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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
THURSDAY, THE 14TH DAY OF JULY 2016/23RD ASHADHA, 1938
WP(C).No. 36380 of 2015 (V)
----------------------------
PETITIONER(S):
--------------------------
1. MOHAMMED PARERI,
S/O.MOIDEENKUTTY HAJI, UPPALA, K.G.N.APARTMENT,
KAIKKAMBA, UPPALA, KASARAGOD, PIN - 671 322.
2. BADRUNNISA,
W/O.LATE S.K.HAMEED, UPPALA, K.G.N.APARTMENT,
KAIKKAMBA, UPPALA, KASARAGOD. PIN - 671 322.
3. NOORUNNISA, W/O.HIDAYATHULLA KHAN,
UPPALA, K.G.N.APARTMENT,KAIKKAMBA, UPPALA,
KASARAGOD, PIN - 671 322.
4. SHEIK ISMAIL,
S/O.HUSSAIN, UPPALA, K.G.N.APARTMENT,
KAIKKAMBA, UPPALA, KASARAGOD,
PIN - 671 322.
5. KUKKARMOIDEEN MOHAMMED,
S/O.MOIDEEN KUNHI, UPPALA, K.G.N.APARTMENT,
KAIKKAMBA, UPPALA, KASARAGOD, PIN - 671 322.
6. KURSHID BANU,
D/O.ABDUL KAREEM, KAREEM MANZIL, MANIMUNDA,
UPPALA, K.G.N.APARTMENT, KAIKKAMBA, UPPALA,
KASARAGOD. PIN - 671 322.
7. SHAIK ADAM LUKNOOR,
UPPALA, K.G.N.APARTMENT,KAIKKAMBA, UPPALA,
KASARAGOD. PIN - 671 322.
8. B.K.MOHAMMED,
S/O.KUNHALI, UPPALA, K.G.N.APARTMENT,
KAIKKAMBA, UPPALA, KASARAGOD,
PIN - 671 322.
9. MOIDEEN KUNHI,
S/O.IDDINKUNHI, UPPALA, K.G.N.APARTMENT,
KAIKKAMBA, UPPALA, KASARAGOD.
PIN - 671 322.
2/-
-2-
WP(C).No. 36380 of 2015 (V)
10. SAYYED,
S/O.AHAMMED KUNHI, UPPALA, K.G.N.APARTMENT,
KAIKKAMBA, UPPALA, KASARAGOD. PIN - 671 322.
11. SAYYED,
S/O.AHAMMED KUNHI, UPPALA, K.G.N.APARTMENT,
KAIKKAMBA, UPPALA, KASARAGOD, PIN -671 322.
12. MOOSA PATTA,
S/O.MOHAMMED, UPPALA, K.G.N.APARTMENT,
KAIKKAMBA, UPPALA, KASARAGOD. PIN - 671 322.
13. ABDUL RAHEEM,
S/O.HAJI HASSAN, SIRAJ MANZIL, MANNAMKUZHI,
UPPALA, K.G.N.APARTMENT, KAIKKAMBA, UPPALA,
KASARGOD. PIN - 671 322.
14. SHABANA BANU,
W/O.MOHAMMED RAFEEQ, UPPALA, K.G.N.APARTMENT,
KAIKKAMBA, UPPALA, KASARAGOD. PIN - 671 322.
15. RUKSANA BANU,
W/O.MOHAMMED RAFEEQ, UPPALA, K.G.N.APARTMENT,
KAIKKAMBA, UPPALA, KASARAGOD, PIN - 671 322.
16. MOHAMMED SALEEL M.,
S/O.MOOSABHA, UPPALA, K.G.N.APARTMENT,
KAIKKAMBA, UPPALA, KASARAGOD, PIN - 671 322.
BY SRI.T.SETHUMADHAVAN,SENIOR ADVOCATE
ADVS.SRI.PUSHPARAJAN KODOTH
SRI.K.JAYESH MOHANKUMAR
SMT.VANDANA MENON
RESPONDENT(S):
-----------------------------
1. STATE OF KERALA,
REPRESENTED BY THE SECRETARY,
LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM - 685 001.
2. THE CHIEF TOWN PLANNER (VIGILANCE),
LOCAL SELF GOVERNMENT DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
3. TOWN PLANNER (VIGILANCE),
LOCAL SELF GOVERNMENT DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM- 695 001.
3/-
-3-
WP(C).No. 36380 of 2015 (V)
4. MANGALPADY GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY
P.O.UPPALA, KASARAGOD. PIN - 671 322.
