IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 7TH APRIL 2008 / 18TH CHAITHRA 1930 WP(C).No. 1665 of 2007(W) ------------------------------------- PETITIONER: ------------------- C.M.MOHAMMED SHERIFF, H.NO.2/534-A, POOVATH ROAD, FORTCOCHIN, COCHIN-1. BY ADV. SRI.B.GOPAKUMAR RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT (M) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. CORPORATION OF KOCHI, REPRESENTED BY ITS SECRETARY, KOCHI-11. 3. T.LAZAR ROBERT, CC II/530 (UA), GRACE TOURIST HOME, T.M.MOHAMMED ROAD, KOCHI-1. 4. TRIBUNAL FOR LOCAL SELF GOVT., TRIVANDRUM. BY ADV. SRI.K.ANAND, SC, COCHIN CORPN. R3 BY ADV. SRI. P.SANTHALINGAM GOVERNMENT PLEADER SRI. K.J. MOHAMMED ANZAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/04/2008 ALONG WITH WP(C) NO. 18832/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO: 1665/2007 W APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE LETTER NO. 43887/M1/2002/LSGD DT. 16/10/2002. EXT.P2. COPY OF THE REPORT NO. A4. 1583/02 DT. 10/12/02. EXT.P3. COPY OF THE LETTER DT. 26/2/2003. EXT.P4. COPY OF THE BUILDING PERMIT DT. 14/2/2003. EXT.P4A. COPY OF THE PLAN EXT.P5. COPY OF THE JUDGMENT DT. 18/1/2006 IN WPC NO. 11796/2003 IN THIS COURT. EXT.P5A. COPY OF THE PROCEEDINGS FCP 1/2/03 DT. 8/6/06. EXT.P6. COPY OF THE ORDER DT. 16/09/2006 APPEAL NO. 291/2006 IN THE COURT OF THE TRIBUNAL FOR LOCAL SELF GOVT. INSTITUTIONS, THIRUVANANTHAPURAM. EXT.P7. COPY OF THE PROVISIONAL ORDER UNDER SECTION 406(1) OF THE KERALA MUNICIPALITIES ACT, 1994, BY CORPORATION SECRETARY. EXT.P8. COPY OF THE NOTICE NO. FCP 1/2003 (GENL) DT. 25/6/2003 BY CORPORATION OF COCHIN. EXT.P9. COPY OF THE LETTER NO. FCP 1-1/1/2/2003 (GENL) DT. 27/6/2003 BY CORPORATION OF COCHIN. EXT.P10. COPY OF THE NOTICE NO. FCP 1/2/2003 DT. 1/07/2003 BY CORPORATION OF COCHIN. EXT.P11. COPY OF THE ORDER NO. FCP 1/2/2003 DT. 7/7/03 BY CORPORATION OF COCHIN. EXT.P12. COPY OF THE LETTER NO. FCP 1/2/2003 DT. 22/07/2003 BY CORPORATION OF COCHIN. EXT.P13. COPY OF THE LETTER NO. FCP1-2/2003 DT. 4/08/2003 BY CORPORATION OF COCHIN. EXT.P14. COPY OF THE NOTICE FCP 1/2/2003 (GENEL) DT. 4/08/2003 BY CORPORATION OF COCHIN. EXT.P15. COPY OF THE NOTICE NO. FC1/2/2003 (GENL) DT. 20/08/2003 BY CORPORATION OF COCHIN. EXT.P16. COPY OF THE ORDER BY CORPORATION OF COCHIN. WP(C) NO: 1665/2007 RESPONDENT'S EXHIBITS EXT.R3A. COPY OF THE OCCUPANCY CERTIFICATE NO. MOP 4/272/00 (O) DT. 16/6/05 BY THE CORPORATION OF KOCHI. EXT.R3B. COPY OF THE OCCUPANCY CERTIFICATE DT. 26/2/2005 BY CORPORATION OF KOCHI. EXT.R3C. COPY OF THE ORDER NO. GO RT NO. 350/2005/LSGD DT. 29/1/2005 BY GOVT. OF KERALA. EXT.R3D. COPY OF THE DOCUMENT DT. 11/5/05 BY THE FIRE FORCE DEPARTMENT. EXT.R3E. COPY OF THE RECEIPTS NO. 0015153 DT. 17/2/2005, RECEIPT NO. 0016851 DT. 25/2/2005 AND RECEIPT NO. 44918 DT. 18/07/2006 BY CORPORATION OF COCHIN. EXT.R3F. COPY OF THE CHALAN NO. 27 DT. 5/2/05, CHALAN NO. 2/27 DT. 25/2/2006 BY GOVT. OF KERALA. EXT.R3G. COPY OF THE RELEVANT EXTRACT OF THE SKETCH. True copy tga The petitioner alleges that while matters stood so the second respondent Corporation succumbing to political pressure and other pressures permitted the third respondent to construct a new three storied building in the very same plot and in the place where the third respondent was conducting restaurant in a shed unauthorisedly constructed. This was done under the cover of Ext.P1 order of the Government directing maintenance of status quo. Ext.P4 dated 14-2- 2003 is the building permit so issued by the Corporation to the third respondent. Ext.P4(a) is copy of the plan submitted by the third respondent pertaining to Ext.P4 permit. The constructions were started by the third respondent on the strength of Ext.P4 and the petitioner alleges that those constructions were per se violative of KMBR and also in deviation even from Ext.P4(a) which was wrongly approved. The petitioner filed WP(C). No.11796/03 challenging Ext.P4 and Ext.P4(a). That writ petition was considered by this court along with WP(C). No.28726/05 which was filed by the third respondent but wanted to stall the action already initiated for the demolition of the unauthorised multi-storied building constructed earlier. This court disposed of both the writ petitions by passing Ext.P5 common judgment. Under Ext.P5 the order passed by the Corporation cancelling the permit given to the third respondent for construction of the multi- storied building was quashed and the Corporation was directed to take a fresh decision after hearing both parties, at the same time restraining the third respondent from carrying out any construction activity and from putting the building to use. The third respondent was also restrained against erecting any mobile tower over his building without sanction from the competent authority. Other directions were also issued. In compliance