IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 18TH MARCH 2010 / 27TH PHALGUNA 1931 WP(C).No. 33798 of 2008(W) -------------------------- PETITIONER(S): --------------- C.S.JAYARAMAN, 1/617, OLD KALPATHY, PALAKKAD-3. BY ADV. SRI.P.K.SURESH KUMAR SMT.P.S.SHEEJA RESPONDENT(S): --------------- 1. THE PALAKKAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, PALAKKAD. 2. ART & HERITAGE COMMISSION, REPRESENTED BY ITS MEMBER SECRETARY (THE CHIEF TOWN PLANNER), THIRUVANANTHAPURAM. 3. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R1 SRI.T.C.SURESH MENON FOR R1 SRI.JIBU P THOMAS FOR R1 SRI.P.S.APPU FOR R1 GOVERNMENT PLEADER FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.33798/2008 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF BUILDING PERMIT DATED 08/06/2007 ISSUED BY R1 TO THE PETITIONER. P2 : COPY OF NOTICE DATED 03/03/2008 ISSUED BY R1 TO THE PETITIONER. P3 : COPY OF LETTER DATED 05/05/2008 FROM R1 TO R2. P4 : COPY OF REPRESENTATION DATED 09/05/2008 SUBMITTED BY THE PETITIONER BEFORE R2. P5 : COPY OF JUDGMENT DATED 04/06/2008 IN WP(C) NO.11250/2008 PASSED BY THIS HONOURABLE COURT. P6 : COPY OF LETTER DATED 10/07/2008 ISSUED BY R2 TO R1. P7 : COPY OF ORDER NO.EJBR/52/07-08/PW5 DATED 18/09/2008 ISSUED BY R1. P8 : COPY OF LETTER DATED 16/01/2008 ISSUED BY R2 TO R1. P9 : COPY OF APPLICATION DATED 22/04/2008 SUBMITTED BY THE PETITIONER BEFORE R1. RESPONDENT'S EXHIBITS R1(a) : COPY OF LETTER RECEIVED BY THE MUNICIPALITY DATED 24/01/2008. R2(a) : COPY OF COMMUNICATION DATED 30/11/2007 ISSUED BY THE CHIEF TOWN PLANNER TO THE SECRETARY TO GOVERNMENT. R2(b) : COPY OF LETTER DATED 24/01/2008 ISSUED BY THE SECRETARY TO GOVERNMENT TO THE SECRETARY, PALAKKAD MUNICIPALITY. R2(c) : COPY of COMMUNICATION DATED 24/10/2009 ISSUED BY R2. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.33798 of 2008 (W) --------------------------------- Dated, this the 18th day of March, 2010 J U D G M E N T Ext.P1 is the building permit granted to the petitioner on 08/06/2007 for construction of a 3 storeyed apartment complex. According to the petitioner, construction was almost completed and at that stage, based on the advice of the 2nd respondent, Ext.P2 stop memo was issued by the Municipality. That stop memo was challenged before this Court in WP(C) No.11250/2008. In that writ petition, the Municipality took the stand that the petitioner had made certain constructions deviating from the approved plan. In view of the stand so taken by the Municipality, the petitioner submitted Ext.P9 requesting the Municipality to allow modification to the approved plan. It would appear that the Municipality by Ext.P3, referred Ext.P9 to the 2nd respondent. Taking into account the above developments, this Court disposed of WP(C) No.11250/2008 by Ext.P5 judgment dated 04/06/2008 directing the 2nd respondent to consider the entire matter. WP(C) No.33798/2008 -2- 2. The 2nd respondent considered the matter and issued Ext.P6 taking the view that although the permit was issued to the petitioner prior to Ext.R2(b) advice rendered by it on 24/01/2008, the petitioner should comply with the norms laid down by the 2nd respondent. Acting upon Ext.P6, the Municipality issued Ext.P7 rejecting the request of the petitioner for modification of the plan. It was at that stage, this writ petition has been filed. 3. The prayers sought in the writ petition are to :- a) quash Exhibits P6 & P7 orders by the issue of a writ of certiorari or other appropriate writ, order or direction. b) declare that the advise of Art and Heritage Commission as regards the heritage value of Kalpathy area has no application in the case of the petitioner's building as the same is covered by a building permit issued prior to such advise. c) issue a writ of mandamus or other appropriate writ, order or direction commanding the 1st respondent to allow the petitioner to complete the construction of the building covered by Ext.P1 permit and to assign numbers to the same.” 4. In this writ petition, the petitioner sought an interim prayer to direct the 1st respondent to permit him to complete the construction of the building as allowed by Ext.P1 building permit and to provisionally assign number. He undertook that such WP(C) No.33798/2008 -3- construction will be made as per the original plan and on that basis, this Court passed order dated 11/12/2008 allowing the petitioner to proceed with the construction. It is stated that accordingly, the petitioner completed construction strictly in terms of Ext.P1 building permit and the plan as originally approved by the Municipality, and that the Municipality has also provisionally numbered the building. 5. In this writ petition, respondents 2 & 3 have filed a counter affidavit. From the counter affidavit filed, it would appear that taking into account the difficulties caused by Ext.R2(b) dated 24/01/2008 issued by the Government acting upon the recommendation made by the 2nd respondent, the 2nd respondent has made Ext.R2(c) recommendation to the Government recommending to permit continuance of constructions undertaken on the basis of building permits issued prior to 24/01/2008. Therefore, it is evident that persons like the petitioner, who have obtained permit prior to 24/01/2008, can continue construction irrespective of the recommendation made by the 2nd respondent. If that be so, the recommendation of the 2nd respondent did not stand in the way of the petitioner in completing the construction based on WP(C) No.33798/2008 -4- Ext.P1 building permit, which according to the petitioner, has already been completed. If as stated by the petitioner, his construction is strictly in accordance with Ext.P1 building permit, at this stage, all that is needed is that the Municipality shall regularise the provisional building number that has been assigned to the building. Therefore, this writ petition is disposed of directing the Municipality to inspect the building constructed by the petitioner and if it is satisfied that the construction is strictly in compliance with the conditions of Ext.P1 building permit issued on 08/06/2007, regularise the building number provisionally assigned to the building in question. This the Municipality shall do immediately on production of a copy of this judgment. This writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg