Dismissed

M.K. Abraham v. Corporation of Cochin

Kerala HC1 Dec 2023WP(C)/16391/2023

Case brief

AI extract

What is this about?

The High Court dismissed two writ petitions seeking to quash orders rejecting an application to relocate a recreational area in a completed building. The court held that the rejection decision was valid as it considered relevant factors including the transfer of ownership and procedural requirements, finding no illegality or non-application of mind.

What did the court decide?

The petitions were dismissed; no direction was issued to hear the petitioners afresh or pass fresh orders.

M.K. Abraham Vs Corporation of Cochin — Municipal and Town Planning | Kerala HC (2023)

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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 N.NAGARESH

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FRIDAY, THE 1^ST DAY OF DECEMBER 2023 / 10TH AGRAHAYANA, 1945

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WP(C) NO. 16391 OF 2023

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PETITIONERS:

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1 M.K. ABRAHAM AGED 75 YEARS, S/O KOSHY VARGHESE, RESIDING AT 10 B4, ABM TOWERS, KADAVANTHARA, ERNAKULAM, PIN – 682 020.

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2 M/S ABM BUILDERS PRIVATE LIMITED ABM TOWERS, KADAVANTHARA, ERNAKULAM, REPRESENTED BY ITS MANAGING DIRECTOR, SRI. M.K. ABRAHAM, AGED 75, S/O KOSHY VARGHESE, RESIDING AT 10 B4, ABM TOWERS, KADAVANTHARA, ERNAKULAM, PIN – 682 020.

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BY ADVS.

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P.G.JAYASHANKAR S.RAJEEV (K/001711/2019) SAJANA V.H SHAIJU GEORGE NITHIN GEORGE

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RESPONDENTS:

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1 CORPORATION OF COCHIN CORPORATION OF COCHIN, ERNAKULAM - 682 011, REPRESENTED BY ITS SECRETARY, PIN - 682011

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2 THE SECRETARY, CORPORATION OF COCHIN, ERNAKULAM - 682 011.

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BY ADVS.

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C.N.PRABHAKARAN SANTHEEP ANKARATH

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.12.2023, ALONG WITH WP(C).18036/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) Nos.16391 & 18036 of 2023

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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 N.NAGARESH

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FRIDAY, THE 1^ST DAY OF DECEMBER 2023 / 10TH AGRAHAYANA, 1945 WP(C) NO. 18036 OF 2023

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PETITIONERS:

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1 M.K. ABRAHAM AGED 75 YEARS, S/O KOSHY VARGHESE, RESIDING AT 10 B4, ABM TOWERS, KADAVANTHARA, ERNAKULAM, PIN – 682 020.

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BY ADVS.

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P.G.JAYASHANKAR S.RAJEEV (K/001711/2019) SAJANA V.H SHAIJU GEORGE NITHIN GEORGE

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RESPONDENTS:

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1 CORPORATION OF COCHIN ERNAKULAM , REPRESENTED BY ITS SECRETARY, PIN – 682 011.

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2 THE SECRETARY CORPORATION OF COCHIN, ERNAKULAM, PIN – 682 011.

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3 ASSISTANT EXECUTIVE ENGINEER KOCHI MUNICIPAL CORPORATION, VYTILLA REGIONAL OFFICE, VYTILLA, ERNAKULAM, PIN – 682 019.

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ADDL.4 ABM TOWERS RESIDENTS ASSOCIATION KADAVANTHRA,

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W.P.(C) Nos.16391 & 18036 of 2023

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ERNAKULAM DISTRICT, KOCHI - 682020, REPRESENTED BY ITS PRESIDENT

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(ADDL.R6 IS IMPLEADED AS PER ORDER IN IA.1/2023 IN WPC.18036/2023)

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BY ADVS.

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C.N.PRABHAKARAN SANTHEEP ANKARATH

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.12.2023, ALONG WITH WP(C).16391/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) Nos.16391 & 18036 of 2023

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N. NAGARESH, J.

W.P.(C) Nos.16391 and 18036 of 2023

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Dated this the 1^st day of December, 2023

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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W.P.(C) No.16391/2023 has been filed by the

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petitioners, who have constructed a building by name AMB Towers at Kadavanthra in Ernakulam, seeking to direct the respondents not to proceed with Ext.P4 pending consideration of Ext.P3 application. Ext.P3 is an application dated 18.05.2023

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submitted by the 2^nd petitioner to the Kochi Municipal Corporation requesting to approve the revised drawings submitted by the petitioners providing required recreation area as per KMBR, 1999 on the roof top of the building. Ext.P4 is an order dated 01.03.2023 of the Secretary to Kochi Municipal Corporation directing the respondents to remove certain constructions made by the petitioners in the recreation area.

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W.P.(C) Nos.16391 & 18036 of 2023

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W.P.(C) No.18036/2023 has been filed challenging Ext.P6 order dated 01.06.2023 of the Assistant Executive Engineer, Kochi Municipal Corporation rejecting the application dated 18.05.2023 submitted by the petitioners.

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The 1^st petitioner constructed a building by name AMB Towers at Kadavanthra. Construction was commenced in the year 1996 with a Building Permit. As certain additional constructions were required, the petitioners were issued another Building Permit in 1998. The constructions were completed only in 2004.

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The petitioners state that the commencement of construction was based on KMBR, 1984 but when the construction was completed, KMBR, 1999 had come into force. According to the petitioners, while KMBR, 1999 stipulates provision of “recreational area”, the KMBR, 1984 was silent about the same. The occupiers of the building initiated litigations before the Sub Court, Ernakulam and before the Tribunal for Local Self Government Institutions. Now, RFA Nos.86/2012 and 211/2012 and W.P.(C) Nos.13106 and 14854 of 2010 are pending consideration. The issues in all these

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W.P.(C) Nos.16391 & 18036 of 2023

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cases revolve around the question whether the 1^st petitioner is obliged to set apart a recreational area and a car parking area as shown in the completion plan.

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The petitioners state that this Court by Ext.P1 common judgment in RFA No.86 and 211 of 2012 disposed of the matters clarifying that the disposal of the cases will not affect the right of the builder, if any, under law to provide necessary recreational area and parking area as mandated under the Municipality Building Rules, 1999 at a portion different from the one earmarked in Ext.B5 plan and to seek for regularisation of the same.

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The petitioners though filed SLP No.12828/2023 before the Hon’ble Apex Court challenging Ext.P1 judgment, the Apex Court dismissed the SLP as per Ext.P2 order. In Ext.P2 order, the Apex Court, however, observed as follows:

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If any legal options are available to the petitioner in pursuant to what was observed in the final passage of High Court's order dated 09.10.2019, notwithstanding the dismissal of the Special Leave Petitions, such legal options can be explored by the petitioner in accordance with law, subject to the rider that if the Municipal Corporation has already taken a decision on the representation earlier made by the petitioner in pursuant to the High Court judgment, they are not expected to

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W.P.(C) Nos.16391 & 18036 of 2023

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take a fresh decision in the matter(s). It is also made clear that we have not made any observation on the merit of the litigation.

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Thereafter, the petitioners submitted Ext.P3 application dated 18.05.2023 along with revised drawing and plan pertaining to the proposed revision.

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In the meanwhile, aggrieved by coercive proceedings for demolition of structures, the petitioners filed W.P.(C) No.16391/2023 seeking to quash Ext.P5 proceedings dated 01.03.2023 of the respondents.

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The petitioners state that on 01.06.2023, an officer from the Corporation of Kochi came to the residence of the 1^st petitioner and served Ext.P6 notice rejecting the application dated 18.05.2023 of the petitioners. Soon thereafter, the 3^rd respondent submitted Ext.P7 letter dated 30.05.2023 to the Kerala State Electricity Board requiring the Board to disconnect electricity to the building so as to demolish the unauthorised structure. The petitioners are before this Court seeking to set aside Ext.P6 and to direct the respondents to hear the petitioners either in person or through authorised

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W.P.(C) Nos.16391 & 18036 of 2023

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representatives and to pass fresh appropriate orders in Ext.P3 application.

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The counsel for the petitioners argued that Ext.P6 has been passed by the respondents without any application of mind. The Hon’ble Apex Court had granted leave to the petitioners to seek appropriate redesignation of the recreational space and other statutory requirements in tune with the KMBR 1999. Going by the KMBR 1999, the petitioners need to provide 7.5% of the total carpet area for recreational space which comes to 536 square metres. As regards car parking, the petitioners are bound to give only 18 car parkings whereas the petitioners have already provided 40 car parkings. Therefore, rejection of the petitioners' application as per Ext.P6 in a premeditated and hasty manner cannot stand the scrutiny of law.

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The counsel for the petitioners further pointed out that the terrace area of the building has not been sold or allotted to any member. The said area is within the exclusive ownership and possession of the petitioners. Therefore, the consent or permission of the occupiers of the building is not necessary for converting the terrace area as recreational area. Ext.P6 is

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W.P.(C) Nos.16391 & 18036 of 2023

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therefore legally unsustainable and is liable to be set aside.

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The respondents resisted the writ petition. The

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respondents pointed out that the building of the petitioners has to comply with the KMBR, 1999. Under the KMBR, 1999, a builder has to provide necessary recreational area. The petitioners have appropriated the recreational area earmarked for the building and have commercially exploited the occupants of the building. The Hon’ble Apex Court has only permitted the petitioners to approach the Municipal Corporation with proposal if any for shifting the recreational area. The Apex Court has made it clear that the Court has not pronounced anything on merit on the application of the petitioners. The respondents considered the application dated 18.05.2023 submitted by the petitioners and rejected the same for tangible reasons. The petitioners are therefore not entitled to any relief, contended the respondents.

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I have heard the learned counsel for the petitioners, the learned Standing Counsel representing respondents 1 to 3 and the learned Standing Counsel appearing for the additional 4^th respondent.

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W.P.(C) Nos.16391 & 18036 of 2023

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The facts of the case are more or less undisputed. The petitioners wanted to construct a building by name AMB Towers at Kadavanthra in Ernakulam. A Building Permit was issued to the petitioners under the KMBR, 1984 in the year 1996. According to the petitioners, in the year 1998, another Building Permit was issued for making certain additional constructions. Those constructions were completed only in the year 2004.

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The petitioners submit that as the building was constructed as per a building plan issued under the KMBR, 1984, the requirement of “recreational area” prescribed by the KMBR, 1999 for the first time cannot be imposed on the petitioners. The further case of the petitioners is that assuming a recreational area is mandatory, the petitioners are willing to provide the same in the terrace portion of the building, which is not impermissible or illegal. The respondents have rejected the petitioners' application dated 18.05.2023 for the same, without hearing the petitioners and without applying mind.

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It is amply clear from the facts of the case that the petitioners completed the building construction only in the year

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W.P.(C) Nos.16391 & 18036 of 2023

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2004, by which time the KMBR, 1999 had come into force. Though the original building permit was issued under the KMBR, 1984, the petitioners submitted further applications for Building Permit and the construction was completed only in the year 2004.

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In Ext.P1 common judgment dated 09.10.2019 in RFA Nos.86 and 211 of 2012 and connected cases, this Court has come to a definite conclusion that the petitioners had submitted application for regularisation under the KMBR, 1999 and that the recreational area and parking area as shown in Ext.B5 plan are liable to be restored. This Court also found that the order of the Tribunal affirming the action of the Corporation suffers from no infirmity. The petitioners are parties to Ext.P1 judgment and are bound by the same.

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Though aggrieved by Ext.P1 judgments, the petitioners filed SLP before the Hon’ble Apex Court, the Apex Court did not entertain the SLP and dismissed the SLP on the ground of delay as also on merits.

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While dismissing the SLP, the Apex Court held that if any legal options are available to the petitioners, notwithstanding

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W.P.(C) Nos.16391 & 18036 of 2023

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of the Special Leave Petitions, such legal options can be explored by the petitioners in accordance with law subject to the rider that if the Municipal Corporation has already taken a decision on the representation earlier made by the petitioners in pursuance of the High Court judgment, they are not expected to take a fresh decision in the matter.

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The petitioners had submitted Ext.P3 application dated 18.05.2023 along with revised drawings to the Secretary of Kochi Municipal Corporation. The Assistant Executive Engineer of the Municipal Corporation considered the application of the petitioners for shifting of recreational area and rejected the same as per Ext.P6 order dated 01.06.2023. The application was rejected for multiple reasons. An application for regularisation has to be made through IBPMS online software. The building AMB Towers has 60 occupiers/owners. To regularise the construction of the building changing recreational area, all the owners of the property/building have to apply or should give their consent. Had the petitioners submitted the application before the sale of apartment units, such application could have been considered at the instance of the petitioners

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W.P.(C) Nos.16391 & 18036 of 2023

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alone. As undivided share in the property has been transferred to a number of purchasers, any application for revision of plan / shifting of recreational area has to come from all the owners of the property/building.

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I do not find any illegality or irregularity in Ext.P6 decision taken by the Assistant Executive Engineer. It cannot be said that Ext.P6 is vitiated by non-application of mind. The Assistant Executive Engineer has taken into account relevant factors while passing Ext.P6.

