IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933 WP(C).No. 5642 of 2011(E) ------------------------------------ PETITIONER(S): --------------------- 1. M.UNNIKRISHNA MENON, 28/577, PRANAVAM, PALIYAM ROAD, THRISSUR-680001. 2. GIRIJA, W/O.M.UNNIKRISHNA MENON, 28/577, PRANAVAM, PALIYAM ROAD, THRISSUR-680001. BY SRI.K.RAMAKUMAR, SR.ADVOCATE ADV. SRI.C.CHANDRASEKHARAN SRI.C.M.SURESH BABU RESPONDENT(S): ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695023. 2. CORPORATION OF TRISSUR, CORPORATION OFFICE, TRISSUR-680001, REPRESENTED BY ITS SECRETARY. R1 BY GOVT.PLEADER SRI.BIJU MEENATTOOR R2 BY ADV. SRI.K.P.VIJAYAN, SC SRI.V.M.SYAM KUMAR SMT.KRIPA ELIZABETH MATHEWS SRI.V.N.HARIDAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV WPC.NO.5642/2011 APPENDIX PETITIONER'S EXHIBITS : P1 : COPY OF SPECIFICATION REPORT WITH PLAN SUBMITTED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT. P2 : COPY OF NOTICE ISSUED BY 2ND RESPONDENT DT.24.10.09. P3 : COPY OF LETTER OF THE PETITIONERS TO THE 2ND RESPONDENT DT.11.12.2009. P4 : COPY OF PERMIT ISSUED UNDER APPENDIX-C DTD.02.02.10. P5 : COPY OF LETTER ISSUED BY THE PETITIONERS TO THE 2ND RESPONDENT DT.30.11.10. P6 : COPY OF LETTER ISSUED BY THE PETITIONERS TO THE MAYOR 2ND OF THE TRISSUR CORPORATION DT.30.11.10. P7 : COPY OF ACKNOWLEDGEMENT CARD ATTACHED TO EXT.P6 NOTICE. P8 : COPY OF LETTER ISSUED BY THE PETITIONERS TO THE 2ND RESPONDENT DT.04.02.2011. P9 : COPY OF RECEIPT ISSUED BY 2ND RESPONDENT DT.04.02.2011 P10 : COPY OF THE RELEVANT PAGES OF THE PROCEEDINGS OF THE 2ND RESPONDENT. P11 : COPY OF JUDGMENT OF THIS HON'BLE COURT IN WRIT PETITION NO.22296/2010 DATED 29.10.2010. P12 : COPY OF THE LETTER ISSUED BY 2ND RESPONDENT DATED 19.02.2011. P13 : COPY OF THE LETTER ISSUED BY 2ND RESPONDENT DATED 19.02.2011. P14 : COPY OF THE NEWS PAPER REPORT IN MALAYALA MANORAMA DAILY DATED 02.07.2011. P15 : COPY OF THE WRIT PETITION NO.22269/2010 WITH ALL EXHIBITS FILED BY P.S.KRISHNAKUMAR. P16 : COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT IN EX.P15 WRIT PETITION. RESPONDENT'S EXHIBITS : NIL /TRUE COPY/ P.A TO JUDGE AV HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.5642 Of 2011 ---------------------- Dated this the 4th day of November, 2011. J U D G M E N T The writ petition is filed seeking a declaration that the petitioners are eligible and entitled to commence construction of their building in accordance with the Building Rules, 1999 as per Ext.P1 application, for a direction commanding the 2nd respondent to permit the petitioners to commence and further carry on with the execution of the work and for other incidental reliefs. 2. Petitioners have submitted an application for building permit on 27.5.2009 seeking permission to construct a multi storied building. Ext.P1 is the copy of the application for building permit. Ext.P1 contain the plan for B + G + 11 floors with a height of 36 metres annexing a three storied building for own residence. The plan was submitted at the floor area ratio of 3.40. According to the petitioner the plan was submitted according to the specifications in Kerala Municipality Building Rules, 1999, r/w Rule 11(3) of the Building Rules. Petitioners submit that on 23.10.2009, the 2nd respondent fixed the total permit fee for the ::2:: W.P.(C).No.5642 Of 2011 plan @ Rs.7,19,639/-. Ext.P2 is the communication dated 24.10.2009 directing the petitioners to produce the NOC from Fire Department and consent letter from the Pollution Control Board for further action. Petitioners submit that they had submitted NOC from the Fire Department and informed the 2nd respondent that NOC from the Pollution Control Board is needed only at the time of completion of the construction since it is not a pre-requisite in issuing the statutory form Appendix C of the Building Rules 1999. 3. Ext.P1 application for permit contains two buildings. One is B + G + 11 floors and the second one, an annexe building having three stories. The petitioners submitted Ext.P3 application to the 2nd respondent stating that as per the plan 11 storied building is to be constructed in the place where the old residential building is situated, that the said building can be constructed only after demolishing the old building in the property, therefore, it is stated in Ext.P3 application that the petitioners may be permitted to start with the construction of the three storied building (annexe building), that only after the ::3:: W.P.