IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 26TH MARCH 2008 / 6TH CHAITHRA 1930 WP(C).No. 21180 of 2007(U) ---------------------------------------- PETITIONER: -------------------- P.K.USMAN, THE MANAGING PARTNER, PK & SONS, KARAPARAMBU, CALICUT-673 010. BY ADV. SRI.MILLU DANDAPANI RESPONDENTS: ------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS, GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001. 2. THE CHIEF TOWN PLANNER, O/O. CHIEF TOWN PLANNER, TRIVANDRUM. 3. CORPORATION OF CALICUT, CORPORATION OFFICE, CALICUT, REPRESENTED BY ITS SECRETARY. 4. THE SPECIAL COMMITTEE (CONSTITUTED UNDER RULE-85 OF THE KERALA MUNICIPAL BUILDING RULES, 1999), CORPORATION OFFICE, CALICUT, REPRESENTED BY ITS CONVENOR. R1 BY GOVERNMENT PLEADER SRI. K.J.MOHAMMED ANZAR R2 TO R4 BY ADV. SRI.P.V.KUNHIKRISHNAN,SC,KOZHIKODE CORPN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.21180/2007 U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF G.O.(RT) 4487/96/LAD DTD. 16/12/1996 ISSUED BY 1ST RESPONDENT. EXT.P2: COPY OF G.O.(RT) 1224/98/LAD DTD. 20/04/1998 ISSUED BY 1ST RESPONDENT. EXT.P3: COPY OF DEVELOPMENT PERMIT NO.12145/P5/95/CDA DTD. 30/05/1998 ISSUED BY CALICUT DEVELOPMENT AUTHORITY. EXT.P4: COPY OF BUILDING PERMIT NO.E1/74829/95 DTD. 17/01/2000 ISSUED BY 3RD RESPONDENT TO PREVIOUS OWNER OF PROPERTY. EXT.P5: COPY OF G.O.(RT) 2170/2003/LSGD DTD. 19/06/2003 ISSUED BY 1ST RESPONDENT. EXT.P6: COPY OF G.O.(RT) 3053/2003/LSGD DTD. 22/08/2003 ISSUED BY 1ST RESPONDENT. EXT.P7: COPY OF ORDER NO.E9/40128/07 DTD. 3/05/2007 ISSUED BY 3RD RESPONDENT. EXT.P8: COPY OF ORDER NO.E9/37161/07 DTD. 4/05/2007 ISSUED BY 3RD RESPONDENT. EXT.P9; COPY OF G.O.(RT) 2116/2005/LSGD DTD. 26/05/2005 ISSUED BY 1ST RESPONDENT. EXT.P10; COPY OF ORDER NO.D1/6431/05/D.DIS. DTD. 4/06/2005 ISSUED BY 2ND RESPONDENT. EXT.P11: COPY OF ORDER NO.E1/74038/2003 DTD. 08/06/205 ISSUED BY 3RD RESPONDENT. EXT.P12: COPY9 OF ORDER G.O.(RT) 4029/05/LSGD DTD. 3/10/2005 ISSUED BY 3RD RESPONDENT. EXT.P13: COPY OF G.O.(MS) 4/2006/LSGD (SRO 24/2006) DTD.5/01/2006 ISSUED BY 1ST RESPONDENT. EXT.P14: COPY OF REPRESENTATION DTD. 12/03/2007 SUBMITTED BY PETITIONER BEFORE HONOURABLE MINISTER FOR LSG INSTITUTIONS. Kss ..2/- ..2.... WPC.NO.21180/2007 U EXT.P15: COPY OF COMMUNICATION DTD. 28/03/2007 ISSUED BY 1ST RESPONDENT. EXT.P16: COYP OF COMMUNICATION NO.7568/RB2/07/LSGD DTD. 17/05/2007 ISSUED BY 1ST RESPONDENT. EXT.P17: COPY OF JUDGMENT DTD. 07/11/2005 OF DIVISION BENCH OF THIS HONOURABLE COURT IN O.P.NO.8740/1997-S. EXT.P18: COPY OF AERIAL VIEW OF SKETCH OF ARCHITECT OF THE PROJECT, “LESLY HEIGHTS”. EXT.P18(A): PHOTOGRAPHS OF COMPLETED VILLAS SOF THE PROJECT OF PETITIONER. EXT.P18(B): PHOTOGRAPHS OF INCOMPLETE COMMERCIAL BUILDINGS OF PROJECT OF PETITIONER. EXT.P19: COPY OF CERTIFICATE DTD. 30./06/2007 ISSUED BY CHARTERED ACCOUNTANTS. EXT.P20; COPY OF CERTIFICATE DTD. 29/06/2007 ISSUED ARCHITECT HAFEEZ CONTRACTOR, MUMBAI, TO PETITIONER. /TRUE COPY/ P.S.TO JUDGE Kss PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No. 21180 OF 2007 ----------------------------------------------- Dated this the 26th day of March, 2008 J U D G M E N T The petitioner in this writ petition is a middle east based Malayalee businessman,who was invited by the Government for participating in Global Investment Meet (GIM). According to him, he has drawn up an enviable Multi Crore Commercial Building Project in Calicut Corporation having the expertise and acumen of world famous Architect, Sri.Hafeez Contractor, Mumbai with the tacit agreement from the Government that the project will be approved. According to him, lay out plan pertaining to this project , which is described as a unique architectural wonder, was approved by the competent authorities and the construction of double storied commercial complex forming part of the project has been completed as per the approved lay out plan with the permission of the Corporation. The petitioner's grievance is that the approved lay out plan is now sought to be revised in view of the amendment of the Kerala Municipality Building Rules 1999, which will necessitate dismantlement and demolition of the construction including RCC foundation. The petitioner submits that his project is one of the biggest project in Calicut Corporation area and located ideally