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2025 Supreme(KER) 816
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MOHAMMED NIAS C.P., J.
Ciby George - Appellant
Versus
District Collector, Collectorate, Kakkanad, Ernakulam - Respondents
WP(C) No. 40178 of 2023
Decided on : 03-02-2025
Advocate Appeared:
For the Appellant : BY ADV CIBY GEORGE,(Party-In-Person)
For the Respondent: BY ADVS. C.ANCHALA GEORGE CHERIAN SABU M R FASILUL FAHMIDA K. P.T.MOHANKUMA RAJESH CHERIAN KARIPPAPARAMBIL BEA MARY BENNY BENNY GERVACIS (SR.) SREEDHAR RAVINDRAN(K/559/2012) SRI.VIPIN P.VARGHESE, SC, GCDA SRI. K.S.ARUN KUMAR, SC, TRIPUNITHARA MUNICIPALITY BY GOVERNMENT PLEADER SRI SREEJITH V.S.
AWHO, while a registered society, performs a public function in providing housing to armed forces personnel, making it subject to judicial review under Article 226.
Headnote:
(A) Societies Registration Act, 1860 - Disaster Management Act, 2005 - Kerala Municipality Act, 1994 - Kerala Municipality Building Rules, 1999 - Writ petitions filed by apartment owners against AWHO regarding structural issues in residential towers - Reports indicated severe distress due to construction flaws, necessitating evacuation and reconstruction - AWHO directed to form a committee for demolition and reconstruction, ensuring compliance with safety standards. (Paras 46, 47)
(B) Public Function - AWHO's role in providing housing to armed forces personnel constitutes a public function, making it amenable to writ jurisdiction despite being a registered society. (Paras 27, 38)
Facts of the case:
Writ petitions filed by apartment owners against AWHO due to structural issues in Towers B and C, leading to concerns about safety and requests for evacuation and reconstruction. (Paras 1-6)
Findings of Court:
AWHO must demolish and reconstruct Towers B and C due to severe structural distress and safety risks, with a committee formed to oversee the process. (Paras 46, 47)
Issues: Whether AWHO is a 'State' under Article 12 and the legality of the building permits and occupancy certificates issued. (Paras 27, 22)
Ratio Decidendi: AWHO's actions constitute a public function, thus making it subject to judicial review; the court emphasized the need for immediate action to ensure safety and compliance with regulations. (Paras 38, 46)
Result: Writ petitions allowed, directing AWHO to undertake demolition and reconstruction. (Paras 47)
| Table of Content |
|---|
| 1. concerns raised regarding seepage (Para 8 , 9) |
| 2. reports on structural integrity (Para 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26) |
| 3. arguments regarding awho's status (Para 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46) |
| 4. writ petitions allowed (Para 47) |
JUDGMENT :
The writ petitions are filed by the owners and the association of the owners of the apartments, situated at Silver Sand Island, Vyttila in Kochi, against the Army Welfare Housing Organisation (AWHO) and others. AWHO, a society registered on March 20th, 1978, under the Societies Registration Act, 1860, aims to provide quality and affordable housing to Armed Forces personnel (serving and retired), war widows, and family members of martyrs. Its operations are controlled and monitored by defence personnel on posting or deputation, with expenses managed through administrative charges contributed by members. The Board of Governors includes senior Army Officers such as the Chief of Army Staff, Vice Chief of Army Staff, and Army Commanders as Ex-officio Chairman. The Managing Director is supported by a team of specialists like planners, architects, engineers, surveyors, and project managers.
2. In 2013, AWHO, after purchasing the above said land in Silver Sand Island, Vytilla, Cochin started construction of dwelling units for defence personnel and their children. Accordingly, the said land was registered in the name of AWHO, and revenue records were duly mutated in the name of AWHO.
3. An advertisement for allotment of dwelling units to be developed at the proposed site was issued on 28.02.2011 following which several applications were received. An extent of 172.435 ares of property on Silver Sand Island was purchased and the project was initially notified as 42 duplex dwelling units. The Silver Sand Island (SSI), Kochi project of the AWHO (also known as Chander Kunj Army Towers) consists of three Towers (Tower A of 14 stories and Towers B & C of a total of 26 stories each with stilt and basement), consisting of a total of 264 Dwelling Units (DUs) with other essential services (Club House, Swimming Pool, Sewage Treatment Plant etc). The project has been constructed on 172.435 Ares of land (4.28 acres). The project was commenced in April 2013 and was completed in July 2018. The majority of the Dwelling Units were handed over to the allottees (hereinafter referred to as the ‘owners’) by the end of 2018.
4. Ajit Associates was appointed as consultant architect on 25.02.2010. The fee was fixed at Rs.3,12,39,685.00/-. The design and plan were vetted by IISc, Bengaluru, in March and May 2011. The application for a building permit was made on06.08.2010, and it was granted by Tripunithura Municipality on 19.10.2011.
5. M/s Silpa Projects and Infrastructure (I) Pvt. Ltd. was appointed as Contractor on 12.03.2013 with a fee fixed at Rs.1,24,95,87,935.90/-.
6. The project commenced on 3rd April, 2013. The architect issued a completion certificate on 10.05.2017. The completion plan was given on 25.03.2017. The Occupancy Certificate was issued on 21.02.2018. Apartments were handed over to allottees from 05.03.2018 onwards, and the Residents Welfare Association was formed in February 2019.
7. The documents and exhibits referred to in this judgment are as marked in W.P(C) No.40178/2023.
8. In November 2019, some of the residents raised concerns regarding seepage and water leakage, in some areas of the buildings of Towers B and C of the residential complex. The first repair work took place in 2019 which was carried out by M/s FOSROC India. Thereafter, further concerns regarding structural stability were raised by the allottees and the RWA appointed a Rectification Board, to study the issues being faced by the residents of the said residential complex and prepare a report thereof for rectification of the same. Not long after occupying the premises, the allottees raised concerns about the co
