IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 18TH MARCH 2008 / 28TH PHALGUNA 1929 WP(C).No. 9048 of 2008(B) -------------------------------------- PETITIONERS: --------------------- 1. BINOY SEBASTIAN, AGED 36 YEARS, S/O. SEBASTIAN, VENAD HOUSE, POONJAR SOUTH VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. 2. P.K. NARAYANAN, VALUVANNAMTHADATHIL HOUSE, MONIPPALLY KARA, MONIPPALLY VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. 3. JIBIN C.ABRAHAM, CHACKALACKAL HOUSE, MONIPPALLY KARA, MONIPPALLY VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. 4. BIJU NARAYANAN, BIJU NIVAS, RAMAMANGALAM KARA, MARADI VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. 5. P.R. THAMPI, PALACKATHURUTHEL HOUSE, PERUMBADAVAM KARA, ELANJI VILLAGE, MUVATTUPUZHA TALUK. BY ADV. SRI.C.C.THOMAS (SR.), ADV. SRI.M.G.KARTHIKEYAN RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY, TAXES (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 3. THE ASSISTANT EXCISE COMMISSIONER, KOTTAYAM. 4. THE DISTRICT COLLECTOR, COLLECTORATE P.O., KOTTAYAM. 5. THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, KURAVILANGADU,KOTTAYAM DIST. BY GOVT. PLEADER SMT. ANU SIVARAMAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/03/2008, ALONG WITH W.P.(C). NO. 8756/2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No. 9048 OF 2008 ----------------------------------------------- Dated this the 20th day of August, 2008 J U D G M E N T The Thripunithura Municipality challenges Ext.P6 order passed by the Tribunal for Local Self Government Institutions allowing an appeal filed by the 1st respondent-builder against the Municipallity's order declining building permit for the construction of an additional floor over a four storied building already permitted to be constructed under Ext.P2 dated 27.6.2007. Ext.P1 is true copy of the certificate from the Fire Department issued in favour of the 1st respondent in respect of the four storied building permitted under Ext.P2. Ext.P3 is copy of the revised plan submitted by the 1st respondent to the Municipality proposing to add one more floor to the building under construction on the strength of Ext.P2. The Municipality points out that the building is proposed to be constructed by the 1st respondent on a plot has got access from public road through a 5.5 meter wide road and that the building does not abut any public road. That being the position, the Municipality could not have granted permission for construction of additional floor since such permission would violate Rules 117 and 50 of the KMBR, 1999. Accordingly, Ext.P4 order declining permit was WP(C)N0.9084/08 -2- issued. Against Ext.P4 the builder filed W.P.C.No.36901/06 before this court. In that Writ Petition Ext.P5 counter affidavit was filed by the Municipality. During the course of the arguments, the 1st respondent opted for filing appeal before the 2nd respondent-Tribunal against Ext.P4 and it is accordingly that the 1st respondent approached the Tribunal. The Tribunal on considering the appeal has passed the impugned order Ext.P6 finding inter alia that the proposed building with the additional floor sought to be constructed will not be a high rise building as defined under Rule 110 of the KMBR and that the requirement of open space for fire fighting under Rule 117 cannot be insisted upon. As regards Rule 50 of the KMBR relating to recreation space, the petitioner-Municipality is directed to reconsider the issue and pass fresh orders. Impugning Ext.P6 on various grounds the Municipality prays that Ext.P6 order of the Tribunal be quashed and a declaration that the ground floor of the petitioner's building proposed to be constructed as per Ext.P3 plan is also a floor and hence the proposed building will be a high rise building as defined under Rule 110 of the KMBR, 1999. It is also prayed that a general declaration be issued that any building having more than four floors and also any building having more than 15 meters of height are high rise buildings WP(C)N0.9084/08 -3- for the purpose of Rule 110 of the KMBR, 1999 requiring compliance of Rule 117. 2. When the Writ Petition came up for admission, Adv.M/s.Joseph & Kurian took notice on behalf of the 1st respondent. The writ petition was admitted and I have heard the submissions of Mr.V.M.Kurian, learned counsel for the petitioner-Municipality and those of Mr.Joseph Markose, Senior Counsel for the 1st respondent. 3. Mr.V.M.Kurian, learned counsel for the petitioner-Municipality submitted that the short point which arises for decision in this case is whether the building which is proposed to be constructed by the petitioner by adding one more floor to the four floors already permitted will be a high rise building as defined under Rule 110 of the KMBR. The learned counsel referred to the definitions given to the terms 'basement floor', 'storey', 'floor', 'ground floor', 'height of building', 'high rise building' and 'open space for fire fighting' under Rule 2 dealing with definitions and Rule 110 which defines the term 'high rise' building. Mr.Kurian also referred to Rule 117 of the KMBR which insists on open space for fire fighting for every high rise building. Mr.Kurian argued that the view of the Tribunal that for counting the number of floors for the purpose of determining whether WP(C)N0.9084/08 -4- the building is a high rise building or not, the ground floor is to be excluded, is erroneous. The provisions of Section 9 of the General Clauses Act has been wrongly applied to hold that the word 'from' is akin to 'after'. The provisions of Section 9 of the General Clauses Act are only for interpretation of the enactments referred to in that Section. The interpretation of the word 'from' used for the purpose of and in reference to computation of time is not of universal application. The application of that interpretation should depend on the context in which the word 'from' occurs. In Rule 110 the word 'from' is used as a function word to indicate a starting point. Mr.Kurian also argued that the rule has to be understood in the light of the object for which it is made. According to Mr.Kurian, a high rise building has to comply with the provisions under rule 117 which is essentially a provision for fire fighting. A building having more than four floors or 15 metres of height is treated as high rise building. The basement floor is also part of the building. Therefore, in order to exclude the basement floor while counting the number of floors of the building the starting point is the ground floor. The words “and” “or” used in rule 110 has to be understood as either or both. Therefore a building having more than four floors as well as a building having more than 15 metres of height WP(C)N0.9084/08 -5- will be a high rise building for the purpose of the rules. To treat the word “from” as meaning “after” in the context of the rule will be a great anomaly. Mr.Kurian exemplified the matter by submitting that a High Court notice to the effect that a particular Judge will be sitting in Division Bench from 1-4-2008 is not to be understood as meaning that there will not be D.B. sitting on 1-4-2008. 4. Sri.Joseph Markose, senior counsel for the respondent would submit that a writ petition under Article 226 of the Constitution challenging the Tribunal's order is not maintainable. According to the learned senior counsel, the Municipality while considering application for building permit submitted by the respondent under rule 7 and rejecting the said application under rule 12 of the KMBR has been discharging a quasi judicial function. Having acted as quasi judicial authority the Municipality cannot be allowed to wear the garb of a party. The Tribunal is superior appellate authority and the order of the Municipality has merged with the order of the Tribunal. The learned counsel relied for the above proposition on the judgments of of this Court in District Executive Officer v. State of Kerala, 1991(1) KLT 390, Karur Panchayat v. State, 1996(1) KLT 12 and also the judgment of the Supreme Court in M.M.Ismail v. Spl. Director, Enforcement WP(C)N0.9084/08 -6- Directorate and another, (2007) 8 SCC 254. The senior counsel referred to section 509(9) of the Municipalities Act and submitted that the order of the Tribunal shall ordinarily be final under the scheme of the statute. According to the learned counsel, the above section read with rule 21 of the Tribunal's Rules makes it clear that as far as the Municipality is concerned its order gets merged with the order of the Tribunal and attains finality. Learned counsel also pointed out that the position which obtained prior to the constitution of appellate tribunal was that many of the appeals under the Act were heard by the Government and orders of the Government were accepted by the Municipality which had no right to challenge those appellate orders. 5. Coming to merits, Mr.Joseph Markose submitted that rule 117 of the KMBR is not applicable. He drew my attention to the definition of the term “high rise building” in rule 110 and submitted that there is no dispute that if another storey is added the present building which has ground + three floors will become a building having ground + four floors, but its height from the ground level will still be less than 15 metres. According to the learned counsel, the view of the Tribunal that the words “from ground level” qualify not only the words “15 metres of height” but also the words “four floors” is a plausible and WP(C)N0.9084/08 -7- correct one. Counsel referred to the definition given to “floor” in rule 2 (af) and submitted that “floor” means the lower surface in a storey on