IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 12TH JULY 2010 / 21ST ASHADHA 1932 WA.No. 1180 of 2010 --------------------- AGAINST THE JUDGEMENT IN WPC.21361/2009 Dated 18/06/2010 .................... APPELLANT/WRIT PETITIONER: --------------------------------- K. CHANDRIKA, AGED 59 YEARS, W/O. P. RAVEENDRAN, KAMALKRISHNA, T/C NO. 14/683(2), NANDAVANAM ROAD, PALAYAM, THIRUVANANTHAPURAM. BY ADV. SRI.P.CHANDRASEKHAR SMT.UMA RESPONDENTS/RESPONDENTS: ---------------------------------- 1. THE SECRETARY TO GOVERNMENT, URBAN AFFAIRS, LOCAL SELF GOVERNMENT, STATE OF KERALA, THIRUVANANTHAPURAM-695 001. 2. THE SECRETARY, CITY CORPORATION, THIRUVANANTHAPURAM-695 006. 3. VAMADEVA,, AGED 60 YEARS, MARX BHAVAN, NANDAVANAM ROAD, THIRUVANANTHAPURAM-695 004. 4. SUNATHA, W/O. VAMADEVAN, MARX BHAVAN, NANDAVANAM ROAD, THIRUVANANTHAPURAM-695 004. R1 BY SENIOR GOVT. PLEADER, SMT. K. MEERA. R2 BY ADV. SRI.N.NANDAKUMARA MENON(SENIOR) SRI. P.K. MANOJ KUMAR. R3 & R4 BY ADV. SRI. DINESH R. SHENOY. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, CJ. & P.N.Ravindran, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 1180 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of July, 2010 JUDGMENT J.Chelameswar, CJ. Aggrieved by the judgment dated 18.06.2010 in WP(C) No.21361 of 2009, the unsuccessful writ petitioner preferred the present appeal. 2. The appellant filed the abovementioned writ petition questioning the legality of the construction of a building made by respondents 3 and 4 herein. The second respondent Corporation issued the permit dated 16.02.2008 for the construction of two additional floors to an existing building owned by respondents 3 and 4. However, respondents 3 and 4 later demolished the existing building and started a fresh construction. A stop memo came to be issued by the Municipal Corporation till a new permit is obtained. Subsequently, respondents 3 and 4 applied for a new building permit which permit was initially granted but later cancelled on the complaint made by the appellant herein. Challenging the said WA No. 1180 of 2010 -:2:- cancellation, the said respondents have approached this Court by filing W.P.(C) No.29294 of 2008. 3. By the judgment under appeal the learned Judge of this Court held that apart from vague allegations, the writ petitioner was not able to point out any specific violation of the Building Rules. The relevant portion of the judgment reads as follows: “Apart from the vague allegations raised in the petition, the petitioner has not pointed out any specific violation of the building rules. As pointed out already, what is projected is that they have shown the area which was acquired for the purpose of obtaining a building permit. But that controversy is no longer relevant in the light of the affidavit filed before the Corporation in the matter as well as the stand taken by the TRIDA and the Special Tahsildar that no constructions are being made encroaching upon the area. In that view of the matter, I do not find any reason to interfere with Ext.P10 order passed by the Corporation or Ext.P6 permit.” 4. The learned counsel for the appellant argued that the building in question is being constructed in violation of the relevant rules applicable to the construction. Admittedly, the plot under which the construction is being made is a small plot. The relevant rules regarding the construction of building in small plots are contained in Chapter VIII of the Kerala Municipality Building WA No. 1180 of 2010 -:3:- Rules, 1999. Rules 60 and 62 under Chapter VIII are relevant in this context. They read as follows: “60. Special provisions for construction in small plots:-The provisions in the Kerala Municipality Building Rules shall apply to construction of building under residential and or commercial occupancy, in plots not exceeding 125 sq. metres of area subject to the modifications in this chapter: Provided that permit shall not be granted under this chapter to one and the same person or with his consent to another person, for constructing different buildings, whether separately or abutting each other, in plots formed by division of one or more plots, he remaining as owner of more than one such divided plots or if that person has another plot abutting the proposed plot. 62. Conditions regarding set back:-(1) The minimum distance between the plot boundary abutting any street other than National Highways, State Highways, district roads and other roads notified by the municipality and the building other than a compound wall or fence or outdoor display structure, shall be 2 metres: Provided that any restriction under street alignment or building line or both, if any fixed for the area and any development plan or any detailed town planning scheme or approved road widening proposal or any other rules or byelaws shall also apply simultaneously to all buildings in addition to the provisions contained in sub-rule(1) (1a) The front yard shall be minimum 1.80 metres depth: Provided that if 1.80 metres depth cannot be maintained laterally through out due to the peculiar shape of the plot, it shall WA No. 1180 of 2010 -:4:- suffice if the mean depth is not less than 1.80 metres with minimum depth at all points not less than 1.20 metres. (2) Any one side shall have a minimum of 90 cms and other side shall have a minimum of 60 cms: Provided that no opening other than ventilator above a height of 2.20 metres from the floor level shall be provided on the side having only 60 cms open space: Provided further that the open space on one side other than that having 90 cms width may be reduced or even about the plot boundary without any manner of opening on that side, if the owner of the plot on that side voluntarily agree for the same in writing. (3) The rear side shall have an average of 1 metre with minimum 0.50 metre. (3a) The width of cornice roof, sunshade or weather shade shall be 30 cms in 60 cms wide open space and in other cases it shall be as in sub-rule(11) of rule 24. ” 5. According to the appellant, the disputed construction is being made on a small plot measuring 56.707 Sq. metres. In this regard in paragraph 8 of the memorandum of writ appeal it is stated as follows: “8. It is submitted that the total area in the ownership and possession of respondents 3 and 4 is only 1.400 cents, that is 609.756 square feet equivalent to 56.707 square meter.” 6. It may be seen from Rule 60 that the provisions of the Building Rules shall apply with modifications contained in Chapter WA No. 1180 of 2010 -:5:- VIII to the construction of building in plots not exceeding 125 sq. metres. Therefore, necessarily the Building Rules relating to the disputed construction made by respondents 3 and 4 are the rules obtaining under Chapter VIII of the abovementioned rules. Under Rule 62 it is provided that the open space on one side shall have a minimum of 90 cms and the rear side shall have an average of 1 metre with minimum 0.50 metre. 7. Annexure A1, the plan approved by the Municipal Corporation, indicates that the building opens to a road on the western side and necessarily the eastern side would be the rear side of the building. The appellant herein is the owner of the building on the rear side of the disputed construction. From the plan it appears that, there is no deviation on the eastern side which the appellant is concerned. It is a different matter that according to the appellant as well as the Municipal Corporation there is no deviation from the rules on whatever account. 8. In the background of the abovementioned facts, we do not see any reason to interfere with the order under appeal, more particularly, in view of the observation of the learned Judge WA No. 1180 of 2010 -:6:- that, if in future, any specific violation with regard to the construction is pointed out by the petitioner(appellant herein) during the course of the constructions by respondents 3 and 4, the same will be looked into by the Corporation at the relevant time. The appeal is therefore dismissed at the admission stage. J.Chelameswar, Chief Justice. P.N.Ravindran, Judge. ttb