IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 WP(C).No. 33835 of 2008(C) -------------------------------------- PETITIONER(S): ----------------------- BAYSHORE - SEA WOOD PROJECTS PEARL HOUSE, MAMANGALAM PALARIVATTOM, COCHIN 682 025, A PARTNERSHIP FIRM REPRESENTED BY TAJAN CYRIL, PARTNER. BY ADV. MR.C.K.KARUNAKARAN RESPONDENT(S): ------------------------- 1. THRIKKAKARA GRAMA PANCHAYATH - PANCHAYAT OFFICE, KAKKANAD P.O., KOCHI 682 030. 2. STATE OF KERALA, REP. BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001. * ADDL. R3 TO R14 IMPLEADED ADDL. R3: SHEELA V.S., MALIEKKAL HOUSE, HOUSE NO.V/243 A, VIKAS VANI, THENGODU (P.O.). ADDL. R4: FR. SEBASTIAN VADAKKUMPADM, VICAR, ST. THOMAS CHURCH, VIKAS VANI, THNGODU (P.O.). ADDL. R5: MARY GEORGE, PUTHENPURAKKAL HOUSE, HOUSE NO.V/222 D, VIKAS VANI, THENGODU (P.O.). ADDL. R6: AMBROSE C.O., CHALA VEETTIL, HOUSE NO.V/243, VIKAS VANI, THENGODU (P.O.). ADDL. R7: M.K. KISHNANKUTTY, MAYALATHATTIL HOUSE, NO.VI, THENGODU (P.O.). ADDL. R8: P.C.VARGHESE, PARAMBATH HOUSE, NO.456/V, THENGODU (P.O.). WP(C).No. 33835 of 2008(C) ADDL. R9: K.O. FRANCIS, KARIGATTUPARAMBIL, 444/VIII (V), THENGODU (P.O.). ADDL. R10: SARAMMA FRANCIS, KARIGATTUPARAMBIL, 444/VIII (V), THENGODU (P.O.). ADDL. R11: SIMON MATHEW, EDAPPARA, HOUSE NO.VIII/447, THENGODU (P.O.). ADDL. R12: P.B. DINESH KUMAR, PUTHEN VEEDU, THENGODU (P.O.). ADDL. R13: CHERIYACHAN THAYANKERY, THAYANKERY HOUSE, THENGODU (P.O.). ADDL. R14: ALEYAMMA AUGUSTINE, NAMBISSERY HOUSE, THENGODU (P.O.). * ADDL. R3 TO R14 ARE IMPLEADED VIDE ORDER DATED 28/11/2008 IN I.A. NO.15255/2008. R2 BY GOVERNMENT PLEADER SMT.SUDHA DEVI R1 BY ADV. MR.S.SHANAVASKHAN ADDL. R5 TO 14 BY ADV. MR.NAGARAJ NARAYANAN MR.NAIR AJAY KRISHNAN MR.RAJAN VELLOTH MR.SAIJO HASSAN MR.A.S.SABU FOR MR.VIMAL KUMAR.A.V. MR.A.G.GIRISH KUMAR ADDL. R4 BY ADV. MR.GEORGE MECHERIL ADDL. R3 BY ADV. MR.K.JAYAKUMAR, MR.P.B.KRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 33835 of 2008(C) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAN OF THE BUILDING UNDER CONSTRUCTION. EXT.P2: COPY OF THE NO OBJECTION CERTIFICATE UNDER NO.A4-1/2000 DATED 10/05/2006. EXT.P3: COPY OF THE INERIM ORDER DATED 10/04/2008 IN W.P.(C). NO. 12541 OF 2008. EXT.P4: COPY OF THE CERTIFICATE DATED 10/07/2008 ISSUED BY THE 1ST RESPONDENT. EXT.P5 SERIES: P5(a) TO P5(d): PHOTOGRAPHS OF THE CONSTRUCTION SITE, WORK UNDER PROGRESS, AND THE NEAR BY STRUCTURES. EXT.P6: COPY OF THE LAND, THE BUILDING UNDER CONSTRUCTION, THE NAREST BUILDINGS, AND THE DISTANCES TO THE NEAREST BUILDINGS ON ALL SIDES. EXT.P7: COPY OF THE STOP MEMO DATED 07/11/2008. EXT.P8: COPY OF THE CERTIFICATE DATED 14/11/2008 FROM THE STRUCTURAL ENGINEERING CONSULTANT. EXT.P9: COPY OF THE NOTICE DATED 09/02/2009 ISSUED BY THE ADVOCATE COMMISSIONER. RESPONDENT'S EXHIBITS & ANNEXURES: ANNEXURE I: COPY OF THE REPRESENTATION DATED 06/11/2008 SUBMITTED BEFORE THE DISTRICT COLLECTOR . ANNEXURE II: COPY OF THE REPRESENTATION DATED 06/11/2008 SUBMITTED BEFORE THE SECRETARY, THRIKKAKARA GRAMA PANCHAYATH. ANNEXURE III: COPY OF THE REPRESENTATION DATED 06/11/2008 SUBMITTED BEFORE THE SECRETARY, THRIKKAKARA GRAMA PANCHAYATH. ANNEXURE IV: COPY OF THE REPRESENTATION DATED 07/11/2008 SUBMITTED BEFORE THE SECRETARY, THRIKKAKRA GRAMA PANCHAYATH. ANNEXURE V: COPY OF THE REPRESENTATION DATED 07/11/2008 SUBMITTED BEFORE THE TAHSILDAR, KANAYANNUR TALUK. ANNEXURE VI: COPY OF THE REPRESENTATION DATED 07/11/2008 SUBMITTED BEFORE THE DEPUTY COLLECTOR. EXT.R4(a): COPY OF THE PETITION SUBMITTED BY THE TRUSTEE ON 06/11/2008. EXT.R4(b): COPY OF THE REPORT OF THE ASST. EXE. ENGINEER DATED 07/11/2008. WP(C).No. 33835 of 2008(C) EXT.R4(c): COPY OF THE REPORT. EXT.R4(d): COPY OF THE INTERIM ORDER DATED 21/10/2008 IN W.P.(C). NO. 30601/2008. ANNEXURE A1: COPY OF THE REPORT OF THE STRUCTURAL ENGINEER. ANNEXURE A2: COPY OF THE SOUND LEVEL ANALYSIS REPORT. ANNEXURE A3: COPY OF THE ROUGH SKETCH. ANNEXURE A4: COPY OF THE PILING CHART. ANNEXURE A5: COPY OF THE WORK MEMO OF PETITIONER. ANNEXURE A6: COPY OF THE WORK MEMO OF R3 R14. EXT.R4(e): COPY OF THE BOOK DESIGN OF FOUNDATIONS IN SEISMIC AREAS: PRICIPLES AND APPLICATIONS. (IN I.A.510/2008). EXT.R4(f): COPY OF THE BOOK IN GEOTECHNICAL EARTHQUAKE ENGINEERING STEVEN L.KRAMER. EXT.R4(g): COPY OF THE LIST OF CRACKS DEVELOPED IN PARISH HALL BUILDING OF ST.THOMAS CHURCH. EXT.R4(h): COPY OF THE REPORT DATED 09/01/2009 SUBMITTED BY EXECUTIVE ENGINEER PWD BUILDINGS TO THE DISTRICT COLLECTOR. EXT.R5(a): COPY OF THE RELEVANT PAGES OF BOOK “GEOTECHNICAL EARTHQUAKE ENGINEERING” BY STEVEN L KRAMER OF UNIVERSITY OF WASHINGTON. EXT.R5(b): COPY OF THE RELEVANT PAGES OF BOOK “DESIGN OF FONDATION IN SEISMIC AREAS, PRINCIPLES AND APPLICATIONS” EDITED BY SUBHAMOYI BHATTACHARYA. EXT.R5(c): COPY OF THE STATEMENT OF CRACKS AND GAPS. EXT.R5(d): COPY OF THE REPORT OF THE EXECUTIVE ENGINEER, PWD TO THE DISTRICT COLLECTOR DATED 09/01/2009. EXT.R5(e): COPY OF THE JUDGMENT PASSED BY THIS HONOURABLE COURT IN W.P.(C). NO. 30601/2008, 06/11/2008. EXT.R4(e): COPY OF THE REPORT OF THE EXECUTIVE ENGINER DATED 09/01/2009. //TRUE COPY// P.S. TO JUDGE Rs/ V.GIRI, J ------------------- W.P.(C).33835/2008 -------------------- Dated this the 8th day of April, 2009 JUDGMENT Petitioner, who is putting up a multi storied building having 22 storeys in Thrikkakkaran Grama Panchayat, was served with Ext.P7 stop memo by the Panchayat. Ext.P7 stop memo has been issued, on the basis of a complaint stated to have been received by the Panchayat from neighbouring property owners, allegedly aggrieved by the hazards caused to them, on account of the piling activities carried on by the petitioner. 2. Pursuant to the orders issued by this Court from time to time, an Advocate Commissioner visited the property and has filed a report. Thereafter, this Court thought it appropriate to appoint an Expert structural Engineer and accordingly, a former Professor of IIT, Chennai, visited the property and has also filed a report. The contesting respondents have filed objections to the report of the Expert. The Panchayat has affirmed that it has received the complaint from the neighbouring property owners regarding vibrations generated W.P.(C).33835/2008 2 in the course of piling activities carried on by the petitioners and possible damage to the buildings within a 100 meter radius. Learned counsel for the petitioner refutes this stand taken by the Panchayat. 3. As it is, the Panchayat seems to be concerned about the possible damage to the buildings in the neighbourhood on account of the piling activities undertaken by the petitioners. Going by the report submitted by the Expert and after hearing Mr.C.K.Karunakaran, learned counsel for the petitioner, Mr. Jayakumar, learned counsel for the additional third respondent, Mr.George Mecheril, learned counsel for the fourth respondent, Mr.Nagaraj Narayanan, learned counsel for respondents 5 to 14 and Mr.Shanavas Khan, learned counsel for the Panchayat, I am of the view that the present grievance voiced by the neighbouring residents could be redressed, if the petitioner is called upon to undertake piling activities in the property only by resorting to auger piling. Apparently the advantages of auger piling is less noise, absence of objectionable vibration and dispensing with casing. I have gone through the document W.P.(C).33835/2008 3 made available by Mr.Jayakumar in this regard. Learned counsel for the petitioner Mr.Karunakaran submits that the petitioner undertakes before this Court that he will only resort to auger piling for the remaining piling activities. Submission is recorded. Mr.Jayakumar submits that according to the respondents, damage has been caused to their buildings on account of the piling activities earlier carried on by the petitioner and they are contemplating the institution of Civil Suits for damages. It is open to the contesting respondents to approach the Civil Court, if they have a claim for damages in this regard. 4. In the result, writ petition is disposed of permitting the petitioner to carry on further piling activity in his property only by auger piling. Ext.P7 shall be enforced only subject to this permission. It is open to the contesting respondents to approach the Civil Court, if they have a claim for damages, as mentioned above. It is further made clear that I have only considered the issue in the context of the piling activities undertaken by the petitioner and this judgment will not stand in the way of the Panchayat W.P.(C).33835/2008 4 enforcing the relevant provisions of the Panchayat Raj Act or the Kerala Municipal Building rules, in relation to the construction activity carried on by the petitioner. V.GIRI, Judge mrcs