IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 WP(C).No. 26611 of 2010(B) ----------------------------------- PETITIONER: ------------------- THE CALICUT CITY SERVICE CO-OPERATIVE BANK LTD.NO.D.2777,CHALAPPURAM , CALICUT,REP.BY ITS SECRETARY. BY ADV. SMT.P.A.ANITHA RESPONDENT: ---------------------- KOZHIKODE CORPORATION, KOZHIKODE, REPRESENTED BY ITS SECRETARY. ADV. SRI.P.V.SURENDRANATH FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.04.2011, THE COURT ON 15.11.2011 DELIVERED THE FOLLOWING: dlk WP(C).No. 26611 of 2010(B) APPENDIX PETITIONER'S EXHIBITS : EXT. P1 : COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE RESPONDENT DATED 06.11.2009. EXT. P1(A) : COPY OF THE NOTICE NO. TP6/78511/09 DATED 24.02.2010 OF THE RESPONDENT. EXT. P2 : COPY OF THE CERTIFICATE NO. G1-2395/2010 DATED 09.03.2010 ISSUED FIRE & RESCUE SERVICES. EXT. P3 : COPY OF THE CONSENT OF THE KERALA STATE POLLUTION CONTROL BOARD NO. PCB/HO/KKD/ICE/4224/04/2010 DATED 28.04.2010. EXT. P4 : COPY OF THE NOTIFICATION NO. G.O.(Ms)NO. 249/2009/LGSD DATED 16.12.2009. EXT. P5 : COPY OF THE EXPLANATOTY NOTE IN G.O.(MS) NO. 128/2010/ LGSD DATED 21.06.2010. EXT. P6 : COPY OF THE ORDER OF THE RESPONDENT DATED 08.07.2010. EXT. P7 : COPY OF THE ORDER OF THE RESPONDENT DATED 18.08.2010. EXT. P8 : COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE RESPONDENT DATED 18.05.2010. EXT. P9 : COPY OF THE LETTER NO. T.P. 11/45085/2010 DATED 16.06.2010 OF THE RESPONDENT. EXT. P10 : COPY OF THE LETTER NO. T.P.11/45085/2010 DATED 04.08.2010 OF THE RESPONDENT. EXT. P11 : COPY OF THE SITE PLAN OF THE PROPOSED COMMERCIAL CUM APARTMENT. EXT. P12 : ORIGINAL OF THE PHOTOGRAPH SHOWING THE ROAD FRONTAGE OF THE BUILDING. RESONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE dlk C.T.RAVIKUMAR, J. ---------------------------- W.P.(C)No.26611 of 2010 ---------------------------- Dated 15th November, 2011 JUDGMENT The petitioner is a Service Co-operative Bank registered under the Kerala Co-operative Societies Act, 1969. It purchased 63 cents of land, comprised in Re-survey Nos.364 and 365 of Kasaba village in Kozhikode Taluk as per Sale Deed No.637/09 from one Mr.Venugopal V. and one Smt.Rethi Jayasankar. The building permit held by them for constructing a three storied building in the said property was transferred in favour of the petitioner in terms of Rule 21 of the Kerala Municipality Building Rules (for short 'KMBR Rules') as per order No.T.P.6/74393/09 dated 31.10.2009. According to the petitioner, it was purchased with a view to have a 14 storied building for the purpose of housing the headquarters of the bank and also to construct apartments. Therefore, Ext.P1 revised application for permission to construct additional 11 stories over and above the three stories in the property involved in the permit, was submitted on 6.11.2009. Admittedly, after its scrutiny, the petitioner was informed that the said application was unaccompanied by the requisite consent from the Pollution Control Board and ' No Objection Certificate ' from the Fire and Rescue Service Headquarters. In fact, as per Ext.P2, the petitioner was directed to submit No Objection Certificate from the WP(C).No.26611/2010 2 Pollution Control Board. Earlier, a direction was admittedly issued to the petitioner to submit NOC from the Fire and Rescue Services. Pursuant to such directions, the petitioner obtained the aforesaid consent and NOC viz., Exts.P2 dated 9/3/2010 and P3 dated 28/4/2010 respectively and produced them before the respondent on 28.4.2010. The contention of the petitioner is that subsequently, the respondent refused to consider Ext.P1 application that was submitted as early as on 6.11.2009 owing to the amendment brought in to the Rules as per Ext.P4 dated 16.12.2009. The contention of the petitioner is that Ext.P4 would reveal that the said amendment was brought into force at once and therefore, it got no retrospective effect whilst it is having only prospective application. Raising grievances against the non-consideration, the petitioner had earlier approached this Court by filing W.P.(C).No.16712/2010. The said writ petition was disposed of by judgment dated 8.6.2010 with a direction to the respondent to consider and pass orders on Ext.P1 referred as such therein, within the time stipulated thereunder. In the meanwhile, Government have issued Ext.P5 notification making certain amendments to various provisions in the Rules. Thereafter, Ext.P1 revised application submitted by the petitioner was rejected as per Ext.P6. Feeling aggrieved by the said order of rejection, the petitioner WP(C).No.26611/2010 3 filed W.P.(C).No.21703 of 2010. That writ petition was disposed of without prejudice to the right of the petitioner to file a statutory appeal. Thereupon, the petitioner preferred an appeal as contemplated under Section 509 of the Kerala Municipalities Act before the council of the first respondent. That appeal was rejected as per Ext.P7 order dated 18.8.2010. It is is challenging Ext.P7 that this writ petition has been filed. 