Disposed

New Govind Apartment Owners Association, v. the Guruvayoor Municipality

Kerala HC2 Apr 2024WP(C)/5026/2023

Case brief

AI extract

What is this about?

Petitioners challenged illegal conversion of common areas to commercial space. Court relied on Municipality order to direct respondents to restore unauthorized commercial areas to original residential/recreation use within three weeks and consider fire NOC later.

What did the court decide?

Order directing Respondents 1 and 2 to implement show cause notice and restore unauthorized commercial areas (40.40 sq.m recreation, 47.80 sq.m office) to original residential/recreation use within th

New Govind Apartment Owners Association, Vs the Guruvayoor… — Property and Title | Kerala HC (2024)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

¶4

TUESDAY, THE 2^ND DAY OF APRIL 2024 / 13TH CHAITHRA, 1946

¶5

WP(C) NO. 5026 OF 2023

¶6

PETITIONERS:

¶7

1 NEW GOVIND APARTMENT OWNERS ASSOCIATION, A SOCIETY REGISTERED UNDER TRAVANCORE COCHIN LITERARY SCIENTIFIC AND CHARITABLE SOCIETIES REGISTRATION ACT, 1955 HAVING ITS OFFICE AT 'NEW GOVIND APARTMENTS' OPP. K.S. R.T.C. BUS STAND, WEST NADA, GURUVAYOOR REPRESENTED BY ITS PRESIDENT, K.C HARINDRA NATH, AGED 71YEARS, S/O A. GOVINDAN NAMBIAR, PIN - 680101 2 K.C HARINDRA NATH, AGED 71 YEARS S/O A. GOVINDAN NAMBIAR PRESIDENT, NEW GOVIND APARTMENT OWNERS ASSOCIATION, 'NEW GOVIND APARTMENTS', OPP. K.S. R.T.C. BUS STAND, WEST NADA, GURUVAYOOR, PIN - 680101 BY ADVS. P.MARTIN JOSE P.PRIJITH THOMAS P.KURUVILLA R.GITHESH AJAY BEN JOSE MANJUNATH MENON SACHIN JACOB AMBAT ANNA LINDA EDEN HARIKRISHNAN S. S.SREEKUMAR (SR.) ELDHO CHERIAN

¶8

RESPONDENTS:

¶9

1 THE GURUVAYOOR MUNICIPALITY, GURUVAYOOR, REPRESENTED BY ITS SECRETARY, PIN - 680101

¶10

2 THE SECRETARY, GURUVAYOOR MUNICIPALITY, GURUVAYOOR, PIN - 680101

¶11

3 THE STATION OFFICER, FIRE AND RESCUE STATION, GURUVAYOOR, PIN - 680101

¶12

4 NEW GOVIND APARTMENTS', A PARTNERSHIP FIRM , HAVING ITS OFFICE AT XVIII /345,

¶13

WP(C)No.5026 of 2023

¶14

¶15

GOVIND TOURIST HOME, NORTH NADA, GURUVAYUR, REP.BY ITS MANAGING PARTNER SRI, O.P UNNIKRISHNAN, PIN - 680101 5 SRI.O.P. UNNIKRISHNAN, AGED 60 YEARS S/O OZHUKIL PADINJARAPPATTU NARAYANIKUTTY AMMA MANAGING PARTNER, NEW GOVIND APARTMENTS, DOOR NO. XVIII/345, GOVIND TOURIST HOME , NORTH NADA, GURUVAYOOR,, PIN - 680101 6 O.P BABU, AGED 60 YEARS S/O OZHUKIL PADINJARAPPATTU NARAYANIKUTTY AMMA, NARAYANEEYAM HOUSE, KIZHAKKUMPATTU KARA VILLAGE , THRISSUR TALUK, THRISSUR DISTRICT,, PIN - 660005 7 P.S. PRASANNA KUMAR, AGED 48 YEARS S/O PULICKAL SREENIVASAN, PULICKAL HOUSE, POOKKODU DESOM, KOTTAPPADY P.O, CHAVAKADU TALUK, THRISSUR DISTRICT,, PIN - 680505 BY ADVS. HARIDAS V N SAIFUDEEN T.S(K/000746/2018) PARVATHY S.R.(K/984/2012)

¶16

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶17

WP(C)No.5026 of 2023

¶18

¶19

MOHAMMED NIAS C.P., J

¶20

............................................................