which one normally walks in a building. The learned senior counsel referred to the definition of the term “storey” given in rule 2(by) and submitted that “storey” means the building portion included between the surface of any floor and the surface of the floor next above it. Counsel argued that while storey is defined as a three dimensional space, floor is two dimensional. Counsel then referred to the definition given to ground floor in rule 2(ah) and submitted that “ground floor” means the lowest storey of a building to which there is an entrance from the adjacent ground or street. The learned senior counsel therefore argued that the ground floor of a building can be at the ground level, above the ground level or even below the ground level. The only requirement being that there must be an entrance from the adjacent ground or street. In order that the building should be a high rise building under rule 110 it is absolutely necessary that there must be minimum five floors from the ground level. Counsel referred to the interpretation given by P.Ramanatha Iyer in Law Lexicon to the word “from” as akin to “after”. Counsel submitted that the above interpretation is based on the view of the Mysore High Court in WP(C)N0.9084/08 -8- Srinivasa Silk Mills v. State of Mysore, AIR 1962 Mysore 117. If this interpretation is applied ground floor will have to be exclude from the counting of floor numbers for the purpose of rule 110. Mr.Markose argued that the words “floor” and “storey” have not been used interchangeably but instead have been defined and used separately. Counsel referred to in this context to rule 53(3), rule 54(4a) and rule 55(8a) all provisions relating to requirement of obtaining approval from the Director of Fire Force and pointed out that while the word “storey” is used in rule 53(3) the word “floor” is used in the other two rules. According to the counsel, if the interpretation of the Municipality is to be accepted the very purpose of using different words “storeys” and “floors” in rule 53(3) and 54(4a) will be defeated since both will have the meaning of three storeys from the ground floor. It is the interpretation given by the respondent builder which should be preferred since such an interpretation will be in consonance with the intention of the rule making authority in employing different words in these three rules. Learned senior counsel referred to rules 61 and 69 and argued that if the intention of the rule making authority was to include the ground floor it could have been specifically mentioned as is provided in building rules prevailing in States like Karnataka and Tamil WP(C)N0.9084/08 -9- Nadu. Counsel would lastly argue that Chapter 17 of the Building Rules has been enacted for the purpose of incorporating safety provisions for high rise buildings. He referred to the definition given to high rise building in the National Building Code and submitted that as per that definition only those buildings having height of 15 metres above are high rise buildings. Only floors after the ground level can have relevance with reference to high rise buildings. 6. I shall deal first with the argument of Mr.Joseph Markose that the petitioner being a statutory authority is not entitled to challenge the order of the Tribunal since it's own order which was appealed against before the Tribunal was a quasi judicial order which has now become merged with the order of the Tribunal. It would appear as though the above argument is supported by judicial authorities. It has certainly been held by the Supreme Court in Bhopal Sugar Industries v. Income Tax Officer, AIR 1961 SC 182 that when a subordinate authority in the statutory hierarchy does not adhere to or abide by the decision of a superior authority its action cannot be justified. But the above observation in Bhopal Sugar Industries was made by the apex court noticing the failure of the Income-tax Officer in carrying out the directions of the Income-tax Appellate Tribunal which was an appellate WP(C)N0.9084/08 -10- body sitting in appeal over orders of the Income-tax Officer. Chettoor Sankaran Nair, J. did hold in District Executive Officer v. State of Kerala, 1991(1) KLT 390 that a writ petition under Article 226 of the Constitution will not be maintainable at the instance of the District Executive Officers functioning under the Kerala Motor Transport Workers Welfare Fund Act, 1985 against the orders of the Appellate Authority modifying the orders which had been passed by them. His Lordship's decision was in acceptance of a fundamental principle that the hierarchal system of courts will work only if the decision of the superior court or tribunal is honoured by the lower court or tribunals. It is also true that this court in Karoor Panchayat v. State, 1996(1) KLT 112 considered this issue again in