Georgekutty Kunjeria and Rosalalin Georgekutty Kuncheria v. Corporation of Cochin and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM** **MONDAY, THE 10TH OCTOBER 2011 / 18TH ASWINA 1933** **WP(C).No. 21256 of 2011(F)** **-----------------------------------------** ## **PETITIONER(S):** **------------------------** **1. GEORGEKUTTY KUNJERIA, VADAKARA HOUSE, KIDANGARAKARA, VELIYANADU VILLAGE, REPRESENTED BY HIS P/A HOLDER, RAMESH LAL NARAINDAS, AGED 65 YEARS, S/O.LATE NARAINDAS MOOLCHAND, R/AT FLAT NO.6-C, SKYLINE, OAKWOOD APARTMENTS,JAWAHAR NAGAR, ELAMKULAM VILLAGE, EKM.** **2. ROSALIN GEORGEKUTTY KUNCHERIA,** - **W/O.GEORGEKUTTY KUNJERIA OF KIDANGARAKARA, VELIYANADU VILLAGE, REP.BY HIS P/A HOLDER, RAMESH LAL NARAINDAS, AGED 65 YEARS, S/O.LATE NARAINDAS MOOLCHAND, R/AT FLAT NO.6-C, SKYLINE, OAKWOOD APARTMENTS,JAWAHAR NAGAR, ELAMKULAM VILLAGE, EKM.** - **BY ADV. SRI.D.KISHORE SMT.MINI GOPINATH** ## **RESPONDENT(S):** - **----------------------------** **1. THE CORPORATION OF COCHIN, REPRESENTED BY ITS SECRETARY, CORPORATION BUILDINGS, KOCHI-682 001.** **2. THE SECRETARY, CORPORATION OF COCHIN, KOCHI-682 001.** **3. THE ADDITIONAL SECRETARY, CORPORATION OF COCHIN, KOCHI-682 001.** **4. THE TOWN PLANNING OFFICER, CORPORATION OF COCHIN, KOCHI-682 001.** **5. THE ASSISTANT EXECUTIVE ENGINEER, CORPORATION OF COCHIN, ZONAL OFFICE, EDAPPALLY, KOCHI-682 024.** **2/-** **-2-** ## **WP(C)NO.21256/2011** ## **6. GEORGE.T.P.,** **THEKKUMMOOTTIL HOUSE, KALAVATH CROSS ROAD, PALARIVATTOM.P.O., KOCHI-682 025.** **7. P.G.SEBASTIAN, PANASSERY HOUSE, KALAVATH CROSS ROAD, PALARIVATTOM.P.O., KOCHI-682 025.** **R1 TO R5 BY ADV. SRI.E.D.GEORGE ,SC, COCHIN CORPORATION R6 & R7 BY ADV. SRI.ISSAC M.PERUMPILLIL SRI.JIJO PAUL KALLOOKKARAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/10/2011,ALONG WITH WPC NO. 23839 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **WP(C)NO.21256/2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE BUILDING PERMIT NO.EYPI-306/06 DATED 21/4/2006 ISSUED BY THE 1ST RESPONDENT.** - **P2 COPY OF THE APPROVED PLANS.** - **P3 COPY OF THE MEMO DATED 29/5/2009 ISSUED BY THE 2ND RESPONDENT.** - **P4 COPY OF THE COMPLAINT DATED 23/2/2010 SUBMITTED BY THE RESPONDENTS 6 AND 7 BEFORE THE 2ND RESPONDENT.** - **P5 COPY OF THE NOTICE NO.EYPI-5653/2010 DATED 12/3/2010 OF ASST.EXECUTIVE ENGINEER.** - **P6 COPY OF THE LETTER DATED 29/3/2010 SUBMITTED BY THE PETITIONERS BEFORE THE ASST.EXECUTIVE ENGINEER.** - **P7 COPY OF THE COMPLAINT DATED 29/3/2010 SUBMITTED BY THE RESPONDENTS 6 AND 7 BEFORE THE 2ND RESPONDENT.** - **P8 COPY OF THE NOTICE NO.EYPI-5653/2010 DATED 16/4/2010 ISSUED BY THE ASST.EXECUTIVE ENGINEER.** - **P9 COPY OF THE EXPLANATION DATED 29/4/2010 SUBMITTED BY THE PETITIONERS TO EXHIBIT-P8.** - **P10 COPY OF THE PROVISION ORDER U/S.406(1) ISSUED BY 3RD RESPONDENT ON 9/7/2010.** - **P11 COPY OF THE EXPLANATION DATED 11/10/2010 SUBMITTED BY THE PETITIONERS TO EXHIBIT-P10.** - **P12 COPY OF THE NOTICE NO.EYPI-5653/10 DATED 7/10/2010 OF ASST.EXECUTIVE ENGINEER.** - **P13 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS BEFORE THE ASST.EXECUTIVE ENGINEER ON 14/10/2010.** - **P14 COPY OF THE PROCEEDINGS NO.EYPI-5653/10 DATED 16/10/2010 OF THE ASST.EXECUTIVE ENGINEER.** - **P15 COPY OF THE PROCEEDINGS NO.EYPI-5653/2010 DATED 27/10/2010 OF ASST.EXECUTIVE ENGINEER.** - **P16 COPY OF THE PROCEEDINGS NO.EYPI-5653/10 DATED 11/11/2010 OF ASST.EXECUTIVE ENGINEER.** - **P17 COPY OF THE REPRESENTATION DATED 18/11/2010 SUBM BY THE PETITIONERS BEFORE THE 4TH RESPONDENT.** **2/-** **-2-** ## **WP(C)NO.21256/2011** - **P18 COPY OF THE PROCEEDINGS NO.EYPI-5653/10 DATED 29/11/2010 OF THE 5TH RESPONDENT.** - **P19 COPY OF THE RELEVANT EXTRACT OF THE APPEAL MEMORANDUM WITH DOCUMENTS IN APPEAL 102/2011.** - **P20 COPY OF THE WRITTEN STATEMENT DATED 23/2/2011 FILED BY THE PETITIONERS IN APPEAL 102/2011.