Kerala High Court
Moli vs Sub Collector on 20 January, 2016
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY,THE 4TH DAY OF AUGUST 2017/13TH SRAVANA, 1939
WP(C).No. 40031 of 2015 (D)
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PETITIONER(S):
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1. MOLI, AGED 42 YEARS, W/O.BINOY,
ASHADOM, ANAD, CHANDRAMANGALAM,
NEDUMANGAD, TRIVANDRUM.
2. SALIM, AGED 42 YEARS, S/O.ABDUL RAZAK,
T.C 17/1622(5), KATTU ROAD, PUJAPPURA,
TRIVANDRUM.
BY ADVS.SRI.R.SUNIL KUMAR
SMT.A.SALINI LAL
RESPONDENT(S):
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1. SUB COLLECTOR,
COLLECTORATE, TRIVANDRUM, PIN-695 001.
2. MUSTAQ AHAMMED,
EDAYKKAD HOUSE, KANIYAPURAM,
TRIVANDRUM, PIN-695 001.
3. NASAR, AGED 58 YEARS,
NAZ INDUSTRIAL WOOD WORK,
NEAR EMPIRE BAKERY, POOJAPPURA,
TRIVANDRUM, PIN-690 512.
4. BAZITH NASAR, S/O.NASAR,
NASA, TJR 168, SASTHAMANGALAM,
TRIVANDRUM, PIN-695 010.
5. SUB INSPECTOR OF POLICE,
POOJAPURA POLICE STATION,
POOJAPURA-690 512.
2/-
-2-
WP(C).No. 40031 of 2015 (D)
*ADDL.R6 IMPLEADED
*Addl.R6. THIRUVANANTHAPURAM CORPORATION,
REPRESENTED BY ITS SECRETARY,
THIRUVANANTHAPURAM, PIN-695 001.
*IS SUO MOTU IMPLEADED AS ADDL.R6 AS PER THE ORDER DATED 20/1/2016
IN WP(C).NO.40031/2015.
**ADDL.R7 IMPLEADED
**ADDL.R7: ARTECH REALTORS (P) LTD.,
TC 24/2014(1), ARTECH HOUSE, THYCAUD.P.O.,
THIRUVANANTHAPURAM-695 014.,
REPRESENTED BY MANAGING DIRECTOR.
**ADDL.R7 IS IMPLEADED AS PER ORDER DATED 28/7/16 IN IA.NO.11507/2016.
R1 & R5 BY GOVERNMENT PLEADER DR.THUSHARA JAMES
R4 BY ADV. SRI.NAIR AJAY KRISHNAN
R4 & ADDL.R7 BY ADV. SRI.R.T.PRADEEP
ADDL.R6 BY SRI.N.NANDAKUMARA MENON,SENIOR ADVOCATE
SRI.P.K.MANOJKUMAR,SC,
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 04-08-2017, ALONG WITH WP(C).NO. 12148/2016 AND CONNECTED
CASES,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sts
WP(C).No. 40031 of 2015 (D)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 : COPY OF THE PLAINT IN OS NO.2140/2015 OF MUNSIFF COURT, TRIVANDRUM.
P2 : COPY OF THE ORDER OF TEMPORARY INJUNCTION IN OS NO.2140/2015
DT 9-11-2015.
P3 : COPY OF THE COMMISSION REPORT AS WELL AS THE ROUGH SKETCH.
P4 : COPY OF THE ORDER OF THE 1ST RESPONDENT NO.C/21787/15 DT 7-12-15.
P5 : COPY OF THE LETTER SEND BY THE 4TH RESPONDENT DT 7-12-15.
RESPONDENT(S)' EXHIBITS AND ANNEXURES:
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R6(A) COPY OF THE SALE DEED NO.103/2016 DATED 13/1/2016
R6(B) COPY OF THE DEED DATED 20/5/2016 BY WHICH SAJEEVAN SURRENDER
VACANT POSSESSION
R6(C) PHOTOGRAPH OF THE DILAPIDATED CONDITION OF THE BUILDING
R6(D) PHOTOGRAPH OF THE MASONRY WORK DONE ON THE DILAPIDATED
BUILDING
ANNEXURE 1 COPY OF THE INSPECTION REPORT NO.E8/WP(C)40031/2015D, DATED
19/3/2016 ISSUED BY THE SUPERINTENDING ENGINEER,
CORPORATION OF THIRUVANANTHAPURAM
IA.NO.11507/2016 IN ANNEXURE 1 COPY OF THE SALE DEED NO.103/2016
DATED 13/1/2016.
ANNEXURE II COPY OF DEED DATED 20/5/2016 BY WHICH SAJEEVAN SURRENDER
VACANT POSSESSION.
/TRUE COPY/
P.A.TO JUDGE
sts
C.R.
