IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 WP(C).No. 20871 of 2009(D) -------------------------- PETITIONER: --------------- 1. LAKSHMI NARAYANAN, W/O T.V.NARAYANAN, RAGAM 43, ARVIND NAGAR, 14TH CROSS, OIL MILL ROAD, ST.THOMAS TOWN POST, BANGALORE 560084. 2. RADHIKA NARAYANAN, W/O SUBRAMANI, RAAGAM 43ARVIND NAGAR, 14TH CROSS, OIL MILL ROAD, ST.THOMAS TOWN POST, BANGALORE 560084. 3. V.K.THANKAM, W/O V.S.RAMAN, 1/220, CHATHAPURAM, KALPATHI P.O., PALAKKAD. 4. K.SARASWATHIAMMAL, 1/282 OLD KALPATHI DOUBLE STREET, PALAKKAD. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARYA TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PALAKKAD MUNICIPALITY, MUNICIPAL AOFFICE, PALAKKAD REPRESENTED BY ITS SECRETARY. 3. THE SECRETARY, PALAKKAD MUNICIPALITY, MUNICIPAL OFFICE, PALAKKAD. 4. THE ART & HERITAGE COMMISSION, THIRUVANANTHAPURAM REPRESENTED BY ITS MEMBER SECRETARY, THE CHIEF TOWN PLANNER, PALAYAM, THIRUVANANTHAPURAM. WP(C).No. 20871 of 2009(D) 2 5. THE CHIEF TOWN PLANNER, LOCAL SELF GOVERNMENT DEPARTMENT, PALAYAM, THIRUVANANTHAPURAM. 6. THE DISTRICT TOWN PLANNER, PALAKKAD. 7. A.V.SARASWATHI, D/O LATE A.VENKAT RAMANI, VRINDAVAN, KAILAS NAGAR, PALAKKAD. BY GOVT.PLEADER SMT.N.SUDHA DEVI FOR R1 & R4 TO R6 ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R2-3 SRI.T.C.SURESH MENON FOR R2-3 SRI.JIBU P THOMAS FOR R2-3 SRI.P.S.APPU FOR R2-3 SRI.A.R.NIMOD FOR R2-3 SRI.C.A.ANOOP FOR R2-3' SRI.SUNIL NAIR PALAKKAT FOR R7 SRI.K.N.ABHILASH FOR R7 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No.20871/09 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF BUILDING PERMIT DATED 30.12.2006. EXT.P2: TRUE COPY OF APPLICATION FOR TRANSFER OF BUILDING PERMIT DATED 19.8.08. EXT.P3: TRUE COPY OF NOTICE DATED 13.11.08 OF THE 3RD RESPONDENT. EXT.P4: TRUE COPY OF JUDGMENT DATED 29.1.09 IN W.P.(C)No.35878/08 OF THIS COURT. EXT.P5: TRUE COPY OF THE COMMUNICATION DATED 29.6.09 OF THE THIRD RESPONDENT. EXT.P6: TRUE COPY OF THE LETTER OF GOVERNMENT DATED 24.1.08. EXT.P7: TRUE COPY OF JUDGMENT IN W.P.(C)No.9432/08 OF THIS COURT. EXT.P8: TRUE COPY OF THE BUILDING PERMIT DATED 21.3.2009 ISSUED BY THE PALAKKAD MUNICIPALITY. RESPONDENTS' EXTS: EXT.R2(A): TRUE COPY OF THE INTIMATION RECEIVED BY THE MUNICIPALITY FROM THE DISTRICT TOWN PLANNER, PALAKKAD DATED 16.1.08. EXT.R2(B): TRUE COPY OF THE JUDGMENT IN W.P.(C)No.11250/08 ON THE FILE OF THIS COURT DATED 4.6.08. TRUE COPY T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.20871 of 2009 --------------------------------- DATED THIS THE 9th DAY OF JULY, 2010 JUDGMENT The grievance raised by the petitioners is that the second and third respondents-Municipality has no right for directing them to obtain concurrence from the 4th respondent, viz; the Art and Heritage Commission. 2. The 7th respondent was the owner of an extent of land in survey No.1359 in Ward No.1 in Block No.36 of Palakkad Village. She applied for building permit before the Municipality, which was issued as per Exhibit P1. The 7th respondent started construction based on the said permit and later on she sold the property to the petitioners, who purchased it. The 7th respondent also filed an application for transferring the building permit as per Exhibit P2. A notice was issued to her by the 3rd respondent pointing out that concurrence from the Art and Heritage Commission is required, as per Exhibit P3. The 7th respondent approached this Court by filing W.P.(C)No.35878/2008, which was disposed of by Exhibit P4 judgment. The 3rd respondent was directed to consider the application for transfer. W.P.(C)No.20871/09 -2- 3. Thereafter the permit was transferred in the name of the petitioners. After the completion of the construction, on 14.5.2009 an application was submitted before the 3rd respondent for numbering the building. By Exhibit P5 a reply was given to the effect that they should obtain concurrence from the Art and Heritage Commission. Now the position is that the building has been provisionally numbered by the Municipality. 4. The question is whether the Municipality is right in insisting that the concurrence of the Art and Heritage Commission is to be obtained. 5. The respondents have filed separate counter affidavits. The 4th respondent's counter affidavit reveals the details regarding the forming of the Art and Heritage Commission and the details leading to the issuance of the letter dated 24.1.2008 and the Government Order dated 25.10.2008 by which the zoning regulations of the Palakkad Town was notified. 