Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1424 OF 2016
Cheriyath Jyothi … Appellant(s)
:Versus:
Sainudeen and Anr. … Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. This appeal takes exception to the judgment and order
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passed by the High Court of Kerala at Ernakulam dated 4
March, 2015 in O.P.(C) No.1819 of 2014 (O).
2. Briefly stated, the appellant made a representation to the
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Secretary, Karakulam Gram Panchayath on 6 May, 2013,
complaining that the occupant in the neighbouring plot had
erected an unauthorised building and was using the same as a
Plant for making Rubber Sheets on commercial basis. The
Signature Not Verified
appellant claims to be occupying House K.P. No.V/168 of the
Digitally signed by
NEETU KHAJURIA
Date: 2019.04.24
17:33:49 IST
Reason:
Karakulam Gram Panchayath in Survey No.43/213 of
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Vattappara Village. The representation reads thus:
“Cheriyath Jyothi B.Sc., M.B.B.S.,
‘the cloister’, nr. Rock Park,
Venkode P.O., Vasttappara,
thiruvanathapurm695028.
No.jyo/cT/01
May 06, 2013.
To
the secretary, karakulam grama panchayath,
karakulam P.O., Thiruvananthapuram Dt.
ILLEGAL HAZARDOUS BUILDING : REQUEST DEMOLITION
Sir,
I. I am the resident of the house KP No.V/168 of the
karakulam panchayath KP No.V/168 as well as the 3.37 are
plot in survey no.43/213 of vattappara village on which it
stands is fully owned by me.
II. this is to bring to your kind notice the existence of
what I presume an unauthorized building being used as a
plant for making rubber sheets on a commercial basis in the
plot adjacent to my residence(skech enclosed as appendix A).
III. The above building is in complete violation of the
provisions and conditions of the Kerala Panchayath Building
Rules 2011 and is a severe health hazard to those living in
the vicinity (as elaborated in Appendix B).
IV. I feel that in the interests of the public the above
structure ought to be demolished.
V. my complaints on the matter to Mr. Zainuddin
known to be the owner of the plant has fallen on deaf ears.
VI. in view of the above it is hereby requested of you to
kindly look into the matter and do the needful at the earliest.
Yours faithfully
Sd.
(C.Jyothi)
Enclosures: 1. Appendix A vide para II and
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2. appendix B vide para III.”
3. That representation was placed before the Lok Adalat
organised by the Thiruvananthapuram District Legal Services
Authority, under Section 19 of the Legal Services Authorities
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Act, 1987. The Lok Adalat passed the following Award on 23
August, 2013:
“LOK ADALAT
Organized by the Thiruvananthapuram District Legal
Services Authority under Section 19 of the Legal Services
Authorities Act (Act 39 of 1987)
RD
THIS THE 23 DAY OF AUGUST, 2013
Name of Judicial Officer : V. Thulseedharan
Name of member : N. Gopakumar
Name of member : V. Maya
LOK ADALAT CASE No. PL No.2746 of 2013.
From the court/tribunal of
No.
plaintiff
petitioner
claimant
Dr. Cheriyath Jyothi Vs. Sainuddin,
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
the Thiruvananthapuram District Legal Services Authority
under Section 19 of the Legal Services Authorities Act (Act
39 of 1987), coming on before us for endeavours for
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settlement of the dispute between the parties, being subject
matter of this cause, in the presence of the parties and their
counsel, and after a full and frank discussion of all issues
factual and legal arising from the cause, the parties having
agreed before us that there shall be an award / order /
decree in terms of settlement hereto made and the parties
and their counsel herein having, in acceptance of the same
signed this in our presence, it is decreed / ordered:
Both parties present. Respondent ready to demolish
the existing building possessing the rubber sheeting
machinery within a period of 3 months. Failing which
the petitioner may approach the appropriate authority
for executing the award.
(sd.) (sd.) (sd.)
JUDICIAL OFFICER MEMBER MEMBER
(sd.) (sd.)
Plaintiff/Petitioner Defendant/Respondent
Claimant/Appellant
Counsel for
Plaintiff/Petitioner
Claimant/Appellant Counsel for
Defendant/Respondent”
(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 the Court of Principal
Munsif, Nedumangad, by way of E.P. No.10/2014 in PL
No.2726/2013 for executing the award passed by the Lok
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Adalat. The Executing Court accepted the grievance of the
appellant and issued directions for removal of the structure in
the neighbouring plot belonging to the respondent. The
operative order passed by the Court of Principal Munsif reads
thus:
“6. Thus the circumstances under which the petitioner filed
this petition before the Lok Adalath and circumstances
under which the award was passed reveal that what was
intended by the parties is nothing but to demolish it for ever.
Admittedly the structure was not demolished. That was born
out from the photographs produced in this case. In such
circumstances I find that the award is to be executed
through process of court. The decree holder has to take
necessary steps for executing the award and arrange men
and machinery to execute the award.
Amin is directed to execute award on 22/07/2014 and
file report before Court on 23/07/2014.”
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 verified by the Panchayat authorities. He
has placed reliance on photographs in support of this plea.
The respondent asserted that he had thereafter applied for
permission to construct the structure as per the prescribed
norms, and pursuant to the building plan submitted by him,
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the same was approved by the competent authority and permit
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came to be issued on 9 October, 2013. The respondent
asserts that he was permitted to construct the new shed,
having plinth area of 9.49 Sq.Mts., after leaving statutory open
space, as provided in the approved plan. In conformity with
the said approved plan, the respondent constructed a new
structure which was compliant with the requirements
specified as per the permit issued in his favour in that regard.
The stand taken by the respondent found support from the
affidavit filed by the Secretary, Karakullam Gram Panchayat,
Nedumangad, Thiruvalla. The relevant portion of the said
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affidavit filed on 9 January, 2015, on behalf of the
Panchayat, reads thus:
“3. It is submitted that as per the above Ext.P3 order
petitioner demolished the existing building and applied for a
building permit to construct 9.49 sq. meter of building. The
plan submitted by the petitioner was approved and Ext.P7
permit was issued. As per the Ext.P7 a petitioner
constructed the building in accordance with the approved
plan and permit. The construction was made by the
petitioner in accordance with the approved plan and permit
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issued by the 2 Respondent. The 2 Respondent has not
noted any violation of the provisions of the Kerala
Panchayath Building Rules, 2011 in the construction, and
hence the above building was numbered as K.P. 11/982A.
In Ext. P7 permit there was a mistake that instead of stating
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commercial purpose it were mistakenly stated as residential
purpose. When it was brought into the notice of this
respondent, it was rectified as commercial purpose by order
dated 1.12.2014.
4. It is submitted that E.P.No.10/2014 was filed by the
st
1 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 hence this respondent is not aware of the Ext. P10
order. Since this Respondent is not a party to the above E.P.
proceedings, this Respondent could not bring the correct
facts to the notice of the Munsiff Court, Nedumangaud.
5. Under the above circumstances this Hon’ble Court
may be pleased to accept this statement and order
accordingly.”
6. Since the appellant contested the factual position stated
by the respondent, as well as mentioned in the affidavit filed
on behalf of the Panchayat, the High Court deemed it
appropriate to appoint an Advocate Commissioner. The
Advocate Commissioner visited the site and submitted his
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report on 18 February, 2015, which reads thus:
“ BEFORE THE HONOURABLE HIGH COURT OF Kerala
AT ERNAKULAM
O.P. (c) 1819 OF 2014
Report and rough sketch submitted by Advocate M.M.
Bashir as per the order of the Hon’ble family court
Nedumangadu in EP No.10/2014 dated 11.2.2015.
As per the order of the Hon’ble Family Court
Nedumangadu directing me to prepare a sketch and to
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submit a report regarding the building in question and also
the activities being carried on there. I have visited the
disputed property on 13.02.2015 for executing the order of
the Hon’ble court at about 3:30 PM with the presence of both
the parties and filing this report with true sense. The
disputed property is situated in Vattappara village which is
5kms far from the Nedumangad court center.
I have prepared a rough plan regarding the disputed
property and mentioned the disputed building as (1). The
disputed building is a new one when I was visited the
property and having an age of nearly 1.5 years and not
working for the same period. The building was made with the
permission of the Karakulam Grama Panchayath. The
property if the respondent is lying on the western side of the
disputed building. Separating these two properties a
compound wall is there which is constructed of granite and
cement hollow bricks having a height of 1.70 meters.
The disputed building is a shed constructed by granite
and cement hollow bricks with oralium sheet roof which is
used for Rubber Sheet making. In the shed there are two
rubber sheet making machines are fixed and made an open
waste water canal which is going to the bio gas tank. The
said tank is having an age of more than 25 years. The
difference between the bio gas tank and the disputed shed is
3.70 meters. The shed is situated in the petitioner’s property
having a difference of 1.25 meters on the northwestern side
and 2.10 meters on the southwestern side from the property
of the respondent. There is compound wall separating the
properties of the petitioner and the respondent. The
temporary residential structure of the respondent is situated
2.35 meters far from the above compound wall. At the time
of my visit it is very well noted that there is no harm to the
respondent due to the non working of the disputed shed. It
is presume that there will be no damage or harm to the
respondent at the present stage. The property of the
petitioner is filled with yielding rubber which is not taking
yield for the last 1.5 years. The number of trees is nearly 50.
This report is submitting before Hon’ble family court
nedumangad along with order and the rough plan.