** - **P21 COPY OF THE WRITTEN STATEMENT DATED 10/3/2011 FILED BY THE CORPORATION OF COCHIN IN APPEAL 102/2011.** - **P22 COPY OF THE ORDER DATED 4/3/2011 IN IA 133/2011 IN APPEAL 102/2011.** - **P23 COPY OF THE ORDER DATED 29/6/2011 IN APPEAL 102/2011 OF THE TRIBUNAL.** - **P24 COPY OF THE ORDER NO.PDI/13469/2010 DATED 6/9/2010 OF THE 2ND RESPONDENT.** **RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **C.K.ABDUL REHIM, J.** ----------------------------------------------------W.P.(C).Nos.21256 & 23839 of 2011 ----------------------------------------------------- Dated this the 10[th] day of October, 2011 ## **J U D G M E N T ----------------------** The petitioners as well as the subject matter is common in both these writ petitions. Hence they are disposed of together. WP(C).No.21256/2011 is filed challenging Ext.P23 order of the Tribunal for Local Self Government Institutions, Thiruvananthapuram. WP(C).No.23839/2011 is filed seeking direction to the 1[st] respondent for renewing Ext.P7 permit and also to quash Ext.P15 order issued by the 5[th] respondent. (Reference to exhibits contained hereinafter is in the order in which they are marked in WP(C).21256/2011.) 2. Facts averred in WP(C).21256/2011 are as follows. The petitioners were granted with Ext.P1 Building permit on 21.4.2006 for construction of a multi storied apartment complex, in accordance with the approved plan. In Ext.P2, validity of Ext.P1 permit was extended till 21.4.2012. According to the petitioners, structural and internal works of the building in question now stands completed. Controversy arose when _W.P.(C).21256 & 23839 of 2011_ -2- respondents 6 and 7 lodged a complaint before the 2[nd] respondent, as per Ext.P4, alleging that the building was constructed in violation of the provisions of Kerala Municipality Building Rules, 1999 (KMBR for short). On receipt of Ext.P4 the 5[th] respondent issued Ext.P5 notice to the petitioners calling upon them for providing certain precautionary measures in order to protect interests of the neighbouring residents. Ext.P6 reply was submitted reporting compliance of such measures. But on the basis of Ext.P7 further complaint submitted by respondents 6 and 7, Ext.P8 notice was again issued by the 5[th] respondent requesting the petitioners to show cause as to why Ext.P1 permit should not be cancelled, because the building is constructed in deviation from the approved plan. In spite of Ext.P9 reply submitted, proceedings under Section 406 of the Kerala Municipality Act, 1944 (hereinafter referred as the Act for short) was initiated. Ext.P10 provisional order and show cause notice were issued pointing out the following defects: - a) There is violation of Rule 24(8) of KMBR (Kerala Municipality Building Rules) - b) Balconies were constructed in violation of approved plan. - c) There is no lawful access to the building. The access road is having a width of 3.5 metres only. - d) The construction causes disturbances to the local people. _W.P.(C).21256 & 23839 of 2011_ -3- - e) No net covering is provided on the north side. - f) The toilet built for workers have an outlet to the canal. - g) The vehicles carrying building materials causes damage to the road. - h) The portion of building violating Rule 18(a), (b) and (c) should be demolished. 3. The petitioners submitted detailed explanations to Ext.P10 notice, as per Ext.P11. But no further action was pursued in the said proceedings. While so the 5[th] respondent issued Ext.P12 notice directing stoppage of the work, alleging unauthorised construction. The petitioners submitted Ext.P13 reply. It is evident that a hearing was conducted on the matter by the 4[th] respondent and the petitioners submitted Ext.P17 statement. Ultimately the 5[th] respondent issued Ext.P18 letter intimating that the 4[th] respondent had taken a decision to permit the petitioners to continue with the construction, since they have undertaken to rectify the violations in KMBR which are specifically pointed out. The decision of the 4[th] respondent in this regard dt. 23.11.2010 was referred to in Ext.P18 letter. 4. Respondents 6 and 7 approached the Tribunal for Local Self Government Institutions (hereinafter referred to as the Tribunal) challenging Ext.P18 letter and also the decision of the 4[th] respondent dt.23.11.10. Ext.P19 is the appeal filed. _W.P.(C).21256 & 23839 of 2011_ -4- Ext.P20 and P21 are the written statements of the petitioners and the 1[st] respondent Corporation, respectively. The impugned order Ext.P23 is passed by the Tribunal on the said appeal. 5. Before the Tribunal, the petitioners raised preliminary objections regarding maintainability of the appeal. They also refuted the allegations regarding violation of KMBR. On the other hand, respondents 6 and 7 herein raised contentions that the construction is done in violation of KMBR as well as in deviation from the approved plan. It was also contended that the construction is being done in a manner causing nuisance and hazards to the neighbouring residents, including respondents 6 and 7. On the basis of the rival contentions, it is seen that the Tribunal had raised three specific issues, as enumerated hereunder. - i. Whether the Appeal is maintainable ? - ii. Whether the impugned order is legally sustainable ? - iii. What is the order as to relief ? Finding that the order impugned before the Tribunal is not sustainable, the matter was remanded to the 2[nd] respondent to take a fresh decision after complying with the directions contained in Ext.P23 order of the Tribunal. _W.P.(C).21256 & 23839 of 2011_ -5- 6. Sri. D. Kishore, learned counsel for petitioners strongly assailed the findings in Ext.P23 on various grounds. It is pointed out that the Tribunal had only remanded the matter for fresh consideration by the 2[nd] respondent, after conducting an inspection in the light of the complaints received from respondents 6 and 7 and after verifying as to whether there is any deviation from the approved plan or violation of the KMBR. But the Tribunal observed that if the Secretary is convinced of any such violation or deviation, he is authorised to take action under Section 406 of the Act or to proceed under Rule 16 of the KMBR. According to learned counsel, while remanding the matter for fresh consideration of the 2[nd] respondent, the Tribunal went highly erred in making observations to the effect that there is evident deviations from the approved plan as well as violations of the KMBR. It is contended that there was no proper adjudication conducted by the Tribunal on the disputed facts in arriving any such findings and there is no basis for any such conclusions. It is also contended that such findings were totally unwarranted since the Tribunal had only left the matter for decision of the 2[nd] respondent. 7. On the question of sustainability of Ext.P18, the _W.P.(C).21256 & 23839 of 2011_ -6- Tribunal had placed reliance on Ext.P24 which is a proceedings of the 2[nd] respondent, dt. 6.9.2010. It was found that the 4[th] respondent was not having any delegated power to issue Ext.P18 order conferred through Ext.P24, since the total plinth area of the building is above the limit prescribed thereunder. Contention of the petitioner is to the effect that if such a finding is accepted, then it is evident that the very proceedings initiated by the 4[th] respondent through Ext.P12 notice itself was without jurisdiction. He also advanced arguments to contend that the appeal itself was not maintainable before the Tribunal. 