CHERIYATH JYOTHI versus SAINUDEEN AND ANR. on 24 April 2019

1. This appeal takes exception to the judgment and order passedby the High Court of Kerala at Ernakulam dated 4[th] March, 2015 inO.P.(C) No.1819 of 2014 (O).

2. Briefly stated, the appellant made a representation to theSecretary, Karakulam Gram Panchayath on 6[th] May, 2013, complainingthat the occupant in the neighbouring plot had erected an unauthorisedbuilding and was using the same as a Plant for making Rubber Sheets oncommercial basis. The appellant claims to be occupying House K.P.No.V/168 of the Karakulam Gram Panchayath in Survey No.43/2-1-3of Vattappara Village. The representation reads thus:

“Cheriyath Jyothi B.Sc., M.B.B.S.,‘the cloister’, nr. Rock Park,Venkode P.O., Vasttappara,thiruvanathapurm-695028.

No.jyo/cT/01 May 06, 2013.Tothe secretary, karakulam grama panchayath,karakulam P.O., Thiruvananthapuram Dt.ILLEGAL HAZARDOUS BUILDING : REQUESTDEMOLITION

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ASir,

I.I am the resident of the house KP No.V/168 of the karakulampanchayath KP No.V/168 as well as the 3.37 are plot in surveyno.43/2-1-3 of vattappara village on which it stands is fully ownedby me.

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II. this is to bring to your kind notice the existence of what Ipresume an unauthorized building being used as a plant for makingrubber sheets on a commercial basis in the plot adjacent to myresidence(skech enclosed as appendix A).

III. The above building is in complete violation of the provisionsand conditions of the Kerala Panchayath Building Rules 2011 andis a severe health hazard to those living in the vicinity (as elaboratedin Appendix B).

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IV. I feel that in the interests of the public the above structureought to be demolished.

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V. my complaints on the matter to Mr. Zain-ud-din known to bethe owner of the plant has fallen on deaf ears.

VI. in view of the above it is hereby requested of you to kindlylook into the matter and do the needful at the earliest.

Yours faithfully

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Sd.

(C.Jyothi)

Enclosures: 1. Appendix A vide para II and

2. appendix B vide para III.”

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3. That representation was placed before the Lok Adalat organisedby the Thiruvananthapuram District Legal Services Authority, underSection 19 of the Legal Services Authorities Act, 1987. The Lok Adalatpassed the following Award on 23[rd] August, 2013:

“LOK ADALAT

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Organized by the Thiruvananthapuram District Legal ServicesAuthority under Section 19 of the Legal Services Authorities Act(Act 39 of 1987)

THIS THE 23[RD] DAY OF AUGUST, 2013

CHERIYATH JYOTHI v. SAINUDEEN AND ANR.[A. M. KHANWILKAR, J.]

Name of Judicial Officer: V. ThulseedharanName of member : N. GopakumarName of member : V. Maya LOK ADALAT CASE No. PL No.2746 of 2013.

From the court/tribunal of

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plaintiff

petitionerclaimantVs.Sainuddin,

Dr. Cheriyath Jyothi

Rock park, Vengode Rock Park, Vengode Defendant/Respondent

Referred under section 20(1) (i) a/20 (1) (i) (b)/20(1) (ii)of the Legal Services Authorities Act (Act 39 of 1987).

This cause referred to the Lok Adalath organized by theThiruvananthapuram District Legal Services Authority underSection 19 of the Legal Services Authorities Act (Act 39 of 1987),coming on before us for endeavours for settlement of the disputebetween the parties, being subject matter of this cause, in thepresence of the parties and their counsel, and after a full andfrank discussion of all issues factual and legal arising from thecause, the parties having agreed before us that there shall be anaward / order / decree in terms of settlement hereto made andthe parties and their counsel herein having, in acceptance of thesame signed this in our presence, it is decreed / ordered:- Both parties present. Respondent ready to demolish theexisting building possessing the rubber sheeting machinerywithin a period of 3 months. Failing which the petitionermay approach the appropriate authority for executing theaward.

(sd.)(sd.) (sd.)JUDICIAL OFFICER MEMBER MEMBER

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808SUPREME COURT REPORTS

[2019] 6 S.C.R.

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Plaintiff/PetitionerClaimant/Appellant

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Defendant/Respondent

B Counsel for

Plaintiff/PetitionerClaimant/Appellant

Counsel for

Defendant/Respondent”

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(emphasis supplied)

4. Notably, from the original order sheet it is noticed that, initially,the description of the property belonging to the respondent was given as“temporary shed”, which was struck of and instead, was described as“existing building”. Be that as it may, the appellant then approached theDCourt of Principal Munsif, Nedumangad, by way of E.P. No.10/2014 inPL No.2726/2013 for executing the award passed by the Lok Adalat.The Executing Court accepted the grievance of the appellant and issueddirections for removal of the structure in the neighbouring plot belongingto the respondent. The operative order passed by the Court of PrincipalEMunsif reads thus:

“6. Thus the circumstances under which the petitioner filed thispetition before the Lok Adalath and circumstances under whichthe award was passed reveal that what was intended by the partiesis nothing but to demolish it for ever. Admittedly the structure wasnot demolished. That was born out from the photographs producedin this case. In such circumstances I find that the award is to beexecuted through process of court. The decree holder has to takenecessary steps for executing the award and arrange men andmachinery to execute the award.

