IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 10TH SEPTEMBER 2009 / 19TH BHADRA 1931 WP(C).No. 19078 of 2009(D) -------------------------------------- PETITIONER(S): ---------------------- 1. V.M. SANTHA, AGED 71 YEARS, D/O. T.M. KUNHUNNI NEDUNGADI, RESIDING AT 'AJANTHA', PUTHIYARA P.O., KOZHIKKODE -4, 2. ANITHA KISHAN, D/O. V.M. SANTHA, AGED 44 YEARS, 'AJANTHA', PUTHIYARA P.O., KOZHIKKODE -4. 3. M/S. LICHEN BUILDERS AND DEVELOPERS PRIVATE LIMITED ,REGD OFFICE AT ST. AUGUSTINE BUILDING, KALOOR KOCHI-17, REP. BY ITS MANAGING DIRECTOR, BOBEN PAUL. BY ADV. MR.K.K.CHANDRAN PILLAI MR.A.S.SAJUSH PAUL SMT.K.U.BINI MR.THOMAS JAMES MUNDACKAL RESPONDENT(S): ------------------------ KOZHIKODE CORPORATION,REPRESENTED BY ITS SECRETARY,CORPORATION BUILDING, KOZHIKODE. BY ADV. MR.K.D.BABU,SC,KOZHIKODE CORPORATION. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 19078/2009-D APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE NAGARAM VILLAGE OFFICE DATED 30/09/2006. EXT.P2: COPY OF THE COMMUNICATION ISSUED BY THE RESPONDENT DATED 19/10/2006. EXT.P3: COPY OF THE LETTER DATED 23/11/2006 ISSUED BY THE CALICUT DEVELOPMENT AUTHORITY. EXT.P4: COPY OF THE COUNTER AFFIDAVIT FILED BY THE CALICUT DEVELOPMENT AUTHORITY IN WP(C) NO. 31888/2006. EXT.P5: COPY OF THE JUDGMENT DATED 12/12/2006 OF THIS HONOURABLE COURT IN WP(C) NO. 31888/2006. EXT.P6: COPY OF THE APPROVED PLAN ISSUED BY THE RESPONDENT. EXT.P7: COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE RESPONDENT DATED 13/05/2009. EXT.P8: COPY OF THE ORDER ISSUED BY THE RESPONDENT DATED 18/06/2009. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.19078 OF 2009 ------------------------------------------- Dated this the 10th day of September, 2009 JUDGMENT “C.R.” 1.The petitioners challenge Ext.P8, whereby, their request contained in Ext.P7 has been rejected. 2.The petitioners were issued a building permit for a multi- storeyed apartment complex. They had to leave free space at the request of the Corporation since the land abuts a public road. That public road is essentially a national highway. The National Highway authorities have cleared the proposal. Thus what remains with the petitioners for putting up the building is a large plot, of which, a portion has to be left without any construction in the front. The request of the petitioners that led to the impugned order was for permission to utilise the space available in the front, which is the space left off without construction, as parking space. The impugned order is issued on the premise that the FAR was fixed on the basis of the available land and cannot be modified. WPC.19078/09 Page numbers 3. Rule 34(2) of Kerala Municipality Building Rules, 1999 provides that “for buildings of different occupancies, off-street parking spaces for motor cars shall be provided within the plot as specified in table 5”. Adverting to Rule 2(bm), 'road' means everything stated therein, including a road which is existing or proposed in any scheme. While no modification is sought for in the floor area ratio, it has to be noted that the provision for parking area can be anywhere within the plot. That need not necessarily be within the plinth of