Partly allowed

Moosa v. Thrissur Municipal Corporation

Kerala HC17 Dec 2019WP(C)/26889/2019

Case brief

AI extract

What is this about?

The Court wrote an order following two expert inspections confirming a building is structurally unsafe. It directed the Municipal Corporation Secretary to initiate proceedings under Section 411 of the Kerala Municipality Act, hear parties, and complete necessary action within two months.

What did the court decide?

Directed the Secretary of the Municipal Corporation to hear parties and complete proceedings under Section 411 of the Kerala Municipality Act within two months.

Moosa Vs Thrissur Municipal Corporation — Landlord and Tenant | Kerala HC (2019)

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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 DEVAN RAMACHANDRAN

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TUESDAY, THE 17TH DAY OF DECEMBER 2019 / 26TH AGRAHAYANA, 1941

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WP(C).No.26889 OF 2019(I)

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PETITIONERS:

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1 MOOSA AGED 64 YEARS

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S/O. PALLIPARAMBIL MUHAMMED, RESIDING AT 7/248, CHENDRAPPINI VILLAGE DESOM, CHENDRAPPINI P.O-680 687

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2 SUBAIDA,

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W/O. MOOSA, RESIDING AT 7/248, CHENDRAPPINI VILLAGE, DESOM, CHENDRAPPINI P.O-680 687

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3 ISMAIL, AGED 26 YEARS

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S/O. MOOSA, RESIDING AT 7/248, CHENDRAPPINI VILLAGE DESOM, CHENDRAPPINI P.O-680 687

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BY ADVS.

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SRI.P.RAVINDRAN (SR.) SRI.C.P.SABARI

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RESPONDENTS:

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1 THRISSUR MUNICIPAL CORPORATION CORPORATION OFFICE, THRISSUR-680 001, REPRESENTED BY ITS SECRETARY.

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2 THE SECRETARY, THRISSUR MUNICIPAL CORPORATION, CORPORATION OFFICE, THRISSUR-680 001

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3 TOFFY, AGED 52 YEARS S/O. N.T. GEORGE, NELLISSERY HOUSE, NEHRU NAGAR, KURIACHIRA, THRISSUR-680 006

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4 GEORGE AGED 52 YEARS S/O. K.G. GEORGE, KOTEKADU HOUSE, NEHRU NAGAR, KURIACHIRA, THRISSUR-680 006

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5 FENDRY PAUL, AGED 46 YEARS S/O. M.L. PAUL, RESIDING AT MELEPURATH HOUSE, CHRISTAPHER STOP, OLLUR, THRISSUR DISTRICT-680 001.

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6 COMMISSIONER OF POLICE, THRISSUR CITY, PALLIMOOLA, MANNUMKAD, RAMAVARMAPURAM, THRISSUR, KERALA-680 631

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WP(C).No.26889 OF 2019(I)

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7 ADDL.R7.THE ASSISTANT EXECUTIVE ENGINEER, PWD VILLAGE DIVISION, THRISSUR.

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IS SUO MOTU IMPLEADED AS PER ORDER DATED 25-10-2019 IN WP(C)

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8 ADDL.R8.THE PRINCIPAL, GOVERNMENT ENGINEERING COLLEGE, THRISSUR.

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IS SUO MOTU IMPLEADED AS PER ORDER DATED 12-11-19 IN WP(C)

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R1-2 BY SRI. SANTHOSH P.PODUVAL, SC, THRISSUR CORPORATION R3-4 BY ADV. SRI.G.SREEKUMAR (CHELUR) R5 BY ADV. SRI.S.SUJIN R6-7 BY GOVERNMENT PLEADER

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SRI P. RAVINDRAN (SR), SRI. N.N. SUGUNAPALAN (SR) AND NAVANEETH D. PAI . SRI MANURAJ GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.26889 OF 2019(I)

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JUDGMENT

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Dated this the 17th day of December 2019

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The petitioners, who are stated to be the owners of a property of a building situated within the confines of the 1^st respondent-Municipal Corporation, has approached this Court seeking that the Secretary of the said Corporation be directed to take steps to restrain any person, including respondents 3 to 5, from entering into the building, which is called “Kalliyath Building”, because it is in a grave danger and requires to be demolished under the provisions of Section 411 of the Kerala Municipality Act (hereinafter referred to as 'the Act' for short).