DEVAN RAMACHANDRAN, J.
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WP(C) Nos.40031 of 2015, 12148, 13202
&
39792 of 2016
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Dated this the 4th day of August, 2017
JUDGMENT
I am considering these four writ petitions and propose to dispose them of jointly in this judgment since they involve, at least substantially, similar facts and circumstances and the relief to be granted in one would be dependent and axiomatic to that to be granted in the others. However, for the sake of convenience, I treat WP(C) No.39792 of 2016 as a lead case and all references to the documents unless otherwise specified in this judgment.
2. I have heard Sri.R.T. Pradeep, the learned counsel appearing for the petitioner in WP(C) No.39792 of 2016, Sri.R. Sunilkumar, the learned counsel appearing for the petitioners in WP(C) Nos.40031 of 2015, 12148 & 13202 of 2016, who also appears for the contesting respondents in WP(C) No.39792 of WP(C) Nos.40031 of 2015, 12148, 13202 & 39792 of 2016 2 2016, Sri.P.K. Manojkumar, the learned Standing Counsel, appearing for the Thiruvananthapuram Corporation, Smt.Thushara James as also the learned Senior Government Pleader appearing on behalf of the official respondents.
3. I do not propose to detail the facts involved in these cases in extenso, since it would not be necessary to consider all of them, as are pleaded or alleged in this writ petition, for resolution of the disputes presented in these cases. Since the controversy is in a narrow compass, I will deal with the fats with as much brevity as it would permit.
4. The petitioner in WP(C) No.39792 of 2016, claims to be a Company incorporated under the provisions of the Indian Companies Act, 1956, called Artech Realtors Pvt. Ltd. [for brevity, the Artech] and they say that they have purchased an extent of 17 Ares 47 sq. meters comprised of in Survey Nos.1784, 1785 & 1786 of Sasthamangalam Village, Thiruvananthapuram as per Ext.P1 Sale Deed. They say that when they purchased the property, there was an old and dilapidated building remaining thereon, which is comprised of WP(C) Nos.40031 of 2015, 12148, 13202 & 39792 of 2016 3 four separate shop rooms, which were already in the possession of various tenants under the original landlord. The shop rooms in question, the petitioner says, bears door numbers as T.C. Nos.17/ 452, 17/453, 17454 & 17/455. The petitioner asserts that the building was certified, by the competent Authorities, to be dilapidated and dangerous to general public, thus necessitating action at the hands of the Sub Divisional Magistrate under the provisions of Section 133 of the Code of Criminal Procedure, which order has been produced on record as Ext.P3. The petitioner submits that Ext.P3 makes it luculent that the building is infirm and that the integrity of its structure is severely compromised, thus causing itself to be a threat to the public at large. The petitioner points to Ext.P3 to show that the said order was passed by the Sub Collector, Thiruvananthapuram based on a report obtained from the competent Authority of the Public Works Department [PWD], as is warranted under Section 133 Cr.P.C. On the allegation that no subsequent action has been taken by the Municipality, in spite of Ext.P3 order finding the building to be dangerous, the petitioner has filed this writ petition WP(C) Nos.40031 of 2015, 12148, 13202 & 39792 of 2016 4 seeking that directions to be issued to the concerned Authorities of the Corporation of Thiruvananthapuram to take action under Section 411 of the Kerala Municipalities Act and to complete the proceedings thereunder leading to the demolition of the building in question.
5. As far as the other three writ petitions are considered, they are filed by the tenants, who are claiming possession of the shop rooms under valid tenancy with the original landlord. Sri.Sunilkumar, the learned counsel appearing for the tenants, submits that after purchase of the property by Artech, his clients had attorned to them and that they had even offered to pay the contractual rent, which was however refused by the Artech. The learned counsel vehemently submits that the action now initiated to demolish the building is only a facade and ruse adopted by Artech to obtain eviction of the tenants from the premises without having to go through the imperative procedure under the Kerala Buildings [Lease and Rent Control] Act.
6. I notice that WP(C) No.40031 of 2015 has been filed by the tenants of the shop rooms in question challenging the order WP(C) Nos.40031 of 2015, 12148, 13202 & 39792 of 2016 5 of the Sub Divisional Magistrate, which is relied on by Artech in WP(C) No.13202 of 2016. The writ petitioners in WP(C) No.40031 of 2015 has challenged the said order on the singular allegation that it has been issued by the Sub Divisional Magistrate illegally and without following due procedure, as is mandated under Section 133 Cr.P.C. Sri.Sunilkumar also makes a submission that even though the order is stated to have been issued by the Sub Divisional Magistrate under Section 133 Cr.P.C., the way it is styled it would give it an impression that this is a final order under Section 138 Cr.P.C. He contends, therefore, that the said order is illegal and unlawful.
