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2019 DIGILAW 966 (KER)

Sivanandhan T. P. v. Corporation of Kochi

2019-11-16

DEVAN RAMACHANDRAN

body2019
JUDGMENT : Among these two writ petitions I am considering together, WP(C)No.3769/2018 has been filed by Sri. Sivanandhan alleging that the 3rd respondent-Smt. Shailabeevi is making a construction in contravention of law and without leaving sufficient setback, thus causing detriment and damage to his property and the building situated thereon. 2. According to Sri. Sivanandhan, Smt. Shailabeevi is continuing with the construction in haste because her building permit has expired on 15.02.2018 and he has thus prayed as under: (i) To issue a Writ of Mandamus, directing the Respondent No.1 and 2 to stop the continuance of the illegal construction with the help of the 4th respondent as per Section 408 of the Municipality Act, 1994. (ii) To issue a Writ of Mandamus or any other writ, order or direction, directing the 2nd respondent to lock the compound of the building and the building and entrust the key to the 1st respondent. (iii) To issue a Writ of Mandamus or any other writ, order or direction, directing the 1st respondent not to renew the building permit which expires on 15.02.2018. (iv) To issue a Writ of Mandamus or any other writ, order or direction, directing the 1st respondent not to issue the completion certificate of the building and not to issue the occupancy certificate to the 3rd respondent. 3. While so, Smt. Shailabeevi filed WP(C)No.11381/2018 asserting that the construction is complete and that the Secretary of the Corporation is, therefore, obligated to issue an Occupancy Certificate for the same and also to number it. The pleadings show that she was constrained to approach this Court by filing this writ petition because, instead of granting the request made by her before the Secretary, the said Authority issued Ext.P4 memo asking her to stop the construction on the ground that she has violated the provisions of Rules 20(6) and 20(7) of the Kerala Municipality Building Rules (KMB Rules for short). Smt.Shailabeevi submits that Ext.P4 is incompetent because, on an earlier occasion, the Secretary has issued Ext.P8 order, dated 11.01.2018, finding all the afore allegations to be untenable and that Ext.P4 has been issued merely based on the unsubstantiated allegations made by Sri.Sivanandhan. She, therefore, prays that Ext.P4 be set aside and the Secretary of the Corporation be directed to issue the Completion Certificate for the building, as requested in Ext.P2 application. 4. I have heard Sri. C. Rajendran and Sri. She, therefore, prays that Ext.P4 be set aside and the Secretary of the Corporation be directed to issue the Completion Certificate for the building, as requested in Ext.P2 application. 4. I have heard Sri. C. Rajendran and Sri. B.K. Gopalakrishnan-learned counsel appearing for Sri. Sivanandhan in these two cases; Smt. V.A. Mini-learned counsel appearing for Smt. Shailabeevi and Sri. P.K. Zoyus and Sri.V.S.Sreejith-learned Standing Counsel appearing for Kochi Corporation in these cases. 5. As is ineluctable from the afore narrative, Sri.Sivanandhan alleges that Smt.Shailabeevi is making the construction in such a manner so as to cause detriment and damage to his property and the building thereon; and therefore, prays that such construction be stopped. On the contrary, Smt.Shailabeevi asserts that she has made the construction strictly in accordance with the approved building plan and permit and that if any damage has been caused to the property of Sri.Sivanandhan, it is only on account of his own transgressions in having made his construction without leaving the setback as per the KMB Rules. 6. The pleadings on record would indicate further that the parties were ready to have the alleged damage caused to Sri.Sivanandhan’s property and building assessed by a proper Committee and this is evident from the fact that the Secretary of the Corporation had issued a proceedings, namely Ext.R3(C), wherein such a consent has been recorded. In fact, it also transpires that pursuant to Ext.R3(c), a Committee, consisting of an Engineer from the Trichur Engineering College had inspected the building of Sri.Sivanandhan and had recommended that he is entitled to an amount of Rs.54,000/- towards total compensation. Smt.Shailabeevi says that thus the provisions of the KMB Rules with respect to the allegations of Sri.Sivanandhan have been complied with and therefore, that no further orders may be issued in WP(C)No.3769/2018. 7. However, it has been submitted by Sri.C.Rajendran-learned counsel appearing for Sri.Sivanandhan in WP(C)No.3769/2018, that even though the parties had agreed that a competent expert Committee, as per the provisions of Rule 11A of the KMB Rules, can be allowed to inspect and make their recommendations, what has been done by the Secretary is to engage the services of an Engineer from the Trichur Engineering College and alleges that this is contrary to the imperative statutory provisions; and consequently, asserts that Ext.R3(c) proceedings and Ext.R3(b) report are both incompetent without legal basis. I further notice that it is the specific submission of Sri.C.Rajendran that if this Court is so inclined, a Technical Expert Committee as per Rule 11A of the KMB Rules may be directed to inspect his client’s property and that if this is done, he would be satisfied since his primary complaint against Smt.Shailabeevi is that she has made the construction without regard to the safety of the neighboring properties. 8. I, therefore, asked Smt.V.A.Minilearned counsel for Smt.Shailabeevi, as to her submissions on the suggestion afore made by Sri.Rajendran, to which she submitted that since Sri.Sivanandhan had agreed to the course ordered in Ext.P3 proceedings of the Secretary and since he has not challenged the report of the expert obtained pursuant to it, he cannot be now allowed to resile from it and seek that another Committee inspect his property and file a fresh report. She then submitted that her client’s building has been left without being numbered indefinitely solely on account of the pendency of these writ petitions and therefore, prays that the Secretary of the Corporation may be directed to number the same immediately. 9. Sri. B.K. Gopalakrishnan-learned counsel appearing for Sri.Sivanandhan in WP(C)No.11381/2018 submits that the Corporation has, in fact, found that the construction of Smt.Shailabeevi is unauthorized on various grounds and not merely for the reasons stated in Ext.P4 in this writ petition; and he refers to Ext.R3(b) therein to show that various other violations have been noticed against the said construction. He says that this order has been already challenged by Smt.Shailabeevi before the Tribunal for Local Self Government Institutions and that it has been stayed and then prays that unless the said proceedings are completed, this Court may not direct the Secretary of the Corporation to regularise her construction or to number it. 10. In response to this, Smt.Mini submits that it is true that her client has approached the Tribunal against the order and asserts that since it has been stayed, there is nothing to stop the Secretary from numbering the building adding that a provisional number has already been issued. 11. I have carefully assessed the afore dialectical stands of the parties, as voiced by their learned counsel as above since I cannot find Ext.R3(c) proceedings and Ext.R3(b) report in WP(C)No.3769/2018 to be in consonance with Rule 11A of the KMB Rules. 11. I have carefully assessed the afore dialectical stands of the parties, as voiced by their learned counsel as above since I cannot find Ext.R3(c) proceedings and Ext.R3(b) report in WP(C)No.3769/2018 to be in consonance with Rule 11A of the KMB Rules. This is because as per sub Rule 5 of the said Rule, when a complaint is received by the Secretary with respect to the damage caused to a building on account of an ongoing construction, he is obliged to place it before the Technical Expert Committee constituted by the Government under sub Rule 12 of the said Rule. However, in this case, instead of doing so, the Secretary obtained a report from an Engineer of the Thrissur Engineering College, because the parties had agreed to such course. Since the KMB Rules provide for a statutory mechanism in such situation, I cannot approve the action of the Secretary, even if the parties had agreed to it, particularly since nothing has been placed on record to show the competence of the Engineer who had been engaged by the Secretary. Hence, the fact that the report of such Engineer has not been challenged by Sri.Sivanandhan would be of no consequence, since the same is not obtained under the statutory scheme but traversing beyond it, which the Secretary could not do as per law. 12. I am, therefore, certainly of the view that the Technical Expert Committee constituted by the Government under Section 11A of the KMB Rules must now look into the matter and file a report before the Secretary. This is more so because the said Committee is comprised of the Secretary of the Corporation, an Engineer of the Corporation and two experts-one in Structural Engineering and the other in Geotechnical Engineering. Obviously, this kind of an expert Committee cannot be substituted by an Engineer, who has been relied upon by the Secretary of the Corporation. 13. In the afore circumstances and above perspective, I deem it appropriate to order these writ petitions in the following manner: (a) WP(C)No.3769/2018 is ordered to the limited extent of directing the Secretary to refer the complaint of Sri.Sivanandhan to the Technical Expert Committee, constituted by the Government for Corporation of Kochi, in terms of Rule 11A of the KMB Rules, within a period of two weeks from the date of receipt of a copy of this judgment. The said Committee, on receipt of this requisition, will complete the processes as are required under the KMB Rules and furnish their report and recommendations to the Secretary of the Corporation, after affording necessary opportunity to the parties, as expeditiously as is possible, but not later than three months from the date on which they receive such requisition from the Secretary. The Secretary, on receipt of the report from the Technical Expert Committee, will take necessary steps as are required under law with respect to the compensation and ensure that all such steps are completed without any delay thereafter. (b) WPC(C)No.11381/2018 is disposed of directing the Secretary of the Corporation to consider the application of the petitioner- Smt.Shailabeevi, after her statutory appeal preferred against Ext.R3(b) before the Tribunal for Local Self Government Institutions is disposed of and subject to such orders and after verifying and confirming that the construction abides by the Kerala Municipality Building Rules and such other applicable Statutes, Rules and Regulations. While doing so, the Secretary will also hear Smt. Shailabeevi and Sri. Sivanandhan and consider all relevant and germane inputs that are placed before him by the said parties.