 27th day of August, 2025
JUDGMENT
Subject matter of this litigation is construction of a building happened in 1996. In both writ petitions an order passed by the Tribunal for Local Self Government Institutions is under challenge. As the parties are common and the challenge is also common these writ petitions were heard together and are being disposed of by this common judgment. Parties are referred in this judgment as per the cause title in W.P.(C)No.18195/2010. Reference to the documents, unless otherwise specified, is also in the order in which they are marked in W.P.(C)No.18195/2010.
2. Petitioner and the 1st respondent are neighbouring property owners. When the respondent attempted to construct building on the eastern boundary wall of the petitioner, the 2025:KER:65800 W.P.(C).Nos.18195 of 2010 & 780 of 2011 5 petitioner approached this Court in O.P.No.13808/1996. Allegedly in defiance to the orders of this Court on 16.11.1996 from 10 pm to 5 am, the 1st respondent conducted construction activities over the eastern boundary wall of the petitioner. Petitioner thereafter approached this Court in O.P.No.18876/96. This Court deputed an Advocate Commissioner who filed a report on 5.12.1996. During the pendency of the writ petition the 1st respondent approached the Government for regularization and exemption. Taking note of the said development the original petition was disposed of. Government thereafter passed an order on 31.12.2005, produced as Ext.P5. Government accorded sanction to the Secretary of the respondent Municipality to regularize the unauthorised construction of first floor to the existing building of the 1 st respondent subject to the following conditions:-
i) Car parking space required as per KMBR 99 should be provided in the site. The Municipality should ensure the possibility of vehicle parking in the site.
2025:KER:65800 W.P.(C).Nos.18195 of 2010 & 780 of 2011 6
ii) Set back of 3 M should be provided in the side adjoining to the road. If 3M set back is not available, necessary demolition should be done to get the required set back.
iii) Consent from the owners of the nearby site should be obtained and produced before the local body; otherwise necessary portion of the building should be demolished in both sides so as to get 75 cm set back.
iv) An amount of Rs.27,000/- (Rupees Twenty seven
thousand only) should be remitted as
compounding fee for the regularisation.
v) The regularisation should be subject to the final result of O.P.No.6615/2000 pending before the Hon'ble High Court.
3. Though the 1st respondent sought a review of Ext.P5 order that was rejected by the Government. The Secretary of the respondent Municipality proceeded by issuing a notice to the 1st respondent. First respondent then approached this Court in W.P.(C)No.845/2007. It was later withdrawn on 22.9.2008. Thereafter, the Secretary heard both sides and passed Ext.P8 2025:KER:65800 W.P.(C).Nos.18195 of 2010 & 780 of 2011 7 order on 26.12.2008 directing the 1st respondent to demolish a portion of the first floor of the building so as to keep open space of 75 cm. from the western boundary. First respondent challenged the said order in Appeal No.33/2009 filed before the Tribunal for LSG Institutions. The Tribunal set aside Ext.P8 order and directed the Secretary to make proper local inspection with respect to the approved permits and plans and to verify whether there are any unauthorised or illegal constructions and to initiate proceedings under Section 406 of the Kerala Municipality Act,1994, if there are illegal constructions or to pass a reasoned order explaining as to why proceedings need not be initiated. The Secretary again heard the parties after making an inspection and verification. On 6.8.2009, order was passed directing the 1st respondent to demolish and remove the unauthorised construction.
4. The 1st respondent approached the Tribunal for the second time in Appeal No.754/2009 against the order issued by 2025:KER:65800 W.P.(C).Nos.18195 of 2010 & 780 of 2011 8 the Secretary. The appeal was allowed on 8.10.2009 by setting aside the order of the Secretary. The Secretary was directed to strictly follow the directions issued in the order passed in Appeal No.33/2009. Thus, the matter again came back to the table of the Secretary of Municipality. The Secretary considered the matter once again and passed an order on 15.12.2009. The Secretary directed to demolish the first floor of the building constructed illegally. First respondent again rushed to the Tribunal and filed Appeal No.21/2010. In the said third round of litigation before the Tribunal the order impugned in this writ petition, Ext.P18, was passed on 4.5.2010.
