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P. Saina and ors. Vs. Konderi and ors. - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Case NumberS.A. No. 735 of 1980 F
Reported inAIR1984Ker170
ActsKerala Municipal Corporation Act, 1961 - Sections 238; Kerala Municipal Corporation Building Rules, 1968 - Rule 30; Code of Civil Procedure (CPC) , 1908 - Sections 9
AppellantP. Saina and ors.
RespondentKonderi and ors.
Appellant Advocate Philip Antony Chacko, Adv.
Respondent Advocate Govt. Pleader,; T.L. Viswanatha Iyer,; P.S. Narayanan
DispositionAppeal dismissed
Cases ReferredHeffron v. International Society
.....the highly unsafe roads are not the only visible marks of the indolence and indifference of the local authorities. in areas like environmental law, courts ail over the world have adopted a very liberal view on the question of locus standi. international agencies have pleaded for such liberal views (vide the article on environmental policy and law, (1982) 60 canadian bar review). 27. it, therefore, appears to me that having regard to the peculiar conditions relating to the enforcement of well conceived municipal measures, it is the liberal view that has to be preferred and that the restricted view would be a definitely retrograde step. banerjee that justice, equity, fairness and good conscience demand the non-demolition appears to me to be rather inconsistent. that report itself is not..........on the point will have effect and impact on the rights and duties of the corporations and other local authorities, i feel it is desirable that those local authorities are also heard before a decision is rendered in second appeal. notice will therefore issue to the corporations of trivandrum, calicut and cochin. in as much as other local authorities also are likely to be affected a similar notice will also go to the advocate-general.'10. the matter was thereafter elaborately argued before me. shri philip antony chacko appearing for the appellants zealously pleaded for a liberal view on the question. the indian decisions on the question rendered in different jurisdictions, were placed before me. shri m. p. r. nair appearing for the corporation of cochin, contributed to the discussion on.....

K. Sukumaran, J.

1. The fast process of urbanisation appears to have adverse impact on well-cherished values and human relations. A waning effect on the biblical exhortation to love one's neighbour seems to be one such ill-effect. In Kennaway v. Thompson (1980-3 All ER 329) is an instance of legal action where according to Lawton L. J. the parties forgot the message: 'live and let live', This second appeal is the culmination of a feud between neighbours on a matter which can normally be treated as trivial. The principle underlying the litigation, however, is one of great importance. The cleavage of judicial opinion on the crucial issue is intense and sharp.

2. The parties hail from the City of Calicut. They own and possess adjacent plots, the plaintiff, the northern one and the defendant the southern. Unikulan was admittedly the owner of the land 'Nalukandi Paramba' -- comprising the plaint schedule property. Ext. A1 is the demise dt. 4-8-1893 relating to that land granted by the Kizhakke Kovila-kam. Though the status of the plaintiff as the daughter of Unikulan had been contested, it was upheld by the trial court. The controversy was not pursued further. The 1st defendant came by possession of the southern portion on the basis of a lease deed Ext. Bl dt. 19-4-1958. Subsequently he obtained the entire rights therein under Ext. B2 dt. 29-5-1961. The parties do not make any claim to the property of each other.

3. The Corporation of Calicut granted on 9-12-1970 a licence to Bavakutty, the predecessor-in-interest of the defendants (who are his widow and children) for the construction of a latrine in the property. The blue print of the plan of the house is Ext. B-5. On 3-3-1971 permission was granted to the defendants for the construction of the main house, a storeyed building, under Ext. B3. The complaint of the plaintiff was that the defendants' proposed construction would have the effect of reducing the space between the houses to 3 feet. It was stated that the roof of the new construction would protrude into the plaintiff's house. The cause of action was founded, on Rule 30 of the Kerala Municipal Corporation Building Rules framed under the Kerala Municipal Corporation Act, 1961 (hereinafter referred to as the 'Act') which enjoins providing a Vacant space of 7 feet between two buildings.

