IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 1ST APRIL 2009 / 11TH CHAITHRA 1931 WP(C).No. 10246 of 2008(T) -------------------------------------- PETITIONER: ------------------- ERANHIKKAL RIYAZ, S/O.ALASSANKUTTY HAJI, AGED 45 YEARS, MOONNIYOOR, THIRURANGADI, POST MOONNIYUR, MALAPPURAM. BY ADVS. MR.B.G.BHASKAR, MR.BIJU ABRAHAM. RESPONDENTS: ------------------------ 1. STATE OF KERALA ,REPRESENTED BY THE CHIEF SECRETARY,THIRUVANANTHAPURAM. 2. CORPORATION OF CALICUT, CORPORATE BUILDINGS,BEACH ROAD, CALICUT,REPRESENTED BY ITS SECRETARY. R1 BY GOVT. PLEADER SMT. SUDHA DEVI, R2 BY MR.K.D.BABU,SC,KOZHIKODE CORPORATION. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.10246/2008-T: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE BUILDING PERMIT DTD. 14/07/2006 ISSUED BY THE R.2. TO THE PETITIONER. EXT.P.2: COPY OF THE DETAILED ABSTRACT ESTIMATE PREPARED BY THE ENGINEER. EXT.P.3: COPY OF THE NOTICE NO. E3/121170/04 DTD. 23/02/2008. EXT.P.4: COPY OF THE GOVERNMENT ORDER DTD. 01/09/2007. EXT.P.5: COPY OF THE EXTRACTS FROM THE SAID NOTIFICATION G.O.(MS) 159/07/LSGD DTD. 16/6/2007. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. V.GIRI, J. ------------------------- W.P.(C).No.10246 of 2008 ------------------------- Dated this the 1st day of April, 2009. JUDGMENT The petitioner along with his co-owners, stated to own 30 cents of land in T.S. 18.8.351 of Kasaba amsom in Kozhikode Taluk and District, applied to the 2nd respondent for a building permit for construction of a shop building. It is stated they had surrendered 2.27 cents of land out of the 30 cents, free of cost for widening of the road on the western side of their property. They had also moved the Government for exemption from Zoning regulations and according to them the Government had granted exemption from Zoning Regulation on 8.1.2005. Taking note of the same, the Corporation issued Ext.P1 building permit on 14.7.2006 and the petitioner proceeded with the construction. In the meanwhile, this court had, in the judgment in W.P.(C) No.8740/97, declared that the Government is bereft of the power to grant exemption from Zoning Regulations. This was construing a scheme which was available at that point of time. By Ext.P4 the Government issued an order directing implementation of the law W.P.(C).No.10246 of 2008 :: 2 :: laid down by this court as aforementioned. Taking note of Ext.P4, the Corporation proceeded to cancel the permit already issued, by Ext.P3. Exts.P3 and P4 have been challenged in this writ petition. 2. The Corporation has filed a counter affidavit. Paragraph 9 of the same reads as follows: “The building in question is eligible for exemption from the zoning regulations as per notifications issued under G.O.(MS)159/07/LSGD since the same falls within the permissible limit (100 mtr) of the road [u/s 18.1(ii) of the said notification]. But the applicants are required to obtain fresh permit satisfying the provisions of Chapter XI contained in G.O.(MS)No.4/2006/LSGD dt. 5.1.2006. The construction should also be in tune with the provisions of KMBR 1999. The petitioner having done conversion of the parking, loading & unloading space into showroom, construction of a laterite foundation as described above and reduced the open space on the northern side [which violated R 56(1) has already turned the construction into an unauthorised one. Presently, there is no provision to grant permission/regularise construction which violated building rules.” 3. I heard learned counsel on either side. The counter affidavit of the Corporation makes it clear that an amended W.P.(C).No.10246 of 2008 :: 3 :: scheme has been brought into force as per the notification issued as per G.O.(MS)No.159/07/LSGD. The Government is entitled to grant Zoning exemption, apparently, since the building which falls within the permissible limit (100 mtrs) of the road would also be eligible for exemption. But this will require the petitioner to obtain a fresh permit satisfying the provisions of Chapter XI contained in G.O.(MS)No.4/2006/LSGD dated 5.1.2006. The construction should also be in conformity with the provisions of the Kerala Municipality Building Rules 1999 {for short 'the Rules'}. 4. The respondents urge that the construction hitherto undertaken by the petitioner is not in conformity with the Rules. The petitioner refutes this stand. 5. Respondents admit that under the revised notification issued by the Government, the Government is entitled to grant exemption from zoning, subject to the conditions prescribed therein. 6. In the circumstances,the petitioner should apply for a fresh permit and if the permit is obtained, he shall proceed with the construction, which has already been permitted. The W.P.(C).No.10246 of 2008 :: 4 :: petitioner submits that there is already an application for permit. If so, it shall be dealt with by the Corporation within two months from the date of receipt of a copy of this judgment. If permit is granted, then the petitioner will be entitled to proceed with the construction as per the permit. But it is made clear that the construction must be strictly in conformity with the Rules and the permit issued/to be issued. On completion of the construction and on an application filed by the petitioner for a completion certificate, the Corporation shall proceed to deal with the said application in accordance with law. If the construction is in accordance with the conditions of the permit and the provisions of the Rules, the Corporation shall issue a completion certificate. Writ petition is disposed of as above. Sd/- (V.GIRI) JUDGE sk/ //true copy//