the context of a writ petition filed by the Karoor Panchayat against the order passed by the statutory appellate authority under section 144 of the Panchayat Raj Act and held that the Panchayat cannot assume role of a party litigant and is not expected to challenge the orders. Justice V.V.Kamat in that decision has observed that Panchayat in the circumstances of that case could not have been really aggrieved against the order of the appellate authority and goes on to find merit in the contention of the party respondent in that case that the action of the Panchayat in challenging WP(C)N0.9084/08 -11- the order of the appellate authority before the Government first and before this court next was malafide. Nevertheless, it will be seen from the judgment that this court did consider the merits of the matter and found that the Panchayat cannot have any legitimate grievance regarding the order passed by the appellate authority Deputy Director and by the revisional authority, the Government. Chettur Sankaran Nair, J. in District Executive Officer v. State of Kerala, 1991(1) KLT 390 noticed merit in the contention that the District Executive Officers, the petitioners could not be persons aggrieved since the collections went to pool and was governed by the board which it was noticed had not chosen to challenge the impugned order. 7. I shall now consider the statutory provisions relevant for considering the contentions raised. Section 509(6) of the Kerala Municipality Act provides that any person may file appeal against any notice issued or any order passed by the secretary under sections 390, 391, 395, 406 and 408 to the Tribunal constituted for Local Self Government Institution. Section 509(7) provides that the time limit for filing appeals will be 30 days from the date of passing of the impugned decision, order or notice. The appeal which was preferred by the first respondent before the Tribunal was against Ext.P4 and the WP(C)N0.9084/08 -12- said appeal was statutorily maintainable in law. The petitioner Tripunithura Municipality was the first respondent in that appeal. The second respondent in that appeal was the Secretary of the Tripunithura Municipality who was the author of Ext.P4. The present writ petition significantly is not filed by the author of the impugned order Ext.P4, instead it is filed by the Tripunithura Municipality, which is a local authority. Under section 221 of the Municipalities Act the Municipality has an identity distinct from that of its Secretary who is only one among the several municipal authorities constituted under Chapter 3 of the Act. The author of the order which was impugned before the Tribunal, the secretary was certainly exercising statutory and quasi judicial functions while disposing of and taking decision on the application submitted by the first respondent. But the writ petition is filed before this court by the Municipality only though represented by the Secretary. No finality is conferred by the Act to the decisions of the Tribunal. But under rule 21 of the Tribunal Rules, it is provided that the effect of the order of the Tribunal on an appeal or revision before the Tribunal will be that the order will stand confirmed, modified or cancelled with effect from the date of the Tribunal's order in accordance with the decision taken by the Tribunal. Here again I do WP(C)N0.9084/08 -13- not find any finality conferred to the decision of the Tribunal under the rules. The statute will show that any person, obviously any aggrieved person can prefer appeal or revision as the case may be to the Tribunal and appeals or revisions to be filed before the Tribunal contemplate notice to parties named as opposite parties in the appeal. The writ petitioner Tripunithura Municipality had been named as the first opposite party in the appeal preferred by the first respondent. Rule 16 of the Tribunal Rules will further show that the opposite parties are to be given not only notice by the Tribunal but are also to be permitted to file their pleadings and even to adduce evidence in support of the contentions raised. The named opposite parties are entitled for a hearing opportunity and also for copies of the decision taken by the Tribunal. I find it extremely difficult to accept the argument that an opposite party who was permitted to resist the appeal by adducing evidence and by raising arguments will not be entitled to challenge the order communicated to that party if he feels aggrieved by the decision of the Tribunal which is in reversal of the order appealed against before the Tribunal, an order which was acceptable to the opposite party. As already indicated the statutory authority who authored the impugned order of the Tribunal was the WP(C)N0.9084/08 -14- second respondent Secretary of the Municipality alone and he was only one among the several authorities of the Municipality. Even otherwise it will be seen from the judgment cited by Mr.Joseph Markose that the court examined the merits of the rival contentions and found on merits also that there is no warrant for interfering with the appellate decisions which were under challenge. The constitutional jurisdiction of this court to issue writs of certiorari when it is noticed that an administrative or quasi judicial authority has passed an order in violation of clear statutory provisions is irrefutable and therefore I shall proceed to consider whether the decision of the Tribunal impugned in this writ petition is the result of misreading of statutory provision as alleged by the petitioner. 