SREENIVASAN v. COMMR. , CALICUT CORPORATION — 1980 DIGILAW 298 (KER)

Judgment :- 1. The plaintiff is the appellant. The facts of the case are: The predecessors of the plaintiff gave a lease of the plaint schedule property, a small piece of land, for commercial purposes to the predecessors-in-interest of the 2nd defendant. The land is on the side of the Francis Road, Calicut City. A shed put up by the lessee with the permission of the landlord was acquired for the purpose of widening the Francis Road, and later demolished by the 1st defendant-Corporation of Calicut on payment of compensation to the 2nd defendant. Thereupon, in July 1966 the 2nd defendant put up a shed in the property without getting the building permission from the Corporation of Calicut. The plaintiff filed a written objection to the Corporation. On 8 71966 the Corporation Commissioner issued a notice to the 2nd defendant to demolish the construction already made and not to proceed with the construction until permission was given. The 2nd defendant appealed to the Standing Committee on Health of the Corporation. The Standing Committee rejected the 2nd defendant's appeal and confirmed the order for demolition passed by the Commissioner. As the 2nd defendant did not demolish the shed, departmental demolition of the same with Police aid was fixed for 6121966. Then on 5 -121966 the 2nd defendant submitted an application for permission to build the shed. In the covering letter dated 5121966 the 2nd defendant requested the Commissioner to waive the order for demolition and grant permission for the shed. The plaintiff wrote to the Commissioner objecting to the grant of permission. On 23 3 1967 the Commissioner refused permission on the ground that the ownership of land was disputed. On 13 51967 the 2nd defendant again applied to the Commissioner for permission. On 11-6-1967 the plaintiff produced his title deeds of the property. Again the Commissioner directed the 2nd defendant to remove the structure. On receipt of this the 2nd defendant again requested for licence and for withdrawal of the order for demolition. The matter again came up for consideration before the Standing Committee and on 27 81968 the Committee decided to refuse permission to build and directed demolition of the shed put up. The decision was challenged by the 2nd defendant before the Munsiff's Court, Kozhikode. On 191971 the 2nd defendant again applied for permission. The matter again came up for consideration before the Standing Committee and on 27 81968 the Committee decided to refuse permission to build and directed demolition of the shed put up. The decision was challenged by the 2nd defendant before the Munsiff's Court, Kozhikode. On 191971 the 2nd defendant again applied for permission. On 7101971 the legal adviser to the Corporation gave his opinion pointing out that there was no provision of law conferring on the tenant the right to put up structures without the permission of the landlord and hence consent of the landlord must be there. But on 28-10-1971 the Standing Committee decided to compromise the suit filed by the 2nd defendant and to grant permission. On 5-11-1971 the Commissioner granted the 2nd defendant permission. The plaintiff thereupon represented to the Commissioner, the Mayor and the Chairman of the Standing Committee on Health. The plaintiff's representation came up for consideration before the Standing Committee on a number of times, but the same was adjourned. 2. It was under the above circumstances that the plaintiff filed the suit before the Munsiff's Court, Kozhikode for a declaration that the licence granted to the 2nd defendant was invalid and for a mandatory injunction to the 1st defendant-Corporation to demolish the shed put up by the 2nd defendant. The trial court dismissed the suit holding that it was premature. The trial court also held that 'the plaintiff has no locus standi'. The plaintiff challenged the judgment and decree of the trial court in appeal. The lower appellate court dismissed the appeal saying that, even if the suit is not premature, the appellant has not succeeded in establishing that there is a cause of action for him against the defendants. The plaintiff has challenged the above judgment and decree in this second appeal. 3. The main questions that arise for consideration in this second appeal are: (1) Whether a Municipal Corporation can give permission to construct a building if the application made by the tenant of the land under S.242 of the Kerala Municipal Corporations Act, 1961 is not signed by the owner of the land also; (2; whether the Standing Committee of a Municipal Corporation has the power to review its decisions and (3) whether the pendency of a representation before the Standing Committee be a bar for a suit by the aggrieved person to set aside the order granting permission. 4. 4. S.3 (4) of the Kerala Municipal Corporations Act, 1961 reads: "(4) "building' includes a house, outhouse, stable, latrine, shed, hut, wall (other than a boundary wall not exceeding eight feet in height) and any other such structure, whether of masonry, bricks, wood, mud, metal or any other material whatsoever;" S. 242 of the Act reads: "242. Application to construct or reconstruct building: (1) If any person intends to construct or reconstruct a building, he shall send to the commissioner, (a) an application in writing for approval of the site together with a site plan of the land; and (b) an application in writing for permission to execute the work together with a ground-plan, elevations and sections of the building and a specification of the work. (2) Every document furnished under sub-section (1) shall contain such particulars and be prepared in such manner as may be required under rules or bye-laws. S 248 of the Act reads: "248. Grounds on which approval of site for or permission" to construct or re-construct building maybe refused: The only grounds on which approval of a site for the construction or reconstruction of a building or permission to construct or reconstruct a building may be refused, are the following, namely: (1) (2) that the application for such permission does not contain the particulars or is not prepared in the manner required under rules or bye-laws; (3) that any of the documents referred to in S.242 have not been signed as required under rules or bye-laws: Rule 4 of the Kerala Municipal Building Rules, 1968 reads: "4. Application for Building Permit: (1) Applications: Every person who intends to erect, re-erect or make material alteration in any place in a building other than a hut or to make or enlarge a well, shall apply in writing to the Commissioner in the form prescribed in Appendix A and such application shall be accompanied by plans and statements in triplicate, as required under sub-rules (4) and (5). One set of plans shall be retained in the office of the Commissioner for record after the issue of a permit or a refusal. (2) (3) (4) Plans accompanying application: The following shall accompany the application. One set of plans shall be retained in the office of the Commissioner for record after the issue of a permit or a refusal. (2) (3) (4) Plans accompanying application: The following shall accompany the application. (a) Site Plan: The site plan sent with an application for permit shall be drawn to a scale of not less than 4 ms to I cm provided that where circumstances are such as to make a smaller scale necessary or sufficient, the plan may with the consent of the Commissioner be to a scale of 8 ms. to 1 cm. It shall show: (1) the boundaries of the site and of any contiguous land belonging to the owner thereof; (2) the position of the site in relation to neighbouring streets; (3) (4) (5) the position of the building, and of other buildings, if any, which the applicant intends to erect upon his contiguous land referred to in sub-rule (1) in relation to the boundaries of the site, and in case where the site has been partitioned the boundaries of the portion owned by the other owners; Appendix A to the Kerala Municipal Building Rules, 1968 reads: "APPENDIX A (Rule 4 (1) ) Application under section (Ss. 228, 235, 246 of the Kerala Municipalities Act, 1960 Or S.242, 250 and 262 of the Kerala Municipal Corporations Act, 1961 as the case may be.) From Name of owner/kudikidappukaran Address To The Commissioner, Municipality/ Corporation. Date Sir, ........................................ Signature of the owner of the land and building/kudikidappukaran As per the definition in S.3(4) of the Kerala Municipal Corporations Act, 1961, for short the Act, a building includes a shed also. S.242 of the Act which provides for application for permission to construct a building insists that the application must be prepared in the manner prescribed by the rules and should contain, particulars required by the rules. R.4 of the Kerala Municipal Building Rules, 1968 insists that the application for permission must be in the form prescribed in Appendix A. The form has to be signed by the owner of the land also. It is crystal clear from Appendix A that the application has to be submitted by the owner of the land and by the person who is putting up the building. It is crystal clear from Appendix A that the application has to be submitted by the owner of the land and by the person who is putting up the building. So, it goes without saying that if the person who wants to put up the building is somebody other than the owner of the land, the application must be one by both. It is immaterial whether the person in possession of the land who wants to build is a tenant having fixity of tenure or who has the right to purchase the landlord's right, title and interest under any law in force. As long as he has not become the owner of the land he cannot himself apply for permission to build in a municipal area. In this case, the 2nd defendant-applicant is only a tenant under a lease for commercial purposes. He has no right to purchase the plaintiff-landlord's rights in view of S.3(1)(iii) of the Kerala Land Reforms Act, 1 of 1964. The 2nd defendant has no case that he has become the owner of the land. So, the application for permission to build submitted by the 2nd defendant to the 1st defendant-Corporation was not one prepared in the manner required under the rules and signed as required by the rules. In that case, the 2nd defendant's application ought to have been rejected by the 1st defendant-Corporation under S.248 of the Act. So, the permission the 1st defendant gave to the 2nd defendant is nothing but wrong and illegal. The Standing Committee on Health of the 1st defendant-Corporation on 27-8-1968 decided to refuse permission to the 2nd defendant and directed demolition of the shed put up without permission. On 1-9-1971 the 2nd defendant again applied for permission. On 28 101971 the Standing Committee decided to give permission to build. The permission was for the very same shed. The statute does not invest the Standing Committee with any power to review its decisions. So, the decision dated 28-10-1971 to give permission is without jurisdiction and hence has to go on that ground also. At the time when the suit was filed, a representation by the plaintiff to reconsider the decision giving permission to the 2nd defendant was pending before the Standing Committee. But as the Standing Committee has no power to review its decision the plaintiff will not and cannot get any relief from the Standing Committee. At the time when the suit was filed, a representation by the plaintiff to reconsider the decision giving permission to the 2nd defendant was pending before the Standing Committee. But as the Standing Committee has no power to review its decision the plaintiff will not and cannot get any relief from the Standing Committee. Even if the Standing Committee reviews its earlier decision and passes an order rejecting permission to the 2nd defendant, the 2nd defendant can successfully challenge that order before a court of law. So, the pendency of the plaintiff's representation before the Standing Committee of the 1st defendant-Corporation will not make the suit premature. On the land belonging to the plaintiff the 2nd defendant put up a shed in contravention of the specific provisions of the law governing the matter. The 1st defendant-Corporation by a wrong order passed in violation of the statutory provisions governing the matter gave permission. The plaintiff filed the suit challenging the order. By no stretch of imagination it can be said that the plaintiff has no cause of action to file the suit. But the lower appellate court has, as a matter of fact, said so. We are at a loss to understand the reason behind the above conclusion. 5. Before parting with the case, we want to add one thing more. It was really unfortunate that the City fathers of Calicut who formed the Standing Committee on Health were so indifferent in dealing with the application for permission in question. The printed form in which the 2nd defendant submitted the application for permission was enough by itself to bring home to the Standing Committee members that where the person who wants to build is not the owner of the land the owner also must sign the application. Over and above this, the legal adviser to the Corporation whose opinion was sought, pointed out that the consent of the owner was a must. But the Standing Committee members had no eyes to see or ears to hear all these. The result is that a shed put up without permission from the Corporation continues to be there even though it has now entered its fifteenth year of its existence. We are constrained to say that a ratepayer is entitled for a better deal from a civic body. 6. The result is that a shed put up without permission from the Corporation continues to be there even though it has now entered its fifteenth year of its existence. We are constrained to say that a ratepayer is entitled for a better deal from a civic body. 6. In the result, the judgment and decree of the Sub Court, Kozhikode are set aside and the second appeal is allowed. The plaintiff's suit is decreed as prayed for. The plaintiff will be entitled to costs in all the courts; costs limited to one set. Allowed.