Anil Kumar vs The Kerala State Housing Board
2021 Latest Caselaw 5513 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

        THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                  &

            THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

    TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942

                         WA.No.188 OF 2021

  AGAINST THE JUDGMENT IN WP(C) 18470/2020(G) OF HIGH COURT OF
                             KERALA


APPELLANT/APPELLANT:

             ANIL KUMAR
             AGED 75 YEARS
             S/O. KARUNAKARAN, FLAT-B11, VGRA SITE B, PATTOM,
             SECRETARY, VRINDAVAN GARDEN RESIDENCE ASSOCIATION
             SITE B, REGD. NUMBER 2049/2003 HAVING REGISTERED
             OFFICE AT PATTOM, THIRUVANANTHAPURAM.

             BY ADVS.
             SRI.C.S.MANILAL
             SRI.S.NIDHEESH

RESPONDENT/RESPONDENT:

             THE KERALA STATE HOUSING BOARD
             REPRESENTED BY ITS SECRETARY, DIVISION NUMBER 2,
             SANTHI NAGAR, THIRUVANANTHAPURAM-695 001.

             R1 BY SHRI.K.DENNY DEVASSY, STANDING COUNSEL,
             K.S.H.B.

     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
16.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                 JUDGMENT

Dated this the 16th day of February 2021

SHAJI P.CHALY,J

This writ appeal is preferred by the petitioner in the writ petition

challenging the judgment in W.P.(C) No.18470/2020 dated 22.12.2020,

whereby the learned Single Judge dismissed the writ petition holding that no

material was produced before the court to show that the construction

undertaken by the Kerala State Housing Board is in the common area

earmarked for park or playground. Brief material facts for the disposal of the

writ appeal are as follows;

2. Appellant is said to be the Secretary of a residence association

viz.,Vrindavan Garden Residence Association, which is a registered association

of the residents of a housing colony, constructed by the Kerala State Housing

Board in the year 1980. Appellant is also one of the residents in the said

housing colony from the year 1980 onwards. The case projected by the

appellant is that as per the agreement executed by the appellant and others,

an area was earmarked for common amenities facing the Pattom - Medical

College Road for the purpose of developing it as a park and playground for the

use of the residents as envisaged in the project. But due to various reasons it

has not been implemented so far. It was pointed out that when an attempt was

made by the Housing Board earlier to sell the plot, association filed a writ

petition before this Court and such construction activity was prevented by this Court and later the writ petition was disposed of based on the statement of the

Housing Board that they are not intending to sell the plot earmarked for park

and playground. Anyhow a representation was submitted by the appellant

before the Housing Board requesting to allot the area for park and playground

as contemplated in the original agreement. However, no action was initiated

and it was in the said backdrop that the appellant has approached the writ

court and the writ court, after considering the entire aspects raised by the rival

parties, has dismissed the writ petition as follows:

"6. From Ext.P2 judgment it is seen that the Writ Petition was filed

when steps were taken for sale of the land by the Board. The Writ Petition

was disposed of on the submission made on behalf of the respondent that

sale did not take place. This Court observed that a sale would not be

possible at this distance of time without a further notification. The Writ

Petition was closed with liberty to the petitioner to challenge if any

notification is issued in future. The judgment itself makes it clear that there

is no decision on merits. Therefore, there is no question of any violation of

the judgment.

7. Though the petitioner filed a reply affidavit nothing is stated

regarding Ext.R1(a) Regulations-the Kerala State Housing Board (Formation

of Allottees Associations) Regulations, 2000, which provides for formation of

allottees association. Under Regulation 10, it is the duty and responsibility of

the managing committee of the association to manage and maintain the

common areas, facilities and amenities like park area, playground, etc. It is

not stated why the petitioner's association is not invoking those provisions even when they say that they started residing there in the year 1980 and

formed their association in 2003. But they allege that Ext.P1 undertaking is

not implemented. When Ext.P1 regulations impose a duty on the allottees

association to maintain the common areas, it would be incumbent on the

allottees to protect the same.

8. In the present case, the petitioner claims that the area for park and

playground is not maintained; whereas the respondent has stated that it is

maintained in accordance with the plan. The respondent Board asserts that

they are constructing a commercial complex in their own property. No

material is pointed out to show that the construction is undertaken in the

common area earmarked for park or playground. The respondent reiterates

that they have not touched the common area earmarked for the allottees.

The land in which the construction of commercial complex is commenced is

stated to be in the commercial area. Schedule C of Exts.R1(b) as well as

Ext.R1(c) sale deeds would show that the total common land area in the

scheme of the roads including existing roads, parks and open space is

14866m3 and that the extent of commercial area in the plot is 2285m3.

According to the respondent, the common area as per the plan layout would

continue in accordance with the sale deeds and they are not interfering with

it. When there is a factual dispute between the parties, interference of this

Court under Article 226 is not warranted as it requires adjudication after

taking evidence.

9. The learned Counsel for the petitioner relied on the judgment of

this Court in Shastri Nagar Colony Welfare Committee v. Calicut Development Authority: 2006(1) KLT 294 and argued that it is the duty of the respondent

to leave open space in accordance with the Municipal Building Rules and

construction cannot be conducted without complying with the 2019 Building

Rules.

