The Kerala High Court in an unusual move permitted an appellant to be assisted by an engineer of her choice while the statutorily appointed Municipal Level Technical Expert Committee inspects the damage caused to her property by the ongoing construction of the party respondents.
A Division Bench comprising Justice Devan Ramachandran and Justice P.G. Ajithkumar however made it clear that such engineer shall not interfere with the enquiry conducted by the Committee, and can only assist the appellant.
"...though this appeal cannot be entertained or allowed by this Court, it will be just and proper that the petitioner be allowed to be assisted by an Engineer of her choice; however, making it clear that the said person cannot in any manner intervene with the investigation or enquiry by the Statutory Committee, but can only assist the petitioner, who can then put forth all her suggestions before the said Committee."
The appellant herein moved the Court alleging that owing to construction carried out by respondents 5 and 6, substantial damage has been caused to her Heritage Home and that this had to be assessed before further damages were done.
As such, she moved a Single Judge seeking to inspect her Heritage Home with the expert assistance of a Structural Engineer and also provided a panel of Structural Engineers along with the petition.
However, the Single Judge found that as per the Kerala Municipality Building Rules, 2019, a Municipal Level Technical Expert Committee comprising a Secretary, Municipal Engineer/Town Planning Officer and two experts one each in Structural and Geotechnical Engineering nominated by the State was to assess the damage, suggest protective measures and fix compensation in such matters.
Observing that such a Technical Expert Committee had already been constituted, the Judge took the view that it was for the said Committee to look into those aspects and submit a report before this Court.
Aggrieved by this interim order, the appellant appeared in person and argued before the Division Bench that the Single Judge has erred in disallowing her request for the appointment of an Advocate Commissioner to ascertain the damage caused on account of the offending structure being constructed by the respondents.
The Bench noticed that the Single Judge had rightly found that under Rule 10 (12), a Technical Expert Committee is statutorily vested with the authority to verify and report about these aspects; and therefore, did not deem it necessary to intervene with the impugned order.
However, it took cognizance of the appellant's apprehension that there are certain issues which only herself, or an engineer of her choice, can point out to the Technical Expert Committee.
To this, Standing Counsel Binoy Vasudevan appearing for the Municipality submitted that she has already been offered the opportunity to be present when the Technical Expert Committee does its inspection.
This was affirmed by Advocate V. Midhun Sree Mohan who appeared for the party respondents also.
Therefore, the appellant was allowed to have an engineer of her choice assist her while she puts forth all her suggestions before the Committee.
Nevertheless, the Court made it clear that if she makes any such suggestions, assisted by the person of her choice, the same shall be reflected in the final report of the Committee, so that it can then be taken into account by the Single Judge.
Case Title: Uma Murthi v. State of Kerala
Citation: 2022 LiveLaw (Ker) 226