IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 WP(C).No. 28045 of 2006(L) -------------------------------------- PETITIONER: ------------------- P.P. SREENIVASAN, PANIKKAPARAMBIL HOUSE, KATTOOR P.O.,THRISSUR DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER BHABBY RAJAN, MALIAKKAL HOUSE, EAST CHALAKKUDY, THRISSUR DISTRICT. BY ADV. SRI.DINESH R.SHENOY. RESPONDENTS: ------------------------ 1. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. 2. THE SECRETARY, THRISSUR CORPORATION, THRISSUR. 3. N.P. KAMARUDEEN, PROMOTER, M/S. IDEAL PROPERTIES AND DEVELOPERS, THRISSUR. *ADDL.R4. THE CHIEF TOWN PLANNER, LOCAL SELF GOVT. INSTITUTIONS, HAVING OFFICE AT PALAYAM, THIRUVANANTHAPURAM. *ADDL.R5. THE SENIOR TOWN PLANNER, HAVING OFFICE OF THE TOWN PLANNER, PALAYAM, THIRUVANANTHAPURAM. *ARE IMPLEADED VIDE ORDER DT. 23/03/07 ON I.A. 4329/07. R1, R4 & R5 BY SPL. GOVT. PLEADER SRI. C.M. SURESH BABU, R2 BY ADV. SRI.K.B.MOHANDAS,SC,THRISSUR CORPORATION, ADV. SRI.LELLULAL T.G.THUNDATHIL, ADV. SRI.K.A.SREEJITH, R3 BY ADV. SRI.V.CHITAMBARESH (SR.), ADV. SRI.T.C.SURESH MENON. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/07/2008,ALONG WITH W.P(C). NOS. 14868/2007 & 23109/ 2007 THE COURT ON 23/10/2008 DELIVERED THE FOLLOWING: prv. ANTONY DOMINIC, J. ==================== W.P.(C) Nos. 28045 OF 2006, 14868 & 23109 OF 2007 ==================== Dated this the 23rd day of October, 2008 J U D G M E N T The controversy in these writ petitions is regarding the construction of a multi storied building undertaken by M/s Ideal Properties and Developers. 2. W.P(C) Nos.28045/06 & 14868/07 are filed by Sri.P.P.Sreenivasan and W.P(C) No.23109/07 has been filed by M/s.Ideal Properties and Developers themselves. Since the parties and the issue raised are common, these writ petitions are disposed by this common judgment. For convenience, I shall be referring to the facts and documents as are available in the pleadings of the respective parties in WP(C) NO.23109/07. 3. Ext.R4(a) dated 5/1/2005 is an application made by M/s Ideal Properties for a building permit for the construction of a 12 storied residential cum commercial building having a height of 42.40 metres and plinth area of 3289.09 M2. Immediately after the application was made, by Ext.R4(c) dated 22/2/2005, they had relinquished rights over 3.85 cents of land out of 20 cents of land in Sy.No.1857/2 of Trichur Village for road widening purposes. Ext.R4(d) is the Minutes of the Special Committee, constituted under Rule 85 of the Kerala Municipality Building Rules,1999 held on 18/3/2005, resolving to grant exemption to the petitioner, subject to an inspection and report of the Town WPC Nos. 28045/2006 [L], 14868/07 [T] & 23109/07 [A] :2 : Planner. Ext.R4(b) shows that the Secretary of the Corporation being the Convenor of the Special Committee was absent in the meeting. 4. Ext.R4(d) is the report of the Town Planner, in which it is stated that the area in respect of which Ext.R4(a) application was made and Ext.R4(b) resolution was passed by the Special Committee has been earmarked in the Town Planning Scheme for commercial and small scale industrial purposes. The Town Planner has also enclosed a copy of the letter dated 19/3/2005 from the Chief Town Planner stating that neither the Secretary of the Local Body nor the Special Committee is competent to grant any exemption from the Zoning Regulations and that this power is available only to the Government. 5. While matters stood thus, the petitioner submitted Ext.P14 dated 17/6/05, a fresh relinquishment, offering to surrender 1.20 cents of land for the construction of a bell mouth. This was followed by Ext.R4(e), a revised application submitted by the petitioner for a two storied commercial building. According to the 4th respondent, Sri.P.P.Sreenivasan, the petitioner in the other two writ petitions, who lives in the adjacent property, petitioner had already excavated up to 8.5 metres causing extensive damages to his compound wall and residential building. According to him, the excavation was without any building permit and when it reached a depth of 8.5 metres, he caused the site to be inspected by a Chartered Engineer on 9/6/05, who has issued Ext.R4(f) WPC Nos. 28045/2006 [L], 14868/07 [T] & 23109/07 [A] :3 : certificate, which shows that excavation work had already started. 6. In the meantime, it would also appear from the pleadings that on 17/6/05, the petitioner had filed yet another application for a building permit for an 11 storied building. In view of Ext.R4(f) certificate issued by the Chartered Engineer as stated above, the 4th respondent appears to have filed Ext.R4(g) complaint before the Corporation on 4/7/2005. According to him, while nothing was being done on his complaint, without making reference to Ext.R4(d) report of the Town Planner or its enclosure, Ext.P1 building permit was granted on 21/7/2005, permitting construction of a building with basement and two floors. In this permit, reference is made to an application dated 11/1/2005, although the dimensions of the building mentioned in the permit would show that it pertains to Ext.R4(e) revised application. He would also state that the Secretary of the Corporation was colluding with the petitioner and it was to legitimize the unauthorised work that petitioner had undertaken that after accepting Ext.R4(e), a predated application, Ext.P1 building permit was issued in a hurried manner on 21/7/2005 and that thereafter, on 29/7/2005, a memo was issued requiring the petitioner to construct only as per Ext.P1 building permit. 7. According to the 4th respondent, in view of the extensive damage that was caused, he approached this Court by filing WP(C) 21790/05, which was disposed of by Ext.P2 judgment dated 6/8/05 relegating him to pursue his remedies WPC Nos. 28045/2006 [L], 14868/07 [T] & 23109/07 [A] :4 : before the Civil Court. Thereupon, he filed OS 3123/05 before Munsiff's Court, Trichur. Pursuant to the orders passed, site was inspected by an Advocate Commissioner on two occassions and Exts. R4(h) and R4(i) reports were submitted on 3/10/2005 and 12/12/2005. In IA 8603/05 filed by him seeking an order of temporary injunction, Munsiff Court passed Ext.P3 order dated 13/10/2005 restraining the petitioner from constructing retaining wall and directing the petitioner that construction as per the Building Permit shall be only after leaving space as per the Building Rules. According to the 4th respondent, aggrieved by this order, he has filed an appeal before the District Court and the same is pending. 8. While so, a public interest litigation was filed before this Court as WP(C) No.8436/06, against the construction undertaken by the petitioner. It needs to be stated that both the petitioner and the 4th respondent are accusing each other of being instrumental for filing this Public Interest writ petition. Be that as it may, the writ petition was disposed of by Ext.P4 judgment dated 21/3/2006 directing the 2nd respondent therein, the Secretary of the Corporation to pass order on Ext.P11 complaint filed by the 4th respondent herein. It is stated that while so, acting on the report submitted by the Senior Town Planner (Vigilance) to the effect that the construction undertaken by the petitioner was in violation of Rule 20 of the Building Rules, 1999, a stop memo was issued by the 2nd respondent and the petitioner filed its objections. Thereafter, they filed WPC Nos. 28045/2006 [L], 14868/07 [T] & 23109/07 [A] :5 : WP(C) No.10506/06 before this court, which was disposed of by Ext.P5 judgment dated 5/4/06 directing the 2nd respondent to consider the petitioner's representation to lift the stop memo. Accordingly, Ext.P6 order was passed by the 2nd respondent in pursuance to Exts. P4 and P5 judgments, lifting the stop memo, but subject to certain conditions. 9. Against Ext.P6 order, WP(C) NO.13022/06 was filed by the 4th respondent and that case was disposed of by Ext.P7 judgment directing him to pursue the appellate remedy before the Tribunal. In pursuance to the judgment, the 4th respondent filed Appeal No.246/06 before the Tribunal for local Self Government Institutions. In the meantime, petitioner states that in compliance with the conditions imposed in Ext.P6, he had executed Ext.P8 indemnity bond undertaking to indemnify the 4th respondent against any loss that may be caused and completed construction of the retaining wall. Appeal No.246/06 was heard by the Tribunal and the Tribunal passed Ext.P9 order dated 16/8/06 holding that Ext.P6 order will not cause any harm to the 4th respondent and that on the other hand, the conditions therein will only avert the possibility of any nuisance or danger to his building on account of the excavation in the adjacent property. Surprisingly, the 4th respondent had not impleaded the petitioner as a respondent to Appeal No.246/06, though allegations made and relief sought were against them and that is one of the reasons stated in the order. Still, in Ext.P9 the WPC Nos. 28045/2006 [L], 14868/07 [T] & 23109/07 [A] :6 : Tribunal directed the petitioner to ensure that construction on the basis of the permit is strictly in accordance with its terms and in compliance with the provisions of the Kerala Municipality Act and the Building Rules. It is challenging Ext.P9, the 4th respondent therein, viz, Sri.P.P.Sreenivasan has filed WP(C) No.28045/06 and the main contention in that writ petition is that none of the conditions of Ext.P6 have been complied with by the petitioner and that it was despite that his appeal has been dismissed. Initially though by order dated 26/10/2006 passed in WP(C) NO.28045/06, Ext.P9 order of the Tribunal was stayed, that order was modified by order dated 31/10/2006 permitting construction in terms of the building permit. 10. In the meantime, on 28/10/2006, Ext.P10 permit was issued to the petitioner authorising him to construct additional floors to make the building an 11 storied one, mostly for residential purposes and this permit makes reference to an application dated 26.9.06 made by them. The 4th respondent has a contention that Ext.P10 permit was granted without even placing the matter before the Special Committee and that in view of Ext.R4(m) amendment to the Building Rules, the permit could not have been granted. The Corporation is justifying Ext.P10, in paragraph 9 of its counter affidavit, the relevant portion of which is extracted for reference. 11. The averments made in paragraph 6 is not fully correct. The observations regarding Ext.P9 order of the Tribunal made in this WPC Nos. 28045/2006 [L], 14868/07 [T] & 23109/07 [A] :7 : paragraph is correct. Ext.P10 is the copy of the revised Building permit issued by the Corporation. The Building Committee of the Corporation is constituted as per Chapter 1 of Kerala Municipal Building Rules, 1999 and was formed as per the order of Government (GO(Rt) 2486/01/LSGD dt 6.8.01). The Building committee in its meeting held as per Ext.P15, sanctioned the construction of the Multi storied building and the committee is competent to make such a decision. Out of this, the permit for the lower 3 floors was given in the first stage, since NOC from Fire Force Department is needed for getting the permit of remaining floors of the high rise building. Accordingly, the petitioner obtained the NOC from Fire Force Department later and the revised permit was given later which is as per the decision of the special building committee as per Ext.P15. 12. In the meanwhile, the construction was progressing and the Chief Town Planner submitted Ext.R4(n) report dated 29.3.2007, pointing out the irregularities committed by the Special Committee in granting the permits. It was in these circumstances that the 4th respondent again filed WP(C) NO.14868/07 seeking to quash Ext.P10 building permit and for orders to give effect to Ext.R4(n) report of the Chief Town Planner. 13. Meantime, the Government issued Ext.R4(o) order taking note of the large scale exemptions granted by the Special Committee and proposing to review the same. Following Ext.R4(o), on 7.7.2007, Ext.P20 memo was issued by the 2nd respondent, referring to the complaints received by the Chief Minister and the Minister for Local Self Government Department and requiring the petitioner to stop further construction. In response to Ext.P20, petitioner has filed Ext.P21 objections and thereafter filed WP(C) No.23109/07 seeking to quash Ext.P20 and WPC Nos. 28045/2006 [L], 14868/07 [T] & 23109/07 [A] :8 : to permit them to continue the construction. 