*ADDL.R5 IMPLEADED
*ADDL.R5: MAHAMOOD, AGED 53 YEARS,
S/O. ABDUL RAHMAN, RESIDING AT HASEENA MANZIL,
KAIKKAMBA, KODIBAYAL VILLAGE, UPPALA.P.O.,
KASARAGOD DISTRICT.
*ADDL.R5 IS IMPLEADED AS PER ORDER DATED 14/07/2016 IN
IA.NO.18255/2015
R1 TO R3 BY SR GOVERNMENT PLEADER SRI.P.M.SANEER
R4 BY ADVS. SRI.T.B.SHAJIMON
SMT.GOVINDU P.RENUKADEVI
ADDL.R5 BY ADVS. SRI.SHAIJAN C.GEORGE
SRI.C.K.SAJEEV
SMT.S.REKHA KUMARI
SRI.M.T.AJITH
SMT.SAJITHA GEORGE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 14-07-2016,ALONG WITH WPC.NO.33380 OF 2015 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sts
WP(C).No. 36380 of 2015 (V)
-----------------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------------------------
EXT.P-1: TRUE COPY OF ORDER DT. 20.10.2015 ISSUED BY THE 4TH RESPONDENT
TO THE IST PETITIONER CANCELING THE NUMBER ISSUED TO THE
APARTMENT
EXT.P-2: TRUE COPY OF ORDER DT. 20.10.2015 ISSUED BY THE 4TH RESPONDENT
TO 2ND PETITIONER CANCELING THE NUMBER ISSUED TO THE
APARTMENT
EXT.P-3: TRUE COPY OF ORDER DT. 20.10.2015 ISSUED BY THE 4TH RESPONDENT
TO 3RD PETITIONER CANCELING THE NUMBER ISSUED TO THE
APARTMENT
EXT.P-4: TRUE COPY OF ORDER DT. 20.10.2015 ISSUED BY THE 4TH RESPONDENT
TO 4TH PETITIONER CANCELING THE NUMBER ISSUED TO THE
APARTMENT
EXT.P-5: TRUE COPY OF ORDER DT. 20.10.2015 ISSUED BY THE 4TH RESPONDENT
TO 5TH PETITIONER CANCELING THE NUMBER ISSUED TO THE
APARTMENT
EXT.P-6: TRUE COPY OF ORDER DT. 20.10.2015 ISSUED BY THE 4TH RESPONDENT
TO 6TH PETITIONER CANCELING THE NUMBER ISSUED TO THE
APARTMENT
EXT.P-7: TRUE COPY OF ORDER DT. 20.10.2015 ISSUED BY THE 4TH RESPONDENT
TO 7TH PETITIONER CANCELING THE NUMBER ISSUED TO THE
APARTMENT
EXT.P-8: TRUE COPY OF ORDER DT. 20.10.2015 ISSUED BY THE 4TH RESPONDENT
TO 8TH PETITIONER CANCELING THE NUMBER ISSUED TO THE
APARTMENT
EXT.P-9: TRUE COPY OF ORDER DT. 20.10.2015 ISSUED BY THE 4TH RESPONDENT
TO 9TH PETITIONER CANCELING THE NUMBER ISSUED TO THE
APARTMENT
EXT.P-10: TRUE COPY OF ORDER DT. 20.10.2015 ISSUED BY THE 4TH RESPONDENT
TO 10TH PETITIONER CANCELING THE NUMBER ISSUED TO THE
APARTMENT
EXT.P-11: TRUE COPY OF ORDER DT. 20.10.2015 ISSUED BY THE 4TH RESPONDENT
TO 11TH PETITIONER CANCELING THE NUMBER ISSUED TO THE
APARTMENT
EXT.P-12: TRUE COPY OF ORDER DT. 20.10.2015 ISSUED BY THE 4TH RESPONDENT
TO 12TH PETITIONER CANCELING THE NUMBER ISSUED TO THE
APARTMENT
2/-
-2-
WP(C).No. 36380 of 2015 (V)
EXT.P-13: TRUE COPY OF ORDER DT. 20.10.2015 ISSUED BY THE 4TH RESPONDENT
TO 13TH PETITIONER CANCELING THE NUMBER ISSUED TO THE
APARTMENT
EXT.P-14: TRUE COPY OF ORDER DT. 20.10.2015 ISSUED BY THE 4TH RESPONDENT
TO 14TH PETITIONER CANCELING THE NUMBER ISSUED TO THE
APARTMENT
EXT.P-15: TRUE COPY OF ORDER DT. 20.10.2015 ISSUED BY THE 4TH RESPONDENT
TO 15TH PETITIONER CANCELING THE NUMBER ISSUED TO THE
APARTMENT
EXT.P-16: TRUE COPY OF ORDER DT. 20.10.2015 ISSUED BY THE 4TH RESPONDENT
TO 16TH PETITIONER CANCELING THE NUMBER ISSUED TO THE
APARTMENT
EXT.P-17: TRUE COPY OF REPORT OF THE 2ND RESPONDENT DATED 15.7.2015
EXT.P-18: TRUE COPY OF ORDER DATED 25.8.2015 ISSUED BY THE IST
RESPONDENT
EXT.P-19: TRUE COPY OF THE ORDER DATED 19.11.2015 IN WPC NO.34907/2015
OF THIS HON'BLE COURT.