5. In Ext.P18, the Tribunal held that while disposing of the application for regularization submitted by the 1st respondent and later while rejecting his application for review, the Government had mentioned that the Municipality should satisfy itself as to whether there was consent and had directed the Municipality to proceed accordingly. The Tribunal found fault 2025:KER:65800 W.P.(C).Nos.18195 of 2010 & 780 of 2011 9 with the Secretary and held that satisfaction of the Secretary was not sufficient but the satisfaction of the Municipality was required. The Tribunal accepted the 1 st respondent's contention that the Secretary went wrong in directing demolition of the entire first floor of the building and held that the Government had directed demolition of only a 75 cm portion of the first floor on both sides. Tribunal further held that the Secretary passed the order without providing opportunity to the 1 st respondent to satisfy the Municipal Council that the neighbours, at the time of granting of the permit, had given consent for making the construction extending up to the boundary. The Tribunal finally set aside the order of the Secretary again and directed that the 1st respondent shall be given reasonable opportunity to satisfy the Municipality that the neighbours had given consent for construction abutting the boundary. Petitioner in W.P. (C)No.18195/2010 is aggrieved by the order passed by the Tribunal and he contends that the Tribunal instead of remitting 2025:KER:65800 W.P.(C).Nos.18195 of 2010 & 780 of 2011 10 the matter to the Secretary once again should have passed order on merits as entire materials were available with the Tribunal. Petitioner asserts that the Tribunal ought to have dismissed the revision petition and upheld the order passed by the Secretary of the Municipality directing demolition of the first floor of the building. On the other hand, the petitioner in W.P. (C)No.780/2011 contends that the Tribunal ought to have allowed the revision petition by setting aside the order of the Secretary .
6. Heard Sri.S.Soman, learned counsel appearing for the petitioner in W.P.(C)No.18195/2010 and Sri.N.N.Sugunapalan, learned Senior Counsel appearing for the petitioner in W.P.(C)No.780/2011. The learned Government Pleader as well as the learned Standing Counsel for the Municipality were also heard.
7. After several rounds of litigation including three appeals before the Tribunal the controversy has now narrowed 2025:KER:65800 W.P.(C).Nos.18195 of 2010 & 780 of 2011 11 down to a question, whether consent of the predecessor-in- interest of the petitioner in W.P.(C)No.18195/2010 was obtained by the 1st respondent for constructing the building abutting the boundary of his property on the eastern side. In Ext.P5 order passed by the Government permitting regularisation, as condition No.3 the Government insisted that consent from the owners of the nearby site should be obtained and produced before the local body. Further it was directed that in case of failure to produce consent, necessary portion of the building should be demolished on both sides so as to get 75 cm. set back. Admittedly, the 1st respondent could not produce copy of the consent or any document obtained from the predecessor-in- interest of the petitioner in this regard at any point of time before the authorities of the Municipality or the Tribunal or this Court. The Municipality states that records are not now available with them. Therefore, now it is clear that copy of the consent if any, is not available either with the petitioner or with the 2025:KER:65800 W.P.(C).Nos.18195 of 2010 & 780 of 2011 12 Municipality. Hence, the question as to whether there was consent or not can be examined only by analysing other relevant materials. The petitioner vehemently asserts that the case regarding consent was developed in defence by the 1 st respondent and no such consent was given to his knowledge by the predecessor-in-interest. On the other hand, the learned Senior Counsel for the petitioner by making extensive reference to the counter affidavit filed by the Municipality in an earlier round of litigation and some other documents, submitted that consent of the predecessor-in-interest of the petitioner can be safely inferred and hence construction abutting the eastern boundary of the petitioner was perfectly legal. He also submitted that the delay on the part of the petitioner in raising objection for a long period after he purchased the property, though the building with a single floor was existing there, shows that he was actually aware of the consent given by the previous owner of the property.
2025:KER:65800 W.P.(C).Nos.18195 of 2010 & 780 of 2011 13
8. Both sides are dissatisfied with the decision of the Tribunal to remit the matter. The Tribunal had sent back the matter to the Secretary on two previous occasions. In the third round, strangely, the Tribunal held that it was not for the Secretary to consider the matter as the Government had mentioned about satisfaction of the Municipality when it disposed of the application for regularization submitted by the 1st respondent. The said reasoning of the Tribunal was fallacious. The provisions of the Municipality Act dealing with buildings contained in Chapter XVIII of the Municipality Act makes it clear that the authority of the Municipality to consider matters related to construction of buildings is primarily the Secretary. The Municipal Council has been endowed with certain powers under Section 392. All other functions under the various provisions of the Chapter XVIII are to be discharged by the Secretary. Therefore, the conclusion of the Tribunal that satisfaction of the Municipality was required and hence the matter should be 2025:KER:65800 W.P.(C).Nos.18195 of 2010 & 780 of 2011 14 considered by the Municipal Council is not sustainable in view of the provisions of the Act. Moreover, it is inconsistent with two previous orders passed by the same Tribunal.