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The petitioners rely on Ext.P2 proceedings of the Secretary of Corporation issued under Section 411 of the Act, wherein it has been concluded that the building is in a dilapidated and dangerous condition and requires to be immediately pulled down, so as to avoid hazard not merely to its residence but also to the public, who are using the common spaces around it. The petitioners say that, even though Ext.P2 was challenged by the respondents 3 to 5, who are the persons holding on the possession of the various portions of the said building as tenants, the same was rejected by the Tribunal for the Local Self Government Institutions, as is evident from Ext.P11 order produced along with I.A.No.1 of 2019. The petitioners, therefore, pray that the Secretary of

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the Corporation, namely, the 2^nd respondent herein be directed to take

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immediate action under Section 411 of the Act; with a consequential prayer that respondents 3 to 5 be directed not use the said building or to conduct any further business therein.

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Sri. P.Raveendran, the learned Senior Counsel instructed by Sri.Sabiri C.P., learned counsel for the petitioners, in addition to the above narrative, submits that the continuation of respondents 3 to 5 in the building in question- particularly because they are conducting businesses therein- would be extremely hazardous to not merely themselves but also to the others including their customers and, therefore, that the continued inaction by the Secretary to take action under Section 411 of the Act, would have to be seen very seriously by this Court. The learned Senior Counsel vehemently asserted that unless immediate steps are directed to be taken, the consequences would be cataclysmic and that it would not be behoove the obligations and responsibilities of the Secretary, as enumerated under the Act and the Rules under it. The learned Senior Counsel, therefore, prays that this writ petition be ordered, with a direction to the Secretary to commence necessary action and conclude it within a time frame to be fixed herein.

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Sri.N.N.Sugunapalan, the learned Senior counsel instructed by Sri. Navaneeth, the learned counsel appearing for the respondent No.5, began his submissions on behalf of the party respondents, by saying that the building is not really dilapidated, but that the owners of the same, namely the petitioners herein, have been consistently trying in the past

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to make it appear that it is in a dangerous position. The learned Senior counsel says that the building has not been maintained at all for the last several years and that as a consequence, there are some minor deficiencies to it, which can easily be repaired and restored with minimum resources. He says that the owners of the property, namely the petitioners herein, however, are refusing to do so and, therefore, that the present condition of the building may not be allowed to be used as a ruse to seek his clients’ eviction, for which proceedings are pending before the competent Civil Courts. The learned Senior counsel concludes by reiterating that the condition of the building is not as bad as it is sought to be made out by the petitioners and that the contents of Ext.P2 order are also not factually correct. He, therefore, prays that this writ petition be dismissed.

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Sri. Sreekumar Chelur, the learned counsel appearing for the respondents 3 and 4, adopts most of the submissions of Sri.N.N.Sugunapalan, the learned senior counsel; however, adding that, in fact, even as late as a few days ago, the petitioners themselves were found trying to use machinery to demolish the building by striking at this foundation and its structure and that this is the primary reason why the building now looks dilapidated. The learned counsel prays that, therefore, the petitioners may not be granted any order in this writ petition, which will have the effect of offering premium to dishonesty. He thus prays that this writ petition be dismissed.

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WP(C).No.26889 OF 2019(I)

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Noticing the afore syllogistic contentions between the parties, I

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had initially issued an order, dated 25.10.2019, directing the 7^th respondent herein, who is the Assistant Executive Engineer of the PWD Buildings Division, Thrissur, to cause an inspection of the building and to file a report before this Court. The report of the Engineer, which has been placed on record along with a memo, dated 05.11.2019, says as under:

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“As per directions given by the Honourable Court, a physical inspection was conducted by me at Kaliath Building site on 2^nd Nov. 2019 and the report of the same is herewith submitting for your kind consideration.

