IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 OP.No. 2164 of 2002(G) ---------------------------- PETITIONER(S): -------------------------- V.ANIL KUMAR,GENERAL MANAGER, HOTEL LUCIA,EAST FORT,THIRUVANANTHAPURAM BY ADV. MR.P.GOPALAKRISHNAN NAIR RESPONDENT(S): ------------------------ 1. STATE OF KERALA,REPRESENTED BY THE CHIEF SECRETARY,SECRETARIAT,THIRUVANANTHAPURAM 2. THE CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY,PALAYAM, THIRUVANANTHAPURAM. 3. A.K.SUGUNAN,MANAGING DIRECTOR,ATTUKAL SHOPPING COMPLEX PVT.LTD.,FORT, THIRUVANANTHAPURAM-23 BY ADVS. MR.N.NANDAKUMARA MENON,SC,TVM CORPN. FOR R2 GOVERNMENT PLEADER MR.T.K.VIPIN DAS FOR R1 BY ADVS. MR.L.MOHANAN FOR R3 MR.D.SAJEEV FOR R3 SMT.LIGEY ANTONY FOR R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 10/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.3664/2002 IN OP. NO.2164/2002 DISMISSED 10.06.2009 SD/- V.K.MOHANAN, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER G.O.(RT) 3478/96/LAD, DT. 17.9.96. P2:- COPY OF THE ORDER G.O.(RT) 2313/97/LAD, DT. 4.7.97. P3;- COPY OF THE ORDER G.O(RT) 1876/99/LAD, DT. 9.6.99. P4:- COPY OF THE ORDER NO.2283/B2/2000/LSGD DT. 18.3.2000. P5:- COPY OF THE ORDER GO(RT) 4930/2000/LSGD DT. 13.12.2000. P6:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE GOVT. DT. 4.10.01. P7:- COPY OF THE MEMO ISSUED FROM THE 2ND RESPONDENT DT. 2.10.2000. P8:- COPY OF THE ORDER GO(RT) NO.239/2003/LSGD DT. 18.1.03. RESPONDENT'S EXHIBITS R3(a):- COPY OF THE CHALLAN FOR PAYMENT OF LICENCE FEE FOR THE GRANT OF BUILDING PERMIT DT. 22.3.96. R3(b):- COPY OF THE BUILDING PERMIT NO.BAP/520/99 DT. 30.7.2001 TO THIS RESPONDENTS. R3(c):- COPY OF THE APPROVED PLAN OF THE EXISTING GROUND FLOOR. R3(d):- COPY OF THE APPROVED PLAN FOR THE PROPOSED 2ND AND 3RD FLOOR. TRUE COPY P.S. TO JUDGE TSS V.K.MOHANAN, J. ---------------------------------------- O.P.No.2164 OF 2002 ---------------------------------------- Dated, 10th day of June, 2009 JUDGMENT The challenge in this Original Petition is against Exts.P3 to P5 orders, issued by the government in favour of respondent No.3, as the same are against the interest of the petitioner who is the General Manager of Hotel Lucia at Thiruvananthapuram. 2. The grievance of the petitioner is that right next to hotel Lucia, the 3rd respondent started construction of a shopping complex by name `Attukal Shopping Complex'. According to the petitioner, the construction was started without complying with the provision of the Kerala Building Rules, but on the basis of exemption from the Government. It is alleged that, originally, the proposal was to construct a three storied building and, accordingly, the construction was started. It is also alleged that on 17.9.1996 the Government, in exercise of their power under Section 410 of the Kerala Municipalities Act, granted exemption for the construction of one more floor above the original 3 storied shopping complex based on certain conditions. The said government order is produced as Ext.P1. It is the specific case of the petitioner that Ext.P1 order was issued without satisfying OP 2164/2002 -:2:- the grounds enumerated in Section 410 of the said Act. According to the petitioner, while issuing Ext.P1 order, no reason was stated, especially, without any regard to the right of privacy, the right to light and air and the right of easement of the neighbour and the right of the public in general and disregarding the problems of traffic, flood and rain. It is the further case of the petitioner that the government subsequently, by issuing Ext.P2 order, the first condition imposed as per Ext.P1 was deleted. Thereafter, the government issued Ext.P3 order dated 9.6.99 by which sanction was accorded for the construction of one more floor, namely, the 3rd floor. According to the petitioner, Ext.P3 is highly illegal because Section 410 of the Act was repealed with effect from 24.3.99 whereas Ext.P3 was issued on 9.6.99 after the repeal of the said section. It is also contended that even after the new Rules came into effect, the government has issued Ext.P4 order by which exemption was granted and permitted the 3rd respondent to construct two more floors. According to the petitioner, Ext.P4 is also issued without jurisdiction and in violation of the rules. Therefore