IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 WP(C).No. 11634 of 2009(Y) -------------------------------------- PETITIONER: ------------------- DR.T.VARGHESE GEORGE, S/O.LATE T.G.VARGESE, RESIDING AT P.H.A (12TH FLOOR) HEERA TWINS, PATTOM, TRIVANDRUM. BY ADVS. MR.R.S.KALKURA, MR.M.S.KALESH, MR.HARISH GOPINATH, MR.V.VINAY MENON, SMT.KVP.JAYALEKSHMY, MR.M.AJAY (IRUMPANAM). RESPONDENTS: ------------------------ 1. M.A.RASIQUE, VELLIZHIKOM, M.R.A. 7/A, MUNDAYIL, VARKALA AS POWER OF ATORNEY OF NAZAR, ABDUL HAMEED, 6-B, HEERA TWINS, PATTOM. 2. HEERA CONSTRUCTIONS PVT.LTD., M.P.APPAN ROAD, VAZHUTHACAUD, REPRESENTED BY ITS MANAGING DIRECTOR, HEERA CONSTRUCTIONS PVT.LTD., VAZHUTHACADU, TRIVANDRUM. 3. CORPORATION OF TRIVANDRUM, REPRESENTED BY ITS SECRETARY, CORPORATION BLDG., PALAYAM, TRIVANDRUM. 4. TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, TRIVANDRUM, REPRESENTED BY ITS SECRETARY. R1 BY ADVS. SMT.A.SALINI LAL, MR.R.SUNIL KUMAR, R2 BY ADVS. MR.V.AJAKUMAR, MR.T.M.CHANDRAN, R3 BY MR.N.NANDAKUMARA MENON, SENIOR ADVOCATE, ADV.P.K.MANOJKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/09/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.11634/2009-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE TAX RECEIPT OF THE PROPERTY IN SY. NO. 1717/2-1 OF KAWDIAR VILLAGE. EXT.P.2: COPY OF THE AGREEMENT DTD. 03/02/2003 EXECUTED BY THE R.2. IN FAVOUR OF THE PETITIONER. EXT.P.3: COPY OF THE POWER OF ATTORNEY DTD. 04/08/2003 EXECUTED BY THE PETITIONER IN FAVOUR OF THE R.2. EXT.P.4: COPY OF THE COMPROMISE WAS RECORDED AND THE DECREE DTD. 27/07/2007 IN O.S.930/2007 ON THE FILE OF THE FIRST ADDITIONAL MUNSIFF'S COURT, TRIVANDRUM. EXT.P.5: COPY OF THE ORDER DTD. 14/03/2003 IN I.A. 9459/2007 IN O.S. 1844/2007 OF THE III ADDITIONAL MUNSIFF'S COURT, TRIVANDRUM. EXT.P.6: COPY OF THE JUDGMENT IN C.M.A. 47/2008 ON THE FILE OF THE DISTRICT COURT, TRIVANDRUM DTD. 18/08/2008. EXT.P.7: COPY OF THE PLAN DTD. 03/08/2005 APPROVED BY THE R.2. TREATING THE GROUND FLOOR AS AN OFFICE SPACE. EXT.P.8: COPY OF THE TAX RECEIPT NO. 105973 ISSUED BY THE TRIVANDRUM CORPORATION. EXT.P.9: COPY OF THE PERMIT NO.BA/581/03 DTD. 26/09/2008. EXT.P.10: COPY OF THE APPROVED BY THE R.2. EXT.P.11: COPY OF THE STOP MEMO NO. TPI/63097/08 II DTD. 15/11/2008 ISSUED BY THE R.3. TO THE PETITIONER. EXT.P.12: COPY OF THE NOTICE NO. TP/63097/08 DTD. 03/11/2008 ISSUED BY THE R.3. EXT.P.13: COPY OF THE ORDERS DTD. 16/12/2008 IN APPEAL NO. 622/2008 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT. EXT.P.14: COPY OF THE ORDERS DTD. 16/12/2008 IN APPEAL NO. 629/2008 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT. EXT.P.15: COPY OF THE INTERIM ORDER IN I.A. 9480/2008 IN O.S. 1963/2008 OF THE MUNSIFF'S COURT, TRIVANDRUM DTD. 12/11/2008. EXT.P.16: COPY OF THE FIR NO. 430/2008 OF THE PEROORKADA POLICE STATION. EXT.P.17: COPY OF THE ORDER DTD. 05/01/2009 IN 630/2008 OF THE OMBUDSMAN. EXT.P.18: COPY OF THE APPEAL MEMORANDUM NO. APPEAL NO. 663/2008 DTD. 11/11/2008 BEFORE THE TRIBUNAL FOR LOCAL SELF GOVT. W.P.(C). NO.11634/2009-Y: EXT.P.19: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER ALONG WITH DOCUMENTS IN APPEAL NO. 663/2008. EXT.P.20: COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE R.3. AUTHORITIES IN APPEAL NO. 663/2008. EXT.P.21: COPY OF THE APPEAL NO. 663/08 DTD. 05/03/2009 FILED BY THE PETITIONER BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT. EXT.P.22: COPY OF THE OMMISSION REPORT IN O.S. 1963/2008. EXT.P.23: COPY OF THE AGREEMENT DTD. 20/08/2004 EXECUTED BY THE R.2. IN FAVOUR OF THE R.1. EXT.P.24: COPY OF THE SALE DEED WAS EXECUTED BY THE R.2. IN FAVOUR OF THE R.1. EXT.P.25: COPY OF THE ORDER DTD. 05/03/2009 IN APPEAL NO. 663/08 ISSUED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE PLAN ISSUED BY TRIVANDRUM CORPORATION. EXT.R1.B: COPY OF THE LETTER DTD. 07/02/07 ISSUED BY R2. EXT.R2.A: COPY OF THE REVISED PLAN. EXT.R2.B: COPY OF THE RECEIPT. //TRUE COPY// P.A. TO JUDGE. Prv. THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.11634 OF 2009 ------------------------------------------- Dated this the 25th day of September, 2009 JUDGMENT The petitioner and the first respondent are owners of different apartments in a multi-apartment buildings, of which, the second respondent is the builder. The rights and liabilities of the parties are stated to be referable to the provisions of the Kerala Apartments Ownership Act, 1983. The crux of the issue involved in the litigation is as to whether a particular apartment owner could object the modifications by another apartment owner and whether any such modification requires the concurrence or consent of other apartment owners. The issue directly and substantially arising for decision would necessarily have to be considered with the junction of the builder, who states any such aspects cannot be ignored. In view of the practical reality that the fractional interest of title over the land is merely a legal consequence; what ultimately turns out for the parties in the commercial sense is the worth of holding an apartment. Therefore, the second respondent who is the builder WPC.11634/09 Page numbers is justified in stating that the impugned decision ought not have been rendered as if it involved only a private lis exclusively inter partes the petitioner and the first respondent. Upholding that submission, I deem it inappropriate for this Court to further dealt with on the other issues placed for consideration since the matter has to go back to the Tribunal for LSGI for consideration de novo. The impugned order is set aside and the Tribunal for LSGI will hear the petitioner, respondents 1 and 2 as also the Trivandrum corporation and take decision in the matter afresh in accordance with law. It is noted from the order of the Tribunal that the corporation did not participate but remained ex parte the proceedings. It is appropriate that the corporation also appears and makes effective submissions at least touching the law involved, having regard to the questions arising for decision. All issues on merits are left open. This writ petition is disposed of with the above directions. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.29/9.