IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 19TH JANUARY 2011 / 29TH POUSHA 1932 WP(C).No. 25608 of 2010(A) -------------------------------------- PETITIONER(S): ----------------------- 1. ROGI JOHN, AGED 45 YEARS, PARAPPAT, T.C. 3/2690, PATTOM,THIRUVANANTHAPURAM PIN-695004. REP. BY POWER OF ATTORNEY HOLDER RAJAGOPAL, S/O. K.R. NAIR, AGED 43 YEARS, RESIDING AT ANANDA BHAVAN, KAITHARAM.P.O., NORTH PARAVUR. 2. GEORGE JOHN, AGED 48 YEARS, PARAPPAT, T.C. 3/2690, PATTOM,THIRUVANANTHAPURAM, PIN-695004, REP. BY POWER OF ATTORNEY HOLDER RAJAGOPAL, S/O. K.R.NAIR, AGED 43 YEARS, RESIDING AT ANANDA BHAVAN, KAITHARAM.P.O., NORTH PARAVUR. BY ADVS. SRI.JOBY JACOB PULICKEKUDY SRI.ANIL GEORGE SRI.K.S.SUMEESH RESPONDENT(S): ------------------------ 1. THE CORPORATION OF KOCHI,REP. BY SECRETARY, KOCHI CORPORATION, ERNAKULAM. 2. THE SECRETARY, CORPORATION OF KOCHI, ERNAKULAM. 3. THE ASST. EXECUTIVE ENGINEER, CORPORATION OF KOCHI, ZONAL OFFICE, EDAPPALLY. R1 TO R3 BY ADV. SMT.M.K.PUSHPALATHA,SC,COCHIN CORPORATION THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.25608 OF 2010 -------------------------------------------- Dated this the 19th day of January, 2011 JUDGMENT The petitioners are the owners in possession of property having an extent of 10.8 cents of land in Sy.No.80/4 of Elamkulam village. They have submitted an application for construction of a multi-storied building with 6 floors (G+5). According to the petitioners, they were asked to file a revised plan and accordingly, they have submitted Ext.P1 on 12.1.2009. Pursuant thereto, the petitioners were issued with a building permit with three floors viz., G+2 as per Ext.P2. After completing construction in terms of Ext.P2, they submitted a fresh application on 4.5.2009 seeking permission to effect further construction viz., for construction of six floors ( G + 5). Ext.P3 is the application submitted for that purpose. It is the contention of the petitioners that despite the receipt of Ext.P3 application, no orders have been passed by the respondents and therefore, they have submitted Ext.P4 application before the Council of Corporation of Kochi. Though the application was received by the council on 26.6.2009, no orders have so far been passed by the council either rejecting or granting building permit within the statutorily prescribed period of 30 days. In the W.P.(C) NO.25608/2010 2 circumstances, the petitioner contends that in terms of Rule 15(2) of the Kerala Municipal Building Rules 1999 (for short 'the Rules'), it should be deemed that the petitioner was granted the required permit and therefore, the respondents are not entitled to interfere with the construction of building based on Ext.P3 application ie., G+5. To bring home the said contention, the petitioner is placing reliance on the decision of this Court reported in Rajesh Ramachandran v. Corporation of Trivandrum (2008 (3) KLT 419). 2. A counter affidavit has been filed by the first respondent in this Writ Petition. It is stated therein that as per Ext.P2, the petitioners were granted permission to construct three floors viz.,ground floor and 2 floors and it is thereafter that they have submitted Ext.P3 application seeking permission to construct 6 floors (G+5). It is further stated therein that the said plan was not in accordance with the provisions under the Rules and the said fact was duly communicated to the petitioners on 5.6.2009. The plan submitted by the petitioners thereafter was in violation of the amended provisions under Rule 117(1) of the Rules and therefore, they were asked to submit a revised plan as per Ext.R1 dated 17.6.2010. It is also contended that despite the receipt of Ext.R1, the petitioners had not W.P.(C) NO.25608/2010 3 submitted the revised plan and therefore, the petitioners cannot attribute any laxity or lapse on the part of the respondents. 3. It is discernible from the rival contentions that virtually no order has been passed on Ext.P3. As noticed hereinbefore, according to the petitioners, in terms of the provisions under Rule 15(2) of the Rules, they are entitled to get the benefit of the deeming provisions thereunder and entitled to proceed with the construction. At the same time, according to the respondents, despite the receipt of Ext.R1 communication, the petitioners did not respond to the same. Further, according to them, the petitioners are not entitled to effect any construction as per Ext.P3. Going by the contention of the respondents, the petitioners had effected construction of the fourth floor without obtaining the requisite permit. Admittedly, no action has so far been taken by the respondents against the said construction. Whether it is legally permissible to take any action or whether the petitioners are entitled to make further construction in terms of Ext.P3 are matters to be considered by the competent authorities at the first instance. Orders on Ext.P3 application is yet to be passed. Even in case, it is rejected, that will not render them remediless as it will be open to the petitioners to approach the Government. The necessity to approach the W.P.(C) NO.25608/2010 4 Government for such regularisation would arise only in case Ext.P3 application is rejected. In the said circumstances, without making any observation as to the merits of the contentions, the first respondent is directed to consider and pass orders on Ext.P4 petition submitted by the petitioners raising their grievance regarding the inaction on Ext.P3 by the second respondent and to pass appropriate orders on Ext.P3 application. This shall be done expeditiously, at any rate, within a period of one month from the date of receipt of a copy of this judgment. In case the petitioners are aggrieved by the decision, it will be open to them to challenge the same in appropriate proceedings. All the contentions available to the petitioners are left open. The Writ Petition is disposed of accordingly. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.25608/2010 5 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) NO.25608/2010 6