with the directions in Ext.P5 the Secretary of the Corporation issued Ext.P5(a) order on 1-2-2003 cancelling the building permit Ext.P4 invoking the provisions of rule 16 of KMBR. Against Ext.P5(a) third respondent preferred an appeal to the 4th respondent Tribunal for Local Self Government Institutions. The Tribunal after considering the appeal would confirm Ext.P5(a) decision of the second respondent, but at the same time in its discretion the Tribunal permitted the third respondent to make application before the second respondent for regularisation of the construction made on the strength of the cancelled permit. Ext.P6 is the copy of the judgment of the Tribunal and in Ext.P6 the petitioner was warned for making “unwarranted personal allegations” againstt the third respondent's counsel, a retired Corporation Secretary. Writ petition No.18832/07 is filed by the third respondent in WP (C).1665/07 and the petitioner in WP(C).1665/07 is first respondent herein. The other respondents are State of Kerala (R2). Corporation of Kochi (R3), Asst. Executive Engineer, Corporation (R4). Senior Town WP(C)N0.1665/07 -3- Planner (R5), and the Tribunal (R6). Ext.P1 produced in that writ petition is the copy of the title documents by which the petitioner therein got title over 20 cents of land. Ext.P2 is communication received from the Regional Director, Tourism Department, Central Government regarding filing of the application by the petitioner for approval for two storied hotel project. It is stated that the first respondent is Joint Director of Municipal Administration and as a senior officer he prevailed upon the municipal authorities to issue orders stopping construction of the 4 storied hotel building which is already completed. Against the action of the corporation he preferred writ petition No. 18748/03 before this court and this court passed Ext.P3 judgment directing the Government to dispose of the appeal filed by him and the appeal has disposed of by the Government. Government passed Ext.P4 order in the appeal. Under Ext.P4 he was accorded approval of the plan of the 4 storied hotel building subject to two conditions. (1) NOC from the Fire Force Department and (2) NOC from the owner of the southern side of the property. Pursuant to that he obtained Ext.P5 NOC from the Fire Force Department. During the course of the hearing of the appeal by the Government the first respondent who was the complainant said that he has no objection WP(C)N0.1665/07 -4- regarding the 4 storied hotel building. It is also submitted that the owner of the immediate southern side property was continuously absent for the last 15 years and this fact was reported by the Corporation. It was accordingly the Corporation issued Ext.P5 regularising the four storied construction on the basis of application submitted by the petitioner for construction of three storied building in the same compound the corporation issued Ext.P6 building permit (same as Ext.P4 in WP(C).1665/2007). The petitioner in WPC). 1665/07 being a superior authority of the Corporation exerted pressure on the Corporation and was able to get the building permit cancelled. Petitioner submitted that a revised plan Ext.P8 had been submitted by the petitioner upon being directed by the Corporation to submit a revised plan. As per that revised plan Ext.P8 one floor was completed by him. Ignoring that the Secretary of the Corporation pursuant to Ext.P7 cancelled Ext.P6 building permit and against that order of cancellation appeal was preferred to the Tribunal and Tribunal passed Ext.P9. Petitioner quotes paragraph 11 from Ext.P9 as follows: “The 1st respondent has directed for the demolition of the building constructed on the basis of Ext.P2 evaluating its statutory requirement as a 3 storied building for which Ext.P2 was issued. However, the appellant has constructed only the ground floor of that building and he sought for permission for its occupation. It is seen from the reports of the Building Inspector WP(C)N0.1665/07 -5- and the Town Planning Officer of the Respondent Corporation available in the Note File attached to Ext.R1 that regularisation of the construction of the ground floor of the building permitted to be constructed as per Ext.P2 can be allowed on making certain alterations. It is seen that the 1st respondent has not considered the possibility of regularization of the ground floor taking it as an independent single storied building unconnected with Ext.P2 permit while passing the impugned order. As I stated earlier the 1st respondent has considered the legality of the construction treating it as a 3 storied building for which Ext.P2 permit was issued. In that circumstance and in view of the reports of the Building Inspector and the Town Planning Officer of the 1st respondent as contained in the Note File of Ext.R1 regarding possibility of regularisation I find it necessary to render an opportunity to the Appellant to move for regularisation of the ground floor of the building constructed on the basis of Ext.P2 permit after making necessary alterations so as to make it in conformity with the statutory provisions and such an opportunity can be granted by directing the 1st respondent that if the appellant submits an application for regularization with necessary documents and plan within a specified time limit for regularization of the ground floor of the building constructed on the basis of Ext.P2 permit after making necessary alterations, further action pursuant to the direction in the Order dated 8—06- 2006 for the demolition of that building shall betaken only after passing orders on that application after rendering him and the 2nd respondent an opportunity of being heard”. He points out that in Ext.P9 the Tribunal has found that there is a distance of less than 3 metres between the three buildings on the same floor and hence Rule 24(2) of the Kerala Municipality Building Rules is violated. He also points out that the Tribunal has held that the septic tank constructed on the plot does not have distance of 1.20 metres from the eastern boundary of the neighbouring owner and WP(C)N0.1665/07 -6- hence rule 104(4) is violated. Both these findings are wrong and on verification by an advocate commissioner will be found to be wrong. I have heard the submissions of Sri.B.Goipakumar, learned counsel for the petitioner in WP(C) No. 1665/07 and also those of Sri.P.Santhalingam learned senior counsel for the petitioner in WP(C) No. 18832/07. Both Mr.Gopakumar and Mr.Santhalingam addressed me at length on the basis of the pleadings raised by their respective parties. Mr.Gopakumar drew my attention to the various documents placed on record in the case particularly to Ext.P6 the impugned order of the Tribunal produced in WP(C) No. 1665/07, Ext.P2 report of the Senior Town Planner submitted before the Government, Ext.P5 common judgment of this Court, Ext.P5(a) the order of the Secretary of the Corporation against which appeal was preferred by Mr.Santhalingam's client to the Tribunal. Mr.Santhalingam apart from addressing arguments founded on the contentions raised by his client through pleadings would read out to me the entire paragraphs 10 and 11 of the order of the Tribunal and submits that it is on the basis of report submitted by the building inspector and town planning officer of the Corporation which was noticed by the learned Tribunal in the note file attached to the file relating to the constructions in question that the WP(C)N0.1665/07 -7- Tribunal directed the Secretary of the Corporation to explore the possibilities of a regularisation of his client's construction as a single storied building. All the violations now noticed are regularisable. The septic tank in question can always be shifted to a distance beyond 1.20 metres and the distance between the two buildings also can be increased. Whether FAR value is violated is a matter which can be considered by the Secretary of the Corporation. So submitted by Mr.Santhalingam. The question which arises in writ petition No. 18832/07 is only whether the finding of the Tribunal that the decision of the Secretary of the Corporation to cancel the building permit which had been issued to the petitioner in that case for the construction of a three storied building is liable to be cancelled invoking rule 16 of the Kerala Municipality Building Rules on the ground of suppression of material facts or misrepresentation warrants interference. Having gone through the order of the Tribunal I am of the view that there is no warrant for interfering with the Tribunal's decision in confirming the order of the Secretary of the Corporation produced as Ext.P5(a) in writ petition No.1665/07. Rule 15 was invoked and the permit was cancelled under Rule 15(a) on the reason that permit for the new WP(C)N0.1665/07 -8- three storied building was applied for and obtained by the petitioner in WP(C) No. 18832/07 suppressing the fact that on the very same plot a 4 storied lodge building had already been constructed by him and that hat four storied building had been found to be illegal being violative of the permitted floor area ratio and certain other rules. The proposed new construction construction was on the statutory parking area which had been provided by him for the four storied building which at the relevant time was subject matter of proceeding for regularisation before the Government. That the proposed new construction will thus violate rule 34 pertaining to parking area was also suppressed. The Tribunal noticed that the building as presently exists offend at least two statutory rules (i) rule 24 (2) which provides that the distance between the existing building and the proposed new building should be at least three metres and (ii) rule 104(4) which provides that the distance from the boundary of the plot and the septic tank should be at least 1.20 metres. Obtainment of a building permit suppressing the existence of a four storied building on the plot was rightly found by the Tribunal to be sufficient justification for invocation of rule 16. The submissions of Mr.Santhalingam that on a measurement the distance between the two buildings will be found to be three metres and that a WP(C)N0.1665/07 -9- commission be issued cannot be accepted by this court since such a case was never raised before the two fact finding authorities, viz., the Secretary of the Corporation and the Tribunal. The decision of the Tribunal confirming the findings in Ext.P5(a) that the permit which had been issued to the petitioner in WP(C) No. 18832/07 does not suffer from any infirmity warranting interference by this court within the contours of extraordinary jurisdiction under Article 226 or under Article 227 of the Constitution. Now coming to Writ Petition No.1665/07. The question arising in that case is whether the Tribunal was justified in relegating the matter back to the Secretary of the Corporation for exploring the possibilities of a regularisation of the building put up by the petitioner in WP(C) No. 18832/07 on the strength of a permit for construction of a three storied building as a single storied building. As already noticed a specific finding of the Tribunal as regards the single storied building constructed on the basis of the cancelled permit violates rule 24(2) of the Kerala Municipality Building Rules which insists that there must be a minimum distance of three metres from the existing four storied building having height of more than 10 metres, the finding is that the distance is hardly two metres. There is yet another specific finding WP(C)N0.1665/07 -10- that rule 104(4) which mandates that a minimum distance of 1.20 metres should be there between the boundary of the plot and the septic tank, sock pit etc. has been violated. The Tribunal confirming the above two findings of the Secretary of the Corporation on the basis of virtual admissions (by non-traverse) and the findings recorded by the first fact finding authority, the Secretary of the Corporation through local inspection. Rule 143 of the Kerala Municipality Building Rules is the statutory source of the Municipal Secretary's power to regularise constructions. Importantly under rule 143 there is no power at all for the Secretary to regularise any construction which has been made in violation of the statutory building rules. Had it been a case of a building having been constructed prior to 15-10-1999, perhaps the Government had power to regularise constructions made in violation of rules provided the rule violated is not in respect of the safety measurements provided by the Municipality by virtue of section 407 of the Municipalities Act and the Kerala Building (Regularisation of Unauthorised Construction and Land Development) Rules, 1999. Though learned senior counsel Mr.Santhalingam did submit that the building in question was constructed prior to 15-10-1999. It is not possible to accept that submission since the permit itself for the WP(C)N0.1665/07 -11- construction was issued to learned senior counsel's client only on 10- 2-03. Thus in the teeth of the Tribunal's own finding that the building violates at least two statutory rules. Thre was no power with the local authority for regularising the construction. Yet the Tribunal has given the direction to the Secretary to explore the possibilities of regularisation on the basis of certain reports submitted by the building inspector and town planning officer of the Corporation in the note file suggesting that a regularisation may be possible. The only method in which regularisation of a construction made in violation of the rules noted above is possible, is to increase the distance between the two buildings to which the portions either of the buildings will have to be shifted the septic tank in question to distance beyond 1.20 metres of the boundary of the plot. Though the learned senior counsel Mr. Santhalingam submitted that it will be possible to shift the septic tank and thereby make the construction in conformity with rule 104(4). No such submission was made in respect of demolition of portions of either of the two buildings an idea which for obviously said will not be acceptable to the learned senior counsel's client. It appears to me that while directing the Secretary to explore the possibilities of a regularisation of the construction made on the strength of the permit WP(C)N0.1665/07 -12- now cancelled the learned Tribunal has ignored the existence of a four storied building on the very same plot which has admittedly got an extent of only 20 cents. It is true that the Government passed orders of regularisation in respect of that four storied building of petitioner in WP(C).18832/07 the submission of Mr.Gopakumar was that that regularisation order itself is the result of a construction or grace given by his client to Mr.Santhalingam's client. A reading of the Government's order regularising the 4 storied building will show that the petitioner in WP(C). 