Campion Foundation International vs Stateof Kerala on 1 February, 2016

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Kerala High Court

Campion Foundation International vs Stateof Kerala on 1 February, 2016

This Writ Appeal arises out of the judgment of the learned Single Judge dated 1.2.2016 in W.P.(C). No.21055/2011. The said Writ Petition was filed by Rajiv Nagar Residents Welfare Association, the 4th respondent herein, seeking an order to declare Ext.P17 Government Order dated 12.3.1997 as constitutionally invalid and consequently to quash and set aside the same. By the impugned judgment, the learned Single Judge allowed the said Writ Petition quashing Ext.P17 Government order and the Subordinate Judge's Court, Ernakulam was directed to dispose of O.S.No.341/2011 filed by the said Association in accordance with law. Feeling aggrieved by the said judgment, the appellant (4th respondent in the Writ Petition) is before this Court in this appeal. W.A.No.1289/16 -:2:-

2. We heard the arguments of learned counsel for the appellant/4th respondent, the learned Government Pleader for the 1st respondent State, learned Standing Counsel for the 2nd respondent Federation, learned Standing Counsel for the 3rd respondent Corporation and also learned counsel for the 4th respondent Association/writ petitioner.

3. The pleadings and materials on record would show that the 4th respondent Association represents the residents of 'Rajiv Nagar', a housing colony set up, promoted and developed by the 2nd respondent Federation at Elamakkara in Edappally North and South Village. The 2nd respondent Federation purchased a total extent of 7.25 Acres under separate sale deeds and undertook extensive developmental activities in order to set up a housing colony for the benefit of those desirous of construction of residential houses in independent plots. The total extent of 7.25 Acres of land was divided into 78 plots with extent varying from 5 to 10 cents, after providing for basic infrastructure such as internal roads, common area as W.A.No.1289/16 -:3:- parks, play grounds, etc.

4. At that point of time, the development activities in a plot like the one held by the 2nd respondent Federation was governed by Chapter III of the Kerala Building Rules, 1984, which deals with general site and building requirements. Rule 14(5)(a)(iv) of the said Rules, which deals with general requirements in the case of residential development, expressly provides that when the area of the land under development work, lay out or sub division is 20 Ares or more, 15% of the total area shall be provided for recreational open spaces. Since the extent of land proposed for development by the 2nd respondent Federation was far in excess of 20 Ares, the Federation drew up a lay out plan inter alia earmarking the open space on the northern and eastern sides and accordingly submitted the same for statutory approval by the 3rd respondent Corporation. Accordingly, the lay out design was approved by the Corporation vide permit dated 13.11.1991.

5. As per the lay out design approved by the 3rd respondent Corporation, an extent of 1.066 Acres of land W.A.No.1289/16 -:4:- has to be set apart as recreational open space for the beneficial enjoyment of the residents/plot owners in Rajiv Nagar Housing Colony. By March, 1994, the 2nd respondent Federation accomplished the sale of the plots to interested purchasers. By Ext.P3 letter dated 18.3.1994, the 2nd respondent Federation requested the 3rd respondent Corporation to take over an extent of 92.57 cents set apart for construction of internal roads and also for its necessary periodical maintenance. In Ext.P3 letter, the 2nd respondent Federation has stated about surrendering of sufficient open space for the common use of the plot owners.

6. When there were attempts by the 2nd respondent Federation for sale of the land intended to be kept as open recreational area to strangers, the 4th respondent Association submitted Ext.P4 complaint before the 3rd respondent Corporation, which was followed by Ext.P5 reminder dated 5.1.2007. To Ext.P5, the 4th respondent Association received Ext.P6 reply wherein the Corporation has stated that the 2nd respondent Federation was issued with a notice dated 21.11.2006 calling for their explanation W.A.No.1289/16 -:5:- supported by permit, lay out plan, etc.