¶21

WP(C)No. 5026 of 2023

¶22

Dated this the 2^nd day of April, 2024

¶23

JUDGMENT

¶24

The first petitioner Society has been formed for the maintenance of an apartment by the name 'New Govind Apartment'. The second petitioner is the President of the registered association. The 4th respondent firm developed the land and constructed apartments for which the fifth respondent had obtained Ext.P2 building permit from the first respondent for the construction of residential apartments in accordance with Ext.P3 plan. After completion of the construction, Ext.P5 completion certificate was submitted by the fourth respondent and Ext.P6 occupancy certificate was issued for the residential building. The petitioners complain that in violation of Exts.P2 to P6, the fourth respondent had illegally and unauthorizedly converted the common areas on the ground floor as commercial space and the Municipality had allotted door numbers to them as XV/255 and XV/259. Thereafter, the fourth respondent as per Exts.P8 and P9 sale

¶25

WP(C)No.5026 of 2023

¶26

¶27

deeds, assigned the common areas to respondents 6 and 7 and after that the sixth respondent gifted his alleged undivided half right obtained Exts.P8 and P9 in favour of the fifth respondent as per Exts. P 10 and P11.

¶28

Learned counsel for the petitioners submits that all these documents are to be treated as void and the areas covered by the said documents are shown as common areas as per Ext.P2 to P5 where a change of user could not be permitted much less any commercial activity. Based on Ext.P12 complaint made by the petitioners before the first respondent, Ext.P13 show cause notice was issued directing the fifth respondent to restore the building to its original position as per Ext.P5 completion plan. Complaining that despite the direction in Ext.P13 no steps have been taken, this writ petition is filed seeking a direction to respondents 1 and 2 to take further action pursuant to Ext.P13 and to direct the fifth respondent to restore the building in its original position on the basis of Ext.P5 commission report.

¶29

A counter affidavit has been filed on behalf of respondents 1 and 2, wherein it is stated as follows:-

¶30

“3.It is respectfully submitted that, as per the assessment register maintained at the Municipality, the New Govind Apartment has 24 residential units, 2 recreation areas, and an office unit. All 24 residential

¶31

WP(C)No.5026 of 2023

¶32

¶33

units are being allocated to various persons. As per the records of the Municipality, the recreation spaces, in the common area, are not seen as allocated for the public activities of apartment owners.

¶34

It is respectfully submitted that the Municipality inspected the building based on a complaint filed by the apartment owners association. On inspection, it is revealed that the 5th respondent builder unauthorizedly holds building portions on the ground floor numbered XV/255 and XV/256. These portions too have to be transferred to all the flat owners for their common use. The builder has not right to retain it. Building parts, numbered XV/256 and XV/259 (recreation area) and XV/255 (adjacent to the office) are being used for commercial purposes and the same is a violation of Rule 50(2) of the Kerala Municipality Building Rules, 1994. After hearing both parties, the municipality issued an order to cancel the building numbers. A true copy of the order issued by the secretary of the Municipality dated 14.03.2003 cancelling the numbers is produced herewith and may kindly be marked as Exhibits R1(a). “

¶35

On a reading of the above counter affidavit it is clear that the Municipality has rightly ordered the said area to be restored in terms of the directions in Ext.R1(a) and that it shall not be used for any other purpose other than residential purpose. It is also stated by the Municipality that no licence has been granted for the functioning of any commercial institution in the area in question. Learned counsel for the petitioners points out that renewal of fire NOC for the building has been held up on account of the unauthorised constructions/change of user made as stated above and their request in Ext.P16 submitted

¶36

¶37

¶38

before the third respondent is also left unattended because of the illegal activity stated above.

¶39

Though notice has been served on respondents 4 to 7 and service is complete, there is neither an appearance for them nor any counter affidavit filed in the writ petition.

¶40

In view of the above facts and given Ext.R1(a) issued by the Municipality, which has become final, there will be a direction to respondents 1 and 2 to implement Ext.P13 and also Ext.R1(a) within three weeks from today to restore the area provided as recreation room having an area of 40.40 sq. m and private office space of 47.80 sq.m which has been unauthorizedly converted as commercial if necessary by breaking open, in case the rooms are remaining closed. On such restoration, the third respondent will take up Ext.P16 application preferred by the petitioners. The petitioners will also be allowed to cure the defects, if any suggested by the third respondent and consider the request for renewal of fire NOC and pass appropriate orders within two months thereafter

¶41

The writ petition is disposed of as above.