7. As regards WP(C) Nos.12148 & 13202 of 2016 is concerned, I see that they have been filed by the tenants since their application for licence to run their business in the shop rooms have been declined by the Corporation citing that there are disputes raised by the Artech against such renewal. However, Sri.Sunilkumar points out that the Corporation has not rejected the applications for renewal finding his clients to be not entitled of such renewal, but only for the singular reason that Artech has WP(C) Nos.40031 of 2015, 12148, 13202 & 39792 of 2016 6 raised objections for such renewal.
8. On an evaluation of the submissions made at the bar and on assessment the pleadings available on record, it is obvious that the core issue between the parties is as to whether the building in question is dilapidated, thus causing a threat to the public at large as has been found by the Sub Divisional Magistrate in his order. On one side, Sri.R.T. Pradeep, the learned counsel for Artech, submits fervently that the Sub Divisional Magistrate has only acted within the parameters of jurisdiction vested with him, especially because he had obtained a report from the competent authority of the PWD, who had certified that the building is dangerous and that it will fall any moment during the monsoon season. Sri.Sunilkumar refutes this with equal vehemence pointing out that the order of the Sub Divisional Magistrate has been issued in the year 2015 and that the building is still intact and not fallen in spite of the alarmist nature of the order issued by the Sub Divisional Magistrate. He says that this is sufficient evidence to show that the building is not dangerous and that what has been done by the Sub Divisional WP(C) Nos.40031 of 2015, 12148, 13202 & 39792 of 2016 7 Magistrate is only towing the line of Artech, to create a ruse and excuse to obtain eviction of the tenants.
9. The condition of the building or its structural integrity are not issues, which this Court can consider or delve into while acting under Article 226 of the Constitution of India. This will depend upon a factual evaluation of the structural criterion of the building which will require assistance of structural and engineering experts, who will have to inspect the property and to take a call as to whether any action is required to be taken on it. Sri.Sunilkumar points out that the Thiruvananthapuram Corporation had earlier conducted an inspection of the building in question on 25.02.2016 and he refers to Ext.R4(a) produced by him along with a Counter Affidavit in evidence of the same. The endorsements in Ext.R4(a) would show that on 25.02.2016 the Overseer of the Local Self Government Department, Thiruvananthapuram had inspected the building and had reported that it can be retained without being demolished, with some repair and maintenance. He has further reported that the plastering on the walls at certain places is seen to have fallen and WP(C) Nos.40031 of 2015, 12148, 13202 & 39792 of 2016 8 he opines that the building can be put back to shape with sufficient work of re-plastering and such other civil works. Sri.Sunilkumar, based on Ext.R4(a), asserts that the inspection was done with the assistance of a Structural Engineer and he says that the findings during such inspection would demonstrate that the building is safe and capable of being put to use.
10. In contrario sensu Sri.R.T. Pradeep submits that Ext.R4
(a) cannot be relied upon at all because it is a self-serving document and he insinuates that it was one made at the behest of the tenants. He, on the other hand, relies on Ext.P5 inspection report dated 19.03.2016, which was made by the Superintending Engineer of the Thiruvananthapuram Corporation under orders of this Court in WP(C) No.40031 of 2015. The learned counsel goes on to submit that Ext.R4(a) report, which is dated 25.02.2016, is throughly unreliable because Ext.P5 is a later report, it being dated 19.03.2016, wherein it is affirmatively concluded by the Superintending Engineer that the building is dangerous. He, therefore, asserts that reliance will have to be made on Ext.P5 and not on Ext.R4(a), since the former has been issued by a WP(C) Nos.40031 of 2015, 12148, 13202 & 39792 of 2016 9 Superintending Engineer, whereas Ext.R4(a) has been issued by only an Officer of the grade of an Overseer. Sri.Sunilkumar takes exception to this submission by saying that Ext.P5 was issued at the behest of Artech and they, being influential and affluent, were able to obtain a report in their favour in the year 2016. He reiterates that the building has survived at least three monsoon seasons after it was allegedly found to be unsafe and he says that this is sufficient to demonstrate that the entire case of Artech against the structural integrity of the building does not inspire any trust.
11. As I have indicated above, these are not issues into which this Court can enter into and consider, they being essentially questions of facts. The issue whether the building in question is safe or otherwise will have to be considered by the Authority competent to do so. I notice that Section 411 of the Kerala Municipalities Act clothes specified Authorities under it with sufficient power to deal with dangerous structures, trees and places. The power granted therein is virtually plenary, subject, of course, to the procedural safeguards, under which the Authorities WP(C) Nos.40031 of 2015, 12148, 13202 & 39792 of 2016 10 can issue orders even for demolition of such structures. When the power under Section 411 is so wide, I am of the view that the earlier proceedings initiated by the Sub Collector, Thiruvananthapuram leading to Ext.P3, which is impugned in WP(C) No.40031 of 2015 need not be now allowed to continue or to be operated. I do not, think that any purpose will be served in now allowing that order to operate or to lead to a final order under Section 138 Cr.P.C., even assuming that the order referred to is only an order under Section 133 Cr.P.C. I, therefore, quash Ext.P4 in WP(C) No.40031 of 2015, which is also produced as Ext.P3 in WP(C) No.39792 of 2016.