6. The building is in Kalpathy Agraharam. The stand taken by the 4th respondent is that the construction undertaken by the petitioners is one exceeding the limit and therefore the petitioners have a moral duty to preserve the heritage of the W.P.(C)No.20871/09 -3- Agraharam. 7. The learned Standing Counsel for the Municipality submitted that they had prescribed a condition when the permit was transferred that the petitioners will obtain concurrence of the Art and Heritage Commission. It was also submitted that any further construction will be made only after such concurrence is obtained. 8. Relying upon the decisions of this Court in like matters, the learned counsel for the petitioners submitted that the permits which were issued prior to 24.1.2008 stand on a different footing which fact has been recognised by this Court in the judgments concerned. W.P.(C)No.33798/ was filed by a similarly placed land owner who constructed a three storeyed apartment complex. The permit therein was issued on 8.6.2007. Stop memo was issued by the Municipality therein and the matter was considered by this Court in detail. The Art and Heritage Commission, who was the 2nd respondent therein had filed a counter affidavit, the details of which are available in paragraph 5 of the judgment and after considering the details therein, this Court held that in respect of permits which were issued prior to W.P.(C)No.20871/09 -4- 24.1.2008, the parties can continue construction irrespective of the recommendation made by th 2nd respondent, viz; the Art and Heritage Commission. The following directions were issued. “ 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.” 9. In W.P.(C)No.8876/2009 also following the said judgment, the Municipality was directed to inspect the buildings constructed by the petitioners therein and to number the building,if they are satisfied that the construction is in compliance with the building permit. 10. Therefore, this Court was pleased to hold that in respect of building permits issued prior to 24.1.2008, limitations placed pursuant to the advice of the Art and Heritage Commission by its order dated 24.1.2008 will not apply. W.P.(C)No.20871/09 -5- 11. Admittedly, the constructions are over already and a temporary number has been assigned to the building. The question of concurrence arises only for the construction based on the permit issued after 24.1.2008, which is the cut off date, going by the Government letter of the same date. True that in the transferred permit a condition was imposed by the Municipality that the petitioners should obtain concurrence of the Art and Heritage Commission. But, in the light of the stand taken by the Commission, as is evident from the counter affidavit which was placed on record by this Court in the judgment in W.P.(C) No.33798/08, the said condition imposed by the Municipality will not stand in the way of numbering of the building after the constructions have been made in tune with the building permit issued to the petitioners. 12. One more aspect to be noticed is that the 7th respondent had obtained the building permit as early as on 30.12.2006. At the state of transfer of the permit, the construction had advanced to considerable extent and what was done by the petitioners is to complete the construction, of course after the transfer of the permit. In that view of the matter also, W.P.(C)No.20871/09 -6- it is submitted that the permit obtained by the 7th respondent was actually put into operation and the constructions were partly made long prior to 24.1.2008. Therefore, there is no useful purpose in insisting for a prior concurrence for issuance of a permit or the subsequent ratification by the Art and Heritage Commission. In that view of the matter also the petitioners are entitled to succeed in this Writ Petition. Therefore the Writ Petition is allowed. There will be a direction to respondents 2 and 3 to consider the request made by the petitioners for numbering the building. Appropriate decision will be communicated to the petitioners within a period of one month from the date of receipt of a copy of this judgment. The decision will be taken without insisting for the concurrence of the Art and Heritage Commission. No costs. Sd/- (T.R.RAMACHANDRAN NAIR, JUDGE.) dsn True copy P.A.to Judge