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Dated this the 18 day of February 2015.
sd.
M.M. Bashir
Advocate Commissioner”
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7. Indeed, the appellant contested the correctness of the
said report. However, the High Court after taking into account
the relevant material and including the report submitted by
the Advocate Commissioner, concluded that the purport of the
award passed by the Lok Adalat did not preclude the
respondent from constructing a new structure after taking due
permission from the competent authority in that regard. The
High Court rejected the argument of the appellant that the
award was in the nature of a permanent prohibition from
putting up any construction on the plot occupied by the
respondent. Having so held, the High Court, taking note of the
apprehension of the appellant that the respondent may start
operating Rubber Sheetmaking machinery, which would
inevitably cause air and water pollution, granted liberty to the
appellant to take recourse to the remedy as may be
permissible in law. The High Court also observed that such
proceedings be decided on its own merits and in accordance
with law. The view so taken by the High Court is the subject
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matter of challenge in this appeal.
8. The appellant has argued the matter in person. Although
the respondents have been served and respondent No.2 is
represented through counsel, none appeared when the matter
was called out for hearing.
9. We have considered the relevant material placed on
record and on considering the same in its proper perspective,
we find no reason to interfere with the final conclusion
recorded by the High Court in allowing the writ petition and
setting aside the order passed by the Executing Court. As
noticed from the representation submitted by the appellant to
the Gram Panchayath, the core grievance was with regard to
the unauthorised structure erected on the plot occupied by the
respondent and which was being used as a Plant for making
Rubber Sheets on a commercial basis. The grievance
essentially was that the structure was in complete violation of
the provisions and conditions of the Kerala Panchayath
Building Rules, 2011 and also contributed to severe health
hazards to those living in the vicinity. However, the
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Panchayath was essentially concerned with the unauthorised
structure erected on the subject plot by respondent No.1. That
grievance stood redressed by the award passed by the Lok
Adalat recording the assurance given by respondent No.1 that
he would demolish the existing structure within a period of
three months. The fact that the structure, as it existed on the
date of making of the award, was removed by respondent No.1
is reinforced from the stand taken by the Panchayath in its
affidavit. Furthermore, respondent No.1 admittedly,
constructed a new building on the same plot after taking prior
permission of the competent authority in that regard, which
presupposes that the structure as existed thereat in August,
2013 was removed, without which the new building could not
have been erected. The fact that permit was granted to
respondent No.1 to construct the new building is not only
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supported by the permit dated 9 October, 2013 (
Annexure
P8 ), but also from the affidavit filed on behalf of the Gram
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Panchayath dated 9 January, 2015 and including the factual
position stated in the report of the Advocate Commissioner
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dated 18 February, 2015.
10. The moot question is the width of the award passed by
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the Lok Adalat dated 23 August, 2013. It is, in our opinion,
obviously limited to removal of the existing structure on the
stated plot occupied by respondent No.1 within three months.
That structure, as aforesaid, came to be removed, which fact is
reinforced from the circumstances discussed hitherto. The
Executing Court, however, erroneously opined that the
structure, as it existed at the time of making of the award, was
still not demolished. That finding is in the teeth of the
documentary evidence and the assertions made on affidavit by
respondent No.1 as well as the Gram Panchayath and
including the factual position mentioned in the report of the
Advocate Commissioner. The High Court rightly rejected the
argument of the appellant that the effect of the award was to
completely prohibit putting up of any structure/building on
the stated plot occupied by respondent No.1, irrespective of
the permission granted by the competent authority in that
regard. The High Court was right in observing that whether
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respondent No.1 had constructed the structure as per the
permit was a matter to be considered by the competent
authority who had issued such a permit and it would be open
to the appellant to approach that authority for appropriate
reliefs, if so advised. Similarly, insofar as the nuisance likely to
be caused to the appellant due to the activities of the
respondent in the form of air pollution, water pollution, noise
pollution or any other infringement of right, the appellant
must take recourse to the appropriate remedy in that regard.
Further, those proceedings will have to be decided on its own
merits. The view so taken by the High Court is, in our opinion,
unexceptional.
11. We hold that the scope of the award was limited to
removal of the structure as it existed at the relevant time. No
direction has been issued to respondent No.1 to forebear from
carrying on his legitimate activities, including business
activities, from the stated plot occupied by him. If the
activities of the respondent are in violation of any law or
regulation, it would be open to the appellant to approach the
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concerned statutory authority or appropriate forum and seek
relief in that regard as per law. Thus, we find no infirmity in
the impugned judgment of the High Court.
In view of the above, this appeal is dismissed but with
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the observations made hitherto. No order as to costs.
All applications are also disposed of.
……………………………..J
(A.M. Khanwilkar)
……………………………..J
(Ajay Rastogi)
New Delhi;
April 24, 2019.