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The said building is situating on the south side of the junction of Municipal Office road and Post Office road of Thrissur town. The front face of building is abutting to the Post Office Road, while on the western side of the building a cut road is also passing. It is clearly marked on the topmost parapet of east side of the structure by concrete engraving as 1953. From this, it is obvious that the year of completion of the construction of the building was on 1953. It means that the age of building comes to 66 years at present. As an olden construction, considerable set back distances from the road or from adjoining street were not provided while constructing the building.

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The building was construed as a three storied one, having latterite loading walls in lime mortar or in surkhi mortar. On physical appearance, even though the front portion of building is seen quite normal, the sides as well as rear portion of building are appearing in an extremely dilapidated condition. The rear portion of the building has totally been collapsed. The western side portion of the building has damaged severely and is approaching to a stage of a failure. Hence, only a portion of building at the front is in working condition and this portion is now on use.

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The roof slab of the ground floor of front portion ie, first floor slab which was made of concrete appears to be in a satisfactory condition for the time being. But the case of second floor slab as well as the top roof are not the same. The existing roof of first floor ie, second floor slab has been provided with hordis

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blocks laid on wooden scantlings or battens and the top of the same was finished with something like lime or combination mortar. This floor has been severely damaged and has sunken at some places. The paved hordis blocks has been detached from their locks and the top finishing course has almostly been peeled off. Due to this it is seen that an additional sheet roofing is provided on the top of first floor at some portions in order to avoid seepage of water and to act as a protection ceiling from the above floor. The top roof of the building ie, roof of second floor has totally been damaged and major portion of same has already been collapsed. As explained earlier the floor of this storey has been damaged considerably and the walls on the second floor has also been deteriorated to a great extent due to the lack of any maintenance work. To make the lower floors becomes leak proof, in the second floor also temporary GI sheet roofing is seen provided recently.

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And also due to the lack of proper or regular maintenance the ceiling and wall plastering have peeled off from the structure at several places. As a result of long span of life, cracks were also developed at many portions of outer walls.

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As mentioned earlier, the said building is situating at a junction in the heart of city and this junction is always crowded with high volume of public and heavy intensity of vehicular traffic. The building is located just nearer to the Municipal Bus Stand and Corporation Office. The roads from the junction leads to Sakthan Stand, Railway Station, High Road & Thrissur round, and all of these places lies within a distance of 500m from this point. If a failure occurs it would endanger the lives of people and the property of public. It is to be noted that a cautionary board has been erected by the Corporation at the front of building itself which states that the entry of Public in the building is strictly prohibited due to the dangerous condition of this structure.

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Under this circumstances, even though the front portion of ground floor of the building is satisfactorily stable under normal weather condition, considering the building as a whole it cannot be categorised as a structurally stable one in the present condition considering the factors such as the age of building, the features of the locality in which building is situating, lack of proper or regular maintenance, the unpredictable weather conditions

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exercising especially in the previous monsoon periods etc.”

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This matter was thereupon considered by me on 12.11.2019, when the learned Senior counsel, Sri.N.N.Sugunapalan and Sri. Sreekumar Chelur, asserted that a proper evaluation of the nature of the building was not done by the 7^th respondent and that this can be affirmatively stated only by an expert in the field, which they suggested to be the Head of the Department of the Civil Engineering, Thrissur Government Engineering College. I therefore, issued an order on that day suo moto impleading the Principal of the Thrissur Government Engineering College, with a consequential direction to him to have the building inspected through an expert and file the report on record.

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When this matter was taken up today, the learned Government Pleader submitted that an additional memo has been placed on record, dated 29.11.2019, enclosing the report of inspection of the building by the Head of the Department of Civil Engineering, Government Engineering College, Thrissur, which is a very exhaustive one, wherein the following conclusions have been recorded :

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“ Assessment

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1. As per the building codes the normal service life of these type of building is 50 years. This building is 64 years old. Under that circumstances, I am not in a position to predict the expected life of the building. Here the comment is only for the present status.

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2. From the plan, it is analysed that almost 15% of the building (excluding part C which is under debate) at Ground and first floor and 100% of building at second floor are in a detoriated condition. If the building considered as a whole, for Part

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WP(C).No.26889 OF 2019(I)

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A & B, more than 40% of the building suffers deterioration.

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3. The front portion (Part – A) of the building is presently intact. But future life prediction is not possible. The possibility of failure due to future construction activities of adjacent plot can be expected unless extreme care has not been taken.

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4.The structural cracks visible at the back stair area indicates that, it may collapse in short time, if proper attention is not given.

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5. The results of rebound hammer test indicate that, even after routine maintenance is carried out, some portion of Part A is still weak. But the supportive action of the room elements as a whole, keep the rooms stable.

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6. As per Indian standard code (IS 1904-1986) and National Building Code and the permissible values of angular distortion of foundation is 0.002(1 in 500). The observations taken using total station at all four corners of the building are listed in Annexure-C. The tilt at south west corner is slightly higher than the permissible limit. The front side of the building is almost straight where as at back some tilt is experienced. Considering the building as a whole, it can be concluded that the building suffers slight distortion. This even may be due to eccentric and unscientific loading.

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Conclusion:

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1. Part A of Building is presently stable. But Part B and C are not stable. The presence of structural cracks near staircase indicates initiation of progressive failure at Part B. When a building is discussed it should discuss as a whole. In that context we have to conclude that the building is not safe. ”

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The learned Government Pleader, therefore says that the condition of the building appears to be unsafe and that both the expertsbe that the 7^th respondent and the Head of the Department of Civil Engineering, Government Engineering College, Thirssur- have unanimously stated so. The learned Government Pleader therefore, prays that this Court may issue appropriate orders and that the official

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WP(C).No.26889 OF 2019(I)

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respondents will abide by the same.

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When I consider the afore reports on record, it is indubitable that the extent to which this Court can now go on with an investigation is extremely limited, particularly, because I am acting under Article 226 of the Constitution of India whereunder, it is now well recognized that assessment and evaluation of factual factors and materials are substantially proscribed. Further, it is now too well established in law to be reinstated that this Court cannot substitute its wisdom for the wisdom of the experts and that I will have to be guided substantially by the reports available, particularly because the expert from the Thrissur Engineering College- was deputed solely as per the suggestion made by the learned counsel for the party respondents.

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In the afore perspective, it is without doubt that the building now comes across as being in an extremely dilapidated condition and dangerous for occupation, either by the respondents 3 to 5 or their staff and customers. This, of course, is only a prima facie view going by the reports available, and hence I am of the view that the Secretary of the Thrissur Corporation must now exercise his jurisdiction under Section 411 of the Municipality Act to take further action in terms of law. When I says this, I am full cognizance of the submissions of Sri.N.N.Sugunapalan, the learned Senior counsel and Sri.Sreekumar Chelur learned counsel, that the building has reached this situation only on account of certain actions that are attributed to the petitioners also. However, since the

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petitioners have refuted this in their counter pleadings, I am of the view that these are also matters that will have to considered by the Secretary, while completing the exercise that I propose hereunder.

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Resultantly and for the reasons above, I order this writ petition and direct the Secretary of the Thrissur Corporation to hear the petitioners and respondents 3 and 5, at the earliest and then decide on the further cause of action with respect of the building, under Section 411 of the Kerala Municipality Act, specifically adverting to the reports available on record of the 7^th respondent and that of the Assistant Professor of the Thrissur Engineering College, the contents which have been substantially extracted above. The Secretary will, thereupon, complete proceedings under Section 411 of the Act, as found warranted, without any delay, but not later than two months thereafter.

