Kerala High Court

John Mathai vs Corporation Of ... on 9 September, 2021

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
               THE HONOURABLE MR.JUSTICE N.NAGARESH
  THURSDAY, THE 9TH DAY OF SEPTEMBER 2021/18TH BHADRA, 1943
                     WP(C) NO. 14355 OF 2021


PETITIONERS:

    1    DR.T VARGHESE GEORGE,
         S/O. T.G. VARGHESE,
         AGED 68 YEARS,
         RESIDING AT FLAT NO.12A,
         HEERA TWINS APARTMENTS, PATTOM,
         THIRUVANANTHAPURAM-695 004.

    2    ASHISH VARGHESE GEORGE,
         S/O. DR. T.VARGHESE,
         RESIDING AT FLAT NO.12A,
         HEERA TWINS APARTMENTS, PATTOM,
         THIRUVANANTHAPURAM-695 004.

         BY ADVS.
         PAUL JACOB (P)
         SHERU JOSEPH


RESPONDENTS:

    1    CORPORATION OF THIRUVANANTHAPURAM,
         REPRESENTED BY ITS SECRETARY,
         CORPORATION OFFICE,
         THIRUVANANTHAPURAM-695 033.

    2    THE SECRETARY,
         CORPORATION OF THIRUVANANTHAPURAM,
         CORPORATION OFFICE,
         THIRUVANANTHAPURAM-695 033.

    3    M/S. HEERA CONSTRUCTIONS COMPANY PVT. LTD.,
         REPRESENTED BY ITS MANAGING DIRECTOR,
         HEERA PARK, M.P.APPAN ROAD, VAZHUTHAKKAD,
         THIRUVANANTHAPURAM-695 014.

    4    JOHN MATHAI, FLAT NO.12B,
         HEERA TWINS APARTMENTS, PATTOM,
         THIRUVANANTHAPURAM-695 004.
 WP(C)Nos.14355/2021 & 36695/2016

                                   2



          BY ADVS.
          R1-R2 N.NANDAKUMARA MENON (SR.)
          R1-R2 SHRI.P.K.MANOJKUMAR,SC
          R4-SRI.K.P.SATHEESAN
          R4-P.MOHANDAS (ERNAKULAM)
          R4-K.SUDHINKUMAR
          R4-S.K.ADHITHYAN
          R4-SABU PULLAN
          R4-GOKUL D. SUDHAKARAN

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 09.09.2021, ALONG WITH WP(C).36695/2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C)Nos.14355/2021 & 36695/2016

                                   3




        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
           THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY,THE 9TH DAY OF SEPTEMBER 2021/18TH BHADRA,1943
                   WP(C) NO. 36695 OF 2016


PETITIONER:

          JOHN MATHAI, FLAT NO.12B,
          HEERA TWINS APARTMENT, PATTOM,
          THIRUVANANTHAPURAM 695 004.

          BY ADVS.
          DR.K.P.SATHEESAN (SR.)
          SRI.P.MOHANDAS ERNAKULAM
          SRI.K.SUDHINKUMAR
          SRI.S.VIBHEESHANAN


RESPONDENTS:

    1     CORPORATION OF THIRUVANANTHAPURAM,
          REPRESENTED BY ITS SECRETARY,
          CORPORATION OFFICE,
          THIRUVANANTHAPURAM 695 033.

    2     THE SECRETARY,
          CORPORATION OF THIRUVANANTHAPURAM,
          CORPORATION OFFICE,
          THIRUVANANTHAPRUAM 695 033.

    3     MS.HEERA CONSTRUCTIONS CMPANY PVT. LTD.,
          REPRESENTED BY ITS MANAGING DIRECTOR,
          HEERA PARK, M.P.APPAN ROAD, VAZHUTHAKKAD,
          THIRUVANANTHAPRUAM 695 014.

 ADDL.4 ASHISH VARGHESE GEORGE,
        TC NO.3/2342(1),
 WP(C)Nos.14355/2021 & 36695/2016

                                   4



          HEERA TWINS APARTMENTS NO.12A,
          PATTOM, THIRUVANANTHAPURAM-695 004.

