IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 WP(C).No. 13709 of 2008(F) ----------------------------------------- PETITIONER: ---------------------- LEELADHARAN.T.V., S/O.N.VELAYUDHAN, AGED 58 YEARS, GEETHAM, KUREEKKATT LANE, POONITHURA KOTTARAM ROAD, POONITHURA PO., MARADU,ERNAKULAM. BY ADV. SRI.V.V.SURENDRAN RESPONDENTS: ----------------------- 1. M/S. AMBERMOLI HOMES, REPRESENTED BY ITS MANAGING PARTNER B.RAGHAVAN, 4/678, KOTTARAM JUNCTION, MARADU, KOCHI – 682 304. 2. S.VENUGOPAL, S/O.K.P.SACHIDANANDAN, PARTNER, AMBERMOLI HOMES, SUBHADRAM, MARADU P.O., ERNAKULAM. 3. MRS.RAJALAKSHMI, W/O.KRISHNA KUMAR, KARTHIKA, NOW RESIDING AT NELLIKKAPPILLIL, NEAR N.S.S.KARAYOGAM, POONITHURA, ERNAKULAM-682317. 4. CORPORATION OF COCHIN, REP. BY ITS SECRETARY, COCHIN CORPORATION, ERNAKULAM. 5. THE SECRETARY, COCHIN CORPORATION, ERNAKULAM. 6. STATE OF KERALA , REPRESENTED BY SECRETARY, LOCAL SELF GOVERNMENT, SECRETARIAT, TRIVANDRUM. BY GOVERNMENT PLEADER SRI. K.V. MANOJKUMAR - R6 BY ADV. SRI.T.K.RADHAKRISHNAN - R1TO3 SRI.S.RAMESH BABU, SC, KOCHI CORPORATION-R4 & R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.13709/2008 F APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE BROCHURE ISSUED BY THE 1ST RESPONDENT. EXT.P2: COPY OF THE REPRESENTATION DTD. 17/03/2008. EXT.P3: COPY OF THE NOTICE RECEIVED BY PETITIONER FROM THE 4TH RESPONDENT. EXT.P4: COPY OF THE PHOTOGRAPH SHOWING THE RETNTION WALL. EXT.P5: COPY OF THE PHOTOGRAPH SHOWING THE DAMAGES. EXT.P6: COPY OF THE CERTIFICATE FROM A CHARTERED ENGINEER. RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF THE CAVEAT NUMBERED AS 91 OF 2008 BEFORE THE SUB COURT, ERNAKULAM. EXT.R1(B): COPY OF THE POSTAL A.D.CARD DTD. 19/03/2008 SIGNED BY THE PETITIONER. EXT.R1(C): COPY OF BUILDING PERMIT DTD. 27/10/2007 ISSUED BY THE 5TH RESPONDENT. EXT.R1(D): COPY OF APPROVED BUILDING AND SITE PLAN. EXT.R1(E): COPY OF ORDER DTD. 21/04/2008 ISSUED BY VILLAGE OFFICER, POONITHURA. EXT.R1(F): PHOTOGRAPH SHOWING PRESENT NATURE OF THE WORK. /TRUE COPY/ P.S.TO JUDGE Kss ANTONY DOMINIC, J. = = = = = = = = = = = = = = = W.P.(C) No. 13709 OF 2008 - F = = = = = = = = = = = = = = = Dated this the 18th June 2008 J U D G M E N T The prayer in this writ petition is to restrain respondents 1 to 3 from carrying out any construction in the 20 cents of land comprised in Sy. No. 1375/1 of Poonithura Village of Kanayannur Taluk. Petitioner also seeks a direction to respondents 4 and 5 to cancel the building permit issued in favour of respondents 1 to 3 and to stop construction of any building in the land. 2. According to the petitioner, the aforesaid 20 cents of land belongs to the 3rd respondent. The 3rd respondent has joined respondents 1 and 2 and they are in the process of constructing an apartment complex in the land referred to above. Ext. P1 is the brochure published by the respondents which indicates that they are planning to construct a multi-storied apartment complex in the property with basement, parking etc. Ext. R1(c) is the building permit that was obtained by the respondents and Ext. R1(d) is the approved plan. W.P.(C) No. 13709 OF 2008 -2- 3. The grounds on which the petitioner is seeking reliefs mentioned above are that in the plan which has been approved by the Corporation there is violation of the provisions of the Kerala Municipality Building Rules, 1999. It is stated that there is violation of Rule 33 as the width of the access road is less than 5 metres. It is also stated that though the maximum covered area permitted in terms of Rule 31 is 65%, in reality it is 69%, although going by the plan approved it is only 59%. It is also stated that the height of the building is much more than what is permitted in Rule 32(a) of the Kerala Municipality Building Rules, 1999. 4. Respondents 1 to 3 have filed a counter affidavit. In so far as the width of the access road is concerned, they are relying on Rule 33 itself. According to the respondents, in terms of Table 4 of Rule 33 a building with 3 storeys with multiple unit needs to have access road with a width of 3.60 metres only. It is pointed out that as per Ext. R1(d) plan, the width of the access road is 3.6 metres itself. In so far as th covered area is concerned, the respondents would contend that the total area of the land is 809.4 sq.m. It is stated that as per Ext. R1(d) approved plan, the plinth area of the W.P.(C) No. 13709 OF 2008 -3- ground floor is only 485 sq.m. It is also contended that the covered area is much less than 65% permissible in terms of Table 2 of Rule 31. 