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Amin is directed to execute award on 22/07/2014 and file reportbefore Court on 23/07/2014.”

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5. The respondent assailed the said order before the High Court,inter alia contending that after the award was passed by the Lok Adalat,he had demolished the “temporary shed”, a position which was verifiedby the Panchayat authorities. He has placed reliance on photographs in H

support of this plea. The respondent asserted that he had thereafterapplied for permission to construct the structure as per the prescribednorms, and pursuant to the building plan submitted by him, the same wasapproved by the competent authority and permit came to be issued on9[th] October, 2013. The respondent asserts that he was permitted toconstruct the new shed, having plinth area of 9.49 Sq.Mts., after leavingstatutory open space, as provided in the approved plan. In conformitywith the said approved plan, the respondent constructed a new structurewhich was compliant with the requirements specified as per the permitissued in his favour in that regard. The stand taken by the respondentfound support from the affidavit filed by the Secretary, Karakullam GramPanchayat, Nedumangad, Thiruvalla. The relevant portion of the saidaffidavit filed on 9[th] January, 2015, on behalf of the Panchayat, readsthus:

“3. It is submitted that as per the above Ext.P3 order petitionerdemolished the existing building and applied for a building permitto construct 9.49 sq. meter of building. The plan submitted by thepetitioner was approved and Ext.P7 permit was issued. As perthe Ext.P7 a petitioner constructed the building in accordancewith the approved plan and permit. The construction was madeby the petitioner in accordance with the approved plan and permitissued by the 2[nd] Respondent. The 2[nd] Respondent has not notedany violation of the provisions of the Kerala Panchayath BuildingRules, 2011 in the construction, and hence the above building wasnumbered as K.P. 11/982-A. In Ext. P7 permit there was a mistakethat instead of stating commercial purpose it were mistakenlystated as residential purpose. When it was brought into the noticeof this respondent, it was rectified as commercial purpose by orderdated 1.12.2014.

4. It is submitted that E.P.No.10/2014 was filed by the 1[st]Respondent to execute the award of Lok Adalat in PL No.2746/2013. This Respondent is not a party in the above E.P. And hencethis respondent is not aware of the Ext. P10 order. Since thisRespondent is not a party to the above E.P. proceedings, thisRespondent could not bring the correct facts to the notice of theMunsiff Court, Nedumangaud.

5. Under the above circumstances this Hon’ble Court may bepleased to accept this statement and order accordingly.”

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6. Since the appellant contested the factual position stated by therespondent, as well as mentioned in the affidavit filed on behalf of thePanchayat, the High Court deemed it appropriate to appoint an AdvocateCommissioner. The Advocate Commissioner visited the site and submittedhis report on 18[th] February, 2015, which reads thus:

“BEFORE THE HONOURABLE HIGH COURT OFKerala AT ERNAKULAMO.P. (c) 1819 OF 2014

Report and rough sketch submitted by Advocate M.M. Bashiras per the order of the Hon’ble family court Nedumangadu in EPNo.10/2014 dated 11.2.2015.

As per the order of the Hon’ble Family Court Nedumangadudirecting me to prepare a sketch and to submit a report regardingthe building in question and also the activities being carried onthere. I have visited the disputed property on 13.02.2015 forexecuting the order of the Hon’ble court at about 3:30 PM withthe presence of both the parties and filing this report with truesense. The disputed property is situated in Vattappara village whichis 5kms far from the Nedumangad court center.

I have prepared a rough plan regarding the disputed propertyand mentioned the disputed building as (1). The disputed buildingis a new one when I was visited the property and having an ageof nearly 1.5 years and not working for the same period. Thebuilding was made with the permission of the Karakulam GramaPanchayath. The property if the respondent is lying on the westernside of the disputed building. Separating these two properties acompound wall is there which is constructed of granite and cementhollow bricks having a height of 1.70 meters.

The disputed building is a shed constructed by granite and cementhollow bricks with oralium sheet roof which is used for RubberSheet making. In the shed there are two rubber sheet makingmachines are fixed and made an open waste water canal whichis going to the bio gas tank. The said tank is having an age ofmore than 25 years. The difference between the bio gas tank andthe disputed shed is 3.70 meters. The shed is situated in thepetitioner’s property having a difference of 1.25 meters on the north-western side and 2.10 meters on the south-western sidefrom the property of the respondent. There is compound wallseparating the properties of the petitioner and the respondent.The temporary residential structure of the respondent is situated2.35 meters far from the above compound wall. At the time of myvisit it is very well noted that there is no harm to the respondentdue to the non working of the disputed shed. It is presume thatthere will be no damage or harm to the respondent at the presentstage. The property of the petitioner is filled with yielding rubberwhich is not taking yield for the last 1.5 years. The number oftrees is nearly 50.