4. The suit was filed on 7-4-1973. ACommissioner appointed in the case visited the property on '23-10-1973 and submitted his report and plan on 8-11-1973.An additional report had been called forand that was submitted on 27-5-1974.By that time the construction of thebuilding had progressed considerably,though not fully completed. The plaintiffmoved I. A. No. 3832 of 1975 for amendment of the plaint to envelop a reliefof mandatory injunction for demolitionof, what according to her, was an unauthorised construction.

5. In addition to the contention thatthere was express authorisation from theCorporation for the construction, the defendants raised a plea that even if therebe an infraction of a Municipal regulation, that would not enable the plaintiffto have locus for sustaining a suit of thisnature. Matters concerning violation ofthe Municipal Rules are entirely thelook-out of the local authority, accordingto them. This contention was projectedas a preliminary objection. The trialcourt rejected that plea on a consideration of the judicial decisions presentedbefore it. According to it, 'a breach ofthis statutory obligation is also a breachof plaintiff's rights which can be remedied by mandatory injunction if it is otherwise not prohibited by law'. The investigation into the factual details revealedthat the minimum distance between thebasement of the two houses was 4' 1' onthe western side and 7' 6' on the easternside, the distance diminishing atthe ceiling and roof level,where the houses almost touch eachother on certain points. A violation ofRule 30 (1) of the Kerala Municipal Building Rules was found to be established onthe evidence and materials before thatcourt. Consequently a mandatory injunction 'to pull down so much of thestructure so as to leave an open air spaceof 10' 9' between the houses' wasgranted.

6. The lower appellate court, on the other hand, differed on the legal principles to be applied. It preferred the view of a Full Bench of the Orissa High Court reported in Krushna Kishore Bal v. Sankarsan Samal, AIR 1974 Orissa 89, which held:

'Mere violation of the municipal plan or rules would not furnish the plaintiff with a cause of action. Plaintiffs must prove that defendant's construction is violation of the plan and the rules resulted in an invasion of their right to light, air and privacy causing material injury to them.'

The Appellate Court was not satisfied that the evidence in the case was sufficient to establish an interference with the existing amenities of the plaintiff, or injury to her. It was noted that the defendants' house was 'constructed squarely within a compound bounded by a fence'. A plea that the construction commenced after service of the order of injunction was found by the appellateCourt to be unsubstantiated by the evidence. The appellate Court concluded:

'I do not find that the evidence in this case is so strong and satisfactory as to conclude that the defendants have committed a wrong so as to award a mandatory injunction against them.' The appeal was accordingly allowed and the suit suffered a dismissal. (In the course of the pendency of the appeal the 1st plaintiff died and her legal representatives were impleaded as additional respondents 2 to 6).

7. The grievance of the plaintiffs has been pursued in this court.

8. This court ordered notice on the following questions of law:

'1. When there is a clear violation of the building Rules, whether the plaintiffs can succeed in the plaint, only if they can prove, that such violation of building Rules has resulted in the invasion of their right to light, air and privacy causing material injury to them,

2. Is not the result of the additional constructions an interference with existing amenities causing injury to the plaintiffs such as right to light, air and privacy for the protection of which suit had been filed by the plaintiffs.'

9. The first question, it was noted, was one of general importance. By my order dt. 1-12-1982, I observed and directed:

'In as much as a decision on the point will have effect and impact on the rights and duties of the Corporations and other local authorities, I feel it is desirable that those local authorities are also heard before a decision is rendered in second appeal. Notice will therefore issue to the Corporations of Trivandrum, Calicut and Cochin. In as much as other local authorities also are likely to be affected a similar notice will also go to the Advocate-General.'

10. The matter was thereafter elaborately argued before me. Shri Philip Antony Chacko appearing for the appellants zealously pleaded for a liberal view on the question. The Indian decisions on the question rendered in different jurisdictions, were placed before me. Shri M. P. R. Nair appearing for the Corporation of Cochin, contributed to the discussion on the academic aspects, uninhibited by narrower considerations. Mr. N. Subramony appearing for the respondents put up a strong defence of the judgment under appeal. Arguments were also presented by the Government Pleader who appeared for the State. The Corporation of Trivandrum and Calicut on whom notice had been served as directed in the aforesaid order, however, chose to assist the court only by their silence. I express my appreciation for the assistance rendered by counsel who argued the case.

