CHERIYATH JYOTHI versus SAINUDEEN AND ANR.

Citation: [2019] 6 S.C.R. 803 · Decided: 24-04-2019 · Supreme Court of India · Bench: A.M. KHANWILKAR · Disposal: Dismissed

Judgment (excerpt)

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CHERIYATH JYOTHI
v.
SAINUDEEN AND ANR.
(Civil Appeal No. 1424 of  2016)
APRIL 24, 2019
[A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]
Kerala Panchayath Building Rules, 2011:
Unauthorised structure – Demolition of – Sought by appellant
and also alleging hazardous activities therein – Lok Adalat ordered
for demolition – Appellant filed execution petition seeking execution
of award of Lok Adalat – Execution court directed demolition of
the structure – Respondent challenged the order contending that in
compliance with the award of Lok Adalat the illegal structure was
demolished and thereafter new structure was constructed after
obtaining permission from competent authority – This fact was
verified by the Gram Panchayath as well as by the report of Advocate
Commissioner – High Court rejected the case of the appellant
holding that award was not in the nature of permanent prohibition
for putting up any new construction  – On appeal, held: The finding
of the Execution Court that the structure as it existed at the time of
making of the award was still not demolished was in the teeth of the
documentary evidence – The scope of the award was limited to
removal of the structure as it existed at the relevant time – No
direction was issued to forbear legitimate activities.
Dismissing the appeal, the Court
HELD: 1. As noticed from the representation submitted
by the appellant to the Gram Panchayath, 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 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
   [2019] 6 S.C.R. 803
803
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SUPREME COURT REPORTS
[2019] 6 S.C.R.
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 dated 18th February,
2015. [Para 9][812-B-F]
2. 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 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. [Para 10][812-G-H;
813-A-C]
3. The scope of the award was limited to removal of the
structure as it existed at the relevant time. No direction has been
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issued to respondent No.1 to forebear from carrying on his
legitimate activities, including business activities, from the stated
plot occupie

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