2. Manifold contentions have been raised to assail Ext.P7. It is contended that Ext.P1 revised application for building permit was submitted as early as on 6.11.2009. Therefore, the said application should have been considered in accordance with law that was in force as on the date of submission of Ext.P1 application. Ext.P4 would reveal that it came into effect only with effect from 16.12.2009 whereas the application was submitted on 6.11.2009. The action on the part of the respondent in rejecting the application relying on the amendment brought in subsequently is illegal and unsustainable, it is contended. The further contention is that the reasons cited in Ext.P6 for rejecting the application such as violation of Rules 14(A), 14(A)(iv), 14(A)(v), 24(8), 117, 31(B)(ii) etc. are bereft of any basis and as such, unsustainable. It is further contended that subsequent to Ext.P4, the respondent has WP(C).No.26611/2010 4 issued 12 high rise building permits under unamended rules as is obvious from Ext.P10. It is, therefore, contended that the petitioner has been arbitrarily discriminated. In this juncture, I may hasten to say that merely because such permits were given to some persons cannot be a ground for this Court to interfere with and to issue a direction to grant the petitioner permit without looking in to the legal right of the petitioner. There can be doubt with respect to the positions that even if a benefit is wrongly given in favour of some others that does not cloth a right to perpetrate the wrong as also no one can claim a right to perpetuate the same. In short, the entitlement of the petitioner based on equality clause would defend upon the righteousness of the said actions. Article 14 of the Constitution of India is a positive concept. A scanning of the contentions would reveal that in essence, the grievance of the petitioner is with respect to the consideration of Ext.P1 application in the light of the amended provisions. According to the petitioner, since Ext.P1 application was submitted on 6.11.2009 i.e., prior to the amendment brought into the Rules as per Ext.P4 with effect from 16.12.2009, it should have been considered in the light of the unamended provisions. Obviously, permission to construct 4 storied building was granted originally to vendors of the petitioner much prior to WP(C).No.26611/2010 5 the coming into force of the amended provision and it was transferred in the name of the petitioner on 31/10/2009. Therefore, according to the petitioner, Ext.P1 is a revised application for a revised permission. The construction of the building on the strength of the building permit transferred in the name of the petitioner was commenced prior to Ext.P4 notification. It is impossible, at this distance of time, to comply with the conditions in Ext.P4 as the structural work for the three floors were already completed, prior to the coming into force of the said notification, it is contended. In short, the contention is that despite the issuance of Exts.P4 and P5, taking into account the fact that based on the permission for constructing a 4 storied building 3 floors were already completed as on the date of coming into force of Ext.P4, the petitioner should have been granted permission based on Ext.P1 revised application for constructing 11 stories over and above the 4 stories permitted to be constructed prior to Ext.P4. 3. It is contended by the respondent that the appeal preferred against Ext.P6 was considered and rejected as per Ext.P7. Ext.P7 is appealable before the Tribunal for Local Self Government Institutions and as such, the writ petition is liable to be dismissed on that score. It is also contended that the issues involved in this writ petition WP(C).No.26611/2010 6 are covered against the petitioner by the judgment of the Hon'ble Apex Court in Howrah Municipal Corpn. and others v. Ganges Rope Co. Ltd. and others ((2004) 1 SCC 663). The respondent has raised the following further contentions as well, to support and sustain Exts.P6 and P7. Ext.P1 revised application was incomplete on various aspects. It was unaccompanied by documents mandatorily required to be produced viz., No Objection Certificate from the Fire and Rescue Services and consent from the Pollution Control Board. No valid application was pending prior to the amendment brought in as per Ext.P4 inasmuch as Ext.P1 application was incomplete or defective on various aspects, it is contended. Ext.P2 `No Objection Certificate' from the Fire Force Department and Ext.P3 consent from the Pollution Control Board were produced only in the year 2010. By the time Exts.P2 and P3 were produced and the said application was taken up for consideration after such production of required documents, the amendment to KMBR came into force from 16.12.2009 and therefore, it could not have considered without reference to the amended provision, it is contended. The contention of the petitioner that Ext.P1(a) notice confirms that Ext.P1 application was in