Kerala High Court
International Garden View Apartment ... vs The Thiruvalla Municipality on 5 December, 2019
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 05TH DAY OF DECEMBER 2019 / 14TH AGRAHAYANA, 1941
WP(C).No.28235 OF 2019(D)
PETITIONERS:
1 INTERNATIONAL GARDEN VIEW APARTMENT OWNERS
ASSOCIATION (IGVAOA)
(REGISTRATION NO. PTM/TC/272/2016),
APARTMENT NO.6B, T. K. ROAD, MANJADI P.O.,
THIRUVALLA - 689 105,
REP. BY ITS PRESIDENT FR. BIJU P. THOMAS.
2 RANI JOHN VARGHESE
W/O. JOHN VARGHESE, APARTMENT NO. 10 D,
INTERNATIONAL GARDEN VIEW, T. K. ROAD,
MANJADI P.O., THIRUVALLA - 689 105.
3 PHILIP C. JOHN
W/O. JOHN VARGHESE, APARTMENT NO. 10 D,
INTERNATIONAL GARDEN VIEW, T. K. ROAD,
MANJADI P.O., THIRUVALLA - 689 105.
BY ADVS.
SRI.S.RAMESH BABU (SR.)
SRI.S.ANANTHAKRISHNAN
SRI.N.KRISHNA PRASAD
RESPONDENTS:
1 THE THIRUVALLA MUNICIPALITY
THIRUVALLA, REP. BY ITS SECRETARY - 689 101.
2 THE DIRECTOR GENERAL
KERALA FIRE AND RESCUE SERVICES,
FIRE FORCE JUNCTION,
PULIMOODU P.O.,
THIRUVANANTHAPURAM - 695 001.
3 THE DIVISIONAL FIRE OFFICER
FIRE AND RESCUE SERVICES,
KOTTAYAM - 686 001.
4 THE ASSISTANT DIVISIONAL OFFICER
FIRE AND RESCUE SERVICES,
PATHANAMTHITTA P.O., PIN - 689 645.
WP(C).No.28235 OF 2019(D)
2
5 THE STATION OFFICER
OFFICE OF THE FIRE STATION OFFICER,
THIRUVALLA - 689 101.
6 REAL TRUST BUILIDERS INDIA (PVT) LTD,
HAVING ITS REGISTERED OFFICE AT INTERNATIONAL
TOURIST COMPLEX, PUSHPAGIRI ROAD,THIRUVALLA -
689 101.,
REPRESENTED BY ITS MANAGING DIRECTOR SRI. JERRY
JACOB.
R1 BY SRI.S.SUBHASH CHAND, SC, THIRUVALLA
MUNICIPALITY
R6 BY ADV. SRI.T.P.PRADEEP
R6 BY ADV. SRI.S.SREEDEV
R6 BY ADV. SRI.P.K.SATHEES KUMAR
R6 BY ADV. SMT.NITHYA VIJAYAN
R6 BY ADV. SMT.MINIKUMARY M.V.
GP K.J.MANURAJ
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 05.12.2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No.28235 OF 2019(D)
3
JUDGMENT
The petitioners, who are stated to be the Association of owners of an Apartment Complex by name "International Garden View Apartments" at Thiruvalla and two of its members, have approached this Court impugning Ext.P14 communication issued by the Secretary of the Municipality, informing them that if there would be any fire hazard in the building they would be responsible and no one else.
2. The petitioners say that Ext.P14 is untenable in law and thus illegal, because the Secretary ought to have taken necessary action to make the building fire compliant, particularly because the conditions of the No Objection Certificate obtained from the Fire and Rescue Department at the time when the building had been constructed, have been completely violated by the builder, namely the 6th respondent; and therefore, that they have preferred Ext.P15 application before the Secretary seeking necessary action to be taken immediately against them, including under Section 406 of the Kerala Municipality Act.
3. According to the petitioners, the Secretary of the Municipality has abdicated his duties in merely issuing Ext.P14 to WP(C).No.28235 OF 2019(D) 4 them, without verifying as to who has committed the illegalities in the building and therefore, prays that directions be issued to the said Authority to immediately advert to Ext.P11 proceedings of the Station Officer, Fire and Rescue Station, Thiruvalla, and then take necessary action to make the building fully compliant with the directions therein.
4. The petitioners further say that they are incompetent and incapable of complying with the directions in Ext.P11 on their own, since the 6th respondent-builder has made all the illegal constructions; and therefore, that unless the Secretary initiates action for demolition of the offending structures, the directions in Ext.P11 can never be complied with. They, therefore, pray that Ext.P15 be directed to be taken up and disposed of at the earliest.
5. In addition to the afore narrative, Sri.Ramesh Babu, learned Senior Counsel instructed, by Sri.S.Ananda Krishnan, learned counsel for the petitioners, submitted that it is now imperative that the Secretary takes up Ext.P15 representation of his clients and dispose it of quickly, since going by Ext.P11 proceedings of the Fire and Rescue Department, the present condition of the building is extremely dangerous to its every WP(C).No.28235 OF 2019(D) 5 resident. He says that the building has been brought to the present situation only account of the illegalities committed by the 6th respondent-builder and therefore, that unless the Secretary takes urgent action under 406 of the Kerala Municipality Act, to demolish all offending structures, the building cannot achieve compliance of Ext.P11 directions. He, therefore, reiteratingly prays that Ext.P15 be directed to be taken up and disposed of by the Secretary of the Municipality adverting to Ext.P11 within a time frame to be fixed by this Court.
6. In response to the afore submissions, Sri.T.P.Pradeep, learned counsel for the 6th respondent, submits that the allegations made against his client by the petitioners are totally untrue and without basis, since all constructions in the building have been made strictly as per valid permits, licences and consents. He says that his client will be able to convince the Secretary of the Municipality appropriately if they are given an opportunity of being heard and he prays that this writ petition be ordered only on such terms.
7. Sri.Subhash Chand, learned Standing Counsel for the respondent-Municipality, submits that Ext.P14 is irreproachable and has been issued validly, since the Secretary is obligated in WP(C).No.28235 OF 2019(D) 6 law to notify the residents of the building that the same is in a dangerous position and that should there be any unfortunate mishap in the future, the Municipality cannot be held responsible, since the illegalities committed in its construction, have been done either by the petitioners or the 6 th respondent. He says that the builder appears to be no longer interested in the building since he is seen to have sold all the units to the various members of the 1st petitioner-Association and therefore, that it is now up to the petitioners to take remedial action without seeking that the builder be held responsible for the same. He thus prays that the petitioners be directed to take immediate action to comply with the directions in Ext.P11 directions of the Fire and Safety Department and demolish all the offending structures as is necessary.
8. I have considered the afore submissions and am without doubt that this is a matter that requires urgent attention of the competent Authorities, particularly because, going by the report of the Fire and Rescue Department, namely Ext.P11, continued of the occupation of the building in question by its various residents poses real and imminent danger, especially in the event of a fire mishap, god forbid, should it happen. WP(C).No.28235 OF 2019(D) 7
9. As is indubitable from the afore narrative, it is clear that there is a dispute between the petitioners on one side and the builder on the other, blaming each of them for the illegal structures made in the construction. However, it is more or less now certain to this Court that there are certain offending constructions in the building , it being virtually admitted by all sides. Obviously, therefore, it is now up to the Secretary of the Municipality to cause an immediate inspection of the premises, invoking the provisions of Section 406 of the Kerala Municipality Act and initiate action against the offending structures, whether it is put up by the petitioners or the 6 th respondent-builder. This action is inevitable, since the provisions of the Kerala Municipality Act vest full authority with the Secretary to take remedial action, should the persons responsible for illegal constructions refuse to remove the offending structures; and in such perspective, I cannot find the stand of the Secretary that he has no powers to demolish the structures and that it should be done only by the petitioners or by the 6th respondent to be tenable or legally correct.