11. The differing approach of the two courts below, in a sense reflects the di-vergence of judicial opinion. It is not necessary to parade passages from all the earlier decisions, in an attempt to express the view of this court on that question. Preference of a particular viewpoint is not by counting heads but by the more abiding consideration of the basic principles and trend-setting guidelines. On a consideration of the judicial opinion on the specific issue in hand, and those expressed here and abroad on the larger aspects of the issue, I am clearly of the view that any citizen could seek remedy from a court of law, when he can successfully establish the infraction of the law of the country, unless, by express words or by necessary implication he is debarred from doing so.

12. To insist on a plaintiff to prove actual damage as a basis for a right of action, had been viewed with disfavour even from earlv times. Holt, C. J. way back in 1703 observed in Ashby v. White (1703) 1 Sm DP 13th Edition 253:

amage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindered of his right.' Lord Wright referring to the decision in (1868) 4 Ex 43 said:

'If you have an infringement of a legal right there is a right of action without actual damage being proved.' and proceeded further by observing:

'Where you have an interference with a legal right, the law presumes damage.' A development of a liberal view is thus discernible as time marches on.

13. A further question can be posed with some force: Does the infraction of a general provision of law amount to an infringement of a person's legal right? A. N. Ray, J., as His Lordships then was, looked at it, as generating such a legal right (see the decision as Judge qf the Calcutta High Court in Krishna Kali Malik v. Babulal Shaw, AIR 1965 Cat 148). The learned Judge observed that.

'Building rules do create right in favour of adjoining owners.'

The ratio of the decision was that in the framing of the rules, authorities had in view the general convenience of all the residents in the Municipal area in order to ensure proper ventilation and sanitation for the rate-payers and possibly adequate means of preventing the spread of fire from one building to another. A plaintiff's right, in such circumstances, to insist that the Municipal rules are strictly observed with reference to any particular building was accordingly held to be rightly established. A duty to conform to the Municipal rules is owed not only to the Corporation but also to fellow-citizens. That was the clear implication of the statute, according to the learned Judge, Earlier rulings of that court supported the view.

14. Ameer Ali, J. made an exhaustive survey of the case law on the point in In re Lakshmimoni Dassi, AIR 1941 Cal 391. A legal right in an adjacent owner to file an application for mandamus was recognised in that case. The learned Judge, gave expression to his feelings about the conduct of the Buildings Committee of that Corporation, by observing:

'Bye-laws have, we might say, gone with the wind which the Corporation is supposed to allow us to enjoy. They have gone down the drain that the Corporation is supposed to clean. With poetical finality they have drowned their book: with divine omnipotence they have disregarded time and space, especially the latter. Rules are made for Slaves, and with royal prerogative they have determined to disregard them.' Nearly one year after the aforesaid judgment, Edgley, J. came to a similar conclusion, in Hirendra Nath patta v. Corporation of Calcutta, AIR 1941 Cal 386. (Though reported earlier, this decision is seen to have been rendered on 20-1-1941 while AIR 1941 Cal 391 was decided on 10-6-1940). The Allahabad High Court too preferred to accept the principles contained in AIR 1965 Cal 148 supra (vide B. Raghunandan Saran v. Smt. Kanta Devi, AIR 1975 All 130). Para 10 of the aforesaid judgment contains the conclusion reached by that court:

'The Municipal Board, of course, as the custodian of the rights of the people has been given by law the right to enforce its bye-laws by refusing sanction, preventing constructions and demolishing buildings that may violate any bye-law. But if the Municipal Board fails to perform i^ duty, it will not mean that tha right of the citizen, is lost to get the law enforced through Court. It is the duty of Courts in India to see that the law is obeyed and not violated.' Kalidas Datta v. Corporation of Calcutta, (1983) 87 Cal WN 592, also takes the larger view.