7. On 12.2.2007, the 2nd respondent Federation released Ext.P7 tender notice in Malayala Manorama daily inviting tenders for sale of an extent of 97.450 cents in Sy.No.116/4 of Edappally North village, which forms part of the open space of Rajiv Nagar Housing Colony. In view of the said notification, the 4th respondent Association filed W.P.(C).No.6522/2007 before this Court seeking a writ of mandamus commanding the 3rd respondent Corporation to take steps to prevent the 2nd respondent Federation from the sale of the land mentioned in Ext.P7 tender notice. The 4th respondent Association has also sought an order directing the 3rd respondent Corporation to see that the open space set apart in the lay out for the common use of Rajiv Nagar Housing Colony is kept for that purpose only and not to be sold as per Ext.P7 tender notice.

8. In the said Writ Petition, this Court passed Ext.P9 interim order restraining the 2nd respondent Federation from selling the land proposed to be sold in Ext.P7 tender notice, initially for a period of three weeks, W.A.No.1289/16 -:6:- which order was extended from time to time. While the said interim order was in force, the 2nd respondent Federation issued Ext.P10 notice, rescheduling the date of auction as 17.9.2007 and the 4th respondent Association was informed that it is free to participate in the said auction. On receipt of Ext.P10, the 4th respondent Association sent Ext.P11 reply dated 13.9.2007 pointing out that the proposed auction is in violation of the interim order granted by this Court, which is still in force, and will amount to contempt of court. In spite of Ext.P11, the 2nd respondent Federation proceeded with the auction and one Vibin Jose was declared as the highest bidder.

9. Unable to get the plot assigned in his favour, the said Vibin Jose filed a petition for impleadment in W.P.(C). No.6522/2007. While so, a Sub Committee of the 2nd respondent Federation took a decision on 19.10.2007 to cancel the auction sale in favour of the said Vibin Jose. Thereupon, he filed W.P.(C).No.7447/2008. By Ext.P12 judgment dated 9.9.2009, this Court closed W.P.(C). No.6522/2007 observing that in view of the decision of the W.A.No.1289/16 -:7:- 2nd respondent Federation to cancel the sale of the land in question, the directions sought for are not called for. W.P. (C).No.7447/2008 filed by the said Vibin Jose was rejected by the very same judgment for the self same reason.

10. After the disposal of W.P.(C).No.6522/2007, the 4th respondent Association submitted Ext.P13 representation dated 24.3.2010 before the 2nd respondent Federation highlighting the need for proper utilisation of the open space provided in Rajiv Nagar Housing Colony. Upon enquiry, the 4th respondent Society came to know that the 2nd respondent Federation sold two items of properties which form part of the area set apart in the lay out plan of Rajiv Nagar Housing Colony as open space to the appellant/4th respondent Society, which is running a Senior Secondary School in the name and style 'Campion School' in their property on the east of Changadampokku Canal, for the purpose of construction of a bridge in order to have access by road from the suburbs of Puthukkalavattom, Elamakkara. Ext.P14 sale deed executed by the 2nd respondent Federation in favour of the appellant Society W.A.No.1289/16 -:8:- reveals conveyance of two items of property, item No.1 pertaining to 3.533 cents (1.43 Ares) in Sy.No.116/4 of Edappally North Village and item No.2 pertaining to 1.267 cents (51 Sq.Metres) again in Sy.No.116/4 of Edappally North Village. The said two items form part of the area set apart in the lay out plan as open space. Item No.2 in particular formed part of the property surrendered by the 2nd respondent Federation to the 3rd respondent Corporation for the construction of internal roads. Ext.P15 is a copy of the site plan/lay out of the bridge proposed in the land covered by Ext.P14, submitted by the appellant Society before the 3rd respondent Corporation for its approval.

11. The 4th respondent Association instituted O.S.No.341/2011 before the Sub Court, Ernakulam against the appellant Society, the 2nd respondent Federation and the 3rd respondent Corporation seeking various reliefs. Along with the said suit, I.A.No.2618/2011 was filed seeking temporary injunction, in which, the 2nd respondent Federation filed Ext.P16 preliminary objection contending, inter alia, that by Ext.P17 order dated 12.3.1997, the W.A.No.1289/16 -:9:- Government in exercise of the powers under Rule 5 of the Kerala Building Rules, 1984 has exempted the approval of housing lay out of Rajiv Nagar Housing Colony in survey numbers referred to therein from Rule 14(5)(a)(iv)of the said Rules, as per the plan submitted by the Managing Director of the Federation. It has also been specified in Ext.P17 that the construction is also exempted from the Zoning Regulation of the sanctioned structure plan for Central Kochi. Ext.P18 is the copy of the lay out plan submitted before the 3rd respondent Corporation. In the Writ Petition, the 4th respondent challenged Ext.P17 Government order contending that the 2nd respondent Federation is not legally entitled to alienate or transfer any property earmarked as open space in the housing lay out plan of Rajiv Nagar Housing Colony to strangers under the guise of the said Government order, which has no legal sanctity.

