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2021 Supreme(Ker) 210
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.B.SURESH KUMAR, J.
Biju Kuriakose - Appellant
Versus
State Of Kerala - Respondent
WP(C).No.4700 of 2021(J)
Decided on : 30-03-2021
Advocate Appeared:
For the Appellant : SRI.SAIBY JOSE KIDANGOOR, SRI.BENNY ANTONY PAREL, SMT.S.SIBHA, KUM.PARVATHY VIJAYAN, SHRI.ANOOP SEBASTIAN, SMT.DEEPA VALENTINE LESLIE
For the Respondent: SUMA JAYAN @ SUMATHI.R, SHRI.K.JANARDHANA SHENOY, SRI.ENOCH DAVID SIMON JOEL, SHRI.CIMIL CHERIAN KOTTALIL, SRI.S.SREEDEV, SRI.RONY JOSE, SMT.DEEPA VALENTINE LESLIE
Point of Law: Illegal construction - Work of lifting the floor level of the building - Respondent to prefer an application in the prescribed form for building permit for the work undertaken by him
Headnote:
Municipality - Corporation - Illegal construction - villas in the residential complex - Work undertaken by the third respondent is likely to cause damage to the adjacent villas and the abutting road - seek orders quashing Ext.P4 No Objection Certificate and orders directing the Corporation to prevent the work undertaken by the third respondent
Finding of the Court:
work undertaken by the third respondent cannot be interdicted if it does not contravene Rule 24 of the Rules. The petitioners do not have a case that the work undertaken by the third respondent would contravene Rule 24 of the Rules. Further, as indicated earlier, the third respondent was willing to obtain whatever permission that is required for undertaking the work from the Corporation and it is on account of the stand of the Corporation that a building permit is not required for undertaking the work proposed by him that he could not secure the building permit. In this context, it is also to be noted that no one would carry out a work of this nature by spending substantial amount unnecessarily. The specific case of the third respondent is that the foundation of his building is weak and it needs to be strengthened and the floor level of the building needs to be raised so as to prevent flow of sewage and waste from adjacent canal. The third respondent, cannot therefore be found fault with for having undertaken the said work to protect his property. Needless to say, Court do not find any justification to interdict the third respondent from continuing the work proposed by him. At the same time, in the absence of any rules, it is necessary to rule out the anxiety expressed by the neighbouring property owners as to the safety of their structures.
JUDGMENT :
Petitioners are residing in the villas constructed in a residential complex consisting of an apartment and 23 villas. The villa adjacent to the villa occupied by the first petitioner belongs to the third respondent. The villas in the residential complex were constructed identically by the developer on the same level of the land and later sold to various persons. During October 2020, the third respondent started raising the floor level of the building owned by him. The petitioners then lodged Exts.P1 and P1(a) complaints before the second respondent Corporation alleging that the work undertaken by the third respondent is likely to cause damage to the adjacent villas and the abutting road. Thereupon, the petitioners instituted W.P.(C) No.23352 of 2020 before this Court alleging that the complaints aforesaid are not being attended to by the officials of the Corporation. The said writ petition was disposed of by this Court in terms of Ext.P3 judgment directing the Corporation to consider and take appropriate action on the complaints preferred by the petitioners with notice to the petitioners and the third respondent. On 27.11.2020, the petitioners were issued a notice by the Secretary of the Corporation directing them to appear for the hearing scheduled on 04.12.2020 pursuant to Ext.P3 judgment. The petitioners did not attend the hearing. Consequently, on 04.12.2020, the Assistant Engineer of the Corporation issued Ext.P4 No Objection Certificate to the third respondent stating that he is free to raise the floor level of the building without causing any damage to the structure of the building and danger to the adjoining buildings. The case set out by the petitioners in the writ petition is that though they made a request for adjournment of the hearing scheduled pursuant to Ext.P5 notice, the proceedings initiated on their complaints pursuant to the direction issued by this Court has been dropped without considering the request for adjournment made by them. It is also the case of the petitioners that the work undertaken by the third respondent would amount to alteration of the building and such a work can be undertaken only after obtaining building permit from the Corporation. According to the petitioners, Ext.P4 No Objection Certificate is, therefore, unsustainable in law. The petitioners, therefore, seek orders quashing Ext.P4 No Objection Certificate and orders directing the Corporation to prevent the work undertaken by the third respondent.
2. A counter affidavit has been filed by the third respondent in the matter stating, among others, that he has purchased the villa only very recently; that it was noticed after the purchase that the land on which the villa is constructed is low-lying; that there would be water logging in the land during rainy season; that sewage and waste from adjacent canal used to flow into the land; that the foundation of the building has become very weak and that he was advised in the circumstances, to strengthen the foundation of the building by employing mechanical jack lifting technology. It is also stated by the third respondent in the counter affidavit that though he approached the Corporation for permission to undertake the said work, the Corporation maintained the stand that permission of the Corporation is not necessary for strengthening the foundation of the building. It is further stated by the third respondent in the counter affidavit that it is in the said circumstances that he started the work of raising the floor level of the building. It is further stated that while so, he came to know about Ext.P3 judgment of this court and immediately thereafter, he preferred Ext.R3(b) application before the Corporation for a No Objection Certificate for undertaking the work proposed by him. It is stated by the third respondent that it is on the said application that he was issued Ext.P4 No Objection Certificate, after dropping the proceedings initiated pursuant to Ext.P3 judgment on the complai
