Disposed

Wheels Apartments v. Thrissur Corporation

Kerala HC11 Jun 2024WP(C)/11524/2021

Case brief

AI extract

What is this about?

A builder challenged the Corporation Secretary's order directing removal of unauthorised constructions in an apartment complex and declining to consider shifting of the recreation area from apartment No.104 to No.116. The Court set aside the order for non-consideration of the earlier 23.01.2020 order and notarised occupants' affidavit, and directed fresh reconsideration after hearing all affected

What did the court decide?

Ext.P12 order set aside; Secretary directed to reconsider afresh within two months after hearing affected parties and furnishing inspection reports; regularisation application to be considered per law

Wheels Apartments Vs Thrissur Corporation — Municipal and Town Planning | Kerala HC (2024)

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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 M.A.ABDUL HAKHIM

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TUESDAY, THE 11^TH DAY OF JUNE 2024 / 21ST JYAISHTA, 1946

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WP(C) NO. 11524 OF 2021

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PETITIONER/S:

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WHEELS APARTMENTS REPRESENTED BY ITS PARTNER, REAL ESTATE BUILDERS AND DEVELOPERS, CHELAKKOTTUKARA P.O., EAST FORT, THRISSUR, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, VISHNU VIJAY C., AGED 32 YEARS, S/O. C.D. VIJAYAN, CHANASSERY HOUSE, VALLIVATTOM P.O., THRISSUR DISTRICT.

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BY ADVS. K.JAJU BABU (SR.) M.U.VIJAYALAKSHMI BRIJESH MOHAN

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RESPONDENT/S:

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1 THRISSUR CORPORATION REPRESENTED BY ITS SECRETARY, M.O. ROAD, THRISSUR-680001.

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2 THE SECRETARY, THRISSUR CORPORATION, M.O. ROAD, THRISSUR-680 001.

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3 THE EXECUTIVE ENGINEER, THRISSUR CORPORATION, M.O. ROAD, THRISSUR-680 001.

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4 SRI. ANISH ANTONY, S/O. VAZHAPILLY ANTONY, VAZHAPILLY HOUSE, FLAT NO.104, WHEELS APARTMENTS, OOTY GARDEN, MOOSPET ROAD, THRISSUR-680065.

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BY ADVS. SHRI. SANTHOSH P.PODUVAL, SC, THRISSUR CORPORATION RAPHAEL THEKKAN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

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11.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C)NO.11524 of 2021

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JUDGMENT

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The petitioner is a builder, who constructed an Apartment Complex viz. 'Wheels Apartments' at Thrissur. The fourth respondent is the owner of the apartment No.104 in the ground floor of the sad Apartment Complex, which he purchased from the petitioner.

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The grievance of the fourth respondent is that the area occupied by apartment No.104 sold to him is earmarked for recreational area as per the approved Plan of the Corporation and without disclosing the same, the same was sold to him by the petitioner. With respect to that, he submitted so many complaints including criminal complaint which are pending.

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The petitioner claims that, on the basis of a request from the builder supported by Ext.P3 Notarised Affidavit which is signed by whole occupants except the 4^th respondent, an

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W.P.(C)NO.11524 of 2021

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Order dated 23.01.2020 was passed by the second respondent permitting to shift recreation area from the area occupied by apartment No.104 to the area occupied by apartment No.116. On the basis of the said Order of the 2^nd respondent dated 23.01.2020, the 3^rd respondent has issued Ext.P4 Communication to the petitioner.

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The fourth respondent submitted Ext.P3 Representation dated 16.02.2020 to the second respondent objecting shifting of the recreation area to the area of apartment No.116. When the second respondent refused to consider Ext.P3, the fourth respondent approached this Court and this Court by Ext.P8 judgment dated 03.03.2020 directed the second respondent to consider Ext.P3 within a period of 4 – 6 weeks from the date of receipt of a certified copy of that judgment. It is ordered that no further construction shall be conducted in the meantime. The petitioner submitted Ext.P11 objection to Ext.P7 Representation. The second respondent passed Ext.P12 order dated 13.04.2021 in which it is stated that it is desirable to keep the recreation area in the area of

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W.P.(C)NO.11524 of 2021

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apartment No.104 and also directing to remove unauthorised construction done in the apartment complex. The petitioner has filed this Writ petition challenging Ext.P12 Order.

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The learned Senior Counsel for the petitioner submitted that Ext.P12 refers to an inspection dated 09.03.2021 and the said inspection was done without notice to the petitioner. It is submitted that the inspection reports were also not given to the petitioner.

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According to the Senior Counsel, direction was given to remove the unauthorised construction which can only be the apartment No.104. The learned counsel for the fourth respondent submitted that he is aggrieved by the shifting of apartment from 104 to apartment No.116. According to him, all the inspections were done in the presence of the representatives of the petitioner. There is nothing illegal with respect to the directions in Ext.P12.

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The learned counsel for the first and second respondents submitted that, apart from the illegal construction of apartment No.104 in the recreation area, there are other

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W.P.(C)NO.11524 of 2021

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illegal constructions also in the apartment complex and proceedings were initiated with respect to the said unauthorised construction also.

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After hearing the counsels on either side, I am of the view that though the grievance of the fourth respondent in Ext.P3 is with respect to the shifting of the recreation area to apartment No.116, the same is not seen considered in Ext.P12. The second respondent has only expressed an opinion that it is better to keep the area occupied by apartment No.104 as recreation area for the reasons stated in Ext.P12.

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Though the Senior Counsel submitted that what is directed in Ext.P12 is to demolish Apartment No.104, I am of the view that since some other illegal constructions are also referred to in the inspection reports, the direction in Ext.P12 is to demolish those constructions and it is not with regard to apartment No.104.

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There is substance in the submission of the learned Senior Counsel that the shifting of the recreation area from

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W.P.(C)NO.11524 of 2021

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the area occupied by apartment No.104 to the area occupied by apartment No.116 is already concluded by the order dated 23.01.2020 of the second respondent which is cited as item No.4 in Ext.P4 and nobody has challenged the same. It is seen from Ext.P12 that neither the order of the Secretary dated 23.1.2020 nor Ext.P4 dated 25.02.2020 is considered in Ext.P12. With respect to the grievance of the fourth respondent, it can be seen that, if the direction in Ext.P12 is interpreted as direction to demolish apartment No.104, the flat presently occupied by the fourth respondent is to be demolished. The counsel for the fourth respondent submitted that fourth respondent wants to retain apartment No.104 and his grievance is limited with respect to the violation with respect to the shifting to the recreation area to apartment No.116.

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The learned Senior Counsel submitted that as per Ext.P3 all the occupants except the fourth respondent have consented shifting of the recreation area from the area occupied by apartment No.104 to the area occupied by

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W.P.(C)NO.11524 of 2021

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apartment No.116 and there is no reason for the 2^nd respondent to doubt the genuineness of the same. I find that since the said affidavit is a notarised one and nobody has raised any objection in this regard, the 2^nd respondent ought not to have doubted genuineness of the same. If the petitioner produces the original of the said Affidavit before the second respondent and if the genuineness of the same is not objected by any of its signatories, the second respondent is bound to act upon the same.

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In view of the aforesaid facts and findings, I dispose of this Writ petition setting aside Ext.P12 Order and to reconsider the issue afresh, after hearing all the affected parties, taking note of the Order dated 23.01.2020 of the second respondent which is cited as item No.4 in Ext.P4 and Ext.P3 affidavit. With regard to the other violations in the apartment complex which are found in the inspection reports and referred to in Ext.P12, the learned Senior Counsel for the petitioner submitted that the petitioner will submit proper application for regularisation. The learned Counsel

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W.P.(C)NO.11524 of 2021

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for the first and second respondents submits that if the petitioner files a proper application, the same would be considered in accordance with law. The second respondent shall furnish copies of the Inspection Reports referred in Ext.P12 to the petitioner as well as the fourth respondent before hearing them. The aforesaid decision shall be taken by the second respondent within a period of two months from the date of receipt of a copy of this judgment.

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Sd/-

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M.A.ABDUL HAKHIM JUDGE

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Shg

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W.P.(C)NO.11524 of 2021

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APPENDIX OF WP(C) 11524/2021

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PETITIONER EXHIBITS Exhibit P1	TRUE COPY OF OCCUPANCY CERTIFICATE DATED 25/02/2010 ISSUED BY THE CORPORATION OF THRISSUR.
Exhibit P2	TRUE COPY OF COMPLAINT DATED 27/02/2018 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR.
Exhibit P3	TRUE COPY OF WRITTEN CONSENT OF ALL OTHER OCCUPANTS OTHER THAN THE 4TH RESPONDENT SUBMITTED ON 10/02/2020.
Exhibit P4	TRUE COPY OF NOTICE NO. DW4/45058/17 DATED 25/02/2020 ISSUED BY THE 3RD RESPONDENT.
Exhibit P5	TRUE COPY OF THE TAX RECEIPT ISSUED BY THE 1ST RESPONDENT.
Exhibit P6	TRUE COPY OF INTIMATION/LETTER GIVEN TO THE 4TH RESPONDENT BY THE PETITIONER ON 10/03/2020.
Exhibit P7	TRUE COPY OF WRIT PETITION NO.6363/2020 ALONG WITH EXT.P3 FILED BY THE 4TH RESPONDENT BEFORE THIS HON'BLE COURT.
Exhibit P8	TRUE COPY OF JUDGMENT DATED 03/03/2020 IN WPC NO.6363/2020 OF THIS HONOURABLE COURT.
Exhibit P9	TRUE COPY OF NOTICE DATED 19/02/2021 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.
Exhibit P10	TRUE COPY OF NOTICE NO. DW4/45058/17 DATED 12/03/2021 ISSUED BY THE 2ND RESPONDENT.
Exhibit P11	TRUE COPY OF WRITTEN SUBMISSION/PETITION DATED 18/03/2021 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.
Exhibit P11(A)	TRUE COPY OF STATEMENT SUBMITTED BY THE 2 PARTNERS DATED 10/03/2021 IN THE OFFICE OF THE 2ND RESPONDENT.
Exhibit P12	TRUE COPY OF THE PROCEEDINGS NO. DW4/45058/17 DATED 13/04/2021 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER AND 4TH RESPONDENT.

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W.P.(C)NO.11524 of 2021

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RESPONDENTS' EXTS EXT.R4(A) TRUE COOPY OF THE CERTIFICATE OF ENCUMBRANCE ON PROPERTY IN SCH.NO.1.SY.646/1. EXT.R4(B) TRUE COPY OF THE INSPECTION REPROT DATED 12.04.2021 SUBMITTED BY THE EXECUTIVE ENGINEER, THRISSUR CORPORATION

Wheels Apartments v. Thrissur Corporation

Case brief

What is this about?

What did the court decide?

Wheels Apartments v. Thrissur Corporation

Case brief

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What did the court decide?

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