RESPONDENT(S)' EXHIBITS: NIL
------------------------------------------
/TRUE COPY/
P.A.TO JUDGE
sts
K. VINOD CHANDRAN, J
- - - - - - - - - - - - -- - - - - - - - - - - - - - - -
W.P(C) Nos.36380 of 2015-V, 14300 of 2013-J,
33380 of 2015-V, 34907 of 2015-K, 36861 of 2015-G,
38835 of 2015-D, 38916 of 2015-L, 38926 of 2015-M
39331 of 2015-N, 39352 of 2015-T, 39361 of 2015-U,
39363 of 2015-U, 39364 of 2015-U, 39390 of 2015-W,
39403 of 2015-A, 39410 of 2015-A, 39511 of 2015-L,
39512 of 2015-L, 39524 of 2015-M, 39582 of 2015-W,
3515 of 2016-L & 3851 of 2016-F,
- - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 14th day of July, 2016
J U D G M E N T
The above writ petitions are filed with respect to the same subject matter; being the unauthorised constructions allegedly made by the first petitioner in W.P(C) No. 36380/2015, of two apartment complexes. The buildings are named KBN Apartments and KGN Apartments situated respectively in 33= and 14= cents. Petitioners in WP(C) Nos.3851/2016 and 34907/2015 are said to be persons occupying/owning apartments in KBN Apartments. The petitioner in W.P(C) No.14300/2013 is a neighbouring resident of KGN Apartments who is concerned with WPC.No.36380/2015& con.cases : 2 : the pollution caused by the residents for reason of the septic tank and waste water pit being not properly maintained. All the other writ petitions are with respect to the KGN Apartments and the petitioners are said to be owners/occupiers. The owners/occupiers of the apartments challenge the cancellation of numbering of the apartments. The prayer in W.P(C) No.33380/2015 is with respect to the ownership certificate being issued in favour of the six petitioners therein.
2. The learned counsel appearing for the Panchayath would at the outset submit that nothing is produced to establish the ownership of the various apartments in the writ petition except in W.P(C) No.3515/2016 and 36861/2015. But it is not an ownership dispute that comes up for adjudication here and hence there need be no enquiry on that aspect.
3. Looking first at the KGN apartment, it is a four storied building (1+3) having 38 flats constructed in a land having WPC.No.36380/2015& con.cases : 3 : extent of 33= cents. There are said to be 38 apartments in the said building. The issue has its genesis in W.P(C) No.14300/2013 wherein the petitioner, a neighboring resident approached this Court with a prayer to consider the various representations made by him before a host of authorities. The petitioner also prayed for an enquiry under the provisions of Water(Prevention and Control of Pollution) Act, 1974 since the seepage from the septic tank and the waste water pit in the apartment complex is alleged to have contaminated his well. The petitioner also relied on the chemical analysis report, he obtained from the Analytical Laboratory , indicating gross contamination of well water; making it impossible to be used as potable water. While the said writ petition was pending, presumably on the complaint raised therein, the Vigilance wing of the Town Planning Department took up the matter and inspected both the buildings. The vigilance report is produced at Ext.P.17 in WP(C) No.36380/2015.
WPC.No.36380/2015& con.cases : 4 :
4. The vigilance report found certain violations with respect to the construction carried out, of both the buildings; the KBN and KGN Apartments. It was recommended that action be taken against the officials of the Panchayath. It was also found that the well water of the nearby residents were contaminated due to seepage of waste water from the adjacent property; ie; both the apartment complexes. Based on this, the Government issued Ext.P18 order directing the Panchayath to cancel the numbering of the various apartments in both the buildings. The Panchayath had issued notice based on the Government directions, threatening to cancel the numbers, upon which, the owners/occupiers approached this Court and an interim stay of status quo has been granted. Based on that the owners/occupiers are continuing in both the apartment compleesx.
5. The learned Counsel for the petitioners/occupiers also contend that remedial measures were carried out and as of WPC.No.36380/2015& con.cases : 5 : now, there is no pollution either from the septic tank or from the waster water pit in the apartment complexes. The learned Counsel also submits that the petitioners are willing for any inspection by the Pollution Control Board.
