IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 WA.No. 2195 of 2008 --------------------------- AGAINST THE JUDGEMENT IN WPC.18832/2007 Dated 07/04/2008 .................... APPELLANT/PETITIONER: ------------------------------------- T.LAZER ROBERT, HOUSE NO.1546/1 PATTALAM, FORT KOCHI. BY ADV. SRI.DENIZEN KOMATH SRI.SHERRY J. THOMAS RESPONDENTS/RESPONDENTS: -------------------------------------------- 1. C.M.MOHAMMED SHERIFF, (JOINT DIRECTOR OF MUNICIPAL ADMINISTRATION), H.NO.2/534-A, POOVATH ROAD, FORT COCHIN COCHIN-1. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT (M) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. CORPORATION OF KOCHI, REPRESENTED BY ITS SECRETARY, KCOHI-11 4. ASSISTANT EXECUTIVE ENGINEER, CORPORATION OF COCHIN, ZONAL OFFICE, FORT KOCHI. WA.No. 2195 of 2008 5. SENIOR TOWN PLANNER, REGIONAL TOWN PLANNING OFFICE, ERNAKULAM. 6. TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM REPRESENTED BY REGISTRAR. ADV. SMT.M.K.PUSHPALATHA,SC,COCHIN CORPORATI FOR R3 & R4 SRI.K.ANAND, SC, COCHIN CORPN. FOR R3 BY ADV.SRI.B. GOPAKUMAR FOR R1 BY SR. G.P.SMT.K. MEERA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20/11/2008 ALONG WITH W.A.NO.2196/08, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.Nos.2195 & 2196 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of November, 2008 JUDGMENT Basheer, J. The common appellant has filed these two writ appeals against the common judgment in two writ petitions; one filed by the appellant himself and the other by respondent No.1 herein. (2) While the appellant in his writ petition had sought to quash the order passed by the Tribunal for Local Self Government Institutions confirming the cancellation of the building permit issued by the Corporation of Cochin in his favour, respondent No.1 in his writ petition had questioned the legality and propriety of the direction issued by the Tribunal to the Corporation to consider whether the alleged objectionable construction made by the appellant could be regularised, if such a request was made. (3) The learned Single Judge dismissed the writ petition filed by the appellant and allowed the other filed by respondent No.1. (4) Relevant facts may be briefly noticed. (5) The appellant, who admittedly owns 20 cents of land at Fort Kochi within the limits of Kochi Corporation, was granted a 2 W.A.NOS.2195 &2196/08 building permit to construct a four storied building. It appears that the appellant had carried out the construction violating several provisions in the Kerala Municipality Building Rules, 1999 (for short the Rules). On a complaint made by respondent No.1, the plan and licence issued in favour of the appellant were cancelled and he was directed to demolish the building. At that stage, the appellant approached the Government with a prayer to regularise the unauthorised construction. As could be seen from Ext.P4 order, respondent No.1 had reported before the Government that he had no serious objection about regularisation. Accordingly, the Government had issued orders (Ext.P4) regularising the construction so made by the appellant (ground floor + 3 storeys) on certain conditions enumerated in the said order. (6) Thereafter the appellant had applied for yet another building permit to construct a three storied building in the remaining portion of the 20 cents of property belonging to him. Initially, the Corporation had issued Ext.P8 building permit dated February 10, 2003. Respondent No.1, who holds his residential property on the eastern side of the property of the appellant, raised objection yet again since, according to him, Ext.P8 building permit was in total 3 W.A.NOS.2195 &2196/08 violation of the Building Rules. It was pointed out by respondent No.1 that the building permit was obtained by the appellant suppressing the fact that the plot on which the proposed construction was to be made had been earmarked and set apart as the parking area for the four storied building. (7) To make a long story short, the matter was ultimately considered by the Secretary of the Corporation at the intervention of this Court. The Corporation found that the objection raised by respondent No.1 was valid and sustainable. Resultantly, by order dated June 6, 2006 (Ext.P5 (a) in W.P.(C).No.1665/2003), the Corporation cancelled the building permit and licence issued in favour of the appellant and directed him to demolish the illegal and unauthorised construction made by him. (8) The above order passed by the Corporation was challenged by the appellant before the Tribunal for Local Self Government Institutions, Trivandrum. The Tribunal by its order dated September 16, 2006 affirmed the order passed by the Corporation cancelling the permit issued in favour of the appellant. However, the Tribunal directed the Corporation to consider the application that may be submitted by the appellant for regularisation of the illegal 4 W.A.NOS.2195 &2196/08 construction of the ground floor already completed by the appellant. It was further directed that the order