at the heart of the city and the project has the potential WP(C)N0. -2- to change the face of the city. The projected cost of the project is Rupees 70 Crores and potential of generating employment to 500 persons has been registered under the GIM. The petitioner points out that his predecessor – in – interest had been issued with exemption orders from the Government regarding the applicability of rule 17 (2) and 25 (4) of the Kerala Building Rules 1984 in respect of the property. The Government had vide Ext.P2 dated 20.4.1998 exempted the property from zoning regulations. The third respondent Corporation of Calicut granted development permit on 30.5.1998 and Ext.P3 is copy of the development permit. Thereafter, Ext.P4 building permit dated 17.1.2000 was issued to the previous owner of the property. The petitioner after purchasing the property from the previous owner, filed application for exemption from zoning regulation under the sanctioned master plan and detailed town planning scheme. But the same was granted and the Ext.P5 dated 19.6.2003 is the order of the Government issued to the petitioner. The petitioner points out that under Ext.P5 zoning exemption was granted subject to two conditions (i) the proposed road width and alignment as per detailed town planning scheme and Master plan should be kept in position and (ii) the construction should satisfy the provisions of Kerala Municipal WP(C)N0. -3- Building Rules 1999. Later on a revision petition filed by the petitioner, the Government modified Ext.P5 and ordered that as regards condition number “1” in Ext.P5, the proposed road width and alignment as per master plan alone should be kept in position. Ext.P6 is copy of the modified order. Pursuant to that, the third respondent Corporation issued building permit No.E1/104875/03 dated 23.3.2004 to the petitioner for the construction of two storied commercial building which is valid for three years. After renewal of the permit from time to time, the permit now stands renewed for a period of three years from 23.3.2007. Exts. P7 and P8 are copies of the renewed building permit. The petitioner submits that in the meanwhile on the advise of Chief Architect of project, major revision in plan was proposed, which necessitated submission of a revised layout plan for approval and on considering the same, the first respondent Government passed revised order approving the lay out plan subject to certain conditions stipulated therein. The sixth condition was that if the petitioner surrenders land free of cost for the purpose of widening of road, the petitioner would be entitled for exemption granted under Chapter XI of Kerala Municipal Building Rules. Ext.P9 is the order of the Government dated 26.5.2005 in this WP(C)N0. -4- regard. Thereafter, the second respondent - Chief Town Planner approved the revised lay out plan by Ext.P10 order and the third respondent Corporation also issued revised development permit for the approved revised lay out plan. Ext.P11 is the development permit issued in that regard by the Corporation. The petitioner claims that pursuant to Ext.P9, the petitioner has set apart 27.638 cents of land for the purpose of widening the roads and that the petitioner is entitled to claim exemption under Chapter XI in respect of the buildings constructed on his properties. It is submitted that as per approved lay out, construction of 27 houses have been completed and the Corporation has already issued Door Numbers to those houses. On the basis of Exts.P3 and P4, building permits for two double storied commercial buildings, one double storied commercial building is already completed and the work of the other is in progress. Three meters has been been left out in front of the double storied commercial building as set back and has also raised RCC pillars through out the proposed building area by leaving three meters set back. In the meanwhile, the Government has come out with fresh Government Order G.O.(Rt.) 4029/2005/LSGD dated 3.120.2005. Ext.P12 is copy of that order. Under Ext.P12, the Government has WP(C)N0. -5- stayed the formation of the special committee as provided under Section 85 of Chapter XI of the Kerala Municipal Building Rules. 2. The petitioner's grievance is that in view of Ext.P12 G.O. and on account of the non-constitution of the special committee under chapter XI of KMBR the petitioner could not obtain approval for the revised lay out plan and this is affecting the progress of the project in a time bound schedule. Petitioner points out that on account of elections to the Local Self Government Institutions in September 2005 and the election to the legislative assembly in February 2006 the revised plan for commercial/residential plots and buildings was not received by the authorities either. In the meanwhile the Government has notified its order G.O.(MS).No. 4/06/LSGD dt. 5-1-2006 vide SRO No.24/06. A copy of the above G.O. is produced as Ext.P13. The purport of Ext.P13 is to amend Chapter XI of the Kerala Municipalities Building Rules and as per the amendment Rule 82 has been amended as follows. “82. Set back, height etc:- (1)For buildings under various occupancies, the mandatory open space/set back from the proposed road boundary to the building shall be reduced by the breadth of the land so surrendered from that side, subject to a minimum of three meters from the boundary of the proposed road: WP(C)N0. -6- Provided that ......... Provided further ....... Provided also that ....... (2) In addition to the minimum front, rear and side open spaces required as per (1) above for height up to 10 meters, proportionate increase in such minimum open spaces at the rate of 0.5 meter per every 3 meters; height exceeding 10 meters shall be provided.” It is pointed out that the requirements under section 82(2) were introduced by the amendment and did not exist earlier. The petitioner complains that if the amended chapter XI of Kerala Municipality Building Rules 1999 as amended by Ext.P13 notification particularly rule 82(2) is sought to be enforced in respect of the buildings constructed by the petitioner in the above project the same would entail an overall revision of the lay out plan and also impact on double storied commercial apartment and house sites which are already constructed. The petitioner will become compelled to dismantle the R.C.C. Pillars, the foundations etc. which are already constructed in the site and a new plan will have to be prepared once again by consulting the Chief Architect. All these would lead to very heavy loss which the petitioner reasonably estimates to be in the range of Rs.20 to 25 crores and will result in inevitable delay in the implementation of the project, which will visit the petitioner with adverse consequence. The WP(C)N0. -7- requirements of rule 82(2) did not exist in the pre-amended provisions and the petitioner had got exemption ,the building and development permit on the basis of the pre-amended provisions and has started work at the site. Petitioner submitted Ext.P14 representation before the Minister for LSG Institutions setting forth the true facts and seeking exemption from applicability of the amended provisions in Chapter XI. The Government has by Ext.P15 rejected the petitioner's representation. The reasons stated in Ext.P15 is that there is no provision in the rules empowering the Government or the special committee to grant such exemption. The petitioner has come to understand that the first respondent has recently issued communication No.7568/RB2/07/LSGD dated 17-5-07 to the second respondent citing judgment of this court in O.P. No.8740 of 997 and on the basis of that communication the petitioner was served with Ext.P16 communication. In Ext.P16 also the judgment of this court in Sayeeshkumar's case is referred to and the petitioner is informed that the said judgment is of a declaratory nature. Under Ext.P16 the petitioner is informed that granting building permit and lay out approval on the basis of exemption orders granted by the Government even prior to that judgment will be illegal in the absence of a validating WP(C)N0. -8- Act. Petitioner has produced copy of the judgment of the Division Bench as Ext.P17. He has also produced a pictorial presentation of the project – its aerial view as Ext.P18. He has also produced P18(a) and P18(b) photographs of the completed villas and the incomplete commercial buildings in the project. He relies on Ext.P19 certificate issued by his Chartered Accountant to show that he has invested a sum of Rs.17,17,53,622/-. He also relies on Ext.P20 certificate issued by his contractor to show that the cost has increased by 25%. He impugns Exts. P15 and P16 and has filed the writ petition on various grounds seeking the following reliefs. 1. Issue a writ of certiorari or any other appropriate writ or order or direction, calling for the records leading to issue of Exts.P15 and P16 and quash the same. 2. Declare that section 82(2), Chapter XI, Kerala Municipal Building Rules 1999 as amended by GO(MS) No.4/2006/LSGD dated 5-1-2006 issued by 1st respondent is ultravires the Act or in the alternative to declare that section 82(2) of amended Ch. XI Kerala Municipal Building Rules 1999 is not applicable to project of petitioner in view of the peculiar facts and circumstances of the case. 3. A counter affidavit has been filed on behalf of the Government wherein the factual averments made by the petitioner in the writ petition are not seen disputed seriously. It is conceded therein that exemption from zoning regulations of the sanctioned master plan and WP(C)N0. -9- detailed town planning scheme was granted to the petitioner as per Ext.P5 order subject to the two conditions mentioned therein. It is pointed out that as per G.O.(Rt.) No. 4487/96/LSGD dated 16-12- 1996 and G.O.(Rt.) No.1224/98/LAD dated 20-4-1998 exemption from Kerala Building Rules, 1984 as well as from zoning regulations had been earlier granted to M/s. Pierce Leslie India Ltd. the previous owners for construction of a ten storied residential apartment and that the Calicut Corporation had issued building permit also to M/s. Pierce Leslie India Ltd. on the basis of the orders of the Government. It was while so, that the petitioner came to purchase Pierce Leslie's interest in the matter and the Government issued Ext.P5 in favour of the petitioner. The counter affidavit concedes that on the petitioner's review application Ext.P6 order was issued by the Government modifying the first condition in Ext.P5. It is also conceded that petitioner was issued with building permits to two storied commercial buildings and the same were renewed later. Issuance of Ext.P9 by the Government granting approval for the revised lay out is admitted and it is conceded that as per the 6th condition therein if the petitioner surrenders the land for road widening he will be entitled for the benefits of Chapter XI of KMBR. It is conceded that as per Ext.P10 the WP(C)N0. -10- Chief Town Planner approved the revised lay out and that as per Ext.P11 the Calicut Corporation issued development permit. It is then submitted in paragraph 7 of the counter affidavit that as per the proposed widening of Calicut-Balusseri Road to 18 metre width the land required for road widening from the petitioner's land will come approximately to 27.638 cents and if the petitioner surrenders this land free of cost, petitioner will get the benefit as per KMBR Chapter XI as also specified in G.O.(Rt.) No. 2116/2005/LSGD datd 26-5-2005 (Ext.P9). It is admitted that as per the development permit, permit for 27 residential villas and two double storied commercial building have been issued. 22 numbers of residential villas and one commercial building have been constructed on the basis of the above permit. The remaining residential villas are under construction. The set back provided from the proposed widening of the road to commercial building is 3.00 m. It is submitted that as per Ext.P12 Government had temporarily stayed functioning of the special committee as provided under section 85 Chapter XI. The petitioner has not submitted plan as per KMBR Chapter XI in accordance with Ext.P9. In the meanwhile the Government has amended Chapter XI as per Ext.P13 notification. Ext.P12 government order on special committee WP(C)N0. -11- also has been modified. As per the amended rules in Chapter XI the set back under various occupancies is “the mandatory open/set back from the proposed road boundary to building shall be reduced by the breadth of the land so surrendered form the side, subject to a minimum of 3.00 m. from the boundary of the proposed road.” It is admitted that rule 82(2) which provides that proportionate increase in such minimum open space at the rate of 0.50 metre for every 3 metres height exceeding 10 metres has been introduced for the first time. Therefore according