IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 25TH AUGUST 2008 / 3RD BHADRA 1930 WP(C).No. 3991 of 2008(A) ------------------------- PETITIONER: ------------ S.NARAYANAN NAIR,PRASANTH, TC 27/2312, CONVENT ROAD, THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENTS: ------------- 1. STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. CORPORATION OF THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY, OFFICE OF THE CORPORATION, THIRUVANANTHAPURAM. 3. CHIEF TOWN PLANNER, PALAYAM, THIRUVANANTHAPURAM. BY ADV. SRI.N.NANDAKUMARA MENON (SR.) FOR R2 SRI.P.K.MANOJKUMAR FOR R2 BY GOVT. PLEADER SRI. K.V. MANOJKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSIION ON 25/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.3991/2008 ----------------------------------------------------------- Dated this the 25th day of August, 2008 JUDGMENT Prayers sought for in this writ petition are to quash Exts.P3 and P13 and to direct the respondents to permit the petitioner to resume construction of the building in accordance with Ext.P1 permit and Ext.P2 approved plan. 2. Facts of the case are that on 11.1.2005, the petitioner submitted an application to the respondent corporation for a building permit to construct a commercial complex. In terms of the Kerala Municipality Building Rules, then prevailing, the matter was considered by the Special Committee constituted in terms of Rule 85. Ext.P19 dated 6.4.2005 shows that the committee had considered the matter and resolved to grant permit subject to Rule 79 to 86 of the Building Rules. In pursuance to Ext.P19, Ext.P1 building permit was issued by the Town Planning Officer, on 24.3.2006, permitting construction of a commercial complex WP(c).No.3991/2008 2 having a cellar and six floors. 3. Petitioner submits that on the strength of Ext.P1, he commenced construction in April, 2006 and construction up to half of the second floor has been completed. At that stage, the Town Planning Officer of the Corporation issued Ext.P3 stop memo on 25.1.2007. Ext.P3 was in implementation of Ext.P17 order issued by the first respondent, directing the Secretary to stop the construction and also initiate action in the manner mentioned therein. A reading of Ext.P17 shows that the proposed construction falls in the residential zone of the sanctioned master plan for Thiruvananthapuram and the building permit was issued without obtaining exemption from the Zoning regulations and also in violation of the Kerala Municipality Building Rules with reference to rear open space. 4. The petitioner submits that, on receipt of Ext.P3, he had stopped further construction and he approached the authorities for getting Ext.P3 revoked. Petitioner submits that Ext.P1 building permit issued on the basis of the decision of the Special Committee was fully in compliance with the Rules prevailing at that time when Ext.P19 decision was taken by the Committee. WP(c).No.3991/2008 3 5. He is referring to Ext.P4 dated 9.11.2005, the undertaking given by him to surrender a part of his property having an extent of 32.92 square meter for road widening purposes. According to him, as is evident from Ext.P5, on 12.1.2006, the Revenue Divisional Officer accepted the surrender in Ext.P4 and surrender was also completed. According to him that was the reason why Ext.P1 permit was granted subject to Rules 79 to 86 of the KMBR. 6. In view of Ext.P3, he submitted Ext.P6 representation to the first respondent requesting to revoke Ext.P17 and allow him to resume the work. It is stated that there was no response to Ext.P6 and therefore he gave Ext.P7, requesting that he be permitted to continue the work on an undertaking that he will demolish the structure constructed, if so required. According to him, there was no response to both Exts.P6 and P7 and that, in the meanwhile the town planning scheme itself was modified by Ext.P8 dated 31.5.2007. Thereupon he submitted Ext.P9, claiming the benefit of Ext.P8, on the basis that, the modified scheme allowed the construction. It is submitted that even to Ext.P9 there was no response. Even thereafter, petitioner WP(c).No.3991/2008 4 submitted Ext.P10 along with Ext.P11 revised plan. It is stated that finally the Chief Town Planner was addressed by the second respondent as per Ext.P12, intimating that the petitioner is entitled to the benefit of Ext.P8 revised Town Planning Scheme. Even after all those, since Exts.P3 and P17 were not recalled, this writ petition was filed seeking to quash Exts.P13 and P17. 7. Senior counsel appearing for the 2nd respondent Corporation submits that they have issued Ext. P3 stop memo, as directed by Ext. P17, order issued by the 1st respondent. It was contended that Ext. P3 is only a stop memo and that a final decision in this matter has not been taken so far. For that reason, according to him, the writ petition was premature. It was also submitted that, if at all the petitioner is aggrieved by Ext. P3, the course open to him was to file an appeal availing of the remedy provided under Section 509 of the Municipalities Act. 8. Learned Govt. Pleader on the other hand would contend for the position that the reasons which led the 1st respondent to issue Ext. P17 are valid and therefore Ext. P17 is a valid order. According to him, the 1st respondent is satisfied that the petitioner had not obtained exemption from the zoning WP(c).No.3991/2008 5 regulations and that there was violation of the Kerala Municipal Building Rules with reference to the rear open space. 9. From the submissions made by both sides, it is obvious that it was on account of Ext. P17 order issued by the 1st respondent, that the Corporation issued Ext. P3 stop memo compelling the petitioner to stop further continuance of the work in pursuance to Ext. P1 building permit that was issued to him. 10. A reading of Ext. P17 issued on 4.1.2007 shows that there are two reasons which persuaded the Government to issue the said order and those two reasons are, that the petitioner had not obtained exemption from zoning regulations and that there was violation of the KMBR with reference to rear open space. By the time Ext.P17 was issued, the KMB Rules were amended with effect from 11.1.2006. If the amended rules are applied to the petitioner's construction then there is necessity of exemption from the zoning regulations and there is also violation with reference to rear open space. But then the question is whether it is the amended building rules which governs the petitioner or not. According to the Senior Counsel for the Corporation and the learned Govt. Pleader it is the amended KMBR which governs the WP(c).No.3991/2008 6 petitioner while according to the counsel for the petitioner it is the unamended rule which applies to him. 11. Having considered the submissions made by both sides I am inclined to agree with the counsel for the petitioner that it is the rule as it stood prior to the amendment with effect from 11.1.2006 which applies to him. As already noticed, application for building permit was made by the petitioner on 11.1.2005. At the time when the application was made, Rule 85 of the Kerala Municipality Building Rules provided for the constitution of special committees. This rules enabled the Government to constitute special committees for all or any of the municipalities to consider and decide on the application for building permits that may be submitted. Sub rule (5) of the said rule provided that the Secretary shall place all applications before the special committee for consideration and shall issue permit as decided by the special committee. 12. In this case, as is evident from Ext. P19, in its meeting held on 6.4.2005, the special committee considered the application made by the petitioner on 11.1.2005 and resolved to grant him building permit. In view of Rule 85(5) as it stood then, WP(c).No.3991/2008 7 the permit is to be issued as decided by the committee. Therefore, it is on the basis of the decision taken by the special committee on 6.4.2005, Ext. P1 building permit was issued on 24.3.2006. Since Ext. P1 permit was issued on the basis of the decision taken on 6.4.2005, the grant of Ext.P1 permit can be governed only by the rules as stood as on 6.4.2005, viz. the unamended rule. 13. Now that I have held that it is the rule as stood prior to its amendment on 11.1.2006, that governs the petitioner the question is whether in the light of the provisions contained in the rule as stood then, there was any requirement for exemption from the zonal regulations and whether there is any violation with reference to the rear open space. Rule 80 of the rule as it stood on 6.4.2005 provided that the Secretary may permit any use which is otherwise compatible with the use of buildings in that area, which does not adversely affect the existing trend of development and which does not cause indirect condemnation of the uses in the neighbouring plots of land and buildings. This rule authorized the Secretary to issue permits for construction of buildings, which is otherwise compatible with the uses of WP(c).No.3991/2008 8 buildings in the area and subject to the condition that such construction will not adversely affect the existing trend of development and which does not cause indirect condemnation of the uses in the neighbouring plots. This rule did not contemplate any exemption from zoning regulations and the counsel for the respondents could not point out requirement of any exemption in the rules as it stood as on 6.4.2005. If that be so, I must hold in favour of the petitioner that at the time when Ext. P19 decision was taken by the special committee, there was no requirement of any exemption from the zoning regulations of the Town Planning Scheme. 14. Now what remains is whether there is any violation in regard to the rear open space. As far as the rear open space is concerned, what governed the parties was Rule 82(3) of the unamended KMBR which provided that the rear set back for buildings above two floors from ground level shall be minimum one metre. It is not the case of the respondents that one metre rear open space is not left by the petitioner. If that be so, the construction undertaken by the petitioner satisfied the requirements of Rule 82(3) and if that be so, there cannot be a WP(c).No.3991/2008 9 violation on that ground either. 15. From the aforesaid conclusions that I have arrived at, I am not in a position to take a view that the construction undertaken by the petitioner was in violation on the above two counts based onwhich Ext.P17 has been issued. If that be so, the decision of the special committee cannot be faulted and the consequent permit, Ext. P1 issued on 24.3.2006 also is liable to be upheld. Consequently, I am unable to sustain Exts. P3 and P17. 16. True, the learned senior counsel for the Corporation contended that the writ petition is premature and that the remedy available to the petitioner is to pursue the matter in appeal. Since, the Corporation is yet to take a final decision in this matter and in that sense it is premature. But the fact remains that in Ext. P17 the Ist respondent has entered adverse findings against the petitioner on both counts and if at all the petitioner is to contest the matter before the Corporation I am sure, the Corporation would be guided by the findings in Ext. P17. In such a situation, I cannot hold that the writ petition is liable to be dismissed as premature. For that reason itself, I WP(c).No.3991/2008 10 should also overrule the contention of the learned senior counsel regarding the alternate remedy available. In any case the parties having joined issue, completed pleadings and argued the matter on merits, I do not think that at this stage the petitioner should be relegated to pursue the alternate remedy available. This is all the more so for the reason that as rightly contended by the counsel for the petitioner, he has already lost more than 1 ½ years of time since Ext.P3, and if he is to pursue the matter before the statutory authorities again, he will loosing further valuable time, resulting in huge loss due to escalation in cost and other similar factors. The writ petition is allowed and Exts.P3 and P17 are quashed. Respondents are directed to permit the petitioner to resume construction of the building based on Ext.P1 permit and Ext.P2 approved plan. ANTONY DOMINIC, JUDGE vi. WP(c).No.3991/2008 11