8. Sri. Issac M. Perumpillil, learned counsel for respondents 6 and 7 resisted the contentions and argued that the opinions expressed by the Tribunal regarding violations and deviations are sustainable. According to him the Tribunal became convinced of such facts, on perusal of the relevant records of the 1[st] respondent Corporation. According to him, even the Tribunal was convinced that there was suppression of material facts while obtaining the Building Permit. It is argued on behalf of respondents 6 & 7 that the 2[nd] respondent has to take note of such observations of the Tribunal while considering the matter afresh. _W.P.(C).21256 & 23839 of 2011_ -7- 9. It is conceded by both sides that no final decision has been taken by the 2[nd] respondent on the basis of Ext.P10 proceedings initiated under Section 406 of the Act. It is necessary for the 2[nd] respondent to take a final decision on the matter, is not in dispute. I heard arguments of Sri.E.D.George, learned standing counsel appearing for respondents 1 to 5. It is evident that the Tribunal had only remanded the matter to the 2[nd] respondent for taking a final decision in the proceedings under Section 406. There is also no dispute regarding the finding that the 4[th] respondent has no jurisdiction in the matter. Then the only question remains is as to whether the findings if any arrived by the Tribunal regarding alleged violations and deviations need be sustained or rather as to whether such findings were warranted. I find justification in the arguments of learned counsel for petitioners that, when the matter was remitted for a fresh consideration by the 2[nd] respondent under Section 406, the Tribunal ought not have expressed any views or findings regarding merits of the alleged deviations and violations. In fact such course will definitely cause prejudice to the petitioners since it is evident that the competent authority have not considered the objections/reply submitted (Ext.P10) to _W.P.(C).21256 & 23839 of 2011_ -8- the show cause notice issued. Hence I am of the view that an independent adjudication by the 2[nd] respondent is warranted in the case. Therefore, I am proposing to make it clear that the 2[nd] respondent should abide by the directions contained in Ext.P23 order, untrammelled by any of the observations or findings rendered by the Tribunal with respect to merits of the alleged deviations and violations. 10. In view of the manner of disposal as proposed above, Sri. D. Kishore, learned counsel for petitioners conceded that the issue relating to maintainability of the appeal before the Tribunal need not be adjudicated. But he pressed for a direction prohibiting any further action from the side of the respondents 4 & 5 pursuant to Ext.P12. I am of the considered opinion that in view of the findings arrived by the Tribunal regarding competency of the 5[th] respondent, it goes without saying that any further proceedings on the basis of Ext.P12 notice is unsustainable. 11. The issue involved in WP(C).23839/2011 is regarding a permit granted for cutting open of 'Kalavath Cross Road' for the purpose of laying Electrical cables and pipes to the building in question. The 1[st] respondent granted Ext.P7 permit and the _W.P.(C).21256 & 23839 of 2011_ -9- petitioners had obtained Ext.P9 sanction from Bharat Sanchar Nigam Limited (BSNL) as well as Ext.P10 consent and no objection from the Residents' Association concerned, for laying cables and pipes. The petitioners are aggrieved by Ext.P15 through which the 5[th] respondent had directed stoppage of such works, for the reason that the Tribunal's interim order dt.4.3.2011 had restrained the petitioners from conducting any internal works in the building in question. Learned counsel for petitioners points out that the period of validity of Ext.P7 permit had expired on 15.6.2011. It is contended that if the work of drawing of cables and pipelines by cutting across the road in question is not completed after renewal of the permit, that will cause severe prejudice. According to him, the petitioners will find it difficult to get further sanctions from BSNL as well as from the Residents' Association. The terms of the interim order dt. 4.3.2011 is only to the effect of permitting continuance of internal works in the building, except that of the balcony and that the Tribunal had permitted works confined to laying of tiles on the floor, internal electrical, plumbing and paving works. Therefore the stoppage directed through Ext.P15 on the basis of such an order is unsustainable, is the contention. Per contra, _W.P.