Disposed

Mahesh Vijayan v. District Collector, Kottayam

Kerala HC12 Nov 2020WP(C)/21823/2020

Case brief

AI extract

What is this about?

PIL challenging the dilapidated condition of the Thirunakkara bus stand shopping complex. The Court directed the Municipality to seek permission from the State Election Commission and administrative sanction for urgent repair works using allocated funds, completing maintenance within three months to ensure public safety.

What did the court decide?

Directions to seek election commission permission and administrative sanction for emergency repair of the dilapidated building within specified timelines.

Mahesh Vijayan Vs District Collector… — Constitutional and Fundamental Rights | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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THURSDAY, THE 12TH DAY OF NOVEMBER 2020 / 21ST KARTHIKA, 1942

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WP(C).No.21823 OF 2020(S)

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PETITIONER:

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MAHESH VIJAYAN AGED 38 YEARS S/O.R.VIJAYAN, ATTUVAYIL HOUSE, S.H. MOUNT P.O., KOTTAYAM-686 006.

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BY ADV. SRI.JOMY K. JOSE

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RESPONDENTS:

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1 DISTRICT COLLECTOR, KOTTAYAM CIVIL STATION, KOTTAYAM-686 001.

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2 KOTTAYAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPALITY OFFICE, KOTTAYAM-686 001.

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3 THE SECRETARY, KOTTAYAM MUNICIPALITY, MUNICIPALITY OFFICE, KOTTAYAM-686 001.

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4 STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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5 DIRECTOR OF URBAN AFFAIRS, SWARAJ BHAVAN, NANTHANCKODE, THIRUVANANTHAPURAM-695 003.

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R1, R4 & R5 BY SENIOR GOVERNMENT PLEADER SRI.SURIN GEORGE IPE

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R2& R3 BY SRI.SIBY CHENAPPADY, STANDING COUNSEL, KOTTAYAM MUNICIPALITY

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.21823 OF 2020(S)

JUDGMENT

SHAJI P.CHALY,J

This is a public interest litigation filed by a resident of Kottayam District espousing the cause of the people visiting the bus stand and the shopping complex owned by the Kottayam Municipality, which is in a dilapidated condition. According to the petitioner, construction of the bus stand shopping complex at Thirunakkara, Kottayam District, was completed in the year 1970, however, due to lack of proper maintenance the bus stand shopping complex has become a serious threat to the life of commuters and others visiting the shopping complex. It is also stated that it is maintained in a shabby manner for the past 10 years despite the Municipality having adequate income from various sources Therefore, the building is in a dangerous condition, and it can collapse at any time.

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It is submitted that due to the initiative taken by the petitioner as well as other interested citizens, the Municipality has constituted a technical committee to study into the matter and accordingly Ext.P4 detailed report was submitted by the Structural Engineering Division of the College of Engineering Trivandrum, reporting that the distress and the damages seen on the various structural elements of the structure are highly life threatening, apart from other deficiencies pointed out. Petitioner has also produced various photographs, from where it is evident that the outer shell of the

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WP(C).No.21823 OF 2020(S) 3

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concreting has fallen down and the steel rods are exposed. The building consists of three floors including the ground floor. Various business establishments, offices and lodging are functioning in the shopping complex and therefore, petitioner seek 1) to direct the Kottayam Municipality and the Secretary of the Kottayam Municipality i.e., respondents 2 & 3 to demolish the bus stand complex and construct a new building without any further delay,2) declare that the bus stand cum shopping complex building since is in dilapidated condition shall not be rented out against Ext.P4 report and also seeks directions to respondents 4 & 5 i.e., the State of Kerala and Director of Urban Affairs, and 3) to take necessary action for construction of a new building after demolishing the dangerous structure, apart from other consequential reliefs sought for by the petitioner.

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Municipality as well as the Secretary have filed a joint counter affidavit disputing the allegations raised by the petitioner. It is submitted that Municipality has been regularly maintaining the building, and whenever it had come to the notice of the Municipality that damages have occurred to the building on account of the water seepage, Engineering wing of the Municipality had inspected the building and on their recommendation a truss work roofing using lightweight materials was erected to prevent future instances of water seepage. Further, as the building is old one, close to 50 years, the Municipality in order to ensure the structural integrity of the building had on their own volition requested the College of Engineering,

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Thiruvananthapuram, to assess the structural stability of the building and submit a report regarding the maintenance work required. It is also submitted that plan funds of the Municipality was also earmarked for carrying out the maintenance works of the shopping complex during the financial years 20192020 and 2020-2021. Other contentions raised by the petitioner with respect to falling down of concrete pieces are all disputed by the Municipality.

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Anyhow the report submitted by the College of Engineering, Thiruvananthapuram, after inspecting the building pointing out the damages caused to the building is admitted but according to the Municipality, going by the report immediate demolition of the building is not required and the building would have a life of 10-15 years more and therefore there is no immediate requirement for stopping the business establishments and offices functioning in the shopping complex attached to the bus stand. However , the standing committee for finance vide its decision No.13 dated 14.1.2020 authorised the Municipal Engineer to take action in respect of the shop rooms, in the possession of a cooperative consumer store and was repossessed by the Municipality due to huge arrears of rent, and resolution is produced as Ext.R2(a). It is also submitted that even though some of the shop rooms in the ground floors were let out, there were no bidders for other shop rooms. Anyhow it is admitted that the Municipality had decided to carry out proper maintenance work for the building and for the said purpose an amount of Rs.50 lakhs was allocated by including it as project No.45/19-20 in

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WP(C).No.21823 OF 2020(S)

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the People's Planning Scheme of the financial year 2019-2020 and the administrative approval for the said project was also obtained on 11.10.2019 from the Local Self Government Department. But the said project could not be implemented as modifications are to be carried out in tune with the recommendation in Ext.P4 report.

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But fact remains an amount of Rs.50 lakhs is earmarked in the plan fund of the financial year 2020-2021 as project No.636/2020 for carrying out the project works and renovation of the bus stand complex. Therefore, according to the Municipality, on realising the situation from Ext.P4 report, adequate steps were taken by the Municipality and the imputations made by the petitioner against the Municipality are not factually correct.

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We heard learned counsel for petitioner Sri. Jomy K.Jose, learned Standing Counsel for the Municipality and the Secretary Sri.Siby Chenappady, Sri.Surin George Ipe for the State and its officials and perused the pleadings and materials on record.

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Respective counsel have addressed their arguments in accordance with the submissions recorded above. In fact we find that there is substance in the contentions advanced by the petitioner that the building has got severe damages, which is to be rectified by the Municipality. Even to a large extent the Municipality admits that the building requires repair in order to protect the same. It is further admitted that the building has only a further life of 1015 years. We are also convinced from the Ext.P4 report and the photographs

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WP(C).No.21823 OF 2020(S)

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produced by the petitioner, which are not disputed, that the building requires repair immediately so as to protect the interest of the passengers and other people visiting the bus stand cum shopping complex. Ext.P4 report submitted by the College of Engineering, Thiruvananthapuram dated 8.3.2019 is a self speaking one and we propose to extract the relevant portion of the same, and it reads thus:

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“Detailed observations in the ground floor and first floor of the building

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Visible cracks were seen in the ground floor as well as in the first floor in many rooms especially in the beam, wall and slab portions of the structure. In the ground floor, RCC column was found to have cracked in the vertical direction and reinforcement is in exposed condition. In the beam supporting the slab at many locations, long horizontal cracks parallel to the length of the beam was seen clearly indicating severe corrosion in the main steel reinforcement in the structural element. The cantilever beam extending on the verandah portion is in fully corroded state. In the main slab to at many portions, cover concrete was seen spalled and bulged and reinforcement is found in exposed state. Lintel portion above some doors and windows are also cracked.

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Dampness in the slab and the walls were observed in some locations due to poor plumbing systems. Cover provided for the various structural elements are insufficient. Expansion joint provided on the building is in worn out condition.

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Recommendations

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Based on the visual observation, it is highly recommended to do the retrofitting of the building, as early as possible following the guidelines of the CPWD manual Handbook on Repair and Rehabilitation of RCC Buildings. The distress and the damages seen on the various structural elements of the structure are highly life threatening.

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WP(C).No.21823 OF 2020(S)

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Also it is recommended to reduce the load in the first floor and the second floor of the structure by avoiding stacking of heavy materials.

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Examine thoroughly the cracks seen on the columns, walls, beams and slabs. Apply slight taping onto the surface of the brick wall plaster, and also on concrete on columns, beams and slabs, by using hammer and allow the distressed plaster and concrete to spall from the surface.

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The detailed procedure regarding the retrofitting work to be done to the columns, beams and slab should be as per CPWD Manual and is specified below. Suitable retrofitting measures have to be made for rectifying the defects in the structural elements as early as possible.

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During the execution of the retrofitting work in the building, the same shall be evacuated as the repairing has to be done hassle free. All the loads (live loads) provided has to be removed.

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Retrofitting measures

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The repairing/retrofitting work of each floor of the building has to be executed in stages; one at a time.

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All unwanted vegetation growth (if any) in and around the structural element has to be immediately removed.

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Proper precautionary measures have to be taken in the building to reduce the loads by restricting the usage on slabs during the time of repairing.

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During the maintenance work, utmost care should be taken to provide proper support to the slabs and beams of the building by providing steel formwork and props using steel sections with proper base plate and foundation in order to relieve the RCC elements from stresses due to load coming over it.

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WP(C).No.21823 OF 2020(S)

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Applies slight taping onto the surface of the cracked and uncracked portion of the brick wall/brick columns by using hammer and allow the distressed lime/cement mortar plaster to spall from the surface. After the removal of the distressed plaster surface, wet the layer and provide a chicken mesh layer and re-plaster the surface using cement mortar CM 1:3, 12-15MM thick. Proper curing shall be made.

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For the repairing work, adopt M30 grade concrete and Fe 500 steel for all structural elements.

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● Examine thoroughly whether the inside concrete already existing in all the structural elements are of good quality and not loosely placed or having honey combing. Apply slight tapping onto the surface of the concrete by using hammer and allow the distressed concrete to spall from the surface. If it is found that the inside portion of the concrete is not in usable state, remove the portion of concrete too and relay M30 grade concrete immediately.

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Wherever the slab portions are damaged, it was found that steel was have corroded drastically. There will be chances of spalling of concrete from the slab in future. Therefore, it is recommended to check those uncracked portions of the slab (by dismantling the cover concrete of the slab at random locations) to ascertain the intensity of damage to the steel reinforcement due to chemical attack/insufficient cover. If necessary, replace the slab element fully on the floors.

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Remove plaster and finishes all around the distressed RCC elements, remove the cracked and spalled concrete to expose the rusted reinforcement in the

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WP(C).No.21823 OF 2020(S)

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RCC slabs (top and bottom) beams, columns etc. Remove concrete all around the reinforcement in order to get a 25-30 mm air gap all round and clean the reinforcement and concrete. The concrete substrate shall be thoroughly soaked with clean water prior to priming. Expose completely the reinforcements (approximately to depth of 6-8cm from the face of concrete elements).

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If the existing main reinforcements provided are found to be in more than 35% corroded. state, provide additional reinforcement wherever the reinforcement diameter has been reduced by more than 30% with necessary overlap or welding with the existing reinforcement (same diameter reinforcement at the same spacing in the same direction).

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Apply appropriate passivating (Zinc primer) and bond coat over the reinforcement and prepared RCC surface.

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In the case of slab, provide RCC mix M30 grade to a thickness of additional 5 cm from the centre portion of the existing main reinforcement. At this increased depth of 5 cm provide additional reinforcement (10mm bar @150 mm c/c both ways in all internal faces of slab. Provide minimum concrete cover of 2 cm in all faces of slabs. Fix shear keys of appropriate diameter at specified spacing. 'Clear cover of 25mm' has to be provided for all slab elements in toilet regions.