9. In my view, taking into account the fact that the disputes arose as long ago as in 1996 and that the parties were before the Tribunal for the third time, instead of remitting the matter again to the Municipality, the Tribunal ought to have examined whether it could be determined from the available materials if there was consent by the predecessor-in-interest of the petitioner for making constructions abutting the eastern boundary of his property. The Tribunal, which is empowered to permit the parties to adduce evidence and render findings on facts, ought to have resolved the issue instead of remitting the matter again. Both sides have sought to set aside the order passed by the Tribunal in these writ petitions.
10. In view of the above discussion, I am of the opinion that the impugned order is liable to be set aside and the 2025:KER:65800 W.P.(C).Nos.18195 of 2010 & 780 of 2011 15 revision petition is liable to be restored for fresh consideration by the Tribunal. Hence, I dispose of both writ petitions as under:-
(i) The order passed by the Tribunal for Local Self Government Institutions in Appeal No.21/2010 is set aside.
(ii) Appeal No.21/2010 is restored to the files of the Tribunal.
(iii) The Tribunal shall address the issue as to whether there was consent of the previous owner of the property of the petitioner in W.P. (C)No.18195/2010 enabling the 1st respondent in the said writ petition to construct building abutting the eastern boundary of the property of the petitioner from available materials.
(iv) The Tribunal shall permit both sides to address arguments and to adduce evidence on the above issue.
2025:KER:65800 W.P.(C).Nos.18195 of 2010 & 780 of 2011 16
(v) The Tribunal shall pass orders in the appeal within a period of six months from the date of production of a copy of this judgment by any of the parties. The order dated 15.12.2009 issued by the Secretary of the Municipality which was under challenge in the appeal shall be kept in abeyance till final orders are pronounced by the Tribunal.
Writ Petitions are disposed of as above.
Sd/-
S.MANU JUDGE skj 2025:KER:65800 W.P.(C).Nos.18195 of 2010 & 780 of 2011 17 APPENDIX OF WP(C) 18195/2010 PETITIONER'S EXHIBITS EXHIBIT P1 COPY OF THE ORDER DTD.13.11.96 IN CMP 24340/96 IN OP 13808/96 OF THIS COURT EXHIBIT P2 COPY OF THE JUDGMENT DTD.13.11.96 IN OP 13808/96 EXHIBIT P3 COPY OF THE COMMISSION REPORT DTD.5.12.96 IN OP 18876/96 EXHIBIT P4 COPY OF THE JDUGMENT DTD.20.7.2005 IN OP 18876/96 EXHIBIT P5 COPY OF THE GOVT.ORDER DTD.31.12.2005 EXHIBIT P6 COPY OF THE ORDER DTD.8.12.2006 DISMISSING THE REVIEW PETITION FILED BY 1st RESPONDENT AGAINST P5.
EXHIBIT P7 COPY OF THE JUDGMENT DTD.22.9.2008 IN IA NO.10800/2008 IN WP(C)No.845/2007 EXHIBIT P8 COPY OF ORDER DTD.26.12.2008 OF THE 2 nd RESPONDENT EXHIBIT P9 COPY OF THE ORDER DTD.20.3.2009 OF THE 5th RESPONDENT TRIBUNAL IN APPEAL NO.33/2009 OF THE TRIBUNAL EXHIBIT P10 COPY OF THE ORDER DTD.6.8.2009 OF THE 2nd RESPONDENT EXHIBIT P11 COPY OF THE ORDER DTD.8.10.2009 OF 4 th RESPONDENT IN APPEAL No.754/2009.
