IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 9TH DECEMBER 2011 / 18TH AGRAHAYANA 1933 WA.No. 344 of 2010() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.25288/2009 Dated 11/02/2010 .................... APPELLANT(S): 2ND RESPONDENT: ----------------------------- THE KOTHAMANGALAM CO-OPERATIVE MARKETING SOCIETY LTD., E-137, KOTHAMANGALAM, REPRESENTED BY ITS PRESIDENT. BY ADV. SRI.ALEXANDER JOSEPH RESPONDENT(S): PETITIONERS/RESPONDENTS 1,3 & 4: ----------------------------------------------- 1. SAJU K.SCARIA, S/O.SCARIA, AGED 55 YEARS KAKUZHIYIL HOUSE, KUROORKARA, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM. 2. MOHANAN K.SCARIA, S/O.SCARIA, AGED 50 YEARS, KAKUZHIYIL HOUSE, KUROORKARA, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 4. THE KOTHAMANGALAM MUNICIPALITY, KOTHAMANGALAM, REPRESENTED BY ITS SECRETARY. 5. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. ADV. SRI.SHAJI P.CHALY FOR R1 SRI.V.M.KURIAN FOR R4 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MANJULA CHELLUR, Ag.C.J & P.R.RAMACHANDRA MENON, J. ---------------------------------------------- W.A.No. 344 of 2010 ---------------------------------------------- Dated this the 9th day of December, 2011 JUDGMENT Manjula Chellur, Ag.C.J. Heard learned counsel for the appellant as well as learned counsel appearing for respondents 1 and 2. 2. The controversy in this appeal is whether the construction put up by respondents 1 and 2 comes under the category of Group E or Group F of the Kerala Municipal Building Rules (for short, 'the Rules'). It is not in dispute that the properties of the appellant as well as respondents 1 and 2 are abetting each other. It is also not in dispute, when respondents 1 and 2 started construction of the building, a suit came to be filed by the appellant against respondents 1 and 2 for permanent injunction restraining from trespassing into the property of the appellant and putting up construction. According to learned counsel for the appellant, a temporary injunction was granted restraining respondents 1 and 2 from trespassing into the property and making any construction and the said suit is pending. The fact WA.344/10 2 remains, respondents 1 and 2 have commenced the construction and as on today, the construction is also over. It is brought to our notice, during the course of submissions, the respondents were allowed to put up construction subject to result of the Writ Appeal. However, we note Municipality concerned has filed details of the present position of the building constructed by respondents 1 and 2 describing the details of approved plan and the actual physical position, which reads as follows: “2. Ext.P2 Building permit was issued by the Municipality to respondents 1 and 2 for the construction of a Mercantile/Commercial building. The building is partly constructed. The set back as per the approved plan and presently available is given below. Approved plan Present position Front set back (Rule 24(3) 6.00 M 6.00 M Rear set back Rule 24(3) 2.25 M 3.10 M Right (north side set back Rule 24(5) 1.80 to 3.00 M 3.00 to 2.10 M Left (South) side set back Rule 24(5) 1.00 M 1.00 M The construction now made complies with Rule 34(1) in respect of car parking area also. There is no violation of the Buildings Rules.” 3. As per these details given by the Municipality conerned, according to them, the entire construction complies with Rule 34 WA.344/10 3 (1) in respect of car parking area also apart from complying with all building rules. As a matter of fact, there is a categorical statement of no violation of the Building Rules. According to the appellant's counsel, the construction put up by respondents 1 and 2 is in violation of Rules 30 and 31 of the Rules as the percentage of coverage is less than the prescribed coverage as the building in question falls under Group E. According to respondents 1 and 2, the nature of construction and the very plan sanctioned is for a building consisting shops, establishments and premises, therefore, it falls under Group F. In other words, according to the appellant, the floor area ratio permissible for Group E building is only 40%, but there is violation of this percentage and according to respondents 1 and 2, though for Group F buildings, the permission is 60%, they have put up only 44% as coverage area. 4. On perusal of the records, we note that the learned Single Judge, after referring to 30 and 31 of the Rules at paragraphs 6, 7 and 8, has clearly opined, why the building constructed by respondents 1 and 2 falls under Group F and not Group E. We also note that the sanctioned plan was to put up shops and once the building is proposed to be used for display and sale of merchandise by putting up shops/markets either wholesale or WA.344/10 4 retail business, it automatically attracts the buildings contemplated under Group F as well. In that view of the matter, the learned Single Judge was justified in saying as the proposed user of the building is meant for shops and markets, there is no violation of any Rule as such and the construction made by respondents 1 and 2 is within the permissible percentage as contemplated under the above Rules. When once the nature of construction of respondents 1 and 2 attracts the classification of Group F, the question of drawing the attention of Group E is not available. Even the Note-1 to Rule 30(3)(g) clarified by the learned Single Judge supports the argument of respondents 1 and 2 rather than the argument of the appellants. In that view of the matter, we are of the opinion, nothing remains for our consideration and accordingly, the Writ Appeal is dismissed. MANJULA CHELLUR, ACTING CHIEF JUSTICE P.R.RAMACHANDRA MENON, JUDGE vgs