8. Ext.P2 permit will show that the construction already permitted to the first respondent is construction of a building having total number of four floors inclusive of the ground floor. It is on the basis of Ext.P1 certificate issued by the Director, Fire and Rescue Services that Ext.P2 building permit was issued by the petitioner. Exts.P1 also specifically provides that the construction permitted is a four storied residential building having ground + three floors. It is not disputed that the petitioner sought for fresh building permit from the WP(C)N0.9084/08 -15- Municipality for making one more floor above the four floors permitted under Ext.P2. Ext.P3 revised plan submitted by the first respondent will show that the proposed building will have the ground floor and first floor, second floor, third floor and the additional 4th floor to be constructed. It is not disputed that the proposed building does not abut any road. Plot has got only a 5.5 metre wide access to the Tripunithura – Vennala Road. Rule 110 defines high rise building as meaning a building having more than 4 floors and or 15 metres of height from the ground level. For a lay man, it will be difficult to accept any body's claim that Ext.P3 building does not have more than four floors. Ext.P3 will show that it has got five floors if the ground floor is also taken into account. The Tribunal has held under the impugned judgment that while counting the number of floors of the proposed building the ground floor has to be excluded. While examining the correctness of the interpretation given by the Tribunal to the expression “high rise building” in the context of the definition given under Rule 110 and the stand of the Municipality it is necessary to examine the correctness of the answers given by the Tribunal to two questions. Firstly, whether the words “from ground level” qualifies height of the building alone or the same qualifies the number of floors WP(C)N0.9084/08 -16- also. According to the Municipality, the words “from ground level” qualifies height only and the conjunction “and or” in the rule means “either or” and therefore a building which has more than four floors (irrespective of the height of those floors) will be a high rise building. So also, according to the Municipality, a building which has got more than 15 metres of height (irrespective of number of floors) will also be a high rise building. On the question whether the words “from ground level” qualifies height of building alone, I am of the opinion that the answer given by the Tribunal is a correct one. The words “from ground level” will qualify the number of floors also. Even according to the Municipality, the reason for including the qualifying words “from ground level” is to exclude all basement floors which are below the ground level from the reckoning of height of the building. Basement floor is also a floor for the purposes of the Kerala Municipality Building Rules. Basement floor is defined under Rule 2(g) as meaning the lowest storey of a building below or partly below the ground floor. The word is synonymous with cellar. When the Municipality is conceding that height of the building basement floor can be excluded from the reckoning of 15 metres for deciding whether the building is a high rise building for the purposes of rule 110 it does not stand to reason to WP(C)N0.9084/08 -17- accept an argument that basement floor also should be taken into account for deciding whether the building has more than four floors for deciding the very same question. The very expression “high rise building” connotes the idea of a building rising from the level of the ground or the street on which the building abuts. In fact the Tribunal has given two reasons for taking the view. The first reason is that unless the words “from ground level” qualifies number of floors also it was not necessary to use the qualifying words since in rule 2(aq) height of the building is defined as vertical distance measured from the average level of the ground contiguous to the building or the centre line of the adjoining street. The above reason