conformity with the KMBR is also refuted as unsustainable on account of the admitted non-production of No WP(C).No.26611/2010 7 Objection Certificate from the Fire and Rescue Services and consent from the Pollution Control Board. The question whether Ext.P1 is a fresh application or a revised application is immaterial and irrelevant because any such application seeking grant of building permit should conform to the requirements under the Rule in force, at the relevant point of time to make it a valid application. In short, according to the respondent, there is absolutely no merit in the contention of the petitioner that Ext.P1 application should have been considered in accordance with the unamended provisions of the KMBR, despite the coming into force of the amended provisions. 4. I have heard the learned counsel for the petitioner and also the learned standing counsel for the respondent. 5. After filing the reply affidavit Exts.P11 and P12 were produced by the petitioner along with I.A.No.16280 of 2010. Ext.P11 is the proposed site plan of the commercial-cum-apartment. Ext.P12 is the photograph showing the road frontage of the building. The said documents were produced with a view to contend that sufficient space had been left on all sides for free movement of vehicles including fire fighting ones. The rival contentions, as referred above, would reveal that the main question to be decided is whether the action on the part of WP(C).No.26611/2010 8 the respondent in considering Ext.P1 application in the light of the amended provisions under the KMBR is illegal and liable to be interfered with. 6. The petitioner has purchased the land in question along with the building permit issued to its vendors for constructing a 4 storied building. The said permit was transferred in the name of the petitioner in tune with the provisions under Rule 21 of the KMBR as per order dated 31.10.2009. Later, with a view to effect further construction of 11 stories over and above such permitted construction that Ext.P1 application was submitted on 6.11.2009. Admittedly, Ext.P1 application was unaccompanied by No Objection Certificate from the Fire and Rescue Services and also consent from the Kerala State Pollution Control Board. Ext.P2 is the No Objection Certificate issued by the Fire and rescue Services dated 9.3.2010 and Ext.P3 is the consent issued by the Kerala State Pollution Control Board dated 28.4.2010. Going by Rule 4(2) of KMBR, for effecting construction or for making addition or extension or alteration to any building it is mandatory to obtain permit and Rule 7 therein makes it mandatory to submit appropriate application in the form prescribed and when once, such applications are received the competent authority has to consider the same in accordance with the relevant WP(C).No.26611/2010 9 provisions under the KMBR. Exts.P2 and P3 would virtually substantiate the contention of the respondent that Ext.P1 application was not accompanied by all requisite documents required to be produced along with an application for building permit. The question is whether a mere submission of an incomplete application prior to the amendment to the relevant rules in the KMBR would take out the said application from the purview of the amended provisions and make it liable for consideration in view of the unamended provision when once the defects are cured. 7. The contentions of the petitioner are two fold. Firstly it is contended that the amendment to the rules came into force on 16.12.2009 and Ext.P1 application was submitted on 6.11.2009, that is, well before the amendment to the relevant rules under the KMBR. When the admitted position is that Ext.P1 application was not accompanied by all the documents mandatorily to be produced along with an application for building permit, how can it be contended that it was a valid application. Evidently, the said application became a complete and valid application calling for scrutiny and consideration by the competent authority only on production of Exts.P2 and P3 and admittedly, by the time they were produced the amendment that was brought in as per Ext.P4 to the KMBR came into force. In view of the aforesaid discussion, WP(C).No.26611/2010 10 I am of the view that mere putting of an incomplete application would not enable the concerned applicant for seeking exemption or exclusion from the applicability of the amended provisions. After submitting an application for building permit, unaccompanied by the documents mandatorily required, the concerned applicant cannot contend that a valid application was pending consideration by a competent authority. In this case, the petitioner did not have a case that Exts.P2 and P3 were absolutely unnecessary for consideration of Ext.P1 application. In fact, for consideration of Ext.P1 application the petitioner has produced Exts.P2 and P3 subsequently. In the case of an application for construction of eleven stories, over and above an already permitted and partly completed construction, one