Disposed

Meera Sam v. State of Kerala

Kerala HC14 Jun 2016WP(C)/14324/2016

Case brief

AI extract

What is this about?

The Court did not examine merits due to the petitioner's undertaking to compensate damages. It directed the Municipality Secretary to form a Technical Expert Committee within six weeks to assess property damage caused to neighbors by the construction, pending payment of determined expenses.

What did the court decide?

Secretary to constitute Technical Committee within six weeks; petitioner restrained from construction during this period and must deposit Committee-determined damages before proceeding.

Meera Sam Vs State of Kerala — Landlord and Tenant | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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TUESDAY, THE 14TH DAY OF JUNE 2016/24TH JYAISHTA, 1938

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WP(C).No. 14324 of 2016 (M)

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PETITIONERS:

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1. MEERA SOMAN, AGED 69 YEARS, W/O.C.A.SOMAN ADHEENA, PERIKAPALAM KIZHAKKE KADUNGALLUR, ALUVA ERNAKULAM DISTRICT.

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2. M/S.CONFIDENT PROJECTS INDIA PVT.LTD. CONFIDENT HOUSE, 868/2, S.A.ROAD-VYTTILA, KOCHI-19 REPRESENTED BY ITS MANAGING DIRECTOR T.A.JOSEPH, AGED 52 YEARS S/O.LATE ALEXANDER THERUVIPARAMBIL 33/2652D, THERUVIPARAMBIL HOUSE, VENNALA P.O. KOCHI, ERNAKULAM.

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BY ADVS.SRI.S.SHANAVAS KHAN SMT.S.INDU

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RESPONDENTS:

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1. THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT DEPARTMENT (RB) GOVERNMENT SECRETAIRAT THIRUVANANTHAPURAM - 695 001.

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2. THE KALAMASSERY MUNICIPALITY REPRESENTED BY ITS SECRETARY MUNICIPAL OFFICE, KALAMASSERY, ERNAKULAM - 682 033.

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3. THE SECRETARY KALAMASSERY MUNICIPALITY MUNICIPAL OFFICE KALAMASSERY, ERNAKULAM - 682 033.

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Addl. 4. M.M. SUDHEER, AGED 43 YEARS CHAKKAKALAKKAL AMAN VILLA, KADAMATTOM ROAD EDAPPALLY NORTH, COCHIN-682 024.

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[CONTD...]

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WP(C).No. 14324 of 2016 (M)

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Addl. 5. M.P.PHILIP MANGALATH HOUSE, KADAMATTOM ROAD EDAPPALLY NORTH, COCHIN-682024.

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Addl. 6. XAVIER .V. KAREETHARA HOUSE, KADAMATTOM ROAD EDAPPALLY NORTH, COCHIN-682024.

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Addl. 7. JAYAKUMAR G. ARCHANA VIHAR, [H.NO.29/176B], 39/222 KALATHINGAL PARAMBU, VATTEEKUNNAM EDAPPALLY NORTH, COCHIN-682024.

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*** [ADDL. RESPONDENTS R4 TO R7 IMPLEADED AS PER ORDER DATED24.05.2016 IN I.A. NO.5938 OF 2016]**

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BY ADVS. SRI.FRINSO MATHEW SRI.C.CHANDRASEKHARAN [COMMISSIONER] SRI.M.K.ABOOBACKER,SC KALAMASSERY MUNCI BY GOVERNMENT PLEADER SRI. NOUSHAD THOTTATHIL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-06-2016, ALONG WITH WP(C) NO.14326 OF 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 14324 of 2016 (M)

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APPENDIX

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PETITIONER'S EXHIBITS :-

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EXT.P1	-	COPY OF THE TAX RECEIPT DATED 01.06.2015 ISSUED FROM THRIKKAKARA NORTH VILLAGE.
EXT.P2	-	COPY OF THE LOCATION PLAN ISSUED BY THE VILLAGE OFFICER, THRIKKAKARA NORTH VILLAGE.
EXT.P3	-	COPY OF THE NO OBJECTION CERTIFICATE DATED 04.03.2014 ISSUED BY THE COMMANDANT GENERAL, FIRE AND RESCUE SERVICES.
EXT.P4	-	COPY OF THE BUILDING PERMIT DATED 17.03.2014.
EXT.P5	-	COPY OF THE COMMUNICATION DATED 27/11/2014 EVIDENCING THE ISSUANCE OF NO OBJECTION CERTIFICATE BY AIR PORT AUTHORITY OF INDIA GRANTING HEIGHT CLEARANCE.
EXT.P6	-	COPY OF THE HEIGHT CLEARANCE CERTIFICATE ISSUED BY THE COMMAND AVIATION OFFICER, SOUTHERN NAVAL COMMAND, KOCHI.
EXT.P7	-	COPY OF THE NO OBJECTION CERTIFICATE DATED 07.05.2014 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD.
EXT.P8	-	COPY OF THE PHOTOGRAPHS EVIDENCING THE PRESENT STAGE OF CONSTRUCTION.
EXT.P9	-	COPY OF THE AFFIDAVIT EXECUTED BY THE 2ND PETITIOER DATED 05.12.2015.
EXT.P10	-	COPY OF THE COMMUNICATION DATED 06.04.2016 OF THE 3RD RESPONDENT.
EXT.P11	-	COPY OF THE COMMUNICATION DATED 18.03.2016 ALONG WITH THE REPORT OF THE CHIEF TOWN PLANNER, VIGILANCE.
EXT.P12	-	COPY OF THE APPROVED PLAN IN RESPECT OF BOTH BUILDING.

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RESPONDENTS' EXHIBITS:-

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ANNEXURE 1 - COPY OF THE ORDER DATED 08.04.2006 ISSUED BY THE HON'BLE HIGH COURT IN WP(C) NO.14324 & 14326 OF 2016 APPOINTING THE ADVOCATE COMMISSIONER.

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[CONTD...]

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WP(C).No. 143	24 of	2016 (M) 2
ANNEXURE 2	-	NOTICE DATED 19.04.2016 ISSUED TO THE PARTIES.
ANNEXURE 3	-	COPY OF THE WORK MEMO DATED 19.04.2016 SUBMITTED BY MR. S. SHANAWAS KHAN, PETITIONERS' COUNSEL TO THE ADVOCATE COMMISSIONER.
ANNEXURE 4	-	REPORT DATED 09.05.2016 SUBMITTED BY MR.PAUL JOE T. KANATT CHARTERED ENGINEER TO THE ADVOCATE COMMISSIONER.
ANNEXURE 5	-	COPY OF THE ADDITIONAL REPORT DATED 09.05.2016 SUBMITTED BY MR. PAUL JOE T. KANATT TO THE ADVOCATE COMMISSIONER.
ANNEXURE 6	-	RECEIPT DATED 09.05.2016 ISSUED BY MR.PAUL JOE T. KANATT, CHARTERED ENGINEER TO THE ADVOCATE COMMISSIONER.
		[PRODUCED BY THE ADVOCATE COMMISSIONER ALONG WITH STATEMENT DATED 17.05.2016]
EXT.R4(A)	-	COPY OF THE COMPLAINT SUBMITTED BEFORE THE 3RD RESPONDENT ON 26.03.2015 BY THE RESPONDENTS 4 TO 7.
EXT.R4(B)	-	COPY OF THE NOTICE ISSUED BY POLLUTION CONTROL BOARD DATED 09.06.2015.
EXT.R4(C)	-	COPY OF THE PROCEEDINGS SHEET RECORDING THE PROCEEDINGS UPON EXT.R4(A) COMPLAINT.
EXT.R4(D)	-	COPY OF THE PROHIBITION ORDER DATED 30.03.2015.
EXT.R4(E)	-	COPY OF THE RECEIPTS (2 NOS.) FOR THE PAYMENT OF PENALTY TOTALING TO RS.38,020/-.
EXT.R4(F)	-	COPY OF THE PETITION DATED 29.01.2016 SUBMITTED BY RESPONDENTS BEFORE THE 3RD RESPONDENT.
EXT.R4(G)	-	COPY OF THE NOTICE DATED 24.02.2016.

//TRUE COPY//

P.A. TO JUDGE

K. VINOD CHANDRAN, J.

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---------------------------------W.P(C). Nos.14324 & 14326 of 2016-M

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---------------------------------Dated this the 14^th day of June, 2016

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JUDGMENT

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The identical petitioners are aggrieved with the notices issued threatening cancellation of the already issued building permit; for reason of the petitioners having not compensated the damage caused to the additional respondents 4 to 7, nearby residents. In the nature of the orders to be passed and the undertaking of the petitioner as indicated from Ext.P9 filed before the Secretary of the Municipality as also reiterated by the learned counsel, on behalf of the petitioner, before this Court;

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W.P(C). Nos.14324 & 14326 of 2016-M

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this Court would not look into the merits of the matter, at this stage.

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The Kerala Municipality Building

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Rules,1999 provide for adequate compensation for restoration of any building damaged by reason of any construction activity; with an additional 30% solatium. Relying on the said provision, specifically sub-rule 5 of Rule 11A, additional respondents had filed a complaint before the Secretary, after the permit was granted and construction proceeded with, for reason of damages having been caused to their buildings, situated in the neighbourhood. On such complaint received the Secretary ought to have under sub-rule (8) of Rule 11A, referred the matter to the Technical Committee constituted as per sub-rule (12) within five days. The specific complaint raised by the

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W.P(C). Nos.14324 & 14326 of 2016-M 3

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additional respondents are that despite the complaint having been raised, no such reference has been made.

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The notice now impugned before this Court was stayed by an interim order and the petitioner has almost completed the construction of the building. The additional respondents contend that if the petitioners are allowed to complete the project, then they would have no remedy left; for compensation, which they are legally entitled to for reconstructing their damaged building. There was an interim order of stay of operation of Ext.P10 for two months passed by this Court on 08.04.2016 together with appointment of an Advocate Commissioner who had visited the property and filed a report.

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The Advocate Commissioners report dated

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W.P(C). Nos.14324 & 14326 of 2016-M

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17.5.2016 is placed on record. The Advocate Commissioner has pointed out certain aspects to which the petitioner has not filed any objection. Be that as it may, the petitioners undertake to make good the damage if any caused to the additional respondents. In such circumstance, it is for the Secretary to refer the matter to the Technical Expert Committee within a period of three weeks from the date of receipt of a certified copy of this order. The Committee shall conduct inspection of the premises of the additional respondents and submit a report within three weeks as provided under Sub Rule 10 of Rule 11 A. In the context of the report of the Advocate Commissioner as also the provisions herein before referred to, the petitioner shall not carry on the construction till such assessment by the

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W.P(C). Nos.14324 & 14326 of 2016-M 5

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Technical Expert Committee is made.

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The Secretary has to forward the complaint filed by the party respondent herein to the Technical Committee constituted as per sub-rule 12 of Rule 11A. The learned counsel appearing for the petitioners would contend that the Director, Department of Panchayat has recommended the nomination of two Associate Professors of the Government Engineering College, Thrissur, one having specialisation in Geo-technical Engineering and the other one having specialisation in Structural Engineering, respectively Sri.P.S. Anilkumar, Associate Professor and Sri.P.P. Sivan, Assistant Professor. The recommendation is seen from order No.E.A-2/41223/15/D.T.E. dated 02.02.2016, which reads as under:

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W.P(C). Nos.14324 & 14326 of 2016-M

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• dÖà Éß. ®Øí. ¥ÈßWµáÎÞV, ¥çTÞØßçÏxí ædÉÞËØV, (¼ßçÏÞ æ¿µíÈßAW §FßÈàÏùß¢·í) ØßÕßW §FßÈàÏùß¢·í, ·Õæpaí §FßÈàÏùß¢·í çµÞç{¼í, dÄßÛâV • dÖà Éß. ÖßÕX, ¥TßØíxaí ædÉÞËØV (Øíd¿µíºùWå§FßÈàÏùß¢·í) ØßÕßW §FßÈàÏùß¢·í, ·Õæpaí §FßÈàÏùß¢·í çµÞç{¼í, çµÞÝßçAÞ¿í”

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The said order was handed over to the Court across the Bar by the learned counsel for the petitioners. The Secretary hence shall obtain the convenience of the two Technical members and conduct inspection of the premises of the

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W.P(C). Nos.14324 & 14326 of 2016-M

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complainants, respondents 4 to 7 herein. The Secretary shall get the concurrence of the two members nominated by the Act, within a week from the date of receipt of the certified copy of the judgment and shall endeavor to constitute the committee and carry out inspection as also submit report within a period of three weeks from the date of inspection. The entire exercise shall not go beyond six weeks. The petitioners shall not carry out any construction during the said period. Since the petitioners undertake that the recommendation of the Technical Committee would be complied with by the petitioners, the amounts directed by the Technical Committee, if the damages are found to be by reason of the construction carried on by the petitioners shall be deposited and only then the

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W.P(C). Nos.14324 & 14326 of 2016-M 8

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petitioners shall be allowed to continue the construction. The respondents 4 to 7 shall be entitled to withdraw the compensation from the Municipality to the extent directed by the Technical Committee. It is made clear that any expenses for the transportation and otherwise for the inspection shall be deposited by the petitioners in advance before the Municipality.

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The writ petitions would stand closed without any observation on merits; leaving open the remedy of either parties to challenge the orders passed by the Technical Committee. No costs.

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Sd/-

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K. VINOD CHANDRAN, JUDGE.

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//True Copy//

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P.A. to Judge.

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sp/15/06/16

Meera Sam v. State of Kerala

Case brief

What is this about?

What did the court decide?

Meera Sam v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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