EXHIBIT P12 COPY OF THE ORDER DTD.15.12.2009 OF 2 nd RESPONDENT EXHIBIT P13 COPY OF THE STAY ORDER DTD.8.1.2010 OF 4th RESPONDENT TRIBUNAL IN IA 27/2010 IN APPEAL No.21/2010 EXHIBIT P14 COPY OF THE RELEVANT PORTION OF THE FILE NOTINGS DTD.3.12.2005 OF THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM EXHIBIT P15 COPY OF THE LETTER DTD.27.5.1997 ISSUED BY 2025:KER:65800 W.P.(C).Nos.18195 of 2010 & 780 of 2011 18 THE SECRETARY TO GOVT. TO THE 2nd RESPONDENT SHOWING THE BUILDING CONSTRUCTION IS UNAUTHORIZED EXHIBIT P16 COPY OF THE CERTIFICATE DTD.20.7.2004 OF THE 2nd RESPONDENT EXHIBIT P17 COPY OF THE REPLY DTD.2.1.2007 FROM THE PRINCIPAL SECRETARY OF LOCAL SELF GOVERNMENT DEPARTMENT EXHIBIT P18 COPY OF THE ORDER DTD.4.5.2010 OF 4 th RESPONDENT IN APPEAL No.21/2010.
RESPONDENT'S EXHIBITS Exhibit R1(a) . TRUE COPY OF THE COMMUNICATION DATED 26/11/2024 OF THE TAHASILDAR (LR).
Exhibit R1(b) TRUE COPY OF THE EXTRACT OF THE THANDAPER REGISTER.
Exhibit R1(c) TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER ATTINGAL- AVANANVANCHERRY DATED 21/03/2025.
Exhibit R1(d) TRUE COPY OF THE REPLY DATED 23/04/2025 OF THE TAHASILDAR, CHIRYANKEEZH TO SMT.LAILA.
2025:KER:65800 W.P.(C).Nos.18195 of 2010 & 780 of 2011 19 APPENDIX OF WP(C) 780/2011 PETITIONER'S EXHIBITS Exhibit P1 COPY OF THE BUILDING PERMIT DTD.21.6.1985 ISSUED BY THE RESPONDENT MUNICIPALITY TO THE PETITIONER.
Exhibit P2 COPY OF THE COUNTER AFFIDAVIT FILED BY
THE 2nd RESPONDENT MUNICIPALITY IN
O.P.NO.13808/1996 OF THIS COURT.
Exhibit P3 COPY OF THE ADDITIONAL COUNTER
AFFIDAVIT FILED BY THE 2nd RESPONDENT
MUNICIPALITY IN O.P.NO.13808/1996 OF THIS COURT.
Exhibit P4 COPY OF THE INTERIM ORDER DTD.13.11.1996 IN O.P.NO.13808/1996 OF THIS COURT.
Exhibit P5 COPY OF THE JUDGMENT DTD.13.11.1996 IN O.P.NO.13808/1996 OF THIS COURT.
Exhibit P6 COPY OF THE STATEMENT MADE BY THE OWNER OF THE PROPERTY ON THE EASTERN SIDE OF THE PETITIONER'S PROPERTY.
Exhibit P7 COPY OF THE ORDER DTD.31.12.2005 VIDE GO.(Rt)No.5198/2005/LSGD dtd.31.12.2005.
Exhibit P8 COPY OF THE ORDER DTD.8.12.2006 ISSUED BY THE GOVERNMENT.
Exhibit P9 COPY OF THE ORDER No.PW-2-3334/00
DTD.17.11.2006 ISSUED BY THE
GOVERNMENT.
Exhibit P10 COPY OF THE NOTICE DTD. 22.12.2006
ISSUED BY THE MUNICIPALITY.
Exhibit P11 COPY OF THE REPLY TO EXT.P10 FILED BY
THE PETITIONER BEFORE THE MUNICIPALITY. Exhibit P12 COPY OF THE CLARIFICATION DTD.11.9.2006 GIVEN BY THE LAW DEPARTMENT OF THE 2025:KER:65800 W.P.(C).Nos.18195 of 2010 & 780 of 2011 20 MUNICIPALITY.
Exhibit P13 COPY OF THE ORDER OF REJECTION
DTD.5.1.2007 ISSUED BY THE
MUNICIPALITY.
Exhibit P14 COPY OF THE JUDGMENT DTD.22.9.2008 IN
W.P.(C)No.845/2007 OF THIS COURT.
Exhibit P15 TRUE COPY OF THE ORDER DATED 4.05.2010
IN APPEAL NO.21 OF 2010 ON THE FILE OF
THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS.