Kerala High Court
Anil Kumar vs The Kerala State Housing Board on 22 December, 2020
Equivalent citations: AIRONLINE 2020 KER 1391
Author: P.V.Asha
Bench: P.V.Asha
W.P.(C). No. 18470 of 2020-G 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 22ND DAY OF DECEMBER 2020 / 1ST POUSHA, 1942
WP(C).No.18470 OF 2020(G)
PETITIONER:
ANIL KUMAR,
AGED 75 YEARS,
S/O KARUNAKARAN,FLAT-B11,VGRA SITE B,
PATTOM, SECRETARY, VRINDAVAN GARDEN RESIDENCE
ASSOCIATION SITE B, REGD.NUMBER 2049/2003 HAVING
REGISTERED OFFICE AT PATTOM,THIRUVANANTHAPURAM.
BY ADVS.
SRI.C.S.MANILAL
SRI.S.NIDHEESH
RESPONDENT:
THE KERALA STATE HOUSING BOARD
REPRESENTED BY ITS SECRETARY, DIVISION NUMBER-2,
SANTHI NAGAR, THIRUVANANTHAPURAM-695001.
R1 BY SRI.K.DENNY DEVASSY, SC, K.S.H.B.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C). No. 18470 of 2020-G 2
P.V.ASHA, J.
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W.P.(C). No. 18470 of 2020-G
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Dated this the 22nd day of December, 2020
JUDGMENT
The petitioner, who claims to be the Secretary of Vrindavan Garden Residence Association, has filed this Writ Petition seeking the following reliefs:
1.issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondent to consider Ext P3 and pass orders within a time limit to be fixed by this Hon'ble Court with a further direction to the respondent to not make any construction in the area earmarked for park and play ground as undertook vide Ext P1-till a decision is taken on Ext P3.
2. issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1st respondent to comply with the undertaking given vide Ext.P1 and to provide park and play ground for the residents of the Vrindavan Garden Residence Association (Site B).
3. Grant such other reliefs."
2. It is stated that the Members of the Vrindavan Garden Residents Association (' Association' for short) purchased residential flats from the respondent-the Kerala State Housing Board ('the Board') and that the petitioner purchased his flat in the year 1980. The petitioner claims that in the agreements for sale based on which he/the members of the association purchased the flats from the respondent, an area was earmarked as common area for amenities facing the Pattom -Medical College Road, for the purpose of developing it as a park W.P.(C). No. 18470 of 2020-G 3 and playground for the use of the residents, as provided in the project. It is also stated that the residents of those flats were using the said area as playground from 1980 onwards and that the respondent had on 24.10.1983, given Ext.P1 undertaking to the Secretary of the Association that the open space in the scheme earmarked for parks and play ground would be maintained as per accepted norms and standards; but the undertaking was not implemented. It is stated that when the respondent made attempts to sell the said area in the year 2012, the Association challenged the same filing W.P(c).15436/2012. This Court passed an interim order directing exclusion of area for park in the auction and stayed the confirmation of auction. When the Writ Petition came up for hearing, the learned Standing Counsel submitted that the proposed sale had not taken place. The Writ Petition was disposed of as per Ext.P2 judgment dated 12.09.2018 on the basis of the said submission and observing that the respondent Board would not be entitled to conduct any sale based on the notification issued in the year 2012 and leaving open all the contentions. Whileso, the petitioner has filed this Writ Petition alleging that the respondent was taking steps for construction of a commercial building in the plot earmarked for park and play ground, contrary to W.P.(C). No. 18470 of 2020-G 4 the agreement as well as Ext.P1 undertaking, without issuing any notification as directed by this Court. It was further stated that the Board has allotted open area as park and play ground for plot A of the housing scheme; whereas those in plot B do not have any access to it. It is stated that the petitioner in his capacity as Secretary of the Association has submitted Ext.P3 representation before the respondent on 14.08.2020, requesting to refrain from the proceedings for construction and to permit them to use the plot as park and playground.
3. The respondent has filed a counter affidavit stating that the petitioner association was registered in 2003, after the Kerala State Housing Board (Formation of Allottees Associations) Regulation 2000 came into force; respondent has objected to the locus standi of the petitioner. Producing Exts.R1(b) and (c) sale deeds in respect of flats purchased by one Henry Terance Jose and one Anil Kumar on 20.12.2008 and 30.07.2012, it is stated that plan lay outs in both the sale deeds are identical where the disputed area is marked as commercial. It is stated that the Board maintains all the common areas of the scheme as per the approved lay out and that final cost of the scheme was prepared W.P.(C). No. 18470 of 2020-G 5 accordingly. It is stated that the Board had, in its meeting held on 25.2.2020, decided to implement a commercial complex scheme with a 3 storied building in the 15.06 cents of the Board's land adjacent to Vrindavan HAS at Pattom, using its own fund and requested for sanction from the Government and as per Ext.R1(g) order dated 08.05.2020, Government of Kerala accorded sanction for the same. It is stated that the decision of the Board or the construction of commercial complex cannot be said to be in violation of the direction of this Court in Ext.P2 judgment as the construction is in the Board's own land and when the Board is having the right over the commercial area earmarked in the lay out. It is stated that there would not be any environmental issue on such construction, as it is carried out by observing all requirements. In para.6 of the counter affidavit the respondent has stated as follows:
"6. xxxxx xxxxx Vrindavan Housing scheme implemented by the Board is a vast one which consists of 13 plots, 56 plots with Buildings and 296 flats, also there are park and play ground on 'Site A' and 'Site B' as shown in the approved lay out and every allottee in the scheme irrespective of 'Site A' or 'Site B' can access the park through road without interruption. Board has no discrimination or separation either with he residents of 'Site A' or of 'Site B of Vrindavan HAS."
It is stated that none of the allottees can have any claim W.P.(C). No. 18470 of 2020-G 6 over the commercial area for which no cost was charged from the allottees.
4. The petitioner has filed a reply affidavit stating that an extent of 1.4886 HA is earmarked as common area including, roads, parks, etc in Exts.R1(b) and (c). According to the petitioner, the common area earmarked for park and playground would not be available if the respondents go on with the construction of the commercial complex . In the reply affidavit it is stated that the respondent has to abide by Section 50 of the Kerala Municipal Building Rules and therefore they have to set apart the recreation area in accordance with the same.
5. Heard the learned Counsel on both sides.
6. From Ext.P2 judgment it is seen that the Writ Petition was filed when steps were taken for sale of the land by the Board. The Writ Petition was disposed of on the submission made on behalf of the respondent that sale did not take place. This Court observed that a sale would not be possible at this distance of time without a further notification. The Writ Petition was closed with liberty to the petitioner to challenge if any notification is issued in future. The judgment itself makes it clear that there is no decision on merits. Therefore, there is no question of any violation of the judgment.
W.P.(C). No. 18470 of 2020-G 7
7. Though the petitioner filed a reply affidavit nothing is stated regarding Ext.R1(a) Regulations-the Kerala State Housing Board (Formation of Allottees Associations) Regulations, 2000, which provides for formation of allottees association. Under Regulation 10, it is the duty and responsibility of the managing committee of the association to manage and maintain the common areas, facilities and amenities like park area, playground, etc. It is not stated why the petitioner's association is not invoking those provisions even when they say that they started residing there in the year 1980 and formed their association in 2003. But they allege that Ext.P1 undertaking is not implemented. When Ext.P1 regulations impose a duty on the allottees association to maintain the common areas, it would be incumbent on the allottees to protect the same.
8. In the present case, the petitioner claims that the area for park and play ground is not maintained; whereas the respondent has stated that it is maintained in accordance with the plan. The respondent Board asserts that they are constructing a commercial complex in their own property. No material is pointed out to show that the construction is undertaken in the common area earmarked for park or playground. The respondent reiterates that they W.P.(C). No. 18470 of 2020-G 8 have not touched the common area earmarked for the allottees. The land in which the construction of commercial complex is commenced is stated to be in the commercial area. Schedule C of Exts.R1(b) as well as Ext.R1(c) sale deeds would show that the total common land area in the scheme of the roads including existing roads, parks and open space is 14866m3 and that the extent of commercial area in the plot is 2285m3. According to the respondent, the common area as per the plan lay out would continue in accordance with the sale deeds and they are not interfering with it. When there is a factual dispute between the parties, interference of this Court under Article 226 is not warranted as it requires adjudication after taking evidence.
9. The learned Counsel for the petitioner relied on the judgment of this Court in Shasthri Nagar Colony Welfare Committee v. Calicut Development Authority: 2006(1) KLT 294 and argued that it is the duty of the respondent to leave open space in accordance with the Municipal Building Rules and construction cannot be conducted without complying with the 2019 Building Rules.
10. In the present case, the allottees of the respondent are governed by Ext.R1(a) Regulations, unlike the petitioners in the judgment relied on by them, who were W.P.(C). No. 18470 of 2020-G 9 allotted plots by the Calicut Development Authority. In that case permission for sale was granted specifying the land as the land set apart as park/open space in the said colony. It appears that regulations like Ext.R1(a) were not governing the petitioners therein. The respondent in this case asserts that the construction is going on in the commercial area. They have also stated that the construction would be carried out in accordance with law. Even otherwise the respondent is not supposed to carry out any construction contrary to the relevant rules.
11. If at all there is any violation of the rules in carrying out the construction, it would be open to the petitioner to object to the same before the appropriate forum.
Therefore, the Writ Petition is disposed of giving liberty to the petitioner to approach the appropriate forum, if so advised.
Sd/- (P.V.ASHA, JUDGE)
rtr/
W.P.(C). No. 18470 of 2020-G 10
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE LETTER OF THE RESPONDENT
DATED 24.10.1983.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN
W.P(C)NO.15436/12 DATED 12.9.2018.
EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED
14.8.2020.
EXHIBIT P4 TRUE COPY OF THE LAYOUT PLAN.
EXHIBIT P5 TRUE COPY OF THE PHOTOGRAPHS.
EXHIBIT P6 TRUE COPY OF THE REGULATION DATED
27/05/2000.
RESPONDENT'S EXHIBITS:
EXHIBIT R1(a) TRUE COPY OF THE KERALA STATE HOUSING BOARD
(FORMATION OF ALLOTTEES ASSOCIATIONS) REGULATIONS 2000.
EXHIBIT R1(b) TRUE COPY OF SALE DEED DATED 20.12.2008 EXECUTED BETWEEN THE BOARD AND ONE SRE.HENRY TERRANCE JOSE.
EXHIBIT R1(c) TRUE COPY OF SALE DEED DATED 30.07.2012 EXECUTED BETWEEN THE BOARD AND ONE SRI.V.ANIL KUMAR.
EXHIBIT R1(d) TRUE COPY OF THE ORIGINAL APPROVED PLAN LAY-OUT OF THE SCHEME PERTAINING WITH BOARD.
EXHIBIT R1(e) TRUE COPY OF THE BOARD DECISION DATED 23.05.2012.
EXHIBIT R1(f) TRUE COPY OF THE INTERIM ORDER DATED O3.07.2012 IN WPC.NO.15436/2012 OF THIS HON'BLE COURT.
EXHIBIT R1(g) TRUE COPY OF THE G.O (RT) NO.18/2020/HSG DATED 08.05.2020