¶42

Sd/MOHAMMED NIAS C.P.

JUDGE

dlk/2.4.2024

APPENDIX OF WP(C) 5026/2023

¶48

PETITIONERS EXHIBITS

¶49

EXHIBIT P1	TRUE OF 1S SOCIE	COPY OF CERTIFICATE OF REGISTRATION T PETITIONER ISSUED BY REGISTRAR OF TY ON 19-01-2011
EXHIBIT P2	TRUE	COPY OF BUILDING PERMIT B.A. NO.
	129 / RESPO	01-05 DATED 20-12-2004 ISSUED BY 1ST NDENT TO 5TH RESPONDENT.
EXHIBIT P3	TRUE OF T RESPO	COPY OF THE APPROVED PLAN IN RESPECT HE BUILDING ISSUED BY THE 1ST NDENT.
EXHIBIT P4	TRUE 2005 AND O	COPY OF SALE AGREEMENT DATED 07-01- EXECUTED BETWEEN THE 4TH RESPONDENT NE OF THE ALLOTTEES NAMELY MR. G.
EXHIBIT P5	TRUE 2005	COPY OF COMPLETION PLAN DATED 15-12-
EXHIBIT P6	TRUE RESID ISSUE	COPY OF OCCUPANCY CERTIFICATE FOR ENTIAL BUILDING DATED 07-07-2006 D BY 1ST RESPONDENT MUNICIPALITY.
EXHIBIT P7	TRUE 24-05	COPY OF N.O.C NO. G2 -3000/06 DATED -2006 THE COMMANDANT GENERAL, HOME
	GUARD THIRU	S CIVIL DEFENCE, FIRE SERVICES, VANTHAPURAM.
EXHIBIT P8	TRUE DATED	COPY OF SALE DEED NO. 142/1/2006 19-01-2006 OF KOTTAPPADY S.R.O
EXHIBIT P9	TRUE DATED	COPY OF SALE DEED NO. 143/1/2006 19-01-2006 OF KOTTAPPADY S.R.O
EXHIBIT P10	TRUE DATED	COPY OF GIFT DEED NO. 1907/1/2014 19-09-2014 OF KOTTAPPADY S.R.O.
EXHIBIT P11	TRUE DATED 6TH R	COPY OF GIFT DEED NO. 1908/1/2014 19-09-2014 OF KOTTAPPADY S.R.O THE ESPONDENT
EXHIBIT P12	TRUE PETIT	COPY OF REPRESENTATION BY THE IONERS TO 1ST RESPONDENT.
EXHIBIT P13	TRUE 06-20	COPY OF SHOW CAUSE NOTICE DATED 15- 22:
EXHIBIT P14	TRUE ISSUE	COPY OF LETTER DATED 19-03-2020 D BY 3RD RESPONDENT.
EXHIBIT P15	TRUE M/S D	COPY OF THE QUOTATION SUBMITTED BY EEPTHI AGENCIES DATED 25-03-2021

¶50

¶51

¶52

EXHIBIT P16 TRUE COPY OF REPRESENTATION TO THE 3RD RESPONDENT RECEIVED ON 15-07-2022.

¶53

RESPONDENT EXHIBITS

¶54

EXHIBIT R1A A TRUE COPY OF THE ORDER ISSUED BY THE SECRETARY OF THE MUNICIPALITY DATED 14.03.2023 CANCELING THE NUMBERS

New Govind Apartment Owners Association, v. the Guruvayoor Municipality

Case brief

What is this about?

What did the court decide?

New Govind Apartment Owners Association, v. the Guruvayoor Municipality

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

T.Maniyan Vs Athiyannoor Grama Panchayath

Joseph P.T Vs the Secretary

The Merchant'S Chamber Socio Culture Vs Kannur Municipality

Mathew T.U., Vs the Revenue Divisional Officer

Jayasree.K., Vs the State of Kerala

Joseph Christopher, Vs the Vadakkekkara Grama Panchayath