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For the afore reasons, W.P.(C) Nos.16391 and 18036 of 2023 are dismissed.

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Sd/-

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N. NAGARESH, JUDGE

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aks/27.11.2023

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W.P.(C) Nos.16391 & 18036 of 2023

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APPENDIX OF WP(C) 16391/2023

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PETITIONERS' EXHIBITS

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Exhibit P1 A TRUE COPY OF THE COMMON JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA, DATED 09.10.2019 IN RFA NOS. 86 OF 2012 AND 211 OF 2012 AS WELL AS WP(C) NOS. 13106 OF 2010 AND 14854 OF 2010.

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Exhibit P2 A TRUE COPY OF THE ORDER DATED 12.05.2023 IN SLP NO. 12828 OF 2023 OF THE HON'BLE SUPREME COURT OF INDIA. Exhibit P3 A TRUE COPY OF THE APPLICATION PREFERRED BY THE PETITIONER ON 18.05.2023 BEFORE THE 2ND RESPONDENT (WITHOUT ITS ANNEXURE).

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Exhibit P4 A TRUE COPY OF THE PROCEEDINGS BEARING NO. KRP2-2128/20 DATED 01.03.2023 ISSUED BY 2ND RESPONDENT TO THE PETITIONER.

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Exhibit P5 A TRUE COPY OF THE DRAWINGS FILED BY THE PETITIONER SHOWING THE REVISED CAR PARKING AREA AND THE PROPOSED ALTERATIONS, FILED ALONG WITH EXT P3 APPLICATION DATED 18.05.2023.

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W.P.(C) Nos.16391 & 18036 of 2023

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APPENDIX OF WP(C) 18036/2023

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PETITIONERS' EXHIBITS

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Exhibit P1 A TRUE COPY OF THE COMMON JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA, DATED 09.10.2019 IN RFA NOS. 86 OF 2012 AND 211 OF 2012 AS WELL AS WP(C) NOS. 13106 OF 2010 AND 14854 OF 2010. Exhibit P2 A TRUE COPY OF THE ORDER DATED 12.05.2023 IN SLP NO. 12828 OF 2023 OF THE HON'BLE SUPREME COURT OF INDIA. Exhibit P3 A TRUE COPY OF THE APPLICATION PREFERRED BY THE PETITIONER ON 18.05.2023 BEFORE THE 2ND RESPONDENT (WITHOUT ITS ANNEXURE). Exhibit P4 A TRUE COPY OF THE DRAWINGS FILED BY THE PETITIONER ALONG WITH EXT P3 APPLICATION.

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Exhibit P5 A TRUE COPY OF THE PROCEEDINGS BEARING NO. KRP2-2128/20 DATED 01.03.2023 ISSUED BY 2ND RESPONDENT TO THE PETITIONER.

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Exhibit P6 A TRUE COPY OF THE NOTICE BEARING NO. KRP2-1636/2023 DATED 01.06.2023 ISSUED BY THE 3RD RESPONDENT.

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Exhibit P7 A TRUE COPY OF THE LETTER BEARING NO. KRP2-2128/20 DATED 30.05.2023 ISSUED BY THE 3RD RESPONDENT TO THE ASSISTANT EXECUTIVE ENGINEER, KSEB LTD..

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Exhibit P8 THE NOTICE DATED NIL RECEIVED BY THE PETITIONERS FROM KSEB LTD. ON 01.06.2023.

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Exhibit P9 A TRUE COPY OF THE CERTIFICATE DATED 01/06/2023 ISSUED BY THE LICENSED ARCHITECT OF THE PETITIONERS.

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W.P.(C) Nos.16391 & 18036 of 2023

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Exhibit P10 A TRUE COPY OF THE LETTER DATED 10.07.2023 ISSUED BY GREATER COCHIN DEVELOPMENT AUTHORITY TO ABM TOWERS RESIDENTS' ASSOCIATION. Exhibit P11 TRUE PHOTOGRAPHS OF CONSTRUCTION ACTIVITIES UNDERTAKEN BY ABM TOWERS RESIDENTS' ASSOCIATION. RESPONDENTS' ANNEXURES Annexure A1 TRUE COPY OF ORDER NO. KRP1/ 1811/04 DATED 21.10.2009 ISSUED BY RESPONDENT CORPORATION.

M.K. Abraham v. Corporation of Cochin

Case brief

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M.K. Abraham v. Corporation of Cochin

Case brief

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