5. In so far as the height of the building is concerned, Rule 32(a) is relied on. It is stated that in terms of Rule 32(a) the maximum height of the building shall not exceed twice the width of the street abutting the plot plus twice the width of the yard from the building to the abutting street. It is also provided that this height may further be increased proportionately at the rate of 3 metres for every 50 cms. by which the building or the corresponding portion or floor of the building is set back from the building line. It is stated that the access road being 3.6 m. and the front open space being 3.5 ms. the permissible height of the building is upto 14.2 metres. As against the permissible height of 14.2 metres it is contended that as per Ext. R1(d) plan the maximum height of the building is only 9.95 metres. On this basis, the contention of the learned counsel for the petitioner is sought to be contradicted. 6. Along with I.A. No. 7691/08 the counsel for the petitioner has produced Ext. P6, a certificate issued by a chartered W.P.(C) No. 13709 OF 2008 -4- engineer to the effect that the covered area is 68.97% and on this basis learned counsel submits that there is violation of Rule 31 Table 2. Pursuant to the order passed by this Court on 29.4.2008, an inspection was conducted by the 5th respondent. The Standing Counsel for the Corporation has made available to me the files and from the files I notice that the 5th respondent, on inspection had found that when the excavation work was being done, some damage was caused to the compound wall of a neighbour. It is stated that on coming to know of this, suitable directions have been issued to rectify the damages and that not to cause any damage thereafter. The file also contains a site inspection report prepared by the 5th respondent. Going by the site inspection report, the provisions made by respondents 1 to 3 are reported to be strictly in terms of the Building Rules. 7. As at present, apart from the excavation work that has been done by the respondents, they have not started construction of either the foundation or the super structure. The respondents have produced as Ext. R1(f) photographs which show that the excavation work in the area adjacent to the petitioner's property has already W.P.(C) No. 13709 OF 2008 -5- been completed and they reiterated this submission during the course of the arguments also. Further petitioner has on case that any damage has been caused to his property. It is in the aforesaid factual background I have to appreciate the contentions raised by the learned counsel for the petitioner. 8. As already noticed, the violations alleged are in respect of the inadequate width of the access road, covered area and height of the building. All these aspects have been satisfactorily explained by respondents 1 to 3 and in view of the photographs which I have referred to earlier I am not satisfied that the petitioner has got a case for interference, at least at this stage. I am also not persuaded to act upon Ext. P12 certificate issued by the Chartered Engineer for the reason that while calculating the total area, the area of the open space inside the apartment complex as indicated in the plan is not excluded. Therefore, the percentage calculated by the engineer, cannot be safely acted upon. In view of all these, I am not persuaded to issue the directions that are sought for. 9. However, the fact remains that the petitioner is a neighbouring resident and his concerns should be adequately W.P.(C) No. 13709 OF 2008 -6- addressed. It is also the responsibility of the builders not to cause any damage to the property. If there is any imminent threat of any damage it is always possible for the aggrieved party to move the Secretary of the Corporation who has the responsibility to safeguard the interest of the petitioner and to ensure compliance of the rules. 10. Accordingly, I direct that the respondents will be permitted to proceed with the construction and if the petitioner has any genuine grievance, it will be open to him to move the Secretary of the Corporation who shall take necessary action if and when any such intimation is received from the petitioner. 11. I record the submission of the learned counsel for respondents 1 to 3 that in the portion which is adjacent to the petitioner's property they have already completed the excavation and that in that portion of the plot there will be no further excavation. Writ petition is disposed of with the aforesaid directions. ANTONY DOMINIC JUDGE jan/-