of the Corporation cancelling the permit shall be brought into effect only after the Corporation passed orders on the application for regularisation after hearing the appellant and respondent No.1. (9) As mentioned earlier, the appellant in his writ petition had challenged that portion of the order of the Tribunal by which the order of cancellation of the building permit was confirmed. Respondent No.1 in his writ petition had impugned only the direction issued by the Tribunal giving opportunity to the appellant to approach the Corporation seeking regularisation of the offensive construction. (10) Learned counsel for the appellant submits that the Tribunal was not justified in confirming the order of the Corporation cancelling the building permit issued in favour of the appellant. It is pointed out by the learned counsel that the appellant had constructed only a single storied structure though he was granted permit for construction of a three storied building. While tacitly conceding that the proposed construction would fall within the parking area of the 4 storied building constructed by the appellant earlier, he submits that, the objection raised by respondent No.1 with regard to 5 W.A.NOS.2195 &2196/08 the distance rule is totally erroneous and unsustainable. It is further contended by the appellant that the learned Single Judge ought to have allowed the application filed by him for issue of a commission to conduct a local inspection and ascertain the present situation available on ground. (11) Per contra, it is pointed out by the learned counsel for respondent No.1 that the Tribunal had categorically found, relying on the report of the Senior Town Planner and the engineers attached to the Corporation, that the statutory provisions in the building rules had been violated while issuing the permit and allowing the appellant to start construction. He further points out that the Tribunal had no authority to issue a direction to the Corporation to consider an application (which was not even filed by the appellant) for regularisation of the illegal construction. In this context, the learned counsel has invited our attention to Rule 143 of the Kerala Municipality Building Rules to which, we will refer a little later. (12) The primary contention of the appellant is that there is no violation of Rule 24(2) and 104 (4) of the Rules, as held by the learned Single Judge. While referring to Rule 24(2) of the Rules, the learned Single Judge had noticed that there must be a minimum 6 W.A.NOS.2195 &2196/08 distance of 3 meters “in between the various blocks within the buildable area” if the proposed building is having a height of more than 10 meters. It is not in dispute that the appellant had constructed a four storied building some time ago in which he is running a 2-Star Hotel. Admittedly, he had applied for yet another permit to put up a three storied building very near to the existing four storied building and that too in the plot earmarked as car parking area for the said four storied building. The Senior Town Planner and the engineers attached to the Corporation had conducted local inspections and submitted their reports. The Corporation while cancelling the permit issued in favour of the appellant had categorically found that the minimum distance as provided under Rule 24(2) of the Rules had not been maintained. The Tribunal had specifically adverted to this statutory violation and after meticulously examining the materials available on record the Tribunal found that the order passed by the Corporation cancelling the permit was perfectly legal and valid. The learned Single Judge had elaborately considered the above aspect and concurred with the finding entered by the Tribunal. Having considered the relevant materials available on record and the submissions made by the learned counsel for the parties, we do not 7 W.A.NOS.2195 &2196/08 find any perversity or illegality in the above finding entered either by the Tribunal or the learned Single Judge. (13) As regards violation of Rule 104(4), it was yet again noticed by the Tribunal that the Senior Town Planner and the engineers attached to the Corporation had found that the minimum distance of 1.2 meters had not been set apart by the appellant while constructing his septic tank very near to the boundary of the property of respondent No.1. This finding also was entered by the Tribunal after referring to the local inspection reports. The learned Single Judge had yet again confirmed the finding of the Tribunal after perusing the materials available on record. We have also carefully perused the available records. We do not find any reason to interfere with the finding entered by the learned Judge (14) The other contention raised by the appellant is based on Rule 143 of the Rules. According to the appellant, the Tribunal was justified in directing the Corporation to consider the request of the appellant to regularise the alleged illegal construction. According to the learned counsel, Rule 143 empowers the