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Re-plaster the surface with rich cement mortar 1:3, 12-15 mm thick along with water proofing compound. Adopt shotcreting technique or manual method for application of concrete and plaster. It is better to add polymer modified cement to have better durability.

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WP(C).No.21823 OF 2020(S)

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The surface shall be cured with proper curing compound.

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Proper retrofitting measures shall be done to the supporting columns, beam and slab portion.

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Wet curing shall be done over the finished surface for a minimum period of seven days.

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If more than 30% is deteriorated, concrete jacketing techniques shall be adopted.

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For minor cracks repair works can be carried out as suggested in option 1 of Annexure.

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Relay the brickwork /plaster in steps in staircase.

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Peel off the paint provided in the building and provide damp resisting paints.

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Remove all the jally work and provide steel grill work.

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Provide proper drains all-around the building.

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Provide proper drain water pipes.

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Provide proper PVC plumbing lines and sanitary lines.

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Periodic maintenance has to be carried out in later stages.

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Retrofitting works shall be done only by well experienced contractor who has already done similar work of similar nature under the strict supervision of engineer. All the design and construction steps stipulated in the CPWD Hand book on Repair and Rehabilitation of RCC buildings manual should be strictly adhered to.

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The Kottayam municipality can seek the help of approved construction repairing agents in market like CERA -Chem pvt ltd, FOSROC Solutions, SIKA Ag chemical Company or equivalent for the execution of the work.

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CONCLUSION

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Retrofitting measures adopted will result in an enhancement of strength of the structure element. Even then, the retrofitting measures cannot claim a life of more than ten to fifteen years and may require frequent repairing measures if and when it

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is found necessary. Moreover regular maintenance and strict structural monitoring

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WP(C).No.21823 OF 2020(S)

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will be required. It is to be remembered that since the building was constructed in the 1970's and is very old and in distressed state, it is recommended not to use the terrace floor where the steel roof truss was provided for any specific use/purpose. The purpose of steel roof should function as a roof protection measure only. No stacking of materials is permitted in any other floors other than ground floors.

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Biju.V. Mitra. D.C. Assistant Professor Associate Professor Department of Civil Engineering, Department of Civil Engineering, College of Engineering, Trivandrum College of Engineering, Trivandrum.”

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Apart from the extracted portions other suggestions are also made in the report in respect of the periodical maintenance to be made. The fact remains that elections to the Local Self Government Institutions are already declared and the model code of conduct for the guidance of political parties, functionaries and candidates are issued by the State Election Commission. Therefore, we requested the Standing Counsel for the State Election Commission to be present in Court so as to explore the possibilities of making necessary direction taking into account the poor condition of the bus stand shopping complex, the dangers pointed out in Ext.P4 report of the expert committee, and the urgency of the repairs to be carried out. We also find from the model code of conduct that against question No.18 as to whether “suppose work order has been issued in respect of a scheme or a programme. Can it be started after the announcement of the election

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WP(C).No.21823 OF 2020(S)

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programme ? Ans. Work shall not be started in respect of which work order has been issued before announcement of election but the work has actually not started in the field. If a work has actually started in the field that can be continued.”

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Therefore, going by the facts and figures given by the Municipality in its counter affidavit, it is clear that actually the plan fund was allotted for the financial year 2020-2021, however, work order has not been issued nor taken any steps to invite tenders or to start the work, which may fall within the model code of conduct. In this regard Sri.Murali Purushothaman, learned counsel appeared for the Kerala State Election Commission, submitted that if a request is made by the Municipality seeking permission to proceed with the work in question, it would be considered by the State Election Commission and would take immediate decision. We have no reason to think that the State Election Commission would not take into account the urgency of the matter and do the necessary in order to avoid the potential threat evident from the report of the expert committee. Learned counsel for the Municipality however, pointed out that administrative sanction is required from the State Government also to start the work.