1665/07 withdrew from his objections during the hearing before the Government against the regularisation of that building and to that extent Mr.Gopakumar's submission has some force. On going through the Government Order regularising the four storied building it is seen that one of the violations which had been regularised by the Government as per that order is violation of the permitted FAR value. The Government found that as against the permitted FAR value of 1.50, the FAR seen applied was 1.75. The term overage is defined in the definition clause as the maximum area on any floor of the building excluding cantilevered open balconies and not including garden, drainage, compound wall etc. etc. WP(C)N0.1665/07 -13- Floor area is defined as the built up area of a building at any floor level. Floor area ratio (F.A.R) is defined as the quotient obtained by dividing the total floor area on all floors by the area of the plot. Rule 31 deals with coverage and floor area ratio. It is provided therein that the maximum percentage of coverage permissible for each occupancy under rule 30 shall limit the maximum area at any floor of a building. It also provided therein that the floor area ratio value shall limit the maximum buildable total floor area. The finding in the Government Order granting regularisation for the four storied building has been produced as Ext.P4 in writ petition No. 18832/07 and the Government became inclined to issue that order in view of the report submitted by the senior town planner, Ernakulam that the violation with respect to floor area ration in terms of KMBR, 1999 and the structure plan of Kochi are not serious in nature. Regularisation would be permitted subject to certain conditions. Regularisation does not amount to nullification of the factual findings entered in Ext.P5 order. It cannot be disputed that the four storied building as it presently stands is exceeding the permitted floor area of 1.75 . For the plot having a total extent of 20 cents it is not in dispute that the floor area raio applicable to any other construction on the same plot is the FAR which WP(C)N0.1665/07 -14- applicable to the earlier construction covered by Ext.P5 regularisation. If the four storied building constructed on the plot itself is a construction exceeding the permitted floor area ratio it does not need much elaboration to conclude that any further construction on the same will also exceed. The permitted floor area Mr.Santhalingam's suggestion that floor area ratio can be brought down by reducing the height of the floors does not appeal to me since going by the statutory definitions of floor area and floor area ratio height of a given floor cannot have much to do with the floor area ratio value. There is another aspect of the matter which seems to have been missed by the learned Tribunal. One of the violations noticed regarding the present single storied building is that the same is constructed on the statutory parking area provided for the four storied building covered by Ext.P4. Even though the learned senior counsel would strenuously submit that sufficient parking has been provided for the buildings I am of the view that permitting the petitioner in WP(C) No. 18832/07 to retain the single storied building on the statutory parking area provided for the four storied building may result in even the four storied building being rendered as an objectionable construction. Above all, as already indicated there is no power for the Secretary of the Panchayat under WP(C)N0.1665/07 -15- Rule 143 of the KMBR to regularise constructions which are in violation of rules. I am therefore of the opinion that the Tribunal was not justified in directing the Secretary of the Corporation to explore the possibilities of regularisation of the building put up on the strength of the cancelled permit as single storied building. I set aside the directions in the order of the Tribunal to the extent the Secretary of the Corporation is permitted to explore the possibilities of regularising the building put up on the strength of the cancelled permit as a single storied building. Writ Petition No. 1665/07 will stand allowed to the above extent. WP(C) No.18832/07 will stand dismissed. In the circumstances of the case both sides will suffer their respective costs. (PIUS C.KURIAKOSE, JUDGE) ksv. WP(C)N0.1665/07 -16-