Secretary to regularise certain constructions made in deviation of the approved plan. In this context, it is profitable to refer to Rule 143 with the first proviso 8 W.A.NOS.2195 &2196/08 there under. They are extracted below: “143. Power of the Secretary to regularise certain constructions:- The Secretary shall have the power to regularise construction or reconstruction or addition or alteration of any building or digging of any well [or telecommunication tower or any structure or land development or any work for which permission of the Secretary is necessary under this rule] commenced, being carried on or completed without obtaining approved plan or in deviation of the approved plan: Provided that such construction or reconstruction or addition or alteration of any building or digging of any well shall not be in violation of any of the provisions of the Act or these rules.” (emphasis supplied) (15) A perusal of the above rule, particularly the proviso, will unambiguously show that the Secretary of the Corporation can regularise construction or reconstruction or addition or alteration of any building or digging of any well only if it is not in violation of any of the provisions of the Act or the rules. (16) Appellant admits that there are violations of the Rules. But according to him, he is prepared to demolish that part of the offensive construction in order to bring it within the permissible limit of the distance rule as provided under the Rules. He is also 9 W.A.NOS.2195 &2196/08 prepared to demolish the septic tank, which according to him is being used only as a water tank for storage of water. As far as Rule 24(2) is concerned, the contention of the appellant is that he is prepared to demolish that part of the construction put up by him in order to have a minimum distance of 3 meters. But we are afraid, the above submissions, which are totally untenable, are liable to be rejected in toto. (17) As mentioned earlier, even the four storied building put up by the appellant was in violation of several provisions contained in Rules, 1999. However, the Government had regularised the above construction after imposing certain conditions. It was thereafter that the appellant had applied for yet another building permit to put up a three storied structure in the parking area earmarked for the four storied building. Therefore, as rightly noticed by the learned Single Judge, if the present request for regularisation of the subsequent construction made by the appellant (albeit only a ground floor), is allowed, such regularisation will be in gross violation of Rule 30 and 31 of the Kerala Building Rules. (18) We have carefully perused the above two rules. In our view, the learned Single Judge was justified in upholding the 10 W.A.NOS.2195 &2196/08 objection raised by respondent No.1 in this regard. We have no hesitation to hold that the Tribunal had committed grave error and illegality in issuing a direction to the Corporation to consider the request, if any, that may be made by the appellant for regularisation of the single storied structure put up by him by invoking the powers under Rule 143 of the Rules. (19) Before we conclude, it may be noticed yet again that appellant had managed to obtain Ext.P4 building permit for construction of a three storied building in the car parking area of the existing four storied hotel constructed by him earlier. He had obtained the permit by playing fraud on the Corporation and suppressing the fact that the plot for the proposed construction was a car parking area. Significantly, the appellant had no explanation to offer on the above aspect. The feeble attempt now being made by the appellant is only to save the structure put up by him in the car parking area, by offering to demolish those offensive portions, which admittedly are in violation of the rules. But since the permit was obtained by the appellant by playing fraud on the Corporation, the appellant cannot be heard to say that he should be allowed to retain the building put up by him on the strength of the said permit. There can be no regularisation of an unauthorised 11 W.A.NOS.2195 &2196/08 construction, which under normal circumstances could never have come into existence; but for the fraud played on the Corporation. Fruits of fraud shall never be allowed to be enjoyed even if they are sweet and precious to the owner of the grove. (20) Having heard the learned counsel for the parties and having perused the entire materials available on record, we are totally satisfied that the learned Single Judge was justified in passing the impugned judgment. In our view, the Tribunal was totally in error in issuing a direction to the Corporation to consider the application for regularisation of the illegal construction put up by the appellant. There is no merit in any of the contentions raised by the appellant in these two appeals. While confirming the judgment of the learned Single Judgment, both writ appeals are dismissed. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE cl