IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 WA.No. 875 of 2010() -------------------- AGAINST THE JUDGEMENT IN WPC.34939/2008 Dated 20/10/2009 .................... APPELLANT(S): RESPONDENTS 2-4 IN WPC: ---------------------- 1. O.P.UNNIKRISHNAN, S/O.NARAYANIKUTTY AMMA AGED 52 YEARS, OZHUKIL PADINJARE PATTU HOUSE, MALA P.O., VIA THRITALA, PALAKKAD DISTRICT, PIN 679 534, MANAGING PARTNER, GOVIND SUITES, GURUVAYOOR. 2. P.S.PRASANNAKUMAR, S/O.PALIKKAL SREENIVASAN, CHAVAKKAD TALUK, POOKODU AMSOM AND DESOM, KOTTAPPADY P.O., PIN-680 505. 3. O.P.BABU, S/O.OZHUKIL PADINJARAPPATTU NARAYANIKUTTY AMMA, MALA P.O., PIN-679 534. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.SHERRY J.THOMAS SRI.DENIZEN KOMATH RESPONDENT(S): PETITIONER AND 1ST RESPONDENT IN WPC; ------------------------- 1. RADHAKRISHNAN, S/O.N.KRISHNAPANICKAR, AGED 67 YEARS, SECRETARY, GOVIND SUITE OWNERS ASSOCIATION, NORTH NADA, GURUVAYOOR-680101. 2. GURUVAYOOR MUNICIPALITY, REPRESENTED BY THE SECRETARY, GURUVAYOOR. BY ADV. SRI.C.A.CHACKO FOR R1 BY ADV. SRI.K.K.CHANDRAN PILLAI FOR R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25/06/2010, THE COURT ON 28/07/2010 DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J. ------------------------------- W.A.No.875 of 2010 ------------------------------- Dated this the 28th day of July, 2010 J U D G M E N T Ravindran,J. The appellants are respondents 2 to 4 in W.P.(C) No.34939 of 2008. The first respondent is the petitioner and the second respondent is the first respondent therein. The brief facts of the case are as follows. 2. The second respondent, the Guruvayoor Municipality, issued a building permit to the first appellant, a builder, on 30.1.2004 for the construction of a residential apartment complex with recreation space in the ground floor. The recreation space had an area of 75.58 square meters. Such recreation space was provided as required by Rule 50 of the Kerala Municipality Building Rules, 1999. After the apartment building was constructed and the different apartments were sold to different buyers, the first appellant, converted the recreation space into two flats and sold them to appellants 2 and 3 who are related to him. Appellants 2 and 3 W.A.No.875 of 2010 2 thereupon submitted applications to the second respondent Municipality for change of ownership. 3. The first appellant had in the meanwhile submitted a revised plan to the Municipality for regularizing the conversion of the recreation space into two apartments. The first respondent herein who is the Secretary of the Apartment Owners Association had submitted a series of representations to the second respondent Municipality complaining about the conversion of the recreation space into apartments and its sale to appellants 2 and 3. Acting on the said representations, the Municipality issued an order directing the first appellant to make available the recreation space to the apartment owners and not to alienate the said space to any party and to demolish the unauthorised construction. When the said direction was not implemented, the first respondent filed W.P.(C) No.28213 of 2005 in this Court, wherein he sought a direction to the Municipality to take action against the first appellant for non- compliance with the directions issued by the Municipality. The said writ petition was disposed of by Ext.P2 judgment delivered on 4.10.2005 with a W.A.No.875 of 2010 3 direction to the Municipality to take such action as is warranted in law, expeditiously. The first appellant challenged Ext.P2 judgment by filing W.A.No.2420 of 2005. The said writ appeal was disposed of by Ext.P3 judgment delivered on 28.11.2005. The Division Bench of this Court held that what was sought to be implemented in W.P.(C) No.28213 of 2005 was only a notice and that further action can be taken by the Municipality only after final orders are passed. The Division Bench accordingly directed the Municipality to take a final decision in the matter after hearing all concerned. 4. Pursuant to Ext.P3 judgment, the Secretary of the Municipality heard the parties and passed Ext.P4 order, dated 7.3.2006, wherein, it was held that the conversion of the recreation space into apartments and its sale cannot be justified. However, the Secretary took the stand that he has no power to restore the recreation area by repossessing the apartments sold to appellants 2 and 3. In that view of the matter, the Secretary directed the first appellant, the builder, to provide recreation facilities on the terrace of the building at his expense within three months from 7.3.2006. W.A.No.875 of 2010 4 5. Aggrieved by Ext.P4, the first respondent filed W.P.(C) No.8539 of 2006 in this Court. In that writ petition, appellants 2 and 3 were suo motu impleaded by this Court. After notice to and hearing the appellants and the respondents herein, this Court disposed of the said writ petition by Ext.P5 judgment delivered on 16.1.2008. The learned single judge noticed that appellants 2 and 3 had applied for transfer of ownership of the apartments which were built in the recreation space, that thereupon, a notice, dated 22.11.2006 had been issued by the Municipality informing the appellants that their action is unauthorised and illegal and that it will amount to violation of the provisions of the Kerala Municipality Building Rules, 1999 and that no further action had been taken pursuant to the notice, dated 22.11.2006. This Court accordingly directed the appellants to file a reply to the said notice (Ext.R1(b) produced in W.P.(C) No.8539 of 2006) within one month from 16.1.2008. The Municipality was directed to hear the parties and to finalise the proceedings within one month from the date on which the appellants file their reply to Ext.R1 (b) notice. This Court further directed that if the appellants do not file W.A.No.875 of 2010 5 a reply, the Municipality should ensure that the area in question is used as recreation space. 6. As directed by this Court in Ext.P5 judgment, the Municipality issued notice to all the parties, heard them and passed Ext.P6 order, dated 12.3.2008. By the said order, the Secretary of the Municipality directed restoration of the recreation space originally provided, within 15 days from the date of receipt of the order. The Secretary also directed that if the said direction is not complied with, it will be implemented with police aid as contemplated in Section 550 (c) of the Kerala Municipality Act. 7. Challenging Ext.P6 order, first appellant moved the Tribunal for Local Self Government Institutions by filing Appeal No.167 of 2008. By Ext.P7 order passed on 14.7.2008, the Tribunal for Local Self Government Institutions set aside Ext.P6 order and directed the Municipality to issue notice to the owners of the various apartments, for considering afresh the applications for change of ownership and for regularisation of conversion of recreation space into apartments and to pass fresh orders in accordance with law. The Tribunal held W.A.No.875 of 2010 6 that the first respondent who is the Secretary of the Apartment Owners Association will not be competent to represent the different owners, and as all the owners were not heard before Ext.P6 order was passed, the said order is liable to be set aside. The Tribunal further held that if the recreation space is illegally converted into apartments, it would violate the building rules, as a result of which the entire building would become an illegal construction, and therefore, all the apartment owners have to be heard. The instant writ petition was thereupon filed challenging Ext.P7 order of the Tribunal for Local Self Government Institutions and seeking a direction to the Municipality to implement Ext.P6 order. 8. The first respondent contended that Ext.P7 order runs counter to the directions issued by this Court in Ext.P5 judgment, wherein this Court had directed that only parties to W.P.(C) No.8539 of 2006 need be heard and that the view taken by the Tribunal is perverse. W.P.(C) No.34939 of 2008 from which this appeal arises was presented on 23.5.2010. Though the appellants were served, they did not file a counter affidavit. The writ petition was heard on W.A.No.875 of 2010 7 30.7.2009. By judgment delivered on 20.10.2009, the learned single judge allowed the writ petition, quashed Ext.P7 and declared that Ext.P6 order which was impugned in the appeal filed by the first appellant before the Tribunal for Local Self Government Institutions shall stand restored. The appellants were granted two months' time to comply with the directions in Ext.P6 order. The learned single judge also directed the first appellant to pay the sum of Rs.10,000/- as costs to the first respondent herein. Hence this writ appeal. 