ANIL KUMAR Vs. KERALA STATE HOUSING BOARD

JUDGEMENT

(1.) The petitioner, who claims to be the Secretary of Vrindavan Garden Residence Association, has filed this Writ Petition seeking the following reliefs:

(2.) It is stated that the Members of the Vrindavan Garden Residents Association (' Association' for short) purchased residential flats from the respondent-the Kerala State Housing Board ('the Board') and that the petitioner purchased his flat in the year 1980. The petitioner claims that in the agreements for sale based on which he/the members of the association purchased the flats from the respondent, an area was earmarked as common area for 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 provided in the project. It is also stated that the residents of those flats were using the said area as playground from 1980 onwards and that the respondent had on 24.10.1983, given Ext.P1 undertaking to the Secretary of the Association that the open space in the scheme earmarked for parks and play ground would be maintained as per accepted norms and standards; but the undertaking was not implemented. It is stated that when the respondent made attempts to sell the said area in the year 2012, the Association challenged the same filing W.P(c).15436/2012. This Court passed an interim order directing exclusion of area for park in the auction and stayed the confirmation of auction. When the Writ Petition came up for hearing, the learned Standing Counsel submitted that the proposed sale had not taken place. The Writ Petition was disposed of as per Ext.P2 judgment dated 12.09.2018 on the basis of the said submission and observing that the respondent Board would not be entitled to conduct any sale based on the notification issued in the year 2012 and leaving open all the contentions. Whileso, the petitioner has filed this Writ Petition alleging that the respondent was taking steps for construction of a commercial building in the plot earmarked for park and play ground, contrary to the agreement as well as Ext.P1 undertaking, without issuing any notification as directed by this Court. It was further stated that the Board has allotted open area as park and play ground for plot A of the housing scheme; whereas those in plot B do not have any access to it. It is stated that the petitioner in his capacity as Secretary of the Association has submitted Ext.P3 representation before the respondent on 14.08.2020, requesting to refrain from the proceedings for construction and to permit them to use the plot as park and playground.

(3.) The respondent has filed a counter affidavit stating that the petitioner association was registered in 2003, after the Kerala State Housing Board (Formation of Allottees Associations) Regulation 2000 came into force; respondent has objected to the locus standi of the petitioner. Producing Exts.R1(b) and (c) sale deeds in respect of flats purchased by one Henry Terance Jose and one Anil Kumar on 20.12.2008 and 30.07.2012, it is stated that plan lay outs in both the sale deeds are identical where the disputed area is marked as commercial. It is stated that the Board maintains all the common areas of the scheme as per the approved lay out and that final cost of the scheme was prepared accordingly. It is stated that the Board had, in its meeting held on 25.2.2020, decided to implement a commercial complex scheme with a 3 storied building in the 15.06 cents of the Board's land adjacent to Vrindavan HAS at Pattom, using its own fund and requested for sanction from the Government and as per Ext.R1(g) order dated 08.05.2020, Government of Kerala accorded sanction for the same. It is stated that the decision of the Board or the construction of commercial complex cannot be said to be in violation of the direction of this Court in Ext.P2 judgment as the construction is in the Board's own land and when the Board is having the right over the commercial area earmarked in the lay out. It is stated that there would not be any environmental issue on such construction, as it is carried out by observing all requirements. In para.6 of the counter affidavit the respondent has stated as follows: