IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 W.A.No.91 of 2011 AGAINST THE JUDGEMENT IN W.P.(C).NO.9903/2008 DATED 10/11/2010. .................... APPELLANTS/PETITIONERS:- ------------------------------------------- 1. MEETHIAN KUNJU M.M., S/O.K.M.MOHAMMED, MANATH PAZHAYAPURAYIL HOUSE, KAKKANAD P.O., KOCHI-682030. 2. M.I.MEETHIAN KUNJU, S/O.M.M.ISMAYIL, MANATH PAZHAYAPURAYIL HOUSE, KAKKANAD P.O., KOCHI-682030. 3. M.I.PAREED, S/O.M.M.ISMAYIL, MANATH KIZHAKKE PAZHAYAPURAYIL HOUSE, KAKKANAD P.O., KOCHI-682030. 4. M.A.ABOOBACKER, S/O.M.P.AHAMMED, MANATH PAZHAYAPURAYIL HOUSE, KAKKANAD PO, KOCHI-682 030. 5. M.M.ABOOBACKER, S/O.M.P.MOHAMMED, MANATH KIZHAKKE PAZHAYAPURAYIL HOUSE, KAKKANAD P.O., KOCHI-682030. 6. K.P.MOHAMMED, S/O.K.K.PAREED, KAITHA VELIKKAKATHU HOUSE, KAKKANAD P.O., KOCHI-682030. BY ADV. SRI.K.RAMAKUMAR (SENIOR ADVOCATE) SRI.T.RAMPRASAD UNNI. W.A.No.91 of 2011. - 2 - RESPONDENTS/RESPONDENTS:- -------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. THE THRIKKAKARA GRAMA PANCHAYAT (NOW THRIKKAKARA MUNICIPALITY), REPRESENTED BY BY ITS SECRETARY, THRIKKAKARA, ERNAKULAM, KOCHI-682028. 3. M/S PURAVANKARA PROJECTS LIMITED, G-261, PANAMPILLY AVENUE, COCHIN 682036. 4. THE COMMANDANT GENERAL, FIRE & RESCUE SERVICE, CHENKALCHOOLA, THIRUVANANTHAPURAM-695132. R1 & R4 BY SPECIAL GOVERNMENT PLEADER SRI.C.M.SURESH BABU. R2 BY STANDING COUNSEL SRI.S.SHANAVAS KHAN. R3 BY ADV.SRI.K.G.RAGHAVAN (SENIOR ADVOCATE), SRI..JOSHUA H.SAMUEL SRI.P.R.VENKETESH THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09/03/2011, THE COURT ON 29/03/2011 DELIVERED THE FOLLOWING:- ORDER ON I.A.NO.70 OF 2011 IN W.A.NO.91 OF 2011-E DISMISSED. Sd/- J.CHELAMESWAR, CHIEF JUSTICE. 29.03.2011. Sd/- ANTONY DOMINIC, JUDGE. - TRUE COPY - P.A. to Chief Justice. J.Chelameswar, C.J. & Antony Dominic, J. ------------------------------------------------------------ W.A. No. 91 of 2011- E ------------------------------------------------------------ Dated this the 29th day of March, 2011 JUDGMENT J.Chelameswar, C.J. This writ appeal arises out of a judgment dated 10th November, 2010 in W.P.(C) No.9903 of 2008. The writ petition is filed with the prayers as follows: “i) Declare that the construction activities by the 3rd respondent in relation to a residential apartment complex by name “Purva Moonreach' on the Airport-Seaport Road within the limits of the 2nd respondent, Thrikkakara Grama Panchayat without obtaining a permit under the Kerala Municipality Building Rules is illegal; ii) issue an order of injunction restraining the 3rd respondent from continuing with the construction activities in relation to a residential apartment complex by name 'Purva Moonreach' on the Airport-Seaport Road within the limits of the 2nd respondent, Thrikkakara Grama Panchayat without obtaining a permit under the Kerala Municipality Building Rules; iii) Issue a writ of mandamus or any other appropriate writ, order or direction, commanding respondents 1 & 2 to ensure that the 3rd respondent does not carry on any construction activity in the plot of land owned by them near the property of the petitioners in Thrikkakara Grama Panchayat without obtaining a permit under the Kerala Municipality Building Rules; W.A.No.91 of 2011 - 2 - iv) Declare that the 3rd respondent cannot put up any construction near the property of the petitioners in Thrikkakara Grama Panchayat in violation of the Kerala Municipality Building Rules and without getting a clearance from the Fire & Rescue Department considering the fact that the plot is adjacent to a huge petroleum outlet; v) Declare that the 3rd respondent cannot exploit ground water in any manner without obtaining permission under the Kerala Ground Water (Control and Regulation) Act 2000. va) To declare that the 3rd respondent cannot be permitted to construct a building exceeding floor area of ratio of 2.5 permitted under the Structural Plan (General Town Planning Scheme) notified by the Government of Kerala, as applicable for the areas of Thrikkakara Grama Panchayat; and vi) Grant such other reliefs as this Honourable Court may deem fit and proper in the circumstances of the case.” 2. The appellants are the residents of Ward No.10 of Thrikkakara Grama Panchayat adjoining Ernakulam. They are aggrieved by the construction of a residential complex named “Purva Moonreach” within the territorial limits of the above mentioned Grama Panchayat. The third respondent Company is the builder of the above mentioned residential complex. W.A.No.91 of 2011 - 3 - 3. It appears from the records that the third respondent admittedly proposes to construct two blocks of residential apartments having 30 and 22 floors respectively in a plot of land admeasuring 1.69 acres. 