to the counter affidavit the petitioner has to submit a fresh application with a revised plan which is in conformity with rule 82 as presently amended. The counter affidavit goes on justify the Government's rejection of the petitioner's representation and indicates that Government had no other go in view of the judgment of this court in Sayeeshkumar's case. Exemption was granted at a time when pre-amended rule 82 was in force, but by the time the Government considered petitioner's representation Ext.P12 the rule ad been amended and section 82(2) had been introduced in the present form. Any application for building construction attracting the provisions of the amended rules can be considered only as per the amended rule. WP(C)N0. -12- 4. The corporation has also filed a counter affidavit. According to that counter affidavit since the petitioner's request has been rejected by the Government and since Chapter XI of the KMBR has been modified petitioner's application can be considered only after the modified rule. The modified rules came into force on 5-1-06 and with effect from that date, that rule alone is applicable. 5. Extensive arguments were addressed by Sri.K.P.Dandapani, learned senior counsel for the petitioner, Sri.C.M.Suresh Babu, learned Special Government Pleader for Local Self Government Department, Sri.P.V.Kunjikrishnan, Standing Counsel for the Kozhikode Corporation. Learned counsel's submissions were on the basis of the pleadings of their respective parties and my attention was drawn by them to various documents which have been placed on record. Having considered the rival submissions I am of the view that considerations of justice and fair play demand that the revised plan submitted by the petitioner be considered as per the pre-amended rule 82 of Chapter XI of the Kerala Municipality Building Rules. The amended rule was brought into effect only on 5-1-2006. Much prior to that the Government had issued Ext.P5 pointing out exemption and Ext.P6 order modifying Ext.P5 in favour of the petitioner. Ext.P9 Government WP(C)N0. -13- Order granting approval to the revised lay out is also issued much prior to 5-1-06. It is stated in Ext.P9 that if the petitioner surrenders land for the purpose of widening the road he will be entitled for the benefits under KMBR Chapter XI with obvious reference to rule 82 as it stood prior to the amendment. The claim of the petitioner that he has given free surrender of the requisite extent of land for the purpose of widening of road viz., Calicut-Balusseri Road is not seen disputed, though it is not clear whether the necessary documents of surrender have been submitted and formal orders accepting the surrender have been passed. It is after leaving the land necessary for widening the road to 18 metres outside that the petitioner proceeded with the construction of the villas and the commercial buildings. If rule 82(2) is to be insisted upon the petitioner will have to dismantle portions of the constructions already made by him on the strength of the unamended provisions in Chapter XI on the basis of assurances given and expectations aroused through Ext.P11. Petitioner's claim that he has already expended Rs.18 crores by raising huge loans and that the insistence at this stage on adherence to rule 82(2) will lead to heavy loss and upsetting of his time bound schedule is indisputable. According to me, the petitioner is entitled to have his revised plan WP(C)N0. -14- considered by the concerned authority as per rule 82(2) of Chapter xI of KMBR as it stood prior to its amendment vide G.O.(MS)4/06/LSGD dt. 5-1-2006. 6. Result of the above discussion is that Exts.P5 and P16 are quashed and it is declared that rule 82(2) in Chapter XI Kerala Municipality Building Rules, 1999 as amended by G.O.(MS) No.4/06/LSGD dt. 5-1-2006 issued by the first respondent Government is not applicable to the petitioner's project which is subject matter of this writ petition on condition that the petitioner has legally surrendered the land necessary for widening of the Calicut – Balusseri Road to a width of 18 metres i.e., extending to 27.638 cents. The declaration will become effective once formal surrender is made and orders accepting the surrender is issued. (PIUS C.KURIAKOSE, JUDGE) ksv/dpk WP(C)N0. -15-