IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 WA.No. 588 of 2008 -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.5313/2008 Dated 15/02/2008 .................... APPELLANT/PETITIONER: -------------------------------------- VALSA T.V., THELAKKATTU HOUSE, PUTHENCRUZ P.O., ERNAKULAM. BY ADV. SRI.GEORGE SEBASTIAN RESPONDENTS/RESPONDENTS: --------------------------------------------- 1. STATE OF KERALA, REP. BY PRINCIPAL SECRETARY, LOCAL SELF GOVT. DEPT., THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, COLLECTORATE, ERNAKULAM. 3. VADAVUCODE PUTHENCRUZ GRAMA PANCHAYATH, REP. BY SECRETARY, PUTHENCRUZ P.O., ERNAKULAM. 4. PUTHENCRUZ GOVERNMENT SERVANTS - CO-OPERATIVE SOCIETY E.NO.153, REP. BY ITS SECRETARY, PUTHENCRUZ, ERNAKULAM. BY ADV. SRI.DINESH R.SHENOY. BY ADV. SRI.C.N.PRABHAKARAN. BY GOVT. PLEADER SRI. M.P. SREEKRISHNAN. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L. DATTU, CJ. & K.M. JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - WRIT APPEAL No.588 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of March, 2008. JUDGMENT H.L.DATTU, CJ, Appellant in this appeal is the petitioner in W.P.(C) No.5313 of 2008. He calls in question the correctness or otherwise of the orders passed by the learned Single Judge while disposing of the writ petition. 2. The facts in nutshell are: Petitioner is a resident of Thelakkattu House, Ernakulam. He is aggrieved by the construction of a multi storied commercial building on the western side of his property. It is stated in the writ petition that the fourth respondent, by violating the provisions of the Kerala Municipality Building Rules, is making construction of a multi storied commercial complex. The petitioner further states that the third respondent Grama Panchayat has permitted the fourth respondent to go on with the construction up to first floor as per Ext.P5 order. 3. Petitioner had questioned Ext.P5 order issued by the Grama Panchayat before the Tribunal for Local Self Government Institutions. Before the Tribunal it was the stand of the Panchayat that even prior to the notification extending Building Rules to the Panchayats, the fourth respondent had already started the construction and also has put up the pillars of the first floor. Taking into consideration the stand of the Panchayat, the Tribunal is of the opinion that there is no illegality or impropriety in Ext.P5 order issued by the Grama Panchayat. WA.588/2008. 2 4. Aggrieved by the order passed by the Tribunal and also Ext.P5 order issued by the Grama Panchayat, petitioner was before this court in W.P.(C) 5313 of 2008. 5. In the writ petition, the petitioner had primarily relied upon Annexure A dated 20.6.2007. Annexure A is the Circular issued by the State Government, inter alia informing the Panchayats that the Kerala Building Rules are made applicable to all the Panchayats in Kerala with effect from 6.6.2007. 6. The petitioner, for the reasons best known to her, had not produced the clarificatory Circular issued by the State Government in No.24136(1)/R.A.1/07/LSGD dated 25.7.2007. By this clarificatory Circular, the State Government has made it clear that the Kerala Building Rules will be applicable to such of those buildings, where the constructions have commenced after 6.6.2007 and the Circular instruction dated 20.6.2007 will not be applicable to such of those constructions which have already been started and going on prior to 6.6.2007. Clauses 1 and 2 of the aforesaid Circular is relevant for the purpose of this case. They read as under: “1. Kerala Building Rules have been made applicable to all Panchayats in Kerala from 6.6.2007. The law will be applicable only to buildings, the construction of which was started after 6.6.2007 in Panchayats in which the Rule is newly made applicable. 2. The Rules are not to be applied to and it is not necessary to prepare and submit plan to the Panchayats in respect of buildings, the construction of which had already been completed prior to 6.6.2007 or the construction of which had already been started and is going on prior to 6.6.2007 (If the buildings are in consonance with the Town Planning Scheme and Coastal Zone Regulation, if applicable). The Panchayat Secretary should WA.588/2008. 3 inspect such buildings and give building number. However, in respect of buildings having above 150 Sq. metres or more than two storeys, the information required as per Circular No.24136/R.A1/07/LSGD dated 20.6.2007 Clause II(2) should be collected by the Secretary. Further, as regards this category of buildings, the matters specified in II(7) should be implemented.” 7. Sri. Dinesh R.Shenoy, learned counsel appearing for the fourth respondent submits that in view of the clarificatory Circular issued by the State Government, the appellant/petitioner cannot be relying upon the Circular issued by the State Government dated 20.6.2007. Further, the learned counsel would submit that it is not in dispute or it can be disputed by the other side that the fourth respondent had commenced the construction prior to 6.6.2007. 8. The one and the only question that would arise for our consideration and decision in this writ appeal is, whether the Kerala Building Rules which has been made applicable to all Panchayats in Kerala can be applied to the construction which the fourth respondent is making in the Village Panchayat area. 9. No doubt Circular instructions issued by the State Government dated 20.6.2007 had stated that the Kerala Building Rules are made applicable to all Panchayats in Kerala State with effect from 6.6.2007. But that Circular has been clarified by the State Government by issuing yet another Circular dated 25.7.2007. In the said Circular, it is made clear that if the construction of a building has already commenced prior to 6.6.2007, then the provisions of the Kerala Building Rules cannot be made applicable. In view of the clarificatory Circular, we are of the opinion that the appellant cannot derive any benefit under the Circular instructions issued by the State Government dated 20.6.2007, since the fourth respondent has commenced the WA.588/2008. 4 construction prior to 6.6.2007. In that view of the matter, we cannot entertain this writ appeal filed by the petitioner. Accordingly, the writ appeal requires to be rejected and it is rejected. Ordered accordingly. H.L. DATTU, CHIEF JUSTICE K.M. JOSEPH, JUDGE sb/DK.