(C).21256 & 23839 of 2011_ -10- counsel for respondents 6 and 7 contended that the interim order of the Tribunal dt.4.3.2011 is only a modification of the previous order issued on 7.2.2011, which had prohibited the petitioners from proceeding with any works in the building. It is also contended that by virtue of the terms of Ext.P23 order the Tribunal made clear that the interim stay granted will remain in force till the 2[nd] respondent takes a decision on the matter. 12. While considering the disputed issue, I take note of the fact that the factual situation regarding completion of the structure of the building is not disputed. That be the position, I am of the view that any permission of cutting open the road and drawing the electric lines and pipelines will not cause any prejudice to respondents 6 and 7. Such works even if done will be subject to final decision of the matter which will be taken by the 2[nd] respondent. It is also noticed that, under normal circumstances, the electric connection will not be given to the building in question only on getting completion certificate from the 1[st] respondent Corporation. 13. Therefore, I am of the view that Ext.P15 is liable to be quashed and the Corporation need be directed to consider the application for renewal of Ext.P7 permit, within a time frame. _W.P.(C).21256 & 23839 of 2011_ -11- 14. In the result, these writ petitions are disposed of on the following terms. - i. WP(C). 21256/11 is disposed of directing the 2[nd] respondent to comply with the specific directions contained in Ext.P23 and to take a fresh decision in the matter in accordance with such directions, totally untrammelled by any of the observations or findings contained in Ext.P23, especially in paragraph 16 thereof, regarding merits of the alleged deviations or violations in the construction of the building. - ii. Such decision as above shall be taken by the 2[nd] respondent after affording all reasonable opportunity to the petitioners and respondents 6 and 7, in order to place their contentions and materials on the different aspects. The decision as directed above shall be taken as early as possible, at any rate within two months from the date of receipt of a copy of this judgment. - iii. It is made clear that no further proceedings pursuant to Ext.P12 to P18 shall be pursued. - iv. WP(C).23839/11 is allowed to the extent of quashing Ext.P15. The 4[th] respondent is directed to consider Ext.P17 _W.P.(C).21256 & 23839 of 2011_ -12- application submitted by the petitioners seeking renewal of Ext.P7 permit and to take a decision thereof at the earliest, at any rate within two weeks from the date of receipt of a copy of this judgment, independently that of the issues pertaining to alleged deviations and violations in the construction of the building, which is the subject matter of Ext.P23 order of the Tribunal. - v. If Ext.P7 permit is renewed and if the petitioners are permitted to cut open the road and to draw the electric cables and pipelines, works if any done on the basis of such permission will be subject to final outcome of the decision which will be taken by the 2[nd] respondent as directed above. - vi. It is made clear that the petitioners are not entitled to proceed with any works in the building, which are prohibited through Ext.P23 order until outcome of the decision of the 2[nd] respondent. ## **C.K.ABDUL REHIM, JUDGE.** okb