IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 30TH MAY 2008 / 9TH JYAISHTA 1930 WP(C).No. 34540 of 2007(J) -------------------------- PETITIONER: ------------ 1. M/S MALAYALAM BUILDERS, ROOM NO.442-A, M.D.COMMERCIAL CENTRE, K.K.ROAD, KOTTAYAM-686601. REPRESENTED BY ITS PARTNERS, MRS. ANCY ALEX & MRS. SHEEJA JOJO. 2. MRS. ANCY ALEX, AGED 41 YEARS, W/O ALEX V.CHACKO, PARTNER, M/S MALAYALAM BUILDRS, ROOM NO.442-A, M.D.COMMERCIAL CENTRE, K.K.ROAD, KOTTAYAM-686601. 3. MRS. SHEEJA JOJO, AGED 31 YEARS, W/O JOJO LUKOSE, PARTNER, M/S MALAYALAM BUILDRS, ROOM NO.442-A, M.D.COMMERCIAL CENTRE, K.K.ROAD, KOTTAYAM-686601. 4. MRS. REKHA JIBI JOHN, AGED 31 YEARS, W/O JIBI JOHN, PARTNER, M/S MALAYALAM BUILDRS, ROOM NO.442-A, M.D.COMMERCIAL CENTRE, K.K.ROAD, KOTTAYAM-686601. BY ADV. SRI.C.C.THOMAS (SR.) SRI.M.G.KARTHIKEYAN RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT(RA) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY, KOTTAYAM MUNICIPALITY, MUNICIPAL OFFICE, KOTTAYAM. 3. KOTTAYAM MUNICIPALITY, MUNICIPAL OFFICE, KOTTAYAM, REPRESENTED BY ITS SECRETARY. 4. THE DISTRICT COLLECTOR/DISTRICT MAGISTRATE, COLLECTORATE P.O., KOTTAYAM. 5. C.I.DAS, AGED 59 YEARS, S/O LATE KRISHNAN ITTIYATHI, VALIYAPARAMBIL HOUSE, DEVALOKAM P.O., MUTTAMBALAM, KOTTAYAM. 6. P.K.MOHANDAS, S/O C.I.KRISHNAN, 'MOHAN VILLA', PANAYAKKAZHIPPU KARA, MUTTAMBALAM VILLAGE, KOTTAYAM TALUK. ADDL. R7: REV. SR.PULCHERIA C.T.C. PROVINCIAL SUPERIOR, DEVAMATHA PROVINCE, FATHIMA MATHA CONVENT, NAGAMPADAM, KOTTAYAM 686 001 IS IMPLEADED AS ADDL. RESPONDENT 7 AS PER ORDER DT. 7-12-07 IN IA.16359/07. BY SR. GOVT. PLEADER SRI. BASANT BALAJI – R1 & R4 BY ADV. SRI.SIBY MATHEW FOR R.3 SRI.A.A.MOHAMMED NAZIR FOR R.3 SRI.C.S.MANU FOR R6 SRI.S.K.PREMRAJ FOR R6 SRI.SATHISH NINAN FOR R5 SRI.SANTHOSH MATHEW FOR R5 THE ADVOCATE GENERAL SRI.ANTONY M. AMBAT FOR R7 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX: WP(C). 34540 OF 2007. PETITIONERS' EXHIBITS: EXT.P1 PHOTOCOPY OF THE SALE DEED NO.3540/06 DATED 27-11-2006 EXECUTED IN FAVOUR OF PETITIONERS 2 TO 4. EXT.P2 PHOTOCOPY OF THE BUILDING PERMIT NO.PW7/BA/14/98-99 DATED 5-5- 2000 ISSUED BY THE 2ND RESPONDENT. EXT.P3 PHOTOCOPY OF THE ORDER NO.PW7/BA/14/98-99 DATED 9-6-2003 ISSUED BY THE 2ND RESPONDENT. EXT.P4 PHOTOCOPY OF THE BUILDING PERMIT NO.PW7/BA/14/98-99 DATED 14-3- 2006 ISSUED BY THE 2ND RESPONDENT. EXT.P5 PHOTOCOPY OF THE CONDITIONAL ORDER DATED 3-10-2007 PASSED BY THE 4TH RESPONDENT. EXT.P6 PHOTOCOPY OF THE OBJECTION DATED 25-10-2007 SUBMITTED BY PETITIONERS 2 TO 4 TO THE 4TH RESPONDENT. EXT.P7 PHOTOCOPY of the OBJECTION DATED 25-10-2007 SUBMITTED BY ALEX V.CHACKO TO THE 4TH RESPONDENT. EXT.P8 PHOTOCOPY OF THE OBJECTION DATED 25-10-2007 SUBMITTED BY JOJO LUKOSE TO THE 4TH RESPONDENT. EXT.P9 PHOTOCOPY OF THE OBJECTION DATED 25-10-2007 SUBMITTED BY JIBI JOHN TO THE 4TH RESPONDENT. EXT.P10 PHOTOCOPY OF THE COUNTER AFFIDAVIT DATED 1611-2007 FILED BY THE 2ND RESPONDENT IN WP(C) No. 32122/07 BEFORE THIS HON'BLE COURT. EXT.P11 PHOTOCOPY OF THE NOTICE DATED 12-11-2007 ISSUED BY THE 2ND RESPONDENT. EXT.P12 PHOTOCOPY OF THE LETTER DATED 15-11-2007 SUBMITTED BY PETITIONERS 2 TO 4 TO THE 2ND RESPONDENT. EXT.P13 PHOTOCOPY OF THE LETTER DATED 16-11-2007 ISSUED BY THE 5TH RESPONDENT TO THE 2ND RESPONDENT. EXT.P14 PHOTOCOPY OF THE LETTER DATED 2-11-2007 ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT. EXT.P15 PHOTOCOPY OF THE ORDER NO.PW7/BA./14/98-99 DATED 15-11-2007 PASSED BY THE 2ND RESPONDENT. EXT.P16 PHOTO COPY OF THE POWER OF ATTORNEY DATED 17-4-1997 EXECUTED BY THE 5TH RESPONDENT. EXT.P17 PHOTOCOPY OF THE ORDER NO.MC-1/07/H1 DATED 31-12-2007 PASSED BY THE 4TH RESPONDENT. RESPONDENTS' EXHIBITS: EXT.R7(A) TRUE COPY OF THE MEMORANDUM DATED 13-2-1998 EXT.R7(B) TRUE COPY OF THE REPLY BY THE BUILDERS DT. 13-3-1998. EXT.R1(A) TRUE COPY OF LAWYER NOTICE DATED 21-12-2007 RECEIVED ON 24-12- 07. EXT.R1(B) TRUE COPY OF ORDER IN MC.1/07 H1 DATED 31-12-2007. //TRUE COPY// PS TO JUDGE. PIUS C. KURIAKOSE, J. --------------------------------- W.P.