1

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

passed by the High Court of Kerala at Ernakulam dated 4th

March, 2015 in O.P.(C) No.1819 of 2014 (O).   

2. Briefly stated, the appellant made a representation to the

Secretary,  Karakulam Gram Panchayath  on  6th  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

appellant claims to be occupying House K.P. No.V/168 of the

Karakulam Gram Panchayath in Survey No.43/2­1­3 of

2

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

3

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

Act, 1987. The Lok Adalat passed the following Award on 23rd

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)

THIS THE 23RD 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

4

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

5

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,

6

the same was approved by the competent authority and permit

came to be issued on 9th  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

affidavit filed on 9th  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 issued by the 2nd  Respondent. The 2nd  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

7

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 1st  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

report on 18th 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

8

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.  Dated this the 18th day of February 2015.  

                  sd.          M.M. Bashir

        Advocate Commissioner”

9

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

10

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

11

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

supported by the permit dated 9th October, 2013 (Annexure­

P8),  but also  from the affidavit filed on behalf  of  the Gram

Panchayath dated 9th January, 2015 and including the factual

position stated  in  the report  of the  Advocate  Commissioner

12

dated 18th February, 2015.   10. The moot question is the width of the award passed by

the Lok Adalat dated 23rd 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

13

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

14

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.  

12. In view of the above, this appeal is dismissed but with

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.