12. As rightly noticed by the learned Single Judge, the legality or otherwise of Ext.P14 sale deed executed by the 2nd respondent Federation in favour of the appellant W.A.No.1289/16 -:10:- Society, is the subject matter in O.S.No.341/2011 pending before the Sub Court, Ernakulam and as such the said issue has to be decided by the competent civil court. Therefore, the only issue that was considered by the learned Single Judge was as to whether the exemption granted in Ext.P17 Government order thereby enabling the 2nd respondent Federation to sell the open space set apart in the housing lay out of Rajiv Nagar Housing Colony, without providing the open spaces as mandated by Rule 14(5)(a)(iv) of the Kerala Building Rules is valid or not.

13. Sub-rule (1) of Rule 3 of the Kerala Building Rules, 1984 deals with the applicability of the Rules to public or private buildings as described in clauses (a) to (e) therein. Sub-rule (2) of Rule 3 provides further that the provisions under the Building Rules shall also apply to all lands which are proposed to be developed or re-developed for construction of buildings. Rule 5 empowers the Government to exempt any building from the operation of all or any of the provisions of these Rules subject to the conditions, if any, to be stipulated in the order granting W.A.No.1289/16 -:11:- such exemption. The Government has to exercise such power in consultation with the Chief Town Planner. As per the first proviso to Rule 5, such exemption shall be considered on individual application forwarded to the Government through the authority and the Chief Town Planner with their specific recommendations. The second proviso provides further that, such exemption shall be considered only if the individual application for exemption from building rules is forwarded to the Government along with a chalan receipt remitting the application fee in the Government Treasury as detailed in clauses (a) and (b). The application fee prescribed in sub-clauses (i) to (iv) of clause (a) relating to buildings to be used as residence and that in sub-clause (i) to (iv) of clause (b) relating to all buildings of non-residential purpose are based on the plinth area of such buildings.

14. Going by Rule 14(5)(a)(iv) of the Kerala Building Rules, in the case of residential development, when the area of the land under development work, lay out or sub division is 20 Ares or more, 15% of the total area shall be W.A.No.1289/16 -:12:- provided for recreational open space. It was in terms of the aforesaid provision that the lay out of Rajiv Nagar Housing Colony was approved by the 3rd respondent Corporation vide permit dated 13.11.1991. As per the approved lay out, an extent of 1.066 Acres of land was set apart as recreational open space for beneficial enjoyment of the plot owners/residents in Rajiv Nagar Housing Colony. By Ext.P3, the 2nd respondent Federation surrendered 92.57 cents set apart for construction of internal roads to the 3rd respondent Corporation for its periodical maintenance. By March, 1994, the 2nd respondent Federation accomplished the sale of the plots in the housing colony to interested purchasers. After the approval of the lay out of the housing colony, the Government in exercise of its powers under Rule 5 of the Kerala Building Rules cannot exempt approval of that housing lay out from the requirements of Rule 14(5)(a)(iv) of the said Rules, thereby enabling the 2nd respondent Federation to sell the land earmarked as recreational open space in the housing lay out. It was in such circumstances that the learned Single Judge set aside W.A.No.1289/16 -:13:- Ext.P17 order and directed the civil court to dispose of O.S.No.341/2011 in accordance with law. We find absolutely no grounds to interfere with the judgment of the learned Single Judge.

In the result, the Writ Appeal fails and the same is accordingly dismissed.

Sd/-

MOHAN M. SHANTANAGOUDAR, CHIEF JUSTICE Sd/-

ANIL K.NARENDRAN, JUDGE dsn/6.1.

True copy P.S. to Judge

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