PUTHETTU DEVELOPERS PVT. LTD. Vs. STATE OF KERALA

JUDGEMENT

(1.) The 1st petitioner is a Private Limited Company represented by its Managing Director Sri Joseph Mathew and petitioners 2 to 5 are the brothers of Sri Joseph Mathew. Sri Mathew and Sri Kurian are their father and paternal grandfather, respectively. Late Sri Kurian had executed a settlement deed registered as document No.1439/1955 of the SRO, Meenachil, a copy of which is produced as Ext.P3. As per Ext.P3, properties shown as Schedules B, C and D have been settled in favour of the 3 sons of Kurian, and Schedule A was retained by the said Kurian. Later, Kurian executed a Will which is registered as document No.64/1977 with SRO, Meenachil, a copy of which is produced as Ext.P4, whereby the properties shown under Schedule B were allotted to Sri Mathew. By virtue of Exts.P3 and P4 Sri Mathew became the owner of 140.25 cents of land. Petitioners have produced as Ext.P1 series, the tax receipts issued regarding the properties. The properties are situated in an area called Kottaramattom coming under the Pala Municipality which is stated to be a commercially important place. To put the property for better commercial use, the petitioners decided to construct a commercial building. Initially, a permit was obtained in the year 2009, and construction was completed by July, 2010. Additional constructions were made based on permission obtained in March, 2010 which were also completed according to the petitioners by November 2011. In 2015, the 1st petitioner and petitioners 2 and 3 approached the Municipality with a revised building plan to have a better utility for the building which is already there in existence with the name "Puthettu Arcade ". Even though the application was submitted in 2015, the same was approved only on 24/10/2017 as can be seen from Ext.P2 revised building permit. The construction, according to the petitioners, is now complete and the lower floors are already occupied, and, on the upper floor the proposal is to put up a multiplex theatre with three screens, the construction of which is also nearing completion. According to the petitioners even though necessary documents were submitted for issuance of the completion certificate and occupancy certificate, the same was not granted by the Municipality for frivolous reasons.

(2.) In Ext.P3 settlement deed there is a mention of a road which the grandfather of the petitioners had decided to lay as access to the properties shown in A to D Schedules from the Lalam-Kozha road (presently the Poonjar-Ettumanoor State Highway) on the south and leading towards north approximately through the middle portion of the entire property, in such a way that the B and D Schedule properties will be on the west and A and C Schedule properties will be on the east of the road. The road was to have a width of 15 links and covers an extent of 13.5 cents, ending on the northern end of the property, providing access to the ancestral house of the petitioners, where the 4th petitioner resides. Ext.P3 specifically says that the area covered by the road portion is also to be included in the Schedules allotted to each beneficiary and that the respective shareholders are to mutate such portions as part of their properties. The petitioners submit that the properties that devolved on Sri Mathew as C Schedule in Ext.P3 and B Schedule in Ext.P4 includes one-half of the extent of the road having a width of 15 links. It is submitted that the road is still in existence though the width varies at different points and lies on the western portion of the properties owned by the petitioners wherein the buildings have been constructed on the strength of Ext.P2. Respondents 9 and 10 are alienees from one of the brothers of Sri Mathew, who had been allotted D Schedule property in Ext.P3, lying on the north end. There were disputes between respondents 9 and 10 and Sri Mathew and his sons (petitioners herein) regarding the road shown in Ext.P3. The issue culminated in the filing of O.S.No.165/1995 and O.S.No.71/1998 before the Sub Court, Pala. Ext.P5 is the judgment dtd. 16/8/2000 of the Civil Court which is stated to have become final. As per the judgment, respondents 9 to 11 as well as their successors to the property involved in Ext.P3 have a right to use the road portion for transportation without any obstruction. The ownership of the portion of the road which vests as per Ext.P5 on the respective owners of the properties covered by the A to D Schedule has not been interfered with. The petitioners submit that neither the petitioners nor any other owners of the properties on the side of the road have relinquished their right over the road portion in a manner known to law and that the road continues to be a private road. It is further submitted that it has never been used by the public except for those persons who are seeking access to the "Puthettu Arcade ".

(3.) Based on Ext.P2 building permit, the petitioners proceeded with the construction. When the construction was reaching the final stages, during 2020, it was in the public domain that the petitioners are proposing to have a multiplex theatre with 3 screens in the Puthettu Arcade. The petitioners submit that the rivals in the field of business, apprehending that the petitioners' project can become a threat to their business, raised complaints with the help of the 10th respondent against the constructions effected by the petitioners. The main objection was that the petitioners were reducing the width of the road which was the subject matter of Ext.P5. Respondents 6 to 8 did not interfere based on the complaint, as they were convinced that the construction was in compliance with the building permit. According to the petitioners when new office bearers took charge of the office after the general elections of 2020, the 10th respondent again approached the Municipality, which resulted in a stop memo being issued on 17/3/2021. Ext.P6 is the stop memo directing the petitioners to stop construction. The stop memo was issued on the allegation that the building permit was obtained by misrepresentation, that the plaintiffs in O.S.No.165/95 also have right over the 3 metre wide road, and that the Overseer has reported that the width is being reduced. According to the petitioners, the 11th respondent is using the Municipal road which is passing through the northern boundary of the properties for ingress and egress from his residence situated at the northern end of the erstwhile Puthettu property. Petitioners approached the Tribunal for Local Self Government Institutions, challenging the stop memo. Based on the order issued by the Tribunal and the reply submitted by the petitioners, the Municipality withdrew the stop memo and permitted the petitioners to resume construction. Ext.P7 is the order of the Tribunal and Ext.P8 is the order withdrawing the stop memo. The withdrawal of the stop memo was the subject matter of a complaint filed by the 10th respondent and 3 others before the 6th and 7th respondents, wherein a contention was taken that the road vests in the Government as per the revenue records and that such road should not have been shown in the plan for the building permit as a private road. Ext.P9 is the complaint. Along with Ext.P9, the complainants have produced a copy of the relevant page of the Basic Tax Register (BTR) certified by the Village Officer relating to Re-survey No.22/54 having a total extent of 5.05 Ares, which has been produced a Ext.P10. Ext.P10 shows an entry that the property is Government road. According to the petitioners, the entry has been made after the preparation of the Basic Tax Register. An application was filed under the Right to Information Act before the Village Officer seeking information as to the entries made in the BTR and whether any of the adjoining land owners had relinquished any portion of their properties and regarding the person who made the entry and the period when the entry was made. Exts.P11 and P11(a) are the applications filed under the Right to Information Act. Yet another application was filed for a copy of the relevant page of the BTR relating to Re-survey 22/54 and 22/55 and Ext.P12 is the extract of the BTR obtained on the application. The petitioners contend that the road in question was never used as a public road. According to them, the additional entries that have been made in the revenue records are a result of the conspiracy to delay the construction and use of the multiplex theatre in the Puthettu Arcade. While so, respondents 9 and 10 and others filed an Execution Petition before the Sub Court, Pala on 30/7/2021 as E.P.No.79/2021, copy of which is produced as Ext.P13. The allegation in Ext.P13 is that the direction in Ext.P5 judgment and the decree, in that case, has been violated.