NARAHARI RAO Vs. STATE OF KERALA

JUDGEMENT

(1.) This is an unfortunate episode in which a family feud between the petitioner who is none other than the nephew of the 6th respondent has snowballed into a major legal controversy relating to the construction of a multi-storied building in the City of Cochin.

(2.) The petitioner is the owner of 16.5 cents of land comprised in Sy. No. 710/ 1 of Ernakulam Village with a residential building thereon bearing Door No. 40/ 293 of Cochin Corporation. The adjacent property on the east belonged to the 6th I respondent which he obtained as per a partition deed. The properties are separated by compound wall belonging to the petitioner. The 6th respondent is the Managing Director of a company under the name and style "Woody's Hotel (P) Limited" which is the 7th respondent in this Original Petition who is putting up a multi storied hotel cum shopping complex under the aforesaid name and style through the agency of its construction contractors M/s. Kunnel Engineers and Contractors (P) Ltd., Kochi. The construction of the building commenced in 1993 and is being carried on, according to the petitioner, in blatant violation of the Kerala Building Rules and the Building permit issued to the 7th respondent. According to the petitioner, no open space has been left out on any side of the proposed building as required by law. Proper and adequate precautions for fire safety are also not being provided. The construction Itself is made trespassing into the properties of T the petitioner and of some other neighbours. The valuable rights of the neighbouring property owners including the petitioner have been ignored completely and violated. It is contended that Ext. P1 building permit and the approved plans are not in accordance with the exemption orders of the Kerala Building Rules. The plans themselves are vitiated by contradictions and discrepancies and are against the building permit. The 7th respondent has obtained two orders of exemption from the Government, namely, Exts. P2 and P3 granting blanket exemption to the building under construction from the operation of eight of the most important requirement of the Kerala Building Rules, 1984. According to the petitioner, exemption has been granted arbitrarily without any rhyme or reason. During the year 1993-94 respondents 6 and 7 indiscriminately used heavy machineries like pile drivers in the property for their construction activities causing heavy damage to the land and building owned by the petitioner. According to the petitioner, operation of the mechanical pile drivers and heavy generator by respondents 6 and 7 in the plot of land adjacent to the petitioner's property without any adequate safeguard has aggravated the damage caused to the petitioner's building which has driven him to file O. S. No. 17 of 1995 before the Sub Court, Ernakulam against the 7th respondent and the children of 6th respondent for damages and injunction restraining the defendants from trespassing upon the plaint schedule property, removing lateral support to the petitioner's property, operating mechanical pile drivers or heavy generators in the property immediately to the east of the plaint schedule property and for injunction restraining any further construction in violation of the Kerala Building Rules and the Building permit and for other reliefs. On 4-1-1995, the Sub Court granted injunction in I. A. No. 49 of 1995 restraining the respondents from trespassing upon the plaint schedule property and from causing any damage to the structures therein by removing lateral support and from carrying on any construction using pile drivers and operating heavy generators in the plot of land immediately to the east of the plaint schedule property. Another application filed in the same suit as I. A. 1737/95 for injunction restraining the respondents therein from carrying on any further construction till the disposal of the suit is now pending adjudication before the Sub Court, Ernakulam. Though in the suit the petitioner filed I. A. 252 of 1995 praying for a direction to the respondents therein to produce the approved building plan and the building permit for the disputed structure (Woody's Hotel) the petitioner would state that the respondents had not produced either the building permit or the approved plan issued for the construction of Woody's Hotel. However, when the plan and permit were eventually produced by the 7th respondent it is seen that the same is not the proper plan in compliance with the requirements of the Kerala Building Rules. There is no proper location plan or site plan showing the locality and other buildings in the neighbourhood as required under R.8(3)(a) of the Kerala Building Rules. The site plan has been produced deliberately omitting to mention the area of the plot with its boundaries, including within itself portions of properties belonging to neighbouring land owners with the malicious intention to trespass upon and to annex these properties with the properties of the 6th respondent in the course of construction and the 4th respondent has facilitated this illegal aspiration of respondents 6 and 7. In fact, it is alleged by the petitioner that the property belonging to the adjoining "Madhwa Mandir Temple" has been trespassed upon and annexed by the 6th respondent. Such an attempt to trespass upon the petitioner's property was also made by the 6th respondent herein. Further the petitioner would allege that there is large scale violation of R.15(1) of the Kerala Building Rules, 1984. It is further alleged that the new structure which is being constructed is touching and connected to the old "Woodlands" building on the south and that the 7th respondent has not obtained any exemption from the operation of R.15(1). The specific case pleaded by the petitioner is that the plan produced by respondent Nos. 6 and 7 is not covered by any building permit or Government order. The plan also shows that the building is constructed with the petitioner's wall as one of its walls which is clearly illegal and a clear case of trespass and the 4th respondent Corporation of Cochin has no business to approve such plan and if at all it has