4. The writ petition is filed aggrieved by the said proposal. The appellants/petitioners grievance is two fold (1) that such a construction is without compliance with the Kerala Municipality Building Rules, 1999 and (2) that such construction if it comes into existence would violate the fundamental right under Article 21 of the Constitution of India of the appellants as the construction would adversely affect the sanitation, light, supply of water, etc. to the inhabitants of the Panchayat like the appellants. The appellants also submitted that the State of Kerala has issued a plan in exercise of the power under Section 12 of the Town Planning Act 1108 ME (Travancore Cochin Act) and the Madras Town Planning Act, 1920 under the provisions of which construction of a building with a floor area exceeding 250% of the plot area is impermissible. 5. The third respondent contested the writ petition. By the judgment under appeal the writ petition was dismissed and hence this appeal. W.A.No.91 of 2011 - 4 - 6. At the outset it must be mentioned that the third respondent approached the second respondent Grama Panchayat seeking permission to make the above mentioned construction. The second respondent by a communication dated 30th January, 2006 informed the third respondent that no permission from the second respondent is necessary for the construction in view of the fact that the Kerala Building Rules, 1984 were not in force in the Panchayat area. The relevant portion of the communication reads as follows: “Since the Kerala Building Rules 1984 have not been enforced within the Panchayat area, the permission from this office is not necessary for the construction of residential Flats in Sy.No.325/4,5 326/1,4,5 of Kakkanad Village to Sri.Ranjit Thomas, General Manager, Puravankara Projects Limited subject to the condition that three meters distance should be left from the boundary adjacent to P.W.D. roads and earmarked panchayat roads and adequate drainage facilities should also be provided.” The said communication is styled as a No Objection Certificate (NOC) issued by the Grama Panchayat. 7. However, the State of Kerala by order dated 6.11.2006 extended the operation of the Kerala Municipality Building Rules, 1999 to the Thrikkakara Grama Panchayat with effect from the date of publication of the said order in the Gazette. Admittedly the said order was published in the Kerala Gazette on 15.11.2006. W.A.No.91 of 2011 - 5 - 8. The Kerala Municipality Building Rules, 1999 (hereinafter referred to as “the Rules”) are made by the State of Kerala in exercise of the powers conferred under the various provisions of the Kerala Municipalities Act, 1994. Under Rule 7 of the said Rules, every person intending to construct or re-construct a building is mandated to apply in writing to the Secretary in the prescribed form along with the various documents indicated in the said Rules. The expression 'Secretary' is defined under section 2 (bo) to mean the Secretary of a Municipality. Under Rule 11 the Secretary is required to make an inspection of the site and verify the documents and on being satisfied with the various factors indicated in Rule 11 approve the 'site and site plan'. Further, on such approval of the site and site plan proceed to examine whether the building plan is in accordance with the Rules and bye laws made under the Act or any other law and if satisfied approve the plan and issue the permit to execute the work. Rule 11(1) and (2) reads as follows: “11. Approval of site and plans and issue of permit.- (1) The Secretary shall, after inspection of the site and verification of the site plan and documents, if convinced of the bonafides of the ownership of the site, and that the site plan, drawings and specifications conforms to the site and the provisions of these rules or bye laws made under the Act and any other law, approve the site and site plan. W.A.No.91 of 2011 - 6 - (2) The Secretary shall, after approving the site and site plan verify whether the building plan, elevation and sections of the building and specifications of the work conforms to the site and site plan, and is in accordance with these rules and bye laws made under the Act or any other law, approve the plan and issue permit to execute the work.” 9. The expression 'site' is defined under Section 2(bw) as follows: “'site' means a plot and its surrounding precincts;” 10. Rule 5 prescribes that any person desirous of or intending to develop or re-develop any parcel of land should make an application to the Secretary in the prescribed form accompanied by the various documents and statements specified in the said Rule. Rule 6 stipulates that an application for a development permit contemplated under Rule 5 is required to be accompanied by site plan. The Rule also prescribes the mode of preparing the said site plan, details of which may not be necessary for the present purpose. The site plan contemplated under Rule 11(1) referred to earlier is the above mentioned site plan specified under Rule 6. The Rules further provide for various restrictions on the construction of the buildings obviously intended for securing a planned development of the municipal area and also ensuring the safety of the buildings constructed within the municipal area. The details of such various W.A.No.91 of 2011 - 7 - restrictions may not be necessary except to notice Rule 31 which prescribes as follows:- “31. Coverage and floor area ratio.-- (1) The maximum percentage of coverage permissible for each occupancy shall limit the maximum area at any floor of a building. The floor area ratio value shall limit the maximum buildable total floor area. Floor area ratio i.e., F.A.R. shall be calculated as shown below: F.A.R. = Total floor area on all floors Plot area (2) The percentage of coverage and the F.A.R. value of building under different occupancies shall not exceed the maximum specified in Table 2 below.” 11. In substance, Rule 31 prescribes two things, (1) the maximum area of the plot that can be covered by the construction and (2) the maximum area of construction permissible in terms of the percentage of the plot area (FAR). The FAR varies depending upon the nature of the construction, i.e. whether the construction is for residential, commercial, industrial, etc. We may also place on record that the prescription regarding the FAR also varied from time to time with reference to the various classes of construction referred to above. The further details of such variation would be discussed at the appropriate place as it is relevant for the purpose of the present case. W.A.No.91 of 2011 - 8 - 12. However, prior to 15th November, 2006, the constructions in the Thrikkakara Grama Panchayat area were not governed by the above mentioned Kerala Municipality Building Rules, 1999. The law operating on the area of the second respondent Panchayat was the Kerala Panchayat Raj Act, 1994. Section 235A of the said Act provides that the Government may make rules for the regulation or restriction of the use of sites for the construction of building and also for the regulation or restriction of building construction. In other words, it enables the Government to regulate by appropriate rules the use of the land within the Panchayat area and also the standards which are required to be followed in making the construction of buildings within the Panchayat area. However, no rules were made by the State till 15.11.2006, the date on which the Municipal Building Rules are made applicable, in exercise of the power vested in the State of Kerala under Section 274* of the Panchayat Raj Act, 1964. ------------------------------------------------------------------------------------------------ *S.274 Extension of provisions of the Municipal laws or of the rules thereunder.- (1) The Government may, whether at the request of the Panchayat or otherwise, by notification in the Gazette, declare that any of the provisions of the law relating to Municipalities in the State in force for the time being or of any rules made thereunder, shall be extended to, and be in force, in a Panchayat area or any specified place therein. (2) The provisions so notified shall be construed with such alterations not affecting the substance as may be necessary or proper for the purpose of adapting them to the Panchayat area or any specified place therein. W.A.No.91 of 2011 - 9 - 13. The specific case of the appellants as already noticed is that the third respondent is making the construction without obtaining any permission whatsoever under the provisions of the Kerala Municipality Building Rules. Whereas, the case of the third respondent is that in view of the NOC dated 30th January, 2006 issued by the second respondent Grama Panchayat (referred to supra), the third respondent did not require any further permission contemplated under the Kerala Municipality Building Rules as the third respondent acquired a vested right under the above mentioned NOC dated 30th January, 2006 to make construction of the building as it pleased without any restriction whatsoever. The subsequent extension of the Kerala Municipality Building Rules to the Thrikkakara Grama Panchayat cannot divest the third respondent of a vested right to construct buildings as originally proposed and not objected to by the Thrikkakara Grama Panchayat. 14. By the judgment under appeal, a learned Judge of this Court opined that the NOC dated 30.1.2006 issued by the 2nd respondent Panchayat confers a vested right on the 3rd respondent. At para 27 of the judgment, the learned Judge held as follows: “The notification extending the Building Rules herein is effective from the date of publication of the same in the Gazette. The W.A.No.91 of 2011 - 10 - Government Order is dated 6.11.2006 and it was published in the Extra-ordinary Gazette dated 15.11.2006. It is expressly stated that it will be in force in Thrikkakara Grama Panchayat with effect from the date of publication of the notification in the Gazette. Therefore, it is not expressly retrospective. Ext.R3(a) was issued much before that, viz. on 30.1.2006. The same conferred a right on the third respondent to construct residential flats in the properties mentioned therein, with the only condition that 3 meter distance should be left from the boundary adjacent to P.W.D. Roads and earmarked Panchayat roads and adequate drainage facilities should also be provided. Therefore, evidently the third respondent had accrued a right to make the construction. There is no other specific provision/clause in the Government Order dated 6.11.2006 which invalidates the NOC issued by the panchayat. Further, as noticed already, the NOC has been issued in exercise of the statutory power by the Panchayat under the Panchayat Raj Act. Therefore, the extension of the Kerala Municipality Building Rules cannot automatically make the said NOC invalid. As held already, the third respondent is also entitled for the benefit of Ext.R3(ao) circular in the light of the decision of the Division Bench in Mather Projects (P) Ltd.'s case [2009 (4) KLT 986]”. The learned Judge placed reliance on a judgment of the Division Bench of this Court reported in 2009 (4) KLT 986 for the conclusion that the No Objection Certificate dated 30.01.2006 creates a vested right. Such a conclusion is reached by the learned Judge on the basis of two Circulars issued by the Government, marked as Exhibit W.A.No.91 of 2011 - 11 - P7 and Exhibit R3(ao). Exhibit P7 is dated 3.7.2007. The purpose of the said Circular is stated to be as follows: “Kerala Municipality Building Rules has been implemented in Thrikkakkara Panchayat vide G.O.(M.S.) No.250/2006/LSGD dated 6.11.06. It has come to the notice of the Government that there are suspicions among the public and the Panchayat regarding the building under construction. Therefore, decisions have to be arrived at in respect of the buildings under construction after the site inspection with the following conditions”. The second Circular which is also dated 3.7.2007, marked as Ext.R3 (ao), came to be issued, the relevant portion of which reads as follows: “It has come to the notice of the Government that, at the time when the Building Rules were implemented in Grama Panchayats, the construction of many multi storied buildings (including the piling works) has started. It was instructed, that in cases where the constructions which have not started above ground level has to be done as per KMBR, 1999. But it is seen that there are practical difficulties in implementing the Rules in cases where construction has been started. In these circumstances, in cases where NOC has been obtained from the Panchayat and in cases where the details (plinth area, plot-area, floor area, no. of floors, F.A.R.) has been recorded in the Panchayat register and also the stage of construction along with photos on the basis of instructions from the government, Senior Town Planner/any person not below the rank of Town W.A.No.91 of 2011 - 12 - Planner have to inspect the site personally and after giving specific consideration to security arrangements, emergency stair case, parking etc. if the same has been provided for and also after convincing himself that it is fit for zoning in Town Planning scheme/structure plan and if it is seen that the existing arrangements (security arrangements, emergency stair case, parking etc.) are satisfactory, the permission for construction may be granted as per the NOC obtained from the Panchayat on the basis of the above submitted facts and after making alterations if necessary as instructed by the Senior Town Planners/Town Planners. But this need not be considered in cases where NOC has been obtained and later revised after the enforcement of Building Rules”. 15. The learned Senior Counsel for the appellant Sri.K.Ramakumar argued that the judgment under appeal is erroneous in so far as it held that the 3rd respondent acquired a vested right under the NOC. He also argued that the conclusion that the various executive instructions issued by the State (which are relied upon in the judgment under appeal) confer a vested right on the 3rd respondent is without any basis in law and contrary to the settled principle that executive instructions which are inconsistent with the statute are illegal and unenforcible. 16. We may state here that the language of either Exhibit P7 or Exhibit R3(ao) does not confer any right in unequivocal terms on any person who has obtained a No Objection Certificate from the W.A.No.91 of 2011 - 13 - Grama Panchayat. Those Circulars are executive instructions issued by the Government and the same cannot confer rights inconsistent with the express provisions, either of the statute or the statutory rules. The reliance placed by the learned Judge on the Division Bench judgment in 2009 (4) KLT 986 also, in our opinion, is not well founded. In the said judgment, a Division Bench of this Court was dealing with a batch of writ petitions, wherein the legality of the application of the Kerala Municipality Building Rules to the Thrikkakara Panchayat was in question. The second issue was regarding the legality of one of the conditions imposed by a Circular dated 20.7.2007 purportedly authorising the collection of “permit fee” with respect to the buildings whose construction was completed but which had not been numbered before the Kerala Municipality Building Rules were applied to the Thrikkakara Grama Panchayat. It appears from the above mentioned judgment that only a limited challenge was raised to the legality of the above mentioned Circular. At para 5 of the said judgment, the submission in this behalf is extracted, which reads thus: “The construction was undertaken only with the permission of the Panchayat, issued in the form of NOC. So, the builder has a vested right to complete the construction in accordance with the plan, submitted at the time of grant of NOC. There is no justification, W.A.No.91 of 2011 - 14 - therefore, to demand the permit fee payable as per the Building Rules, it is pointed out”. The question whether a Circular (executive instructions) inconsistent with law could be validly issued was not the subject matter of discussion in the said judgment. Therefore, we are of the opinion that the reliance placed on the said judgment is wholly misconceived. 17. Sri.Ramakumar argued for the appellant that the judgment under appeal in so far as it sought to distinguish (2004)1 SCC 663 (Howrah Municipal Corporation v. Ganges Rope Co. Ltd.) and (2007) 11 SCC 40 (Municipal Corporation, Shimla v. Prem Lata Sood) is wholly erroneous and the issue on hand is squarely covered by the principle laid down therein. On the other hand, Sri.Raghavan reiterated his submission that the vested right of the 3rd respondent cannot be taken away by a subsequent subordinate legislation and relied upon Universal Imports Agency v. Chief Controller [AIR 1961 SC 41], State of M.P. v. Tikamdas [(1975) 2 SCC 100], Sri.Vijayalakshmi Rice Mills v. State of A.P. [AIR 1976 SC 1471], K.Kapen Chako v. Provident Investment Co. [(1977) 1 SCC 593], P.Mahendran v. State of Karnataka [AIR 1990 SC 405] and Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & Etio [(2007) 5 SCC 447]. W.A.No.91 of 2011 - 15 - 18. We shall now examine the above mentioned decisions. The learned counsel placed reliance on para 5 of P.Mahendran's case (AIR 1990 SC 405), where in it was held as follows:- “It is well settled rule of construction that every statute or statutory Rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the Rule must be held to be prospective. If a Rule is expressed in language which is fairly capable of either interpretation it ought to be constructed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure”. In the said decision, the Supreme Court has reiterated a well settled principle of the construction of statutes that every statute or subordinate legislation/statutory rule, etc. is prospective in operation unless it is expressly or by necessary implication made to have retrospective operation. 19. The learned counsel relied upon para 5 of (1975) 2 SCC 100, which reads as follows:- “There is no doubt that unlike legislation made by a sovereign Legislature, subordinate legislation made by a delegate cannot W.A.No.91 of 2011 - 16 - have retrospective effect unless the rule-making power in the concerned statute expressly, or by necessary implication confers power in that behalf”. The Supreme Court held that subordinate legislation normally does not have retrospective operation unless the parent statute expressly or by necessary implication confers such authority to make retrospective subordinate legislation. 20. The learned counsel placed reliance on para 5 of the decision reported in AIR 1976 SC 1471, which reads as follows:- “The principle is also well settled that statutes should not be construed so as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the Amending Act came into force”. The Supreme Court laid down the principle that statute shall not be construed so as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time of the coming into force of the Act. In substance, the Supreme Court only explained the application of the general principle contained in the above mentioned two judgments. 21. The learned counsel relied on para 37 of the decision in (1977) 1 SCC 593, which reads thus:- W.A.No.91 of 2011 - 17 - “A statute has to be looked into for the general scope and purview of the statute and at the remedy sought to be applied. In that connection the former state of the law is to be considered and also the legislative changes contemplated by the statute. Words not requiring retrospective operation so as to affect an existing statutory provision