15. A narrower view appears to have been taken in the decisions reported in Nandalal v. Provudayal, AIR 1952 Cal 74, Parul Roy v. Srinibash Chowmal, AIR 1952 Cal 364, Purusottam Lalji v. Ratan Lal, AIR 1972 Cal 459 (FB), Krushna Kishore Bal v. Sankarsan Sa-mal, AIR 1974 Orissa 89 (FB) and Lalit Mohan v. Samirendra Kumar, AIR 1977 Cal 174.

16. It would thus appear that both the principles have their own friends. No decision of this Court on this aspect has been brought to my notice. As observed in Bromley v. G. L. C., (1982) 1 All ER 129, Judges are more than mere selectors between rival views: 'they are entitled to, and do think for themselves.' Some thought is, therefore, necessary on the changing times, the existing realities in relation to the functioning of the local authorities, and the developing trends in legal notions in comparable jurisdictions,

17. The trend discernible from the observations and decisions of the Supreme Court in Corporation of Calcutta v. Mulchand Agarwala, AIR 1956 SC 110, Gobind Singh v. Shanti Sarup, AIR 1979 SC 143 and the now well known case of the Ratlam Municipality, Municipal Council v. Vardhichand, AIR 1980 SC 1622, would Justify the adoption of a liberal view.

18. Urbanisation is, no doubt, a global phenomenon. Karl Marx condemned big cities, because of the pollution of air, water and soil. (See 'Cities', a publication of the Scientific American, page 47). Growth of major cities, however, is now a distinct reality in India. Other advanced and developed countries witnessed that phenomenon earlier. They too had their problems. In these countries, local authorities were held rigorously to the performance of their statutory obligations in the matter of supply of potable water, garbage collection, drains, conservancy and maintenance of streets, lighting, and even in providing parks and other amenities. The fiduciary duty which local authorities owe to rate payers had been acknowledged, as noticed in Bromley v. G. L. C., (1982) 1 All ER 129. Citizens were conscious of their rights, and hesitated not, to sue the local authorities for damages even for the slightest neglect of, or indifference to, their duties.

19. An instance of such a highly developed consciousness of the rights, is the case of Haydon v. Kent County Council, (1978) 2 All ER 97. Mrs. Hay-don, aged 61, yet working, had, on a wintry day, a fall on a steep and slippery footpath, which resulted in a bad break of her ankle, which though cured later had still its ill-effects. She claimed damages, contending that the Highway Authority failed in its statutory duty to maintain the footpath, and she succeeded in the Divisional Court which awarded her 4250 and interest. In the Court of Appeal, however, she lost. The appellate court, on the facts, found that there was no such duty on the local authority as assumed by the court below. The factual basis of the decision, however, is very significant. The footpath used by Mrs. Haydon, was one among the 4000 miles long footpaths in Kent. Due to snowfall and a resultant bad frost, the path became slippery and dangerous. On a Wednesday evening, people had to hold on to the bushes and fence to save themselves from slipping over. Mrs. Haydon fell on Thursday morning, on her way to work. It was evident that the County Council had no complaints about the footpath earlier than Thursday morning, when a roadman reported it for the first time. And on receipt of the report, the pathway 'was cleared at once'.

20. The facts of the case had been indicated only to show how promptly and carefully the local authority discharged its duties and how zealously, the citizen vindicated her rights. In our country, it may require much more time, to notice around, the types of Mrs. Haydon.