12. That being done, I am brought to now consider the nature of relief that is to be granted to either parties in these writ petitions. As I have already found above, Section 411 grants sufficient powers to the authority of the Corporation of Thiruvananthapuram to deal with dangerous buildings. It is baffling that there are two reports of two different Authorities of the said Corporation on record, which give contradicting and conflicting opinions. The two reports on record, one produced as WP(C) Nos.40031 of 2015, 12148, 13202 & 39792 of 2016 11 Ext.R4(a) by the petitioner in WP(C) No.39792 of 2016 and the other produced as Ext.P5 by Artech in the same writ petition, is confounding to say the least, because in a span of less than 5 or 6 days, two different opinions, countervailing to each other are made by two officers of the Corporation. This is completely unacceptable and according to me, extremely irresponsible. I cannot attach any trust to either of these reports and I am of the view that the competent Authority of the Corporation of the Thiruvananthapuram, namely the Secretary, will have to take a fresh action to assess the structural integrity of the building under Section 411 of the Municipalities Act. After such exercise is completed by the Secretary, the tenants will be entitled to seek renewal of their licence, which will also have to be considered by the competent Authorities subject, of course, to the report and decision to be taken by the Secretary regarding the safety of the building and after considering the objections raised by Artech. I say this because, Artech has a specific contention that the tenants have not been enjoying a licence for the last several years and therefore, that they cannot claim a renewal, but only a WP(C) Nos.40031 of 2015, 12148, 13202 & 39792 of 2016 12 fresh licence for which a Non-objection Certificate will be required under Section 492(3) of the Municipalities Act. This is not an issue on which I propose to say anything in this judgment. This is something which will have to be taken into account when the application for renewal is considered by the Authority concerned.
13. In view of the afore and in summation of what I have recorded above, I direct the Secretary of the Corporation of Thiruvananthapuram to cause an inspection of the building in question through a competent Structural Engineer in the services of the Corporation of Thiruvananthapuram and to obtain a report regarding the condition and integrity of the structure of the building. On obtaining such a report by the Secretary, he shall issue notice to both Artech, the petitioner in WP(C) No.39792 of 2016, as also the petitioners in WP(C) Nos.40031 of 2015, 12148 & 13202 of 2015 and finalise proceedings under Section 411 Municipalities Act in terms of law. This exercise, including inspection of the property and hearing of the parties concerned, shall be completed by the Secretary as expeditiously as possible but not later than three months from the date of receipt of a WP(C) Nos.40031 of 2015, 12148, 13202 & 39792 of 2016 13 certified copy of this judgment. On such a decision been taken by the Secretary, the tenants namely the petitioners in WP(C) Nos.40031 of 2015, 12148 & 13202 of 2016 shall be entitled to apply to the competent Authority of the Corporation of Thiruvananthapuram for renewal or grant of their licence in terms of law and the concerned Authority will be obligated by the terms of this judgment to consider such application, after affording an opportunity of being heard to them as also a duly authorised representation of Artech and any decision taken thereon will abide by the report and order to be issued by the Secretary under the provisions of Section 411 of the Municipalities Act as ordered above. While taking such a decision, obviously the competent Authority shall not be influenced by the earlier orders issued by the Corporation of Thiruvananthapuram, which are impugned as Ext.P14 in WP(C) Nos.12148 & 13202of 2016, since all that is stated in the said communication is that their applications cannot be considered on account of the objection raised by the Artech.
14. Sri.R.T. Pradeep, the learned counsel, at this point request that his client's contentions that the tenants are not WP(C) Nos.40031 of 2015, 12148, 13202 & 39792 of 2016 14 entitled to seek renewal of their licence, but only for a fresh grant under Section 492 may be specifically adverted to by the Authority. It is goes without saying that any such contention to be raised before the Authority by Artech will also be duly considered and taken note of. The process relating to the grant of licence or renewal of licence in terms of the applications to be made by the tenants in terms of judgment shall also be completed by the competent authority without any avoidable waste of time, but not later than two months from the date on which such application is made, pursuant to the report to be finalised by the Secretary in terms of Section 411 of the Municipalities Act as ordered above.
This writ petition is thus ordered as above. In the facts and circumstances of this case, I make no order as to costs and I direct the parties to suffer their respective costs.
Sd/-
DEVAN RAMACHANDRAN, JUDGE.
//True Copy// P.A. to Judge sp/10/08/17