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2012 Supreme(Online)(KER) 13106
HIGH COURT OF KERALA
C.K. ABDUL REHIM, J
K A LAILA – Appellant
Versus
THE DISTRICT COLLECTOR – Respondent
WRIT PETITION (CIVIL) 29480/2011
The judgment establishes that the operation of construction equipment must navigate strict safety assessments to prevent potential threats to nearby residences.
Headnote:
Safety - Crane Operation - Cr.P.C. Section 133 - The section provides for the removal of a public nuisance and interim orders to prevent danger to life or property. The court emphasized the importance of evaluating the safety of construction operations over residential properties in determining potential threats.
Fact of the Case:
The petitioner, residing near a construction site, claims that a crane's operation poses a significant danger to their safety, highlighted by an earlier incident where a wooden plank fell onto their home. Despite complaints and orders, the crane continued to be operated over their residence.
Finding of the Court:
The court finds that the appropriate authority, under Section 133 of the Cr.P.C., should assess the crane's operation and its potential danger to the petitioner's residence while also urging expeditious proceedings.
Issues: Whether the operation of the crane presents a danger to the petitioner's property and if so, what actions should be taken regarding its operation?
Ratio Decidendi: The court determined that the safety implications of the crane's operation are to be decided by the relevant authority, underlining the necessity for prompt adjudication of claims related to public safety and nuisance.
Final Decision: The court ordered continued interim measures to prevent crane operation over the petitioner’s property while directing relevant authorities to expedite the matter.
JUDGMENT
Petitioner is residing within the limits of the 3rd respondent Municipality in a property having an extent of 2.54 Ares, comprised in Survey No. 314/8, in a building bearing No. XI/218. On the south eastern boundary of the said property the 4th respondent company had started construction of residential apartment complex having 3 towers with 34 floors in each of such tower. Grievance of the petitioner is that a 'Tower Crane' established by the 4th respondent at the construction site, used for lifting and transportation of heavy construction materials and tools is being rotated frequently over the residence of the petitioner. It is stated that construction materials having weight of several tonnes are being lifted using the 'Tower Crane' and is being rotated with such goods above the residential house of the petitioner. It is pointed out that, during June, 2009, a big wooden plank fell from the crane on the house of the petitioner and since nobody was inside a big accident was averted. On the basis of a complaint submitted by the petitioner, the 2nd respondent had initiated proceedings u/s 133 of the Cr.P.C.
and a preliminary order was issued as per Ext.P5. When proceedings was delayed by the 2nd respondent, the petitioner had approached this court. In Ext.P6 the 2nd respondent was directed to expedite the matter. Subsequently, another conditional order was passed by the 2nd respondent as per Ext.P7 wherein the 4th respondent was requested to stop operation of the 'Tower Crane' over the house of the petitioner or to show cause as to why that order should not be confirmed. The proceedings before the 2nd respondent is still pending. The petitioner also pointed out that the 3rd respondent Grama Panchayath had issued Ext.P3 notice requiring the 4th respondent to show cause why action should not be initiated against usage of the Tower Crane in a manner causing danger to the petitioner's residence. Grievance of the petitioner is that, inspite of all such actions the 4th respondent is still using the crane in a manner rotating it over the residence of the petitioner, causing endanger to the life of her family members.
2. While the matter came up for admission, this court granted an interim direction to the 3rd respondent Municipality to stop operation of the Tower Crane over the petitioner's property and the residential building, in implementation of Ext.P7 order, pending disposal of the writ petition. Learned counsel for the petitioner submitted that even now the 4th respondent is operating the crane in a manner passing through the property of the petitioner, causing imminent danger to the life of the family members.
3. In the counter-affidavit filed by the 4th respondent it is categorically stated that the Tower Crane is not being operated in a manner passing through property of the petitioner. It is also disputed that the 'Boom' of the 'Tower Crane' will overhang above the residence of the petitioner. The apprehended danger has no basis in view of the low weight of materials being carried on the Tower Crane, is the contention.
4. Since the 2nd respondent had initiated proceedings u/s.133 Cr.P.C. and the same is being adjudicated, it is for the said authority to decide whether an order need be passed directing removal of the structure of the Tower Crane or to order stoppage of its function, on the basis of findings as to whether it is situated in a dangerous position causing threat to life of the family members of the petitioner. It is also left open to the 2nd respondent to pass appropriate interim order, pending disposal of the proceedings.
5. I take note of the fact that in Ext.P6 judgment, this court had already issued direction to the 2nd respondent to expedite the proceedings. But even after issuing Ext.P7 order as early as in October, 2011, it is complained that the 2nd respondent is not disposing the matter on an early basis. Eventhough the 3rd respondent Panchayath had issued Ext.P3 notice, no further action was seen p