(C) Nos. 34540 OF 2007 -------------------------------- Dated this the 30th May 2008 J U D G M E N T The first petitioner is a partnership firm and petitioners 2 to 4 are partners to the said firm. The first respondent is the State and respondents 2 and 3 are the Secretary, Kottayam Municipality and the Municipality respectively. The additional 7th respondent is Rev. Sr. Provincial Superior of Devamatha Province, which owns the Fathima Matha Convent at Nagampadom. The substance of the case is that the petitioner firm purchased the property together with an incomplete multi-storied building from the 6th respondent. Permit for constructing the building was transferred in the name of petitioners 2 to 4 on 2-4- 2007. The permit is valid up to 4-5-2009. There is no objection from any quarter for the construction of the building. Unfortunately an accident occurred at the construction site on 21-10-2007 which resulted in the death of two nuns of Fathima Matha Convent under the additional 7th respondent. Bricks fell down from the hands of the workers from the 7th floor. The nuns who were standing in the compound of the convent sustained head injuries and lost their lives. The husband of the 4th petitioner is a Councilor of the Kottayam WPC.34540/2007 -2- Municipality owing allegiance to the Communist Party of India (Marxist) and therefore the rival political parties started agitations capitalising on the unfortunate accident with the design of reaping political advantages. The first respondent Government passed Ext.P14 order for satisfying the agitators directing the second respondent to suspend the permit as per rule 16 of the KMBR 1999 on the allegation of three rule violations mentioned in Ext.P14. The 5th respondent owner of the adjacent property also capitalised on the accident and filed WP(C). 32122 of 2007 for a direction to conduct an enquiry and also to cancel the permit. While that writ petition was pending the second respondent issued a notice to the petitioners to appear before him 15- 11-2007 and to show cause why the building permit should not be suspended in pursuance to Ext.P14. To the show cause notice the petitioners 2 to 4 submitted Ext.P12 reply before the 2nd respondent. It was contended that the husband of the third petitioner purchased the property from the 5th respondent and that he has been in possession of the property from 15-11-2007 onwards. Ext.P13 letter which had in the meanwhile been issued by the 5th respondent to the 2nd respondent is also relied on by the petitioners to show that the petitioners had been put in possession of the property from 15-11- 2007 by the 5th respondent. Ext.P10 is copy of the counter affidavit WPC.34540/2007 -3- which the Municipal Secretary had filed in WP(C).32122 of 2007 and the stand taken in that counter affidavit by the Municipal Secretary is that the petitioners are constructing the building on the basis of a valid permit and that there is no illegality in the construction of the building. It is thereafter that Ext.P15 order is issued by the Secretary of the Municipality suspending the building permit. Interestingly Ext.P15 order is passed on 15-11-2007 and Ext.P10 counter affidavit endorsing the legality of the permit is signed by the Secretary on 16-11-2007. The District Magistrate initiated proceedings on 23-10-2007 and passed Ext.P5 conditional order stopping the construction of the building purportedly under section 133 of the Cr.P.C. Though replies were submitted by the petitioners and their husbands and enquiries were conducted the 4th respondent did not pass orders due reasons best known to her. It is contended that Ext.P5 is not all legally sustainable since section 133 (d) Cr.P.C. cannot have any application in this case. The writ petition was originally instituted seeking writs of certiorary to quash Exts.P5, P14 