IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 WP(C).No. 34939 of 2008(H) --------------------------------------- PETITIONER: ------------------- RADHAKRISHNAN, S/O.N.KRISHNAPANICKAR, AGED 67 YEARS, SECRETARY, GOVIND SUITE OWNERS ASSOCIATION, NORTH NADA, GURUVAYOOR - 680 101. BY ADVS. MR.C.A.CHACKO, SMT.C.M. CHARISMA, MR.N.A. SHAFEEK. RESPONDENTS: ------------------------ 1. GURUVAYOOR MUNICIPALITY, REP. BY THE SECRETARY, GURUVAYOOR. 2. O.P.UNNIKRISHNAN, MANAGING PARTNER, GOVIND SUITES, GURUVAYOOR. 3. P.S.PRASANNAKUMAR, S/O.PALIKKAL SREENIVASAN, CHAVAKKAD TALUK, POOKODU AMSOM AND DESOM, KOTTAPPADY P.O. PIN - 680 505. 4. O.P.BABU, S/O.OZHUKIL PADINJARAPPATTU NARAYANIKUTTY AMMA, MALA PO., PIN - 679 534. R1 BY MR. K.K. CHANDRAN PILLAI, S.C, R2 TO R4 BY ADV. MR.DENIZEN KOMATH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2009, THE COURT ON 20/10/2009 DELIVERED THE FOLLOWING: W.P.(C). NO.34939/2008-H: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE REGISTRATION CERTIFICATE DTD. 23/06/04. EXT.P.2: COPY OF THE JUDGMENT DTD. 04/10/2005 IN W.P.(C).NO.28213/2005 OF THIS HONOURABLE COURT. EXT.P.3: COPY OF THE JUDGMENT DTD. 28/11/2005 IN W.A. NO.2420/2005 OF DIVISION BENCH. EXT.P.4: COPY OF THE ORDER DTD. 07/03/2006 OF R.1. EXT.P.5: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DTD. 16/01/08 IN W.P. (C).NO.8539/06. EXT.P.6: COPY OF THE ORDER DTD. 12/03/08 OF R.1. EXT.P.7: COPY OF THE ORDER DTD. 14/07/08 OF TRIBUNAL. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.34939 of 2008-H = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 20th day of October, 2009. JUDGMENT 1.The first respondent Municipality issued building permit on 30.1.2004 for the construction of the residential apartments with recreation space in the ground floor. The second respondent builder, after completing the construction, sold all the apartments to different buyers. The space earmarked for recreation, in the ground floor, was converted into two flats and sold to respondents 3 and 4. The Municipality failed to regularise that conversion and refused to accede to the request of respondents 3 and 4 for change of ownership. These facts are, without any controversy, reflected by the second paragraph of the impugned Ext.P7 decision of the Tribunal for WPC34939/08 -: 2 :- LSGIs issued on an appeal filed by the second respondent herein. 2.The writ petitioner, who is the Secretary of the Association of the owners of the apartments in the building in question, a registered association as evidenced by Ext.P1, filed WP(C). 28213/2005 alleging that the builder has violated the approved plan and permit and the Municipality is not taking any action in furtherance of a notice issued by it in the matter. That writ petition was ordered as per Ext.P2 judgment directing the Municipality to take such action as warranted by the facts, in accordance with law, as expeditiously as possible. The second respondent builder carried that matter in an appeal. Ext.P3 judgment was delivered by the Division Bench essentially affirming Ext.P2. Thereafter, Ext.P4 was issued by the Secretary of the Municipality. That, in turn, generated WP (C).8539/2006 at the instance of the petitioner herein. In that proceeding, this Court noticed WPC34939/08 -: 3 :- that the Municipality had issued a notice dated 22.11.2006 to the builder and also to the transferees, namely, respondents 3 and 4 herein stating that their action is unauthorised and illegal and will amount to violation of the provisions of the KMBR. Taking that into consideration, this Court issued Ext.P5 judgment giving opportunity to the respondents to file reply to that notice and the Municipality was directed to conclude on the issue after hearing the necessary parties. The final order was directed to be issued in a time bound manner and it was ordered that if no reply was received from the party respondents, the Municipality would ensure that the area in question is utilised as recreation space itself. Following that, after hearing the parties on the basis of the objections filed by the party respondents, the Municipal Secretary issued Ext.P6 order on 12.3.2008. It was held that the space earmarked as recreation space in terms of the approved plan and licence has to be put to use only for such WPC34939/08 -: 4 :- purpose and that such user shall be ensured within a period of 15 days failing which further action would proceed in terms of the Kerala Municipality Act, including, if