21. The disgraceful degeneration of the local administration had been the subject of comment by judicial decisions, My learned brother Chandrasekhara Menon, J. gave a clear indication about the laches on the part of the local authorities in Achuthan v. District Collector, 1982 Ker LT 133 : (AIR 1982 NOC 118). The learned Judge observed:

'I think I should here make it clear that it is the duty of the Collector as well as the Corporation to remove the obstruction in the public streets. Whatever be the difficulties that may be caused to petty traders, the members of the public have got a legal right to use the footpaths in an unobstructed manner. The Corporation and the Revenue authorities have a legal duty to see that such right of the public is maintained.' Still later, Kochu Thommen, J. was at pains to describe the sordid conditions of the city, in stronger language:

'Ernakulam was once a sleepy little town with well maintained roads having clean side-walks for the pedestrians to walk upon. That was when Cochin was Cochin and the gardens smiled all along the paths. Over the years the city has grown many times in size and population. The roads with gutter everywhere are now crowded with vehicles racing against each other; and the pavements, with pits and holes in the ground and advertisement boards hung dangerously low from the branches of trees, have become far too dangerous for the weary pedestrians to walk upon. Many of the roads are poorly lit, if lit at all, and it is a common stight to see rubble, sand, bricks, drainage pipes, and the like left for months together on the sides of the roads all over the city. With buses, lorries and cars driven recklessly at mad- dening speed, unmindful of the pedestrians, the public streets in Ernakulara have become far too narrow to control the traffic, and the police in these circumstances look on helplessly. To make matters worse bunks of all kinds, some On wheels and some without wheels; some movable and others fixed; some licenced by the Corporation and many not so licenced, have sprung up all over the city.'

(See B. Govinda Rao v. District Collector, 1983 Ker LT 328 at p. 330) : (AIR 1983 Ker 10 at pp. 12-13). There has not been any change for the better even thereafter.

22. Are our roads 'out of repair'? The question can be decided with Lord Den-ning's definition of the term. He said:

'.....deep ruts in cart roads, potholes in carriage roads, broken bridges on footpaths or bushes rooted in the surface, make all these highways 'out of repair'.'

(See Haydon v. Kent County Council, (1978) 2 All ER 97 at p. 102)

Judged by those standards, it will be well nigh impossible to find roads otherwise than 'out of repair' in many of the Corporations or Municipalities.

23. White, J. had a distinct (and pleasant) concept of 'streets' when he observed in Heffron v. International Society for Krishna Consciousness, (1981) 69 L Ed 2d 298 at p. 308:

'A street is continually open, often uncongested, and constitutes not only a necessary conduit in the daily affairs of a locality's citizens, but also a place where people may enjoy the open air or the company of friends and neighbours in a relaxed environment.' Contrast this picture with the sights and sounds of the Jows Street of Cochin, or the Sweet Meat Street in Calicut. The distressing disparity cannot be easily overcome by ordinary men.

24. Ratlam Municipality has many sisters in India. The garbage heaps emanating disgusting stench, and the highly unsafe roads are not the only visible marks of the indolence and indifference of the local authorities. Encroachments into public pavements/ creating serious health hazards to those who have to use such ways, take place day in and day out; within the precincts of Public Offf-ces, hospitals, and even in close proximity to the police stations. Employees of the local authorities. Councillors of the Corporation/Municipalities, and officials (of the Police, Revenue and other departments) pass and repass along the roads unconcernedly watching the erection and expansion of the encroaching structures, some of which have even the facilities of electrical energy and telephonic connection.

25. The National Plan of Development noted that the living conditions in thickly populated towns of the State were 'deteriorating day by day in the increase of the population and putting up of tenements without any plan and under unsanitary conditions'. Slum clearance schemes were therefore conceived. And the Kerala Slums Areas (Improvement and Clearance) Act, 1980 (Act 24 of 1981) has been passed. (The information is contained at pages 154 and 155 in the useful publication 'A Digest of Kerala Laws 1981' prepared by the Secretariat of the Kerala Legislature). The statement '.....urban government often resembles a leviathan in the State of inertia' (as contained in 'The Urban Challenge to Government' by Annmario Hauck Walsh, 1969 Edition) continues to be disconcertingly true even today. It is surprising that even after having noted the deterioration of living conditions by the erection of slums, those responsible for the enforcement of the laws, adopt an attitude of utter indifference towards preventive measures to checkmate the further birth of slums. This pattern of functioning of Governmental agencies and local authorities is also a factor to be reckoned with, while adjudging a citizen's entitlement to move a court of law for the enforcement of the legislative mandates.