cannot contend that `No Objection Certificate' from the Fire and Rescue Services and consent from the Pollution Control Board are not required for its consideration. In the circumstances, curing of defects at a later point of time, by producing Exts.P2 and P3 that too, after the amendment to the relevant provisions under the KMBR cannot and will not be a reason for compelling consideration of the application in the light of the unamended provisions. It cannot be contended that Ext.P1 application was infected with only certain minor mistakes. It appears that the contention of the petitioner is WP(C).No.26611/2010 11 that he got a vested right for sanction on account of submission of Ext.P1 revised application on 6.11.2009, i.e., before Ext.P4 amendment came into force. The further contention taken in support of the said claim is that Ext.P1 was not a fresh application whilst it was only a revised application for building permit, over and above the already permitted construction. It is further contended that based on such permission three floors were already completed and through the revised application what was sought for is a permission to effect further construction of 11 stories, over and above the four stories permitted to be constructed and of which construction of three stories were already completed. In fact, there is an incongruity with respect to the request sought for, in the pleadings. In that context, it is relevant to refer to the following:- “The petitioner purchased 63 cents of land in the year 2009 vide document No.637/09 from Venugopal.V and Rethi Jayasankar, the building permit issued to them to construct a 3 storied building was transferred in favour of the petitioner vide Order No.T.P.6/74393/09 dated 31.10.2009, as the purpose for purchase of the said land was for constructing a 14-storied building, for the purpose of housing its Head quarters and also construct apartments; the petitioner was directed to file a revised application for permission to construct a 11-stories above the 4 stories already sanctioned. Then as per the directions of the respondent a revised application dated 6- 11-2009 was submitted for permission for additional 11 stories.” Ground `L' would suggest that the intention based on which Ext.P1 WP(C).No.26611/2010 12 application was submitted was for construction of a 14 storied building. However, the above extracted portion from paragraph 2 of the writ petition would suggest that through Ext.P1 application permission was sought for constructing 11 stories over and above the four stories permitted to be constructed. The contention of the petitioner that since the petitioner is in possession of a permit for effecting construction of a four storied building in the property in question and three floors have already been constructed the permission sought through Ext.P1 was for effecting construction of 11 stories, over and above the said four stories, should not have been considered as a fresh application and the application should have been, in the circumstances, considered as a revised application and should have been considered in the light of the unamended rules, cannot be countenanced. Admittedly, there is no challenge against the amendment brought to the rules as per Ext.P4. The only contention is that it is having only prospective application and is not having any retrospective effect. In view of the facts obtained in this case, I am of the view that the very description of Ext.P1 as a revised application itself is misconceived. True that, the petitioner got transferred a permit for construction of a four storied building in the property in question in terms of provisions under Rule 21 of the KMBR. WP(C).No.26611/2010 13 On its strength, admittedly, the petitioner has commenced the construction and according to the petitioner, three stories have already been constructed. The requirement of the petitioner is for permission to effect further constructions i.e., permission to construct 11 stories over and above the permitted construction. Admittedly, that application was unaccompanied by all the required documents and Exts.P2 and P3 were produced subsequently that too, after Ext.P4 amendment came into force. When that be the position, Ext.P1 could have been considered only in accordance with the provisions existing on the date when the application was taken up for consideration. Possession of permit for constructing a four storied building cannot be a reason for claiming consideration of a subsequent application for further construction atop the already permitted construction as per the earlier rule position or in other words, disregarding the law as on the date on which it was considered. No one can claim any vested right merely on account of possession of such an earlier building permit and based on submission of another application for constructing additional floors on such building built on the strength of the earlier permit. Evidently, it is not a mere extension or alteration that is proposed by the petitioner. As already noticed, Ext.P1 application was made a valid application by producing WP(C).No.26611/2010 14 Exts.P2 and P3 only after the amendments in the KMBR was brought into force. Above all, a careful scrutiny of the pleadings would reveal that no challenge as such was made against any particular provision under the KMBR. Ext.P4 produced by the petitioner is incomplete inasmuch as the amendment that was brought to KMBR is not discernible from it. However, a conjoint reading of paragraph 3 of the writ petition and ground G and I would reveal that the grievance of the petitioner is against the consideration of Ext.P1 application in the light of the amendment brought into Rules 116 (virtually Rule 116 originally stood was omitted and the present Rule 116 was inserted), 117 as also Floor Area Ratio under Rule 31(b). According to the petitioner, Ext.P1 application is liable to be considered without reference to the amendments brought as per SRO No.1070/2009 in G.O.(Ms) No.249/2009/LSGD dated 16.12.2009 to various provisions under the KMBR. The petitioner claims for non-application of such amended provisions based on the fact that Ext.P1 application was submitted on 6.11.09 and that the permission sought for is for construction of additional floors on the partially completed building on the strength of a building permit granted prior to the amendment. I am of the considered view that all such circumstances would not and could not fetch any WP(C).No.26611/2010 15 vested right for sanction on the basis of the unamended rules. As already noticed hereinbefore, there is no challenge against the amendment brought in as per Ext.P4 and also Ext.P5. Such amendments were brought in by the State Government in exercise of its rule making power. Certain restrictions have been brought in through such amendments. In the matter of such amendments in regard to the building permits for construction or reconstruction of buildings the prime consideration should also the public interest and convenience and certainly not the interest of the concerned private individual. No one can presume that the Legislature's action in bringing amendments to the building rules was made without a purpose. Certainly, such amendments were brought in with definite purposes giving paramount consideration to public interest and convenience. In the context of the contentions and issues involved in this writ petition it is apposite to refer to the decision of this Court in M/s. Asset Homes Pvt. Ltd. & another v. State of Kerala and another (2011(1) KHC 276). It has been held therein that issuance of building permit is not a ministerial act. Report of No Objection Certificate from various departments may not automatically lead to issuance of building permit. Grant of NOCs coupled with completion of other formalities under Rule 11(3) alone would lead to WP(C).No.26611/2010 16 issuance of permits. With respect to the effect of amendment of rules on pending applications, it has been held that even if Rules are amended prospectively, pending applications are never exempted from the purview of the amendment. In the circumstances available in the case on hand, I have no hesitation to hold that the said dictum laid down by this Court would squarely apply in this case. In the said circumstances, the discretionary jurisdiction of this Court under Article 226 of the Constitution of India cannot be invoked in favour of the petitioner for the purpose of granting exemption in total disregard to the existing building rules or for issuing a direction to reconsider Ext.P1 application in the light of the unamended provisions in the KMBR viz., the provisions which were in force on 6.11.2009, the date of submission of Ext.P1. The contention of the petitioner regarding legitimate expectation and also the vested right also cannot be countenanced in the facts and circumstances of this case. In short, the action on the part of the respondent in considering Ext.P1 application in accordance with the amended provisions in the building rules is perfectly in order and legal and calls for no interference. A perusal of the contentions in the writ petition and also additional documents produced would suggest that the petitioner is having a contention that the facilities and open space already available WP(C).No.26611/2010 17 would satisfy the statutory requirements and mandates. For deciding the tenability or verity of such contentions, it requires a fact finding enquiry and certainly, such a fact finding enquiry cannot be undertaken in this proceedings. I am of the view that such contentions have to be raised before the authorities concerned who are competent to look into the genuineness or correctness of such contentions. It will be up to the petitioner to work out remedies to redress any such grievances, in accordance with law. At any rate, such disputatious facts cannot be gone into in a writ proceedings. Subject to the said observation, this writ petition is dismissed. Sd/- C.T.RAVIKUMAR Judge TKS