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In order to enable the Secretary of the Corporation to comply expeditiously with the directions herein, I direct the petitioners and respondents 3 to 5, to mark appearance at his office at 11.00 a.m. on 30.12.2019; on which day, the said Authority shall hear them or fix another convenient date for hearing and then complete the proceedings within the time frame stipulated therein. Since, I am directing the Secretary to take further action on the basis of the two reports that are available before this Court, that all action under Section 411 shall be completed in terms of the afore directions based on these reports alone and not based on any of the earlier proceedings.

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After I dictated this judgment, the learned Standing Counsel for the Corporation, Sri.Santhosh Pothuwal, submitted that in the interregnum should anything happened to the building, the Secretary may not be held responsible. This is recorded.

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Sd/-

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DEVAN RAMACHANDRAN JUDGE

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SVP

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WP(C).No.26889 OF 2019(I)

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	A TRUE PHOTOCOPY OF THE COMMON JUDGMENT DATED 04.07.2017 IN WPC NO. 25876 OF 2016, WPC NO. 40747 OF 2016 AND WPC NO. 16184 OF 2016
EXHIBIT P2	A TRUE COPY OF THE ORDER NO. DW7/29610/15 DATED 06.02.2018 PASSED BY THE 4TH RESPONDENT.
EXHIBIT P3	A TRUE COPY OF THE JUDGMENT DATED 28.02.2018 IN WPC NO. 6814 OF 2018.
EXHIBIT P4	A TRUE COPY OF THE ORDER DATED 16.03.2018 IN I.A. NO. 358 OF 2018 IN APPEAL NO. 170 OF 2018.
EXHIBIT P5	A TRUE COPY OF THE JUDGMENT DATED 27.09.2019 IN WPC NO. 25764 OF 2019.
EXHIBIT P6	A TRUE PHOTOCOPY OF THE NOTICE DATED 11.08.2019 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P7	TRUE PHOTOGRAPHS OF THE DILAPIDATED CONDITION OF THE KALLIYATH BUILDING.
EXHIBIT P8	A TRUE COPY OF THE INTERIM ORDER DATED 05.09.2019 IN WPC NO. 22685 OF 2019 PASSED BY THE HON'BLE HIGH COURT OF KERALA.
EXHIBIT P9	A TRUE COPY OF THE JUDGMENT DATED 01.10.2019 PASSED BY THIS HON'BLE COURT IN WPC NO. 22685 OF 2019.
EXHIBIT P10	A TRUE PHOTOCOPY OF THE ORDER DATED 16.05.2018 ISSUED BY THE TAHSILDAR AND ACCOMMODATION CONTROLLER, THRISSUR IN FAVOUR OF THE 3RD AND 4TH RESPONDENTS
EXHIBIT P11	A TRUE PHOTOCOPY OF THE ORDER DATED 30.10.2019 PASSED BY THE HON'BLE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS IN APPEAL NO.170 OF 2018
EXHIBIT P12	A TRUE PHOTOCOPY OF THE COMMUNICATION DATED 23.11.2019 ISSUED BY THE SECRETARY, THRISSUR MUNICIPAL CORPORATION TO THE DISTRICT COLLECTOR, THRISSUR

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT R5 A PHOTOGRAPHS SHOWING THAT THE PETITIONER IS ATTEMPTING TO DAMAGE THE BUILDING BY HIMSELF USING HAMMER EXHIBIT R5 B A COPY OF THE LIST PREPARED BY THE CORPORATION IN 2010 EXHIBIT R5 C LIST PREPARED IN 2013 BY THE CORPORATION EXHIBIT R5 D THE INFORMTION OBTAINED FROM THE CORPORTION SHOWING THAT THE DISPUTED BUILDING IS NOT INCLUDED IN THE LIST OF UNSTABLE BUILDINGS DATED 19.09.2016

Moosa v. Thrissur Municipal Corporation

Case brief

What is this about?

What did the court decide?

Moosa v. Thrissur Municipal Corporation

Case brief

What is this about?

What did the court decide?

What the court decided

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