10. I am thus of the firm view that if the structures are found to be offending the applicable law, then it is the Secretary WP(C).No.28235 OF 2019(D) 8 of the Municipality who is statutorily enjoined to take necessary action, when if the persons responsible refuse to do so; and then seek reimbursement of the expenses from such persons by resorting to the applicable provisions of the Revenue Recovery Act.
In the afore circumstances and for the reasons above, I order this writ petition and direct the Secretary of the Municipality to take up Ext.P15 representation of the petitioners and hear them as well as the 6 th respondent, thus leading to a final decision under Section 406 of the Kerala Municipality Act, adverting specifically to Ext.P11. This exercise shall be completed by the Secretary strictly as per the provisions of the afore Section, including by first issuing a provisional order than culminating in a final order, as expeditiously as is possible but not later than three months from the date of receipt of a copy of this judgment.
It goes without saying that after final orders are issued by the Secretary under Section 406 as per the afore directions, to the concerned person or persons and if they do not take the requisite action in terms of the directions therein, then the Secretary will be enjoined and obligated by the terms of this WP(C).No.28235 OF 2019(D) 9 judgment and by the provisions of law, to take necessary steps for demolition of the offending structures and recoup the expenses from the persons responsible, after following due procedure, under the Revenue Recovery Act.
Needless to say, once the afore exercise is completed and the building thus becomes compliant with the directions in Ext.P11, the petitioners will be obligated to approach the competent Authority of the Fire and Rescue Department and obtain necessary clearance from them, so as to enable the residents of the said building to continue occupation of the same as per law.
Sd/-
DEVAN RAMACHANDRAN
nak JUDGE
WP(C).No.28235 OF 2019(D)
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APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAN APPROVED BY THE
FIRE DEPARTMENT.
EXHIBIT P2 TRUE COPY OF THE NOTICE DATED 7.12.2016
ISSUED BY THE 5TH RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE LETTER DATED 31.12.2016
ISSUED BY THE IST PETITIONER TO THE 6TH
RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED
6.5.2017 ISSUED BY THE 5TH RESPONDENT TO
THE IST PETITIONER.
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED
14.6.17 SUBMITTED BY THE IST PETITIONER
TO THE IST RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED
6.11.17 SUBMITTED BY THE IST PETITIONER
TO THE 3RD RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 4.12.17
ISSUED BY THE IST RESPONDENT TO THE IST
PETITIONER.
EXHIBIT P8 TRUE COPY OF THE REPLY DATED 8.12.17
SUBMITTED BY THE IST PETITIONER TO THE
IST RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED
9.12.17 SUBMITTED BY THE IST PETITIONER
TO THE 4TH RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED
9.12.17 SUBMITTED BY THE IST PETITIONER
TO THE 2ND RESPONDENT.
EXHIBIT P11 TRUE COPY OF THE COMMUNICATION DATED
24.12.2017 ISSUED BY THE 5TH RESPONDENT
TO THE IST PETITIONER.
EXHIBIT P12 TRUE COPY OF THE REPLY DATED 8.1.2018
ISSUED BY THE IST PETITIONER TO THE 5TH
WP(C).No.28235 OF 2019(D)
11
RESPONDENT.
EXHIBIT P13 TRUE COPY OF THE LETTER DATED 8.1.2018
ISSUED BY THE IST PETITIONER TO THE 6TH
RESPONDENT.
EXHIBIT P14 TRUE COPY OF THE NOTICE DATED 16.9.19
ISSUED BY THE IST RESPONDENT TO THE IST
PETITIONER.
EXHIBIT P15 TRUE COPY OF THE REPLY DATED 9.10.2019
ISSUED BY THE IST PETITIONER TO THE IST
RESPONDENT.
//TRUE COPY//
P.A TO JUDGE