9. We heard Sri.V.Chitambaresh, the learned Senior Advocate appearing for the appellants. We have also gone through the pleadings and the materials on record. It is not in dispute that as per the provisions of the Kerala Municipality Building Rules, 1999, recreation space had to be provided in the apartment building. Such recreation space was also provided in the apartment building which was built and sold to various owners. Later the first appellant converted the recreation space into two apartments and sold them to appellants 2 and 3 who are his relatives. There was thus admittedly a violation of the Kerala Municipality Building Rules, 1999. Further, W.A.No.875 of 2010 8 when the apartments were sold, the first appellant had also sold the proportionate undivided share in the land and the right over the common areas to various persons. Thus, after the sale of the apartments to the different owners, the first appellant ceased to have any title to the land and the building. He admittedly had no right in him to sell any portion of the apartment building or the land to any other person or persons. However, in violation of the law, the first appellant converted the recreation space into two apartments and sold it to appellants 2 and 3, who are admittedly his relatives. The first respondent, in his capacity as the Secretary of the Apartment Owners Association objected to it and that led to Ext.P6 order, which was impugned in appeal filed by the first appellant before the Tribunal for Local Self Government Institutions. The appellants did not file a counter affidavit traversing the pleadings in the writ petition. On the admitted facts, the learned single judge was therefore right in up holding the finding in Ext.P6 that the conversion of the recreation space into apartments and its sale are illegal. W.A.No.875 of 2010 9 10. It is relevant to note that though appellants 2 and 3 were also heard before Ext.P6 order was passed, they did not challenge Ext.P6 order in appeal before the Tribunal for Local Self Government Institutions. The first appellant alone challenged that order before the the Tribunal for Local Self Government Institutions. The appeal was allowed on the short ground that before Ext.P6 order was passed, all the apartment owners should have been put on notice and heard. The Tribunal arrived at the said finding on the premise that the conversion of the recreation space into apartments and its sale to appellants 2 and 3 would make the entire building an illegal construction and therefore, all the owners should have been put on notice and heard. In our opinion, the said finding is perverse and runs counter to the directions issued by this Court in Ext.P5 judgment. The first respondent herein had filed the writ petition which resulted in Ext.P5 judgment as the chosen representative of the different apartment owners other than appellants 2 and 3. Appellants 2 and 3 became apartment owners only after the recreation space was illegally converted into apartments and sold to them by the first W.A.No.875 of 2010 10 appellant. As rightly held by the learned single Judge, when the owners of the different apartments initially built by the first appellant formed themselves into an association and that was registered and the first respondent, as the Secretary of that association, was representing their interests, the finding of the Tribunal that all the apartment owners should have been heard before passing Ext.P6 order which is not adverse to them, is a perverse reasoning. The principle “audi alterm partam” cannot in our opinion be applied to set aside the order passed in favour of the different apartment owners. The said principle can have application only if the order had been adverse to them. The illegality committed by the first appellant after he ceased to be the owner of the land and apartment building, by converting the recreation space statutorily required to be maintained into apartments and the sale of such illegally built apartments in favour of appellants 2 and 3, was contrary to the interests of the apartment owners who jointly were the absolute owners of the apartment building and the land on which the apartment was built. By Ext.P6 order, the illegality committed by W.A.No.875 of 2010 11 the first appellant was remedied by directing him to restore the recreation space to its original form. Ext.P6 order is one in favour of the owners of the various apartments. We are therefore in full agreement with the learned single judge that the reason given by the Tribunal to interfere with Ext.P6 is perverse and that if Ext.P7 is allowed to stand, it will perpetuate injustice. The learned single Judge has in our opinion rightly interfered with Ext.P7. We accordingly hold that no grounds have been made out warranting interference with the decision of the learned single Judge. The writ appeal fails and is dismissed in limine. J.CHELAMESWAR, Chief Justice P.N.RAVINDRAN, Judge. nj.