This report is submitting before Hon’ble family courtnedumangad along with order and the rough plan.

Dated this the 18[th] day of February 2015.

Advocate Commissioner”

7. Indeed, the appellant contested the correctness of the saidreport. However, the High Court after taking into account the relevantmaterial and including the report submitted by the Advocate Commissioner,concluded that the purport of the award passed by the Lok Adalat didnot preclude the respondent from constructing a new structure aftertaking due permission from the competent authority in that regard. TheHigh Court rejected the argument of the appellant that the award was inthe nature of a permanent prohibition from putting up any constructionon the plot occupied by the respondent. Having so held, the High Court,taking note of the apprehension of the appellant that the respondent maystart operating Rubber Sheet-making machinery, which would inevitablycause air and water pollution, granted liberty to the appellant to takerecourse to the remedy as may be permissible in law. The High Courtalso observed that such proceedings be decided on its own merits and inaccordance with law. The view so taken by the High Court is the subjectmatter of challenge in this appeal.

8. The appellant has argued the matter in person. Although therespondents have been served and respondent No.2 is represented throughcounsel, none appeared when the matter was called out for hearing.

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A9. We have considered the relevant material placed on recordand on considering the same in its proper perspective, we find no reasonto interfere with the final conclusion recorded by the High Court inallowing the writ petition and setting aside the order passed by theExecuting Court. As noticed from the representation submitted by theappellant to the Gram Panchayath, the core grievance was with regardBto the unauthorised structure erected on the plot occupied by therespondent and which was being used as a Plant for making RubberSheets on a commercial basis. The grievance essentially was that thestructure was in complete violation of the provisions and conditions ofthe Kerala Panchayath Building Rules, 2011 and also contributed to severeChealth hazards to those living in the vicinity. However, the Panchayathwas essentially concerned with the unauthorised structure erected onthe subject plot by respondent No.1. That grievance stood redressed bythe award passed by the Lok Adalat recording the assurance given byrespondent No.1 that he would demolish the existing structure within aperiod of three months. The fact that the structure, as it existed on theDdate of making of the award, was removed by respondent No.1 isreinforced from the stand taken by the Panchayath in its affidavit.Furthermore, respondent No.1 admittedly, constructed a new buildingon the same plot after taking prior permission of the competent authorityin that regard, which presupposes that the structure as existed thereat inEAugust, 2013 was removed, without which the new building could nothave been erected. The fact that permit was granted to respondent No.1to construct the new building is not only supported by the permit dated9[th] October, 2013 (Annexure-P8), but also from the affidavit filed onbehalf of the Gram Panchayath dated 9[th] January, 2015 and includingthe factual position stated in the report of the Advocate CommissionerFdated 18[th] February, 2015.

10. The moot question is the width of the award passed by theLok Adalat dated 23[rd] August, 2013. It is, in our opinion, obviously limitedto removal of the existing structure on the stated plot occupied byrespondent No.1 within three months. That structure, as aforesaid, cameGto be removed, which fact is reinforced from the circumstances discussedhitherto. The Executing Court, however, erroneously opined that thestructure, as it existed at the time of making of the award, was still notdemolished. That finding is in the teeth of the documentary evidenceand the assertions made on affidavit by respondent No.1 as well as theHGram Panchayath and including the factual position mentioned in the report of the Advocate Commissioner. The High Court rightly rejectedthe argument of the appellant that the effect of the award was tocompletely prohibit putting up of any structure/building on the stated plotoccupied by respondent No.1, irrespective of the permission granted bythe competent authority in that regard. The High Court was right inobserving that whether respondent No.1 had constructed the structureas per the permit was a matter to be considered by the competentauthority who had issued such a permit and it would be open to theappellant to approach that authority for appropriate reliefs, if so advised.Similarly, insofar as the nuisance likely to be caused to the appellant dueto the activities of the respondent in the form of air pollution, waterpollution, noise pollution or any other infringement of right, the appellantmust take recourse to the appropriate remedy in that regard. Further,those proceedings will have to be decided on its own merits. The viewso taken by the High Court is, in our opinion, unexceptional.

11. We hold that the scope of the award was limited to removal ofthe structure as it existed at the relevant time. No direction has beenissued to respondent No.1 to forebear from carrying on his legitimateactivities, including business activities, from the stated plot occupied byhim. If the activities of the respondent are in violation of any law orregulation, it would be open to the appellant to approach the concernedstatutory authority or appropriate forum and seek relief in that regard asper law. Thus, we find no infirmity in the impugned judgment of the HighCourt.

12. In view of the above, this appeal is dismissed but with theobservations made hitherto. No order as to costs.

All applications are also disposed of.

Kalpana K. Tripathy

Appeal dismissed.

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