and P15. The other prayers in the writ petition were for a declaration that the petitioners are entitled to continue the construction of the multi-storied building and for a mandamus commanding respondents 1 to 4 to permit the petitioners to continue with the construction on the basis of Ext.P4 building WPC.34540/2007 -4- permit. Later, pursuant to interim orders passed by this court the District Magistrate, 4th respondent issued Ext.P16 order and thereby made Ext.P5 conditional order absolute. I have allowed I.A.122/08 filed by the petitioners for incorporation of a further prayer for quashing Ext.P16. After hearing the counsel appearing for the parties and also the learned Advocate General for the State I passed an interim order on 7-12-2007 appointing an Advocate Commissioner as well as an expert commissioner for conducting a joint local inspection and for filing report on certain relevant aspects. Sri.K.R.Raja Ram, retired Chief Engineer and Chief Technical Examiner to the Government was appointed as Expert Commissioner. The Advocate Commissioner and the Expert Commissioner filed separate reports and on considering those reports filed by the Expert Commissioner and Advocate Commissioner and after hearing the counsel for the parties including Sri.Antony Ambatt, counsel for the additional 7th respondent and the learned Government Pleader I passed a detailed interim order dated 28-1-2008 directing the petitioner to comply with the following directions. i) The hoist tower presently operated on the northern side be shifted to a position just opposite its present position. ii) The hoist tower even in the shifted position shall be provided WPC.34540/2007 -5- with substantial enclosures at ground level and at access points for a height of 2 metres using wire nets, sheets or boards on all sides except where loading and unloading takes place. iii) Access entry points are to be protected by gates or barricades which shall be kept closed except when required for loading and unloading. iv) Toe boards of adequate size and strength are to be provided to the hoist platform to efficiently block wheel barrows. The side of the platform which are not used for loading and unloading are to be provided with toe boards and enclosed with wire mesh or by any other means to prevent the fall of any part of a load from the platform. Materials are to be stacked rather than heaped on the loading platform or wheel barrow. v) Scaffolds, platform, gangways, ladders, centering and shuttering materials will be strong and properly designed. In particular, for the design, erection, use, dismantling and stacking of scaffolds, ladders and form work good practice as detailed in accordance with the Construction Practices and stipulations in Safety – National Building Code of India. vi) Railings and barricades shall be provided at all vulnerable places. WPC.34540/2007 -6- vii) Walkways, stairs etc. shall be kept clear, clean and well lit naturally or artificially. viii) Falling materials hazards shall be prevented by means of safety nets, covering to walkways, by barricading the area etc. and special attention may be paid to hoists, scaffolding, lift wells, edges of weather shades, incomplete balconies, wall and floor openings etc. ix) The risks involved with falling materials shall be reduced by channelling traffic and personnel and public to routes where materials are less likely to fall. Adequate caution signs, and boards shall be put up. x) Small tools may be chained to belts of workmen to prevent their fall from heights due to slipping from hands (Once commencement of work is permitted by this court) xi) Planks of working and loading platform shall be kept close to each other to avoid gaps in between the planks and before commencing the work necessary instructions should be given to workmen so as to prevent fall of tools from their hands during the course of the work. 2. Thereafter Sri.K.R.Raja