26. The later trends, in public interest litigation, also encourage taking a liberal view in these matters. Thus for example, the role of Consumer Federations to fight against frauds on the consuming public, have been appreciated by judicial decisions. The view is expressed that these bodies even contribute to a healthy development of Rule of Law. In areas like Environmental Law, courts ail over the world have adopted a very liberal view on the question of locus standi. International agencies have pleaded for such liberal views (vide the article on Environmental Policy and Law, (1982) 60 Canadian Bar Review).

27. It, therefore, appears to me that having regard to the peculiar conditions relating to the enforcement of well conceived municipal measures, it is the liberal view that has to be preferred and that the restricted view would be a definitely retrograde step.

28. The aforesaid considerations impel me to recognise a citizen's right to institute a suit with a view to ensure effec-ive implementations of the Municipal regulations, such as the Buildings Rules in the present case, even in the absence of a specific personal injury to the person suing.

29. On the larger question, therefore, I would reverse the view taken by the learned District Judge and uphold that of the trial court.

30. In the ordinary course, the view I have taken would have resulted in reviving the trial court's decree for the demolition of the objectionable portion of the construction. The fact that there has been considerable investment of funds, or long lapse of time after the construction, should not ordinarily weigh with the court in the enforcement of legal obligations. The Supreme Court declined to disturb the direction for the demolition of a multistoried building in Calcutta when that concrete monstrosity was found to be in contravention of the municipal regulations. A plea that the demolition of an illegally constructed building should be averted for the reason that the building had stood there for 13 years did not appeal to the Calcutta High Court in Kalidas Datta's case (1983-87 Cal WN 592) supra. The Court observed:

'Therefore, if the entire construction started on an illegal basis, then in that case, the contention of Mr. Banerjee that justice, equity, fairness and good conscience demand the non-demolition appears to me to be rather inconsistent. Which is illegal, cannot be valid; which is blatant violation of a provision of law cannot be fair and cannot meet the elements of conscience to attract the discretionary power of court on equitable principles. Therefore, I cannot reconcile with the arguments of Mr. Banerjee that because the construction is allowed to stand for some years, it will not be proper or right for the court to ask for its demolition.'

31. The question, however, would remain whether interference with the judgment of the learned District Judge is called for, in the peculiar circumstances of the case. The plaintiff approached the court with an erroneous contention that the defendant did not have municipal sanction. She did not take out any immediate commission to note the condition of the property at that time. The amendment of the plaint with the prayer for injunction was filed in circumstances disclosing laches. The defendant had a case that the plaintiff herself had extended her construction from its original site in the direction of the defendant's house. This evidence has been discarded by the trial court on the ground that there was no such plea in the plaint. In holding so, that court had committed an error, for, as noted earlier, the plaint proceeded on the basis that the construction was unauthorised and that the application for licence had been rejected by the Corporation. The finding that there is a violation of the rule is essentially based on the report of the commissioner. That report itself is not fully reliable even according to the trial court. The trial court itself had re-jected a statement contained in the second report of the commissioner while observing:

'Though the Commissioner has stated that 'QRST' is the entire plaint schedule property, this is obviously incorrect.....'

It would, therefore, be unsafe to direct demolition of the building on the basis of a report of doubtful credibility. There is the added factor that the plaintiff had filed objections before the Corporation when the defendant applied for the necessary permission. It was after consideration of the objection that ultimately permission had been granted by the Corporation. It has ordinarily to be presumed that the Corporation, while granting the permission, did advert to the requirements of the Rules, particularly when it was altered by the written objection against the application. In this background, very convincing and clear evidence about the infraction of the rules is essential to direct demolition of the building. Having regard to the facts mentioned above, such a degree of reassuring evidence is not available in the present case. In these circumstances, a disturbance of the judgment of the lower appellate court is not justified.

The second appeal is accordingly dismissed. There will be no order as to costs.

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