it is prayed to declare that Exts.P3 to P5 orders of the Government are without jurisdiction. The second prayer in the writ petition is to issue a writ of mandamus or other appropriate writ direction or order OP 2164/2002 -:3:- directing the 3rd respondent to stop the construction forthwith and further directing the 2nd respondent to demolish the construction made on the basis of Ext.P3 and P4. The first part of the prayer itself is infructuous because the original petition is filed after the construction is over. 3. The respondents have filed their counter affidavit. The 3rd respondent submitted that all the constructions were made on the basis of valid sanction issued by the government in exercise of its powers vested on it under section 410 of the Municipalities Act and also under Rule 5 of the Kerala Municipality Buildings Rules 1984. 4. The learned Government Pleader submitted that Section 410 of the Act was repealed with effect from 24.3.99 (Act 14/99). But it is pointed out that the Rules were not in force till 1.10.99. The enabling provision contained in the above section says: “Notwithstanding the repeal of Section 410 of the Principal Act, action or the petitions, appeal petitions or review petitions seeking exemption from the provisions or rules relating to building construction filed or pending before Government or any Officer authorised by Government immediately before such repeal shall be continued in accordance with the provisions of the said section and disposed of accordingly”. So According to the learned Government Pleader as well as the OP 2164/2002 -:4:- learned counsel for the 3rd respondent, even though Section 410 of the Act repealed, the Amendment Act and as per its saving provision, the applications, review petition, appeal etc. for the exemption and permission pending before the government on or before 24.3.99 can be entertained and appropriate orders can be passed till 1.10.99, the date on which new buildings rules came into effect. 5. I have carefully considered the contentions raised by the learned counsels for the petitioner, the 3rd respondent and also the learned Government Pleader. I also perused the available materials on record. 6. Going by the averments contained in the writ petition and the arguments advanced by the counsel for the petitioner, it appears that the main ground raised in this writ petition in support of the challenge against Exts.P3 and P4 is that, while passing the said Government Orders, actually, the government has no authority to grant exemption. On a perusal of Ext.P4, it is crystal clear that Ext.P4 is not an order issued by the government granting exemption but it is only a letter addressing the Corporation of Thiruvananthapuram informing them the previous orders passed by the government granting exemption in favour of 3rd respondent. OP 2164/2002 -:5:- As such Ext.P4 is not a government order granting permission. 7. It is pertinent to note that Ext.P3 is the other order under challenge. Ext.P3 is dated 9.6.99 whereby the government has accorded permission for construction of one more floor, namely 3rd floor. As per Ext.P1 order dated 17.9.96, while the original section 410 was in force, the government had granted sanction for the construction of the second floor, that is, as per Ext.P3, sanction was accorded for 3rd floor. According to the petitioner as well as the counsel for him, Ext.P3 is illegal. At the first instance, the above contention appears to be attractive because Section 410 of the Act was repealed with effect from 24.3.99 and such power was taken away. But Ext.P3 is dated 9.6.99, after the repeal of the said provision. In view of the saving provision contained in Act 14/99, which I quoted earlier, the government can continue to exercise the powers with respect to the matters pending as enumerated therein, which power, originally possessed as per the repealed provision till 1.10.99. If that be so, Ext.P3 is issued on the strength of the saving provision and before 1.10.99. Therefore, the challenge against Ext.P3 will not lie. OP 2164/2002 -:6:- In the result, there is no merit in the Original Petition and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE kvm/- OP 2164/2002 -:7:- V.K.MOHANAN, J. O.P.No. 2164 of 2002 JUDGMENT Dated:10.6.2009