10. In the present case, the allottees of the respondent are governed by

Ext.R1(a) Regulations, unlike the petitioners in the judgment relied on by

them, who were allotted plots by the Calicut Development Authority. In

that case permission for sale was granted specifying the land as the land

set apart as park/open space in the said colony. It appears that regulations

like Ext.R1(a) were not governing the petitioners therein. The respondent in

this case asserts that the construction is going on in the commercial area.

They have also stated that the construction would be carried out in

accordance with law. Even otherwise the respondent is not supposed to

carry out any construction contrary to the relevant rules.

11. If at all there is any violation of the rules in carrying out the

construction, it would be open to the petitioner to object to the same

before the appropriate forum. Therefore, the Writ Petition is disposed of

giving liberty to the petitioner to approach the appropriate forum, if so

advised. "

It is thus challenging the legality and correctness of the said judgment, the

appeal is preferred.

3. The paramount contention advanced by the appellant is that the learned Single Judge failed to take note of the fundamental aspect of providing

the area for recreational purpose as per rule 43 of the Kerala Municipality

Building Rules, 1999 but had given emphasis to the regulations for the

formation of allottees association for the purpose of maintenance of common

amenities; that it is contended that the regulations cannot have any overriding

effect on the Kerala Municipality Building Rules in as much as the regulation is

contractual governing mutual rights between the allottee and the respondent

Board whereas the Kerala Municipality Building Rules is statutory in nature. So

also it was contended that as per rule 3 of Rules, 1999, the rule is applicable to

both public and private buildings and therefore, it is clear that even though at

the time of construction, the Rules, 1999 was not in force when further

constructions are undertaken, the requirements of the Kerala Municipality

Building Rules, 1999 is bound to be followed by the Kerala State Housing Board

and therefore, submits that interference with the judgment of the learned

Single Judge is required having not considered the above aspects projected by

the appellant.

4. We have heard counsel for petitioner Sri.C.S.Manilal, Sri.K.Denny

Devassy appearing for the Kerala State Housing Board and perused the

pleadings and materials on record.

5. The findings rendered by the learned Single Judge would make it clear

that the appellant has failed to produce necessary documents so as to

establish the rights claimed by him on account of the conveyance executed by

the Kerala State Housing Board in favour of the appellant or for that matter any of the owners of the residential complex. Even Though learned counsel

submitted that as per the agreement it is evident that required open spaces

are provided in order to have the common area for amenities and for

construction of a park, the said aspect is not discernible from any of the

documents produced by the appellant. The sole document pointed out by the

appellant is Exhibit P1, which is a communication issued by the Kerala State

Housing Board dated 24.10.1983 addressed to the Secretary of M/s.Vrindavan

Association, whereby it is specified that open spaces in the scheme earmarked

for parks and playgrounds will be maintained as per accepted norms and

standards. But fact remains the appellant has not produced any documents to

show that as per the scheme any such offer was made by the Kerala State

Housing Board and mere narration made in Exhibit P1 that requirements as

per scheme could be provided will not inure to the benefit of the appellant to

think that the appellant or any of the residents of the housing colony in

question were offered with such a facility.

6. Appellant has also invited our attention to a sale deed produced by

the Housing Board along with its counter affidavit, wherein also it is clearly

stated that common area and other facilities are available to the purchasers of

the buildings from the Kerala State Housing Board, however, the claims raised

by the appellant were stoutly disputed by the Kerala State Housing Board in its

counter affidavit. It was taking into account all those aspects alone, the

learned Single Judge found that the appellant has failed to establish before the

Court that the residents of the housing colony in question are entitled for park or playground. Moreover, it is an admitted fact that the Housing Colony was

constructed in 1980 and the Kerala Municipality Building Rules came into force

with effect from the year 1999.

7. In that view of the matter, it cannot be said that the provisions of the

building rules 1999 would come into play to insist on the requirements

contained thereunder. Therefore, even assuming that the said issue raised by

the appellant was not considered by the learned Single Judge, in our

considered opinion, the facts and circumstances would show that such a

ground raised in the writ petition was inconsequential and immaterial and

therefore, merely because findings are not rendered by the learned Single

Judge in that regard, cannot alter the situation that the appellant has failed to

produce necessary evidence in order to establish the claims raised for the park

and the common area. So also the claims raised in regard to the area is

disputed by the Kerala State Housing Board by relying upon the site plan in

regard to the construction in question and therefore, unless and until a fact

finding body appreciates such a situation, the claims of the appellant cannot

be deciphered, if at all he has a valid claim in accordance with law. It is a well

settled legal position that a writ court having confronted a disputed fact

situation is not expected to finally adjudicate the issue and give a verdict on

the basis of surmises and conjecture .

8. All the above aspects would lead to an irresistible conclusion that the

appellant has not made out a case of interference with the judgment of the

learned Single Judge in an intra court appeal, exercising the power conferred on us under section 5 of the Kerala High Court Act, there being no

jurisdictional error or other legal infirmities.

Needless to say, the writ appeal fails, accordingly it is dismissed.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

                                                     SHAJI P.CHALY

smv                                                       JUDGE