          [ADDITIONAL R4 IS IMPLEADED AS PER ORDER
          DATED 31.01.2018 IN I.A.NO.1388/2018]

 ADDL.5 DR.T.VARGHESE GEORGE,
        S/O.T.G.VARGHESE, AGED 58 YEARS,
        RESIDING AT: FLAT NO.12A,
        HEERA TWINS APARTMENTS, PATTOM,
        THIRUVAANTHAPURAM - 695 004.

          [ADDITIONAL R5 IS IMPLEADED AS PER ORDER
          DATED 09.09.2021 IN I.A.NO.1/2021]

          BY ADVS.
          R1-R2 N.NANDAKUMARA MENON (SR.)
          R1-R2 SRI.P.K.MANOJKUMAR
          R1-R2 T.M.CHANDRAN
          R1-R2 SIDHARTH A.MENON
          R1-R2 SHERU JOSEPH
          R1-R2 ADHIL HARIS
          R3 SRI.V.AJAYAKUMAR
          R4 SRI. PAUL JACOB

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 09.09.2021, ALONG WITH WP(C).14355/2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C)Nos.14355/2021 & 36695/2016

                                    5




                            JUDGMENT

Dated this the 9th day of September, 2021

[WP(C)Nos. 14355/2021 & 36695/2016]

WP(C)No.36695/2016 has been filed by one of the

apartment owners holding the flat unit constructed by the 3 rd

respondent Company at Pattom, Thiruvananthapuram. The

petitioner has filed this writ petition with the following

prayers:

"(i) To issue a writ of mandamus or order or direction to respondents 1 and 2 to see that the 3rd respondent is not making in the alteration in the building in violation of the approved building plan;

(ii) To issue a writ or mandamus or order or direction to the 2nd respondent to take appropriate action on Exts.P3 and P4 complaints as expeditiously as possible and at any rate within a time limit that may be fixed by this Hon'ble Court."

2. WP(C)No.14355/2021 has been filed by the

original landlord on whose property the said apartment WP(C)Nos.14355/2021 & 36695/2016

complex is constructed by the Company. The 2 nd petitioner

in the writ petition is the son of the 1 st petitioner-landlord.

WP(C)No.14355/2021 has been filed seeking to quash

Ext.P11 show cause notice.

3. The dispute involved in these writ petitions

relates to alleged the attempts made to convert a common

recreation area in the apartment complex into a commercial

area. The petitioner in WP(C)No.36695/2016 would state

that the apartment unit owners are the rightful owners of the

apartment building. The 4th respondent in the writ petition

has been issued with a revised building permit on the basis

of which attempt is being made to convert the common

recreational area into commercial area. Though once the

permit was cancelled, again the Corporation has issued yet

another building permit on the basis of which the 4 th

respondent is carrying on with the construction. The

petitioner in WP(C)No.36695/2016 insisted that since the WP(C)Nos.14355/2021 & 36695/2016

revised building permit is illegal, the construction being

carried out by the 4th respondent is to be stopped forthwith.

4. The petitioners in WP(C)No.14355/2021 on the

other hand would contend that they are the original

landlords of the apartment building. In the development

agreement, the ground floor of the building was assigned to

the petitioners. Due to an error committed by the builder,

some area in the ground floor was shown as common

areas. The builder has no right to mark it as common area,

since it was agreed between the builder and the petitioners

that the said area is assignable to the landlord. When

disputes arose subsequently, an agreement was entered

into between the builder and the apartment unit owners

agreeing to set up a separate common recreation area.

Recreation area was provided in the space occupied by

Flat No.2A and common area in the ground floor was set

apart for the landlord, as agreed earlier. WP(C)Nos.14355/2021 & 36695/2016

5. The petitioner-apartment owner in WP(C)No.

34495/2016 would strongly refute the argument of the

contesting respondents that the petitioner is a party to any

agreement in favour of the 4th respondent in WP(C)No.

36695/2016. The petitioner in WP(C)No.14355/2021 on the

other hand, invited the attention of this Court to Ext.R4(e)

and R4(f) to contend that the petitioner in

WP(C)No.36695/2016 was a party to the settlement and

inspite of that he has gone back from the agreement and

has filed the writ petition.

6. The learned Senior counsel for the

Thiruvananthapuram Corporation submitted that a Stop

Memo has already been issued against the petitioners in

WP(C)No.14355/2021 which has been challenged before

the Tribunal for Local Self Government Institutions by filing

Appeal No.309/2020. Similarly, the Corporation has issued

a show cause notice to the petitioners in WP(C)No. WP(C)Nos.14355/2021 & 36695/2016

14355/2021 proposing to cancel the Occupancy Certificate

issued. The said show cause notice is also subjected to

challenge in Appeal No.334/2021.

7. In the aforesaid circumstances, this Court is of

the considered view that the Tribunal for Local Self

Government Institutions being the duly constituted body to

hear and adjudicate the issue arising out of the orders

passed by the Local Self Government Institutions, the

Tribunal has to decide the issues involved in these writ

petitions at the first instance. The petitioner in WP(C)No.

36695/2016 submitted that he was originally not a party to

the Appeals but now has filed impleading petitions before

the Tribunal, to contest the appeals pending before the

Tribunal.

8. In such circumstances, the writ petitions are

disposed of permitting the petitioners in both the writ

petitions to prosecute their case before the Tribunal in the WP(C)Nos.14355/2021 & 36695/2016

pending Appeals No.309/2021 and 334/2021. The

petitioners in both the writ petitions are at liberty to advance

all the arguments urged before this Court in these writ

petitions, before the Tribunal also.

9. When WP(C)No.36695/2016 was filed before

this Court, this Court passed an interim order to the effect

that the Secretary of the Corporation shall ensure that no

conversion of the building constructed is made in violation

of the sanctioned plan. The petitioner in WP(C)No.

36695/2016 will be at liberty to seek any interim orders from

the tribunal. The benefit of interim order dated 16.11.2016

passed in WP(C)No.36695/2016 will remain in force for a

further period of one month from today. The learned

submit that the sanctioned plan in respect of which the

interim order of this Court relates has been revised

subsequently and the petitioners should be permitted to go WP(C)Nos.14355/2021 & 36695/2016

ahead with the construction on the basis of the revised

bring this fact to the notice of the Tribunal.

All other issues are left open.

Sd/-

APPENDIX OF WP(C) 14355/2021

PETITIONERS' EXHIBITS

Exhibit P1 TRUE COPY OF THE AGREEMENT DATED 3.2.2003 BETWEEN THE PETITIONER AND THE 3RD RESPONDENT.

Exhibit P2 TRUE COY OF LETTER-DATED 22.5.2004 ISSUED BY TRIDA.

Exhibit P3 TRUE COY OF THE PROPERTY TAX ASSESSMENT DATED 2.11.2006.

Exhibit P4 TRUE COPY OF THE APPROVED FLOOR PLAN DATED 3.8.2005.

Exhibit P5 TRUE COPY OF THE AGREEMENT DATED 6.6.2012 BETWEEN TEH STAKEHOLDERS. Exhibit P6 TRUE COPY OF THE REVISED SKETCH DATED 21.5.2012.

Exhibit P7 TRUE COPY OF THE FINAL DECREE DATED 27.7.2007 IN OS NO.930 OF 2007 OF THE ADDL. MUNSIFF'S COURT, THIRUVANANTHAPURAM.

Exhibit P8 TRUE COPY OF LATEST PROPERTY TAX 17.1.2021.

Exhibit P9 TRUE COPY OF THE BILL PAID RECEIPT-

DTED 1.6.2021.

Exhibit P10 TRUE COPY OF THE ORDER-DATED 16.11.2016 IN WPC 36695 OF 2016.

Exhibit P11         TRUE   COPY    OF   THE    NOTICE   DATED
                    1.7.2021     ISSUED     BY     THE    2ND
                    RESPONDENT.
Exhibit P12         TRUE COPY OF THE POSTAL COVER DATED
                    13.7.2021     ISSUED     BY    THE    IST
                    RESPONDENT.
Exhibit P13         TRUE COPY OF THE PROPERTY TAX PAID
                    RECEIPT DATED 27.6.2007.
Exhibit P14         TRUE COPY OF RECEIPT DATED 18.6.2015
                    ISSUED BY THE IST RESPONDENT.
Exhibit P15         TRUE   COPY    OF   RECEIPT-DATED    2021
                    ISSUED BY THE IST RESPONDENT.

Exhibit P16 TRUE COPY OF REPRESENTATION DATED 8.7.2016 BEFORE THE 2ND RESPONDENT. Exhibit P17 TRUE COPY OF ORDER-DATED 7.2.2018 ISSUED BY THE 2ND RESPONDENT.

Exhibit P18 TRUE COPY OF MEMO-DATED 19.6.2021 ISSUED BY THE IST RESPONDENT.

Exhibit P19 TRUE COPY OF ORDER-DATED 21.6.2021 ISSUED BY THE IST RESPONDENT.

APPENDIX OF WP(C) 36695/2016

PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE COPY OF THE SALE DEED EXECUTED IN FAVOUR OF THE PETITIONER DATED 21.10.2014 EXHIBIT P2 TRUE COPY OF THE ORDER IN APPEAL NO.

663/2008 DATED 5.3.2009 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVAANTHAPURAM.

EXHIBIT P3 TRUE COPY OF THE COMPLAINT FILED BEFORE THE FIRST RESPONDENT DATED 31.7.14 EXHIBIT P4 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE TEH FIRST RESPONDENT DATED 23.3.2015 EXHIBIT P5 TRUE COPY OF THE ORDER PASSD BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS DATED 28.10.2016 IN APPEAL NO.885/2014 RESPONDENTS' EXHIBITS

EXHIBIT R3(a) TRUE COPY OF THE AGREEMENT DATED 06.06.2012.

EXHIBIT R3(b) TRUE COPY OF THE ORDER IN C.M.A.NO.47 OF 2008 DATED 18/08/2008 EXHIBIT R4(a) TRUE COPY OF THE AGREEMENT DATED 03.02.2003 BETWEEN THE PETITIONER AND THE 3RD RESPONDENT EXHIBIT R4(b) TRUE COPY OF LETTER DATED 22.05.2004 ISSUED BY TRIDA EXHIBIT R4(c) TRUE COPY OF THE PROPERTY TAX ASSESSMENT DATED 02.11.2006.

EXHIBIT R4(d) TRUE COPY OF THE APPROVED FLOOR PLAN DATED 03.08.2005.

EXHIBIT R4(e) TRUE COPY OF THE AGREEMENT DATED 06.06.2012 BETWEEN THE STAKEHOLDERS EXHIBIT R4(f) TRUE COPY OF THE REVISED SKETCH DATED 21.05.2012.

EXHIBIT R4(g) TRUE COPY OF THE FINAL DECREE DATED 27.07.2007 IN OS NO. 930 OF 2007 OF THE ADDITIONAL MUNSIFF'S COURT, THIRUVAANTHAPURAM.

EXHIBIT R4(h) TRUE COPY OF LATEST PROPERTY TAX 17.01.2021.

EXHIBIT R4(i) TRUE COPY OF THE BILL PAID RECEIPT DATED 01.06.2021.

EXHIBIT R4(j) TRUE COPY OF MEMO DATED 19.06.2021 ISSUED BY THE 1ST RESPONDENT EXHIBIT R4(k) TRUE COPY OF ORDER DATED 21.06.2021 ISSUED BY THE 1ST RESPONDENT EXHIBIT R4(l) TRUE COPY OF THE NOTICE DATED 01.07.2021 ISSUED BY THE 2ND RESPONDENT EXHIBIT R4(m) TRUE COPY OF PROPERTY TAX RECEIPT DATED 27.06.2007 ISSUED BY THE 1ST RESPONDENT EXHIBIT R4(n) TRUE COPY OF THE NOC DATED 02.07.2012 ISSUED TO THE 1ST RESPONDENT EXHIBIT R4(o) TRUE COPY OF THE NOC DATED 06.08.2018 ISSUED TO THE 1ST RESPONDENT EXHIBIT R4(p) TRUE COPY OF THE NOC DATED 06.08.2018 ISSUED BY THE 1ST RESPONDENT