Ram submitted an inspection report on 8-3-2008. Considering that report and after hearing counsel for the parties on 19-3-2008 issued an interim order in the following terms. WPC.34540/2007 -7- At paragraphs 4 and 5 of the above interim order it is stated as follows: “4. Having regard to the totality of the facts and circumstances, which exist in or attend on this case, I am of the view that in view of the satisfactory compliance by the petitioners of all the directions in my order dated 28-1-2008, they can be permitted to resume the work and complete the construction of the building subject to the final outcome of the writ petition. Permission is granted to the petitioners accordingly on condition that the petitioners shall comply with the other directions, which have been reported by the Expert Commissioner as requiring compliance as and when the work is resumed and progress. The petitioners are reminded that in the event of any accident or other untoward incident happening during the course of the construction work, their liability for damages will be unlimited. The petitioner shall ensure that every stage of construction proceeds safely and does not result any injury to the persons and properties of the neighbours or passers by. 5. Considering the above directions, the Station House Officer, having jurisdiction over the construction site Sub Inspector of Police, Kottayam West Police Station shall depute at least two police constables to the construction site as requested by the petitioners on days when major stages of work such as concreting, etc. are undertaken. The petitioners can request for deputation of more police personnel and if request is made in that regard, the same will be granted. The petitioners will be bound to remit the requisite charges. The Expert Commissioner will be informed regularly about the progress of the work. He will visit the construction site at least once in 15 days till such time as the entire structural work including the construction of walls and installation of doors and windows are completed.” 3. It was learned that in the meanwhile certain issues cropped up between the petitioners and the additional 7th respondent regarding the compensation to be paid to the congregation of the additional 7th respondent towards the loss sustained by them on account of the WPC.34540/2007 -8- death of their nuns and I was informed that the said issue has also been completely resolved. 4. The situation presently obtaining is that the construction of the multi-storied building taken up by the petitioners does not offend any statutory rule. All safeguards for averting danger to the neighbouring owners and the passers by have been taken, according to the Expert Commissioner. I do not find any reason why the petitioners should not be permitted to complete the construction on the basis of Ext.P4 building permit in the changed scenario. I am informed that an application for extension of the period of Ext.P4 building permit is being submitted by the petitioners before the Municipality. If the Municipality receives such an application for extension of permit the the Municipality will consider that application and extend the period of permit by six months considering the special circumstances which attend on this case. The writ petition accordingly is disposed of issuing the following orders. 5. Exts.P5, P14, P15 and P16 are quashed. The Municipality will consider the application for extension of building permit submitted by the petitioners and grant extension by six months if application is received within a period of one month from today. The petitioners will continue with the construction of the building taking all care to WPC.34540/2007 -9- ensure that the construction proceeds without causing any risk to anybody and without causing any danger or damages to anybody and particularly the neighbouring owners. (PIUS C.KURIAKOSE, JUDGE) ksv/.