needed, by police help. Though that decision was rendered by the Municipality after giving opportunity of hearing to the petitioner and respondents 2 to 4 herein and though copies of that order were issued to all of them, the second respondent chose to file an appeal before the Tribunal for LSGIs with only the Municipality on the array as respondent. The Tribunal, in spite of the objection of the Municipality on ground of non-joinder of necessary parties, held that the appeal is maintainable and set aside Ext.P6 order holding that all the flat owners are necessary parties to proceedings before the Municipality. A reading of Ext.P7 apparently shows that the Tribunal was not sure as to the manner in which reference to parties was made in the order of the Municipal Secretary. WPC34939/08 -: 5 :- 3.Challenging Ext.P7 decision of the Tribunal, the petitioner contends that apart from the fact that the same has been issued without hearing the necessary parties, the Tribunal has essentially got confused even on facts and materials and that it erred in holding that fresh orders have to be passed after hearing different owners, though the writ petitioner represents all the owners of the different apartments, except respondents 3 and 4, who are the wrong doers and who are relatives of the second respondent. The learned counsel for the petitioner argued that the manner of adjudication and the approach adopted by the Tribunal result in manifest miscarriage of justice and the very purpose of constituting the Tribunal has failed, having regard to the manner in which the impugned decision has been rendered. 4.Respondents 2 to 4, on facts, have no answer either by way of counter affidavit or otherwise, to the contention of the petitioner and the finding of the Municipal Secretary that the WPC34939/08 -: 6 :- apartments purchased by respondents 3 and 4 from the second respondent are carved out by depriving the occupants of the apartment complex the recreation space which is mandatory in terms of the statutory provisions. All that they had projected even in the appeal before the Tribunal, as discernible from the second paragraph of Ext.P7, is that recreation space was partitioned and sold by the second respondent herein to respondents 3 and 4 as per Document No.142/2006 in terms of the consent of the other owners and the promoter had discussed the matter to re- locate the recreation area on the terrace of the building. It was also contended before the Tribunal that revised plans were submitted for regularisation for providing recreation space on the terrace and that the authorities had inspected the premises and assigned numbers to the newly converted flats and that it was thereafter that the purchasers had submitted applications for change of ownership. Thereupon, the Municipality had issued notice on 22.11.2006 WPC34939/08 -: 7 :- stating that the conversion of the recreation space is against the rules, which fact was also brought to the notice of the Tribunal for LSGIs as discernible from the second paragraph of the impugned Ext.P7. 5.The Tribunal for LSGIs is a creature of the statute. It is constituted under the provisions of the Kerala Panchayat Raj Act, 1994. It is conferred with authority to decide on disputes arising out of the provisions of that Act and also the Kerala Municipality Act. The creation of the Tribunal with exclusive powers of adjudicating certain issues makes it the seat of the power to judicially determined disputes. When a dispute is raised between two persons, it has necessarily to be asserted in law that both the parties are entitled to opportunity of being heard. In the case in hand, even with the material that was placed before the Tribunal in the form of an appeal against Ext.P6, it was abundantly clear that the order impugned in that WPC34939/08 -: 8 :- appeal was generated as a result of the controversies between the petitioner and respondents 2 to 4 herein as discernible from Ext.P7 order itself. It is abundantly clear that the Tribunal was aware of the fact that the said order came from the resolution of disputes which were decided upon by the Municipal Secretary, following the directions of this Court. An owner of an apartment is entitled to insist that the apartment complex is maintained in terms of the approved plan. Otherwise, as noted by the Tribunal itself, the entire building may some times turn out to be an unauthorised construction, being in violation of the approved plan and permit. So much so, when the owners of the different apartments in a complex have formed themselves into a registered association as evidenced by Ext.P1 and when the Secretary of that association was espousing the cause of the occupants, this Court had heard the petitioner in such capacity, not in one, but in more rounds. Ext.P6 order was issued by the Municipal WPC34939/08 -: 9 :- Secretary clearly noting in that order that the said decision is being issued after hearing the necessary parties, including the petitioner herein. These were facts which were presented before the Tribunal. This is discernible from Ext.P7 order itself. Therefore, it was never available for the Tribunal to have decided the matter before it without hearing the petitioner herein. The impugned Ext.P7 order is patently illegal on that ground itself. 6.Be that as it may, the learned Tribunal, with great respect, has made matters worse by concluding the issues relying on principles of civil law which may have no bearing on the issue in hand. The second respondent herein is the promoter. He does not deny even the assertion in this writ petition that respondents 3 and 4 are his relatives. Respondent No.2 does not dispute the fact that the space that has ultimately been allotted as flats to respondents 3 and 4 was the space earmarked for recreation purpose in terms WPC34939/08 -: 10 :- of the approved plan. The advantage obtained by respondents 2 to 4 is nothing but the fruit of illegality. Respondent No.2, having meddled with the recreation area adverse to the interest of the owners of the apartments, that too, in the teeth of the objections of the occupants through the petitioner, cannot be permitted to enjoy the fruit of that situation. This is what exactly has been permitted by the Tribunal, by taking the illogical view that because of the violation and the resultant creation of two flats in the recreation area, the entire building has become unauthorised and therefore, no decision could be taken without hearing the owners of all the apartments. This view, with great respect, is unreasonable and only furthers the illegality to the benefit of the wrong doers. 7.On facts, as already noticed, Ext.P6 decision of the Municipal Secretary concludes by holding that the space earmarked for recreation has necessarily to be put back to such user and WPC34939/08 -: 11 :- cannot be permitted to be used for any other purpose. Balancing the scales of justice, it could be seen that respondents 2 to 4 tried to make more commercial gain at the cost of the violation of the statute law. The provisions contained in KMBR enjoining the earmarking of space for recreation space and other attendant facilities in relation to residential apartments, have different objects to be achieved. Individual needs of citizens, who occupy apartments as owners, the need of their families, including children, the need of the elderly, the need of the occupants of the apartments as a whole to live as a congenial society and different other matters, including safety, are among the laudable objects sought to be achieved by different provisions of KMBR prescribing certain requirements which are mandatory. In that view of the matter, it needs to be noted that respondents 2 to 4 do not have a case that it is not the area earmarked for recreation purpose that has been converted to be two flats and allotted to WPC34939/08 -: 12 :- respondents 3 and 4, which transaction results only in a commercial gain to those involved in that. This cannot work against the interest of the larger community of the owners and occupants of the apartment complex, which necessity is protected by Ext.P6 order. 8.For the aforesaid reasons, the impugned Ext.P7 is arbitrary, unreasonable and illegal. There were no grounds for the Tribunal to have interfered with Ext.P6 decision of the Secretary of the first respondent Municipality. In the result, this writ petition is allowed quashing Ext.P7. Ext.P6 will stand restored by the force of this judgment and the directions contained therein shall be complied with. Respondents 2 to 4 are granted two months' time to comply with the directions in the last paragraph of Ext.P6 order. The petitioner is entitled to costs fixed at Rs.10,000/- recoverable from the second respondent, it having WPC34939/08 -: 13 :- filed an appeal that led to Ext.P7 order, without impleading the petitioner. THOTTATHIL B.RADHAKRISHNAN, JUDGE. Sha/161009