IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 9TH APRIL 2008 / 20TH CHAITHRA 1930 WP(C).No. 30251 of 2007(B) -------------------------- PETITIONER: ------------ CORPORATION OF KOLLAM REPRESENTED BY THE SECRETARY, KOLLAM. BY ADV. SMT.A.G.ANITHA, SC, KOLLAM CORPORATION SRI.MANU SOLOMAN RESPONDENTS: ------------- 1. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. 2. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, TRIVANDRUM. 3. THE TOWN PLANNER, KOLLAM DEVELOPMENT AUTHORITY. 4. SHEELA SREEKUMAR, KAILAS BHAVAN, MARANADU P.O., KOLLAM. 5. SHEENA SREEKUMAR, KAILAS BHAVAN, MARANADU PO., KOLLAM. 6. SHEEJA SREEKUMAR, KAILAS BHAVAN, MARANADU P.O., KOLLAM. 7. P.NATARAJAN, KAILAS BHAVAN, MARANADU P.O., KOLLAM. BY ADV. SRI.M.S.UNNIKRISHNAN SMT.V.P.SEEMANTHINI, (SENIOR) SMT.S.KARTHIKA FOR R4 TO R7. SRI.M.R.ANISON SRI.T.R.RAJESH SMT.K.P.GEETHA MANI GOVERNMENT PLEADER, SRI K.J.MOHD.ANZAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/10/2007, THE COURT ON 09/04/2008 DELIVERED THE FOLLOWING: WP(C).No. 30251 of 2007(B) APPENDIX PETITIONER'S EXTS: EXT.P1 COPY OF GOVERNMENT LETTER DATED 06/04/2005 EXT.P2 COPY OF THE GOVERNMENT DIRECTION DATED 20/09/2005 EXT.P3 COPY OF THE IMPUGNED ORDER DATED 12/07/2007 EXT.P4 COPY OF GOVERNMENT LETTER DATED 25/10/2006 EXT.P5 COPY OF STATEMENT FILED BY THE CORPORATION BEFORE THE TRIBUNAL DATED 21/02/2007 EXT.P6 COPY OF ORDER OF THE GOVERNMENT LETTER DATED 20/09/2005 EXT.P7 TRUE COPY OF ORIGINAL PLANNER EXT.P8 COPY OF THE PROCEEDINGS DATED 10/11/2006. EXTS OF RESPONDENT NOS.4 TO 7:- EXT.R4(a) TRUE COPY OF THE STATEMENT SHOWING THE DATES AND EVENTS LEADING TO THE ABOVE WRIT PETITION. EXT.R4(b) TRUE COPY OF THE GOVERNMENT ZONAL EXEMPTION ORDER DATED 18/12/2003. EXT.R4(c) TRUE COPY OF THE NOTIFICATION DATED 07/06/2007 ISSUED BY THE GOVERNMENT. EXT.R4(d) TRUE COPY OF THE OCCUPANCY CERTIFICATE DATED 13/07/2006 EXT.R4(e) TRUE COPY OF THE BUILDING PERMISSION ISSUED BY THE KOLLAM CORPORATION DATED 16/05/2006. \\TRUE COPY// PIUS C.KURIAKOSE, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ W.P.(C).No.30251/2007-B ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 9th day of April, 2008 J U D G M E N T The Kollam Corporation challenges in this writ petition Ext.P3 order passed by the first respondent Tribunal for Local Self Government Institutions in Appeal No.18/2007 filed by the respondents 4 to 7. It is submitted that late Smt.K.Mani, Kailas Bhavan, Kollam, the mother of respondents 4 to 7 submitted an application for getting permission to construct a four storied commercial cum auditorium building and a two storied lodge building in the property comprised in Old Sy.No.83 A (Re.Sy.No.22) of Vadakevila Village situated in the 39th division of Kollam Municipal Corporation limits. Since the property upon which Smt.Mani wanted to make the construction came within the residential zone as per the master plan, the Corporation rejected the application. Smt.Mani approached the Government and obtained zonal exemption for constructing the four storied commercial cum auditorium building and a two storied lodge building in the said property with certain conditions as per the order No.GO (Rt.) No.4493/2003/LSGD dated 18.12.2003. On the basis of that exemption order, the Corporation issued building permit to Smt.Mani for constructing four storied W.P.(C).No.30251/2007-B 2 commercial building and two storied lodge building separately in the same plot. No permit was given for the construction of auditorium. Thereafter, the respondents again submitted a revised plan for constructing two more floors to the lodge building and the Corporation granted permit for constructing two more floors above the existing two storied lodge building, since the lodge building came within the special residential occupancy as per Rule 30 (3)(B) of the Kerala Municipal Building Rules 1999. Subsequently, the Corporation has issued occupancy certificate in respect of both the four storied commercial and four storied lodge building. In the meanwhile, the Government directed the Corporation to initiate statutory steps against the said construction i.e. construction of two floors above the existing two storied lodge on the reason that the decision of the Corporation to permit construction of two floors above the lodge building was illegal. In the meanwhile, pursuant to an application submitted by the respondents for permission to construct another three storied lodge building on the very same plot, the Corporation granted permit since the area came within the residential zone. While the construction activities were going on, the Government sought explanation from the Corporation for granting permission for constructing four storied building without obtaining fire NOC and zonal exemption for the further construction. The Government also directed the Corporation to cancel the occupancy W.P.(C).No.30251/2007-B 3 certificate. Ext.P1 is the Government's letter. The Corporation submitted detailed explanation before the Government. On considering the explanation submitted by the Corporation, the Government directed the respondents either to get the construction regularised after obtaining zonal exemption from the Government or to modify the construction in accordance with the zonal regulation in the approved master plan for Kollam. Ext.P2 is the direction so issued to Smt.Mani, mother of the respondents. Without complying with the directions in Ext.P2, the respondents submitted an application seeking occupancy certificate after completing construction of the three storied building (the 3rd building in the plot). The Corporation informed the respondents that in view of Ext.P2, it is not possible to issue occupancy certificate. Challenging the Corporation's decision, the respondents filed W.P.(C) No.26879/2006 before this court. This court directed the Corporation to take a decision after hearing the parties. After hearing, the Corporation rejected the application for occupancy certificate. Challenging that decision, respondents filed W.P.(C) No.30357/2006. This court disposed of the writ petition directing the respondents to prefer appeal before the Tribunal and directing them also to produce fire NOC. Accordingly, respondents preferred appeal No. 18/2007 before the Tribunal and in that appeal, the impugned order Ext.P3 was passed by the Tribunal. W.P.(C).No.30251/2007-B 4 2. It is pointed out that the observation of the Tribunal in Ext.P3 that the direction of the Government to get the construction regularised after obtaining zonal exemption from the Government or to modify the construction in accordance with the zonal regulation in the approved master plan for Kollam was not with respect to the building which is the subject matter of the appeal but was with respect to the nearby 4 storeyed building is erroneous. It is also pointed out that the Tribunal's observation that even if it is true that the required zonal exemption was not obtained with respect to the nearby building by the relatives of the respondents is correct then also the same is no reason for the Corporation to refuse to issue the Occupancy Certificate in respect of the building involved in the appeal. It is contended by the Corporation that the observations of the Tribunal are contrary to fact. 3. The petitioner has produced Ext.P4 copy of the Government letter dated 25/10/2006 to show that there is no room for a confusion regarding the identity of the building. The petitioner has produced Ext.P5 written statement submitted by the Corporation in the appeal before the Tribunal. It is without considering the contentions in Ext.P5 that the Tribunal has passed Ext.P3 order allowing the appeal, it is so contended. The petitioner has also produced Ext.P6 copy of the Government Order dated 20/09/2005 W.P.(C).No.30251/2007-B 5 directing the parties either to get the construction regularised after getting zonal exemption or to modify the constructions in accordance with the zonal regulations in the approved master plan of Kollam. Respondent Nos.4 to 7 did not make any application pursuant to Ext.P6 but instead completed construction of the 3 storeyed building and sought for Occupancy Certificate in respect of that building. This was why the Corporation informed them that Occupancy Certificate cannot be issued before the construction is regularised pursuant to Ext.P6 Government Order. The petitioner has also produced Ext.P7 copy of the original plan submitted by respondents 4 to 7 for the construction of the 3 storeyed building. It is alleged that in the construction there was deviation from Ext.P7. While carrying out the construction, a shop room portion was in a depth 90cms more than what was actually required under the plan. It is overlooking this aspect that the Tribunal issued Ext.P3. The petitioner has also produced Ext.P8 order by which the Corporation rejected the respondents request for Occupancy Certificate. Assailing Ext.P3 on various grounds the Corporation has filed this writ petition and one of the grounds is that as per the judgment of this Court in Sayeesh Kumar v.State of Kerala [2005 (4) ILR 769] even the Government is not empowered to grant zonal exemptions and any construction made in violation of the zonal regulations detailed in the town planning scheme is to be found illegal. W.P.(C).No.30251/2007-B 6 4. A detailed counter affidavit has been filed by the party respondents. It is submitted that Ext.P3 order passed by the Tribunal is a well reasoned order, marshalling the facts correctly, as revealed by the records. It is submitted that on account of the delay caused in the issuance of Occupancy Certificate by the Corporation the party respondents are suffering heavily. Ext.R4(a) is a statement showing the dates and events leading to the writ petition and it is contended on the basis of Ext.R4(a) that completion certificate regarding the 3 storeyed building was submitted as early as on 22/08/2006 and that this Court issued an order on 11/10/2006 to the Corporation to issue Occupancy Certificate. More than Rs.75 lakhs was expended as early as on 16/05/2006 for the construction and the construction was made with the knowledge of the officers from the Corporation as well as the Town and Country Planning Department. It was by availing huge amounts by way of loans from banks and financial institutions that the construction was carried out and for want of Occupancy Certificate the party respondents are finding it difficult to honour their commitments to the financial institutions, the liability to whom has now mounted up. A fully constructed building for which more than Rs.75 lakhs was spent is now being compelled to be kept idle. Along with the counter affidavit Ext.R4(b), copy of the zonal exemption order, dated 18/12/2003, issued by the Government in favour of Smt.K.Mani, respondents' mother permitting construction of a four W.P.(C).No.30251/2007-B 7 storeyed commercial-cum-auditorium building and a two storeyed lodge building on the plot by granting zonal exemption, is produced. The counter affidavit denies the allegation that the Government has already cancelled this zonal exemption Ext.R4(b) by passing an order in 2005. It is submitted that till this date, the party respondents have not been informed about any such cancellation order. The counter affidavit goes on to repudiate all the allegations in the writ petition as well as the grounds raised therein. 5. Ext.R4(c) produced along with the counter affidavit is the latest development scheme for Kollam District along with notification, dated 07/06/2007, notified by the Government. It is pointed out that as per Ext.R4(c) the plot covered by Ext.R4(b) exemption order comes within 'commercial zone'. The counter affidavit highlights clause (i) of the General Guidelines attached to Ext.R4(c) quoting the same as follows:- “(i) In lands to a depth of 50 metres in residential zone and 100 metres in Commercial, Public and Semi Public and Industrial zones on either sides of roads having an existing or proposed width of 12 metres or more, uses permitted in Residential , Commercial and Public and Semi Public zones may also be permitted by the executive authority if such uses are not allowable otherwise in the zoning regulations. W.P.(C).No.30251/2007-B 8 However such uses may not be permitted in the residential zone if the area is substantially developed as a residential area.” 6. The counter affidavit points out that it is admitted that based on Ext.R4(b) a four storeyed lodge building is already constructed in the very same plot covered by Ext.R4(b). It is also admitted that the disputed lodge building is also constructed in the very same plot. Therefore, separate exemption order from the Government is not necessary for constructing another lodge building in the very same plot. Clause 4.0 of the Zoning Regulations attached to Ext.R4(c) is quoted in this connection:- “Zoning regulations are not intended to prohibit existing uses that have been lawfully established prior to the enforcement of these regulations. They are essentially intended to help the competent authority in decisions regarding granting or refusal of planning permissions for land use conversions and construction of buildings/ structures or any other matter specifically mentioned in these regulations.” W.P.(C).No.30251/2007-B 9 7. The counter affidavit endeavours to distinguish the judgment of the Division Bench in Sayeesh Kumar v.State of Kerala [2005 (4) KLT 1027] on the facts of which obtain in this case. It is contended that the doctrine of 'prospective overruling' should apply. Though judgment of the Division Bench is of declaratory nature, the same cannot unsettle settled things, and should not cause prejudice to persons like the party respondents who have already expended substantial amounts for constructing buildings acting on the zonal exemption order already granted in respect of the plot. Exts.R4(d) and R4(e) Occupancy Certificate issued in respect of the first lodged building and the permit for the construction of the second lodge building are produced. The counter affidavit goes on to interpret Rule 30 of the Building Rules and submits that emphasis is given under that rule to usage of the plot and not for the building to be put up on the plot. It is accordingly contended that zonal exemption is granted in respect of the plot. It is ultimately contended that principles of promissory estoppel and legitimate expectation should bar the stand presently taken by the respondent Corporation and the Government. 8. I have heard Smt.A.G.Aneetha, learned counsel for the Corporation and Smt.V.P.Seemanthini, learned Senior counsel for the party respondents. Smt.Aneetha apart from addressing me on the various grounds raised in the writ petition drew my attention to W.P.(C).No.30251/2007-B 10 Exts.P3, P4, P5 and P8. She drew my attention also to Sub Rule 2 and 3 of Rule 30 of K.M.B.Rules. She placed reliance on the judgment of the Supreme Court in S.N.Chandrasekhar v.State of Karnataka and others [(2006) 3 SC 208] in respect of her submissions. She placed before me copy of the developmental plan for Kollam notified by the Government in the year 1983 (the old developmental plan). Smt.V.P.Seemanthini, learned Senior Counsel for the party respondents was able to meet the submissions of Smt.A.G.Aneetha. She submitted that as per Sub Rule 22 of the K.M.B.Rules Occupancy Certificate ought to have been issued to her parties in respect of the three storeyed lodge building way back in September 2006 since completion certificate had been produced before the Secretary on 22/08/2006. Referring to Rule 33 of the K.M.B.Rules she submitted that lodging and residential houses come under Annexure A2 category (of Special residential buildings). Therefore, according to her, no zonal exemption is necessary for construction of lodging house. She pointed out that the Corporation itself relied on that provision in justifying the issuance of permits to Smt.K.Mani for construction of four storeyed lodging building on the very same plot. So construction of the 3 storeyed lodge building on this plot is in the scope of the Rule 13(b) and hence no exemption is necessary. The learned Senior counsel further submitted that the Government has already notified the latest development scheme for Kollam District along with W.P.