GIRILAL Vs. CORPORATION OF COCHIN

JUDGEMENT

(1.) The petitioners are the owners of residential flats in a multistoreyed building named "Kannarkat Condominium", constructed by the 7th respondent, which is a partnership firm. Presently, the said building has eight storeys with 16 flats. In this Writ Petition, the petitioners challenge Ext. P1(A) exemption order issued by the Government in favour of the 7th respondent under R.5 of the Kerala Building Rules, 1984 and also Ext. P10(B) permit issued by the Corporation of Cochin, based on that Government Order. The brief facts of the case are the following:-

(2.) The petitioners and the Managing Partner of the 7th respondent were colleagues in the Indian Navy. When the 7th respondent started the construction of a residential building complex named "Kannarkat Condominium", the petitioners purchased one flat each. The construction of 8 floors of the building was completed in the year 2001 and presently, the petitioners are residing there. They submit, the various facilities promised by the builder were not, in fact, provided and therefore, some disputes are - pending between them and the builder, before the Consumer Disputes Redressal Forum and the Civil Court. Recently, the 7th respondent started construction of additional floors above the existing building to make it a 19 storeyed building. The petitioners submit, there are no sufficient amenities for the existing occupants of the building and if additional floors are constructed, their life will become miserable. There is no sufficient water for the use of the residents. The road leading to the building is a narrow road. The area where the building is constructed, is prone to seismic activity and consequential earthquakes. The present structure itself is in danger. So, the construction of additional floors to the existing building will be a threat to the life and property of the residents of the building and also of those in the neighbourhood, it is submitted. After the filing of the Writ Petition, the petitioners amended it, incorporating the challenge against Ext. P1(A) exemption order of the Government issued under R.5 of the Kerala Building Rules, 1984 and also Ext. P10(B) permit issued by the Corporation. According to them, Ext. P1(A) has been issued without adverting to any of the relevant matters liable to be considered under S.410 of the Kerala Municipality Act, 1994. It is a non speaking order. No reasons are given for granting exemption from the operation of the Building Rules.

(3.) Respondents 1 and 2 have filed a counter affidavit, resisting the prayers in the Writ Petition. The 7th respondent has filed a counter affidavit, supporting the impugned orders. In the said affidavit, it is submitted that the petitioners have moved this Court with ulterior motives. They were, aware that the 7th respondent is going to construct a building with 19 floors. Knowing this, the petitioners have purchased and occupied the flats. There are proceedings pending before the Civil Court for settlement of accounts and balance payment of land value, in which the petitioners are parties and in order to escape from the liability to pay the balance amount, it is submitted, they have filed this Writ Petition. The Government have validly granted the exemption and the Corporation, on the strength of it, has validly issued the permit. It is also submitted, the challenge against the Government Order Ext. P1(A) issued in 1996 is highly belated. Further, they are estopped from challenging the construction of additional floors, as they knew that they are purchasing a flat in a building complex, which will have 19 floors. The petitioners have filed reply affidavits to the counter affidavits filed on behalf of the Corporation and the builder. After the amendment of the Writ Petition, the 7th respondent has filed an additional counter affidavit.