IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 WP(C).No. 3538 of 2005(U) ------------------------- PETITIONER(S): --------------- E.J.AMMINI W/O. JOSE, CHUNGATHU HOUSE, KUNNAMKULAM, TRICHUR DISTRICT. BY ADV. SRI.A.J.VARGHESE SRI.JOSE. V.V. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN RESPONDENT(S): --------------- 1. TRICHUR CORPORATION, REPRESENTED BY SECRETARY, CORPORATION OFFICE, TRICHUR. 2. THE SECRETARY, TRICHUR CORPORATION, TRICHUR. ADV. SRI.K.P.VIJAYAN FOR R1&2 SRI.V.M.SYAM KUMAR FOR R1&2 SRI.K.A.SREEJITH FOR R1&2 SMT.KRIPA ELIZABETH MATHEWS FOR R1,2 SRI.V.N.HARIDAS FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 3538 OF 2005 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : TRUE COPY OF THE ORDER DATED 28.08.2002 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P2 : TRUE COPY OF THE RECEIPT DATED 08.07.2004 ISSUED BY THE FIRST RESPONDENT. EXHIBIT P3 : TRUE COPY OF THE ORDER DATED 21.07.2004 BY THE SECOND RESPONDENT. EXHIBIT P4 : TRUE COPY OF THE REPRESENTATION DATED 27.01.2005. EXHIBIT P5 : TRUE COPY OF THE NOTICE DATED 28.01.2005 ISSUED BY THE 2ND RESPONDENT. /TRUE COPY/ P.A. TO JUDGE. P.R.RAMACHANDRA MENON, J ----------------------------------------- WP(C) NO. 3538 OF 2005 ------------------------------------ Dated this the 11th day of October, 2011. JUDGMENT The petitioner is running a Bar hotel in the building situated in the property comprised in survey No. 1979/1 and 1980/5 of Thrissur village. It is stated that the building is an old one and to protect the building from rains, the petitioner wanted to construct a temporary roof for the terrace; for which sanction was sought for from the respondent corporation. After considering the application and the report dated 19.05.2002 submitted by the Building Inspector, followed by the recommendation of the Town Planning officer on 27.05.2002, Ext.P1 sanction was given to have the construction; however placing a rider therein, that the period of sanction will be restricted to six months, after which the temporary roof was to be removed/demolished at the cost of the petitioner. 2. The petitioner preferred an application for renewal, remitting the prescribed permit fee and the sanction was renewed by the second respondent, as per Ext.P3 proceedings 2 WP(C) No. 3538/2005 dated 21.07.2004, by granting extension for a further period of six months, on expiry of which the temporary construction was ordered to be demolished. The petitioner preferred Ext.P4 representation again, before the respondents on 27.01.2005 pointing out that the temporary construction effected was to protect the building from the rains and that the removal of the same will naturally defeat the purpose and accordingly sought for renewal of the sanction agreeing to satisfy the prescribed fee. This however was not acceptable to the second respondent, who issued Ext.P5 notice on the next day, to have the temporary construction demolished within three days; lest coercive proceedings should follow, which made the petitioner to approach this court. 3. When the matter came up for consideration before this Court, further steps pursuant to Ext.P5 were intercepted on 01.02.2005, which was extended on 11.02.2005. This Court passed a detailed interim order on 23.02.2005 in the following terms. “Heard the learned counsel for the 3 WP(C) No. 3538/2005 petitioner and the standing counsel for the respondent Trichur Corporation. This Writ Petition is admitted. The respondents shall file counter affidavit within a period of 30 days, explaining how and under what circumstances the construction which has been regularised is now being attempted to be demolished. Interim stay issued initially on 01.02.2005 and extended on 11.02.2005 shall remain in force, until further orders”. Though the respondents have filed counter affidavit, the explanation sought to be furnished as per the interim order passed on 23.02.2005 does not find a place in the counter affidavit. In fact, the said counter affidavit is of the same date, i.e., 23.02.2005, wherein the only reason is that the sanction given by Exts.P1 and P3 was only for a limited period and as such, the petitioner is bound to have the construction demolished. 4. This Court finds it difficult to accept the logic behind the issuance of Exts.P1 and P3 by placing a rider to have the temporary shed (intended as a protection to the terrace to save the building from the rains) to be demolished after the sanctioned period of six months; as if the rains were to come to 4 WP(C) No. 3538/2005 an end, once and for all, on expiry of said period of six months. No further affidavit has been filed before this Court, in terms of the interim order dated 23.02.2005. 5. After hearing both the sides, this Court finds that there is absolutely no rhyme or reason in directing the petitioner to demolish the temporary structure put up on the terrace of the building in question. This is more so, in view of the decision reported in Padmanabhan K. Vs. State of Kerala and others [2009 (1) KHC 251], wherein some observations have been made that such portion will not come within the definition of the term 'plinth area' under Section 2(k) of the Kerala Building Tax Act, 1975 so as to attract the tax liability. It has also been observed by this Court that, a roof covered to prevent the building from the adverse effect of the Sun and the Rains is part of preventive steps, which should be encouraged by all means. 6. In the said circumstances, Ext.P5 issued by the second respondent is set aside. It is however made clear that, this will not be a 'green card' to the petitioner to have the premises to be used by covering the side walls or by making any other 5 WP(C) No. 3538/2005 constructions to have the said area used for some other purposes, as a part of the building. It also to be open for the respondents to collect the requisite fee/charges, if any, from the petitioner in accordance with the relevant provisions of law, in respect of the relief sought for in Ext.P4. Writ Petition is disposed of. P.R.RAMACHANDRA MENON JUDGE dnc