6. As to the construction being unauthorised, the contention of the petitioners/occupiers of various apartments in KGN Apartments, is that the construction itself was completed in the year 2007 with a No Objection Certificate obtained in the year 2004. There was no requirement for a building permit since the Kerala Municipality Building Rules, 1999 was not applicable to the Panchayaths and the Kerala Panchayath Building Rules was brought into force only in the year 2011. However, the counter affidavit of the respondent Panchayath indicates that there was a permit applied for with respect to KGN Apartments and granted on 18.12.2007. It is contended that earlier, the NOC issued was for the ground floor and later three floors were constructed on the WPC.No.36380/2015& con.cases : 6 : basis of subsequent permit issued; at which point the Kerala Municipality Building Rules, 1999 were made applicable to the Panchayaths. As of now, the Panchayath has issued notices to all the owners/occupiers of both the buildings on the directions issued by the Government. The owners/occupiers rightly contend that they filed no objection before the Panchayath since the Panchayath could do nothing on the objections for reason of the directions issued by the Government. The occupants are still continuing in the apartments on the basis of the status quo order issued and the Panchayath has also not further proceeded in the matter.
7. With respect to the KBN Apartments, admittedly, the same was constructed after the year 2011 when the Kerala Municipality Building Rules, 1999 was in operation. KBN Apartments was constructed in a land having extent of 14=cents with 3 floors (1+2) and 17 apartments. The occupiers/owners of the WPC.No.36380/2015& con.cases : 7 : said apartment complex are also aggrieved by the cancellation of the numbers issued to the respective apartments, on the very same allegations.
8. As of now, the allegation against both the apartment complexes are violation of building Rules, as also pollution caused from the septic tank and waster water pit. The Government has also filed a counter affidavit contending that if at all there are violations the petitioners could approach the Government for regularisation through the Panchayath. If the petitioners have to approach the Government for regularisation, necessarily the petitioners should be issued with notice and an inspection should be carried out in their presence as to the violation of building rules, which has to be verified with reference to the Building Permit issued by the Panchayath and the plan submitted. Though the learned Counsel for the owners/occupiers of KBN apartment has a contention that regularisation fee of Rs. 2,26,000/- has been WPC.No.36380/2015& con.cases : 8 : remitted by them, as is evident from Ext.P12 in WPC No.34907/2015, there is no order produced to substantiate on what account the remittance was made. The regularisation application also has to be made to the Government, routed through the Panchayath; which admittedly has not been done as of now
9. Looking at the totality of the circumstance, it is proper that the Panchayath through their authorised officers/ engineers inspect the premises and verify as to the complaint of unauthorised construction with the permit issued from the Panchayath, in accordance with the Building Rules applicable. The Panchayath shall issue notice to the occupants/owners of the building of the respective apartments in the two buildings and shall inspect the premises within one month from the date of receipt of a certified copy of this judgment and shall issue specific communication showing the violation of the two buildings by separate orders. The owners/occupiers would be entitled to WPC.No.36380/2015& con.cases : 9 : approach the Government for regularisation of such violation if law permits it. The Government on receipt of such applications shall expedite the matter. Cancellation of the numbers issued to the building shall be kept in abeyance till the Government considers the regularisation applications. As to the pollution caused, which is alleged in 14300/2013; it is directed that the 4th respondent shall inspect the respective properties; ie., KBN and KGN Apartments with notice to the 5th respondent-Panchayath, the petitioner in W.P(C) No.14300/2013 and the occupier/owners in KGN and KBN apartments. The pollution alleged by the petitioner in WPC no. 14300/2013 is only with respect to the KGN Apartments, for which inspection alone he be issued with notice. The allegation of pollution with respect to KBN Apartments is by the Town Planner in his vigilance report. Both complexes shall hence be verified and if found in existence, remedial measures shall be directed. The owners/occupiers shall be given sufficient WPC.No.36380/2015& con.cases : 10 : time to make remedial measures and the Pollution Control Board shall, after inspection, inform the Panchayath about the remedial measures having been implemented upon which the cancellstion of numbering shall be withdrawn.
10. The contention of the petitioner in WPC no.14300/2013 in a suit said to have been filed for damages against the builder of one of the apartment complexes, shall be left open and so shall the defence of the builder. The suit shall be adjudicated untramelled by the observations herein.
The writ petitions would stand disposed of with the above directions. No costs.
Sd/-
(K. VINOD CHANDRAN, JUDGE)
jma //true copy//
P.A to Judge