14. Thus the challenge in these writ petitions are against the following orders: 1) W.P(C) No.28045/06 filed by Sri.P.P. Sreenivasan, the 4th respondent in W.P(C) No.23109/07 is against Ext.P9 order passed by the Tribunal for Local Self Government Institutions dismissing Appeal No.246/06 filed by him against Ext.P6 order passed by the Secretary of the Corporation. 2) WP(C) No.14868/07 filed by Sri.P.P. Sreenivasan, the 4th respondent in WP(C) No.23109/07 is to quash Ext.P10, the revised permit and he is also seeking a direction to give effect to Ext.R4(n), the report of the Chief Town Planner. 3) W.P(C) No.23109/07 filed by M/s.Ideal Properties and Developers is to quash Ext.P20 stop memo issued by the Corporation requiring them to stop further construction of the building complex. 15. In so far as W.P(C) No.28045/06 is concerned, by Ext.P9 order dated 16/8/06, the Tribunal rejected the appeal filed by the petitioner therein. A reading of the order shows that though appeal was filed against Ext.P6 order rendered by the Secretary of the Corporation, for some reason that is not WPC Nos. 28045/2006 [L], 14868/07 [T] & 23109/07 [A] :9 : understandable, he did not implead M/s.Ideal Properties and Developers as a respondent in the appeal before the Tribunal. Though the Tribunal has affirmed the impugned order on merits as well, non impleadment of necessary party viz., M/s.Ideal Properties and Developers, is one of the reasons stated by the Tribunal. I am in full agreement with the Tribunal that M/s.Ideal Properties and Developers in whose favour the order appealed against was passed by the Secretary of the Corporation ought to have been impleaded in the appeal. Therefore, I do not think it necessary for me to examine the correctness of the other reasons found by the Tribunal for upholding Ext.P6 order. W.P.(C) No.28045/06 deserves to be dismissed and I do so. 16. W.P.(C) No.14868/07 has been filed by Sri. P.P. Sreenivasan, praying to quash Ext.P10 revised permit and to give effect to Ext.R4(n) report of the Chief Town Planner. As already noticed, Ext.P20 notice has been issued by the Corporation following several complaints received by the office of the Chief Minister and the Minister for Local Self Government Institutions requiring the petitioner in W.P.(C)No.23109/07 to stop further construction. Ext.R4(o) is a Government order deciding to review all exemptions granted by the Special Committee. It is also seen that M/s.Ideal Properties and Developers have filed their objections to Ext.P20. In the adjudication that will necessarily follow, the correctness or otherwise of Ext.P10 revised permit issued in favour of M/s. Ideal WPC Nos. 28045/2006 [L], 14868/07 [T] & 23109/07 [A] :10 : Properties and Developers will also be one of the issues to be considered by the Secretary. In view of this, I do not think it proper for this court to pronounce on the validity or otherwise of the revised permit and the proper course, in my view, is to direct that the entire issue be reconsidered by the Corporation in the enquiry that it has to hold in pursuance to Ext.P20 memo. 17. Therefore, W.P.(C) No.14868/07 and W.P.(C) No.23109/07 are disposed of directing that the Corporation shall conduct enquiry in pursuance to Ext.P20 with notice to the M/s.Ideal Properties and Developers, the petitioner in W.P(C) No.23109/07 and Sri.P.P.Sreenivasan, the petitioner in W.P(C) No.14868/07 into the entire issues including the validity of Ext.P10 revised permit, Ext.P14 relinquishment and such other issues and thereafter pass final orders in this matter. This shall be done, as expeditiously, as possible, at any rate within 8 weeks of receipt of a copy of this judgment. In the meanwhile the status quo as on date shall be maintained by M/s. Ideal Properties and Developers. W.P.(C) No.28045/06 is dismissed and W.P.(C) Nos.14868 and 23109/07 are disposed of as above, without any order as to costs. ANTONY DOMINIC, JUDGE Rp