(C).No.30251/2007-B 11 notification dated 07/06/2007, Ext.R4(c). She submitted on the basis of clause(i) of the general guidelines of Ext.R4(c) that it is not necessary that the petitioner should take zonal exemption for the disputed construction, since the road adjoining the exempted plot is having more than 12 metres width and the plot where the construction is effected comes less than 50 metres in depth. Referring to clause 4 of Ext.R4(c) Zoning Regulations the learned Senior Counsel submitted that zoning regulations are not intended to prohibit existing uses which have been lawfully established prior to the enforcement of these regulations. Zoning regulations are essentially intended to help the competent authority in taking decisions regarding granting or refusal of planning permissions for the land use conversions and construction of buildings etc. In as much as the building was constructed on the basis of the permit lawfully issued by the Corporation, the Corporation is not justified in denying Occupancy Certificate in violation of the zoning regulations. It is submitted that apart from the general guidelines in Ext.R4(c) clause No.8 of Zoning Regulations in Ext.R4(c) show that lodging houses will come under the mercantile zone and not in the residential zone. Therefore, in view of Ext.R4(c) petitioner no longer requires zonal exemption for constructing a lodge house on the land owned by him in Vadakkevila village. Learned counsel further submitted that it is not fair or proper to apply the judgment in S.N.Chandrasekhar W.P.(C).No.30251/2007-B 12 v.State of Karnataka and others [(2006) 3 SC 208]. The development plans are being made after conducting a thorough study of the development in the respective town during the prior three years. Government is not empowered to grant zonal exemption and therefore the Tribunal's order could not be implemented without violating the law laid down by the Division Bench. The parties have expended substantial amounts on the strength of such exemption, Ext.R4(b). 9. I have considered the rival submissions. I have gone through the impugned order Ext.P3 passed by the Tribunal. The Tribunal noticed that it had been admitted by the Corporation in paragraph 9 of the written statement that zonal exemption is not required in respect of the 3 storeyed lodge building involved in the appeal before the Tribunal. The lodge building was treated as residential building and the permit to construct the lodge building was granted as the area has clear scheme vide paragraph 9 of the written statement. 10. The Tribunal also noticed that the direction of the Government referred to in the written statement submitted by the Corporation would not have as reference to the 3 storeyed lodge building. The Tribunal found that the required zonal exemption was W.P.(C).No.30251/2007-B 13 not obtained with respect to 4 storeyed lodge building situated on the plot cannot be a good reason for declining Occupancy Certificate for the present 3 storeyed lodge building covered by the appeal before the Tribunal. The Tribunal also found that the Corporation's allegation that the construction was in deviation of the approved plan was not correct relying the Commissioner's Ext. CI report. I do not find any legal infirmity about that finding of the Tribunal having regard to the contours of this Court jurisidiction under Article 226 and 227 of the Constitution of India. Apart from the above, I find considerable merit in the submissions of Smt.V.P.Seemanthini based on the principles of Promissory Estoppel and doctrine of Prospective Overruling and the argument that exemption which is granted under Rule 30 K.M.B.R is not in respect of the building but is in respect of plot. 11. According to the Corporation rejection of Occupancy Certificate to the party respondents with regard to the lodge building is valid and proper. The Secretary of the Corporation is to function as a statutory authority within the confines of Kerala Municipality Building Act and Rules and the statutory authority is expected to discharge statutory functions independently and without being influenced by the direction or order issued by higher or lower authorities even if it be the highest executive authority of the State. W.P.(C).No.30251/2007-B 14 12. The four storeyed shopping complex building was permitted to be constructed and Occupancy Certificate was granted by the very same Corporation for that shopping complex building which is situated on the very same plot. The exemption order issued by the Government in my opinion is in respect of the plot and therefore, the action of the Tribunal in declining that the Occupancy Certificate which leads to recurring loss for the parties who have already expended more than 75 lakhs is improper. No material was produced by the petitioner to show that Ext.R4(b) exemption has been cancelled by the Government. Moreover, going by the latest developmental plan, it has been notified as per 08/02/2008 there is no necessity for seeking zoning exemption. For all these reasons, the challenge against Ext.P3 has to fail. The writ petition is dismissed. There will be no order as to costs. PIUS C.KURIAKOSE, Judge ms