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In that view of the matter, we are of the considered opinion that necessary directions can be issued to the Municipality and the State Election Commission. We also feel that as per section 411 of the Kerala Municipality Act, 1994, Municipality is duty bound to take necessary precautions in the

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WP(C).No.21823 OF 2020(S)

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case of dangerous structures, whether it be private or public. Taking into account all the above aspects, the writ petition is disposed of with the following directions:

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1. Kottayam Municipality shall make a request to the Kerala State Election Commission with necessary documents and Ext P4 report, at the earliest possible and at any rate within 10 days from the date of receipt of a copy of this judgment, seeking permission to start repair work in respect of the Municipality bus stand shopping complex on account of the plan fund of Rs.50 lakhs allotted during the financial year 2020- 2021.

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1. If and when the request is received by the Kerala State Election Commission, the State Election Commission shall take into account the urgency of the matter and take a decision at the earliest and at any rate within a week from the date of receipt of the request.

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1. On receipt of the permission from the Kerala State Election Commission by the Municipality, the Municipality shall seek administrative sanction from the State Government, at the earliest and at any rate within a week thereafter.

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1. The State Government, on receipt of the request for administrative sanction, shall consider and take a decision at the earliest and at any rate within a week thereafter.

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1. Municipality, on receipt of the administrative sanction from the Government as directed above, shall take immediate steps to issue the work order by complying with the procedures under the Act, 1994 and Rules thereto and any attendant Government Orders in that regard and complete the repair works within three months from the date of receipt of the administrative sanction

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WP(C).No.21823 OF 2020(S)

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from the State Government as directed above and file a report before this

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Court on or before 31.3.2021.

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1. Municipality shall strictly abide by the suggestions made in the expert report

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and take all precautions including a decision as to whether the shop rooms

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remaining vacant need be let out .

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

SHAJI P.CHALY

JUDGE

smv

WP(C).No.21823 OF 2020(S)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT	P1	TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER POINTING OUT THE DANGEROUS CONDITION OF THE SHOPPING COMPLEX DATED 02.06.2017.
EXHIBIT	P1 A	TRUE TRANSLATION OF EXHIBIT P1(A).
EXHIBIT	P2	TRUE COPY OF THE COMMUNICATION ISSUED BY THE 3RD RESPONDENT DATED 03.11.2017.
EXHIBIT	P2(A)	TRUE TRANSLATION OF EXHIBIT P2(A).
EXHIBIT	P3	TRUE COPY OF THE NEWSPAPER REPORT PUBLISHED ON KERALA KAUMUDI DAILY.
EXHIBIT	P3 A	TRUE TRANSLATION OF EXHIBIT P3(A).
EXHIBIT	P4	TRUE COPY OF THE REPORT SUBMITTED BY THE STRUCTURAL ENGINEERING DIVISION OF THE COLLEGE OF ENGINEERING TRIVANDRUM DATED 08.03.2019.
EXHIBIT	P5	TRUE COPY OF THE AUCTION NOTICE DATED 05.08.2020.
EXHIBIT	P5 A	TRUE TRANSLATION OF EXHIBIT P5(A).
EXHIBIT	P6	PHOTOGRAPHS SHOWING THE CONDITION OF THE BUILDING.
EXHIBIT	P7	TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE 1ST RESPONDENT BY THE PETITIONER DATED 14.08.2020.
EXHIBIT	P7 A	TRUE TRANSLATION OF EXHIBIT P7(A).
RESPOND	ENTS' EXHI	BITS
EXHIBIT	R2(a)	A TRUE COPY OF THE DECISION NO.13 DATED 14.01.2020 OF THE STANDING COMMITTEE FOR FINANCE, KOTTAYAM MUNICIPALITY.
EXHIBIT	R2(b)	A TRUE COPY OF THE DECISION NO.1 DATED 29.07.2020 OF THE MUNICIPAL COUNCIL, KOTTAYAM MUNICIPALITY.

Mahesh Vijayan v. District Collector, Kottayam

Case brief

What is this about?

What did the court decide?

Mahesh Vijayan v. District Collector, Kottayam

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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