(C).No.5642 Of 2011 completion of the three storied building, they may be able to demolish the old building for the purpose of starting the construction of the eleven storied building. It is therefore, further requested that the petitioners shall be directed to remit the fee for the 11 storied building only at the time of commencing the construction. In short, the request made in Ext.P3 is that the petitioners may be permitted to commence construction of the three storied building on payment of proportionate permit fee and the construction of the 11 storied building maybe deferred so that the commencement of the construction of the said building can be carried out only later i.e., after the completion of the three storied building and on payment of permit fee. Ext.P3 request was made on 11.12.2009. The 2nd respondent accepted Ext.P3 request and issued building permit on 2.2.2010. Permission was granted for the construction of three storied building which is intended to be used as office-cum- residential building. The proportionate fee levied and collected is Rs.7,385/-. Ext.P4 is the copy of the building permit dated 2.2.2010. Subsequently, on 30.11.2010, petitioners informed ::4:: W.P.(C).No.5642 Of 2011 the Secretary of the Corporation that they propose to construct the 11 storied building as per the plan submitted by them as per the KMBR, 1999, that the delay in granting the permit is causing financial loss and difficulties and therefore, requested the Secretary to issue building permit. Ext.P6 is the copy of the registered communication addressed to the Mayor, Thrissur Corporation. On 4.2.2011, petitioners submitted Ext.P8 request to the Secretary stating that the building permit fee for the 11 storied building and adjoining three storied residential building is Rs.7,19,639/-, that as per the letter dated 11.12.2010 petitioners were permitted to remit an amount of Rs.7,385/-and the balance of Rs.7,12,254/- is yet to be remitted and therefore requested the Secretary to accept an amount of Rs.7,13,000/- being the balance amount payable for the issuance of building permit. The request is to issue building permit in the statutory form Appendix C as per the Rules. Ext.P10 is the copy of the office note relating to the petitioners application for building permit. 4. On the basis of the office note, marked as Ext.P10, it is contended that Ext.P10 shows that it is a permit under Rule 11 ::5:: W.P.(C).No.5642 Of 2011 (3) of the Building Rules complying with all formalities under the 1st limb of Rule 11(3) that the 2nd limb is administrative in nature as it involves only ministerial work. According to the petitioners as per Ext.P2 intimation the 2nd respondent had approved and issued building permit on 23.10.2009. In other words, it is contended that the 2nd respondent had permitted by according sanction for construction as on 23.10.2009 and what remained is only payment of fee. It is also contended that even though petitioners deposited building permit fee the 2nd respondent has not issued form in Appendix ‘C’ and that the 2nd respondent is keeping the Demand Draft under Ext.P9 without complying the request as per Ext.P10. 5. The 2nd respondent filed a detailed counter affidavit. In the counter affidavit it is stated that the Corporation has not issued any permit as attempted to be put forth by the petitioners in the writ petition, that no permit has been issued to the petitioners on 23.10.2009, that as evident from Ext.P2, the Corporation has noted some defects and deficiencies and that since the petitioners sought permission to commence the ::6:: W.P.(C).No.5642 Of 2011 construction of a part of the plan submitted by them, after taking due steps a permit (Ext.P4) was issued which was specifically limited to that part of the proposed building which only comprises of a basement floor, ground floor, 1st floor and 2nd floor. It is specifically stated in the counter affidavit that Ext.P4 permit does not cover the B + G + 11 floor building proposed in the plan, that only a fee proportionate to the same has been realised from the petitioners and that no building permit whatsoever has been granted to construct B + G + 11 floors proposed in the plan. In the counter affidavit it is specifically pointed out that in Ground D of the writ petition the said fact was admitted by the petitioners. Relevant portion in 'Ground D' reads as follows: “The 2nd respondent had neither issued any notice nor granted any permit for their multi-storied building.” It is further stated in 'Ground F' also that the petitioners admitted the said fact which reads as follows: “The respondents had failed to accept the fees as well as to issue the building permit to the petitioners.” In the counter affidavit it is further stated that while the petitioners’ building permit application was pending consideration, the Building Rules were amended and new order ::7:: W.P.(C).No.5642 Of 2011 under the Kerala Municipality Building Rules came into force. It is pointed out that as per G.O.(MS)128/10/LSGD dated 21.6.2010, the maximum FAR permissible for apartments is 2.75 that as per the new Rules the FAR is revised from 3 to 2.75 and that the FAR as per the plan submitted by the petitioners is 3.40 which is not permissible as per the new order. It is submitted on behalf of the 2nd respondent that building permit cannot be issued as per the plan submitted by the petitioners in view of the amendment made to the KMBR. It is also stated that even though the Corporation had been forwarded a Demand Draft for an amount of Rs.7,19,639/- by post, due to the amendment in the existing Rules, the Corporation was constrained to accept the DD and the DD has duly been returned to the petitioners. It is pointed out that amended Rules came into force with effect from 16.12.2009 and therefore permission cannot be granted to the petitioners on existing submitted plan because it offends the amended Rules and therefore it is stated that the petitioners have to produce the amended plan in terms of the amended Rules. ::8:: W.P.(C).No.5642 Of 2011 6. Petitioners submit that the application for building permit was submitted as early as on 25.7.2009, that Ext.P10 office note would show that the proceedings was recorded for issuance of permit on 23.10.2009 that following the proceedings the initial work was permitted to be started after accepting the proportionate fee of Rs.7,385/- keeping the balance of Rs.7,12,254/- to be remitted as and when the construction work of the B + G + 11 multi storied building is commenced and therefore, the 2nd respondent ought to have issued permit in Appendix C to the petitioners. It is submitted that this Court in Ext.P11 judgment, considered the relevancy of the provisions of the amended Building Rules, 1999 and held that the petitioners therein are entitled to building permit based on the date of decision taken by the Corporation and that the said decision is applicable to the facts of the present case and hence the petitioners are entitled to get reliefs in the writ petition. It is also contended that the petitioners have complied with all the formalities and requirements for granting building permit, that permit was recorded as issued on 23.10.2009 and therefore, the ::9:: W.P.(C).No.5642 Of 2011 said date has to be construed as the proceedings contemplated in the first limb of Rule 11(3) of the Rules. It is pointed out that the proportionate fee was also collected in response to Ext.P3 letter from the petitioners and the petitioners were permitted to start with the construction and what remains is the balance of permit fee which the 2nd respondent was not accepting readily. 7. The 2nd respondent had no occasion to consider the contention raised by the petitioners. The question to be examined and to decide is as to whether the petitioners are entitled to construct 11 storied building in accordance with the un-amended Rules. Ext.P8 representation dated 4.2.2011 is pending consideration before the Secretary of the Thrissur Corporation. After hearing both sides, this Court is of the view that the Secretary of the Corporation shall consider and pass appropriate orders on Ext.P8 representation. The petitioners have not raised the contentions now urged before this Court before the Secretary of the Corporation. Therefore, in the event of petitioners submitting a detailed representation stating their contentions within a period of three weeks from today, the ::10:: W.P.(C).No.5642 Of 2011 Secretary shall consider and pass appropriate orders within a period of one month thereafter, after affording an opportunity of being heard to the petitioners. The writ petition is disposed of as above. HARUN-UL-RASHID, Judge. bkn/-