been approved, such approval is illegal and liable to be struck down. Further complaint of the petitioner is that the sound and air pollution that would be caused due to the operation of generators in the construction site will make life unbearable to him and other neighbours. The oil soak pit proposed to be built in the construction site will pollute the water in their wells which also cannot be, countenanced. The petitioner relies on Ext. P6 Commission Report prepared by the Advocate Commissioner appointed in O. S. No. 17 of 1995 to show that respondent Nos. 6 and 7 have trespassed into petitioner's property. The further case set up is that site plan is clearly misleading insofar as the building indicated in the plan is shown 3 metres away from the property belonging to the petitioner and Madhwa Mandir, but the 7th respondent has now constructed upto the northern and western boundaries of this plot. In fact, a suit has been filed by the Madhwa Mandir Trust as O. S. No. 664 of 1995 against the illegal act of trespass committed by respondent Nos. 6 and 7 before the Sub Court Ernakulam and an interim order has been obtained against the 7th respondent. A specific complaint projected by the petitioner is that the entire northern site open space has been annexed to and built in to the basement and stands at a height of one meter above ground level, which is clearly illegal and that no set-back is maintained as prescribed in Exts. P2 and P3. The further complaint of the petitioner is that on the basis of Exts. P2 and P3, the 6th respondent is proceeding with the construction without providing the normal parking space required for the hotel. In support of his contention, he would submit that at the time of construction of the old Woodlands Hotel in 1986 the 6th respondent had given an undertaking to the 4th respondent Cochin Corporation that he would provide adequate parking space for "Woodlands" at the site where the present "Woody's Hotel" is being constructed. This was done to avoid action being taken against him under S.263 of the Kerala Municipal Corporation Act, 1961. The present action of the 6th respondent in not providing parking facilities is a clear violation of law. It is also complained that proper fire exit has not been provided by the 6th respondent and the entire construction is in violation of fire safety regulations. Another point highlighted in the writ petition is that the building plan does not reveal the "Floor Area Ratio" or details of the "Project at a Glance" as normally required and shown in all standard architectural civil engineering drawings, so also no terrace plan and no service plan approved by the Corporation of Cochin, both of which are mandatory under the Kerala Buildings Rules, 1984. It is also pointed out that the basement plan differs from the details shown in the site plan regarding open space. According to the petitioner, the disputed construction touching the new Woodlands Hotel on the south is clearly illegal and violative of R.15 of the Kerala Buildings Rules. The petitioner would state that the exemption orders evidenced by Ext. P2 and P3 are clearly vague, arbitrary and illegal. According to the petitioner no rational basis is there for grant of such exemption and that such blanket exemption was never contemplated by the legislature. The petitioner would brand the exemption as arbitrary and quixotic exercise of power which goes against the letter and spirit of the Kerala Municipality Act and the Kerala Building Rules, 1984. The exemption orders are, therefore, liable to be declared arbitrary, ultra vires and illegal. He has a further case that no guidelines or principles are laid down for the authority to act upon the Rule viz. R.5 of the Kerala Building Rules and hence the Rule is violative of Art.14 of the Constitution and is beyond the scope and powers of the rule making authority of the Government. The further apprehension of the petitioner is that respondent Nos. 6 and 7 are trying to get an order regularising the unlawful construction made by them taking advantage of S.407 of the Kerala Municipality Act, 1994 and in that view the first respondent State is liable to be restrained from granting any order regularising the illegal construction made by respondent Nos. 6 and 7. S.407 of the Kerala Municipality Act 1994 which confers power to compound the offence on the Government is also assailed as highly arbitrary and unbridled since no guidelines or limits are laid down therein. Subsequent to the filing of the writ petition on 1-6-1996, respondents 6 and 7 obtained new exemption orders granted by the first respondent and a building permit and two approved plans issued by respondents 3 and 4. Exts. P7 and P8 are the true copy of the exemption orders and the building permit. According to the petitioner, the grant of exemption order in respect of the "Woody's Hotel" is an act of willful disregard of the authority of this court. The exemption order purports to exempt the construction of an "extension" to an "existing commercial building". The point canvassed is that as per Exts. P7 and P8 an attempt has been made to give legal colour to the illegal construction made by respondents 6 and 7 by including the illegally constructed floor area in Ext. P8 permit and the plans thereunder. Ext. P7 is attacked on the ground that it does not comply with the requirements prescribed under the Act and Rules and is a fraud on the court. Therefore, Exts. P7 and P8 are also liable to be quashed. On the above averments the present writ petition has been filed for declaring S.407 and 410 of the Kerala Municipality Act, 1994 as unconstitutional, ultra vires and void; for a writ of certiorari to quash R.5 and 5 A of the Kerala Building Rules, 1984 and for a writ of certiorari to quash Exts. P2, P3, P7 and P8 Government orders and for a writ of mandamus directing the respondents to stop further construction work and to demolish all illegal constructions made at "Woody's Hotel (P) Limited" and for other incidental reliefs.

(3.) Respondent Nos. 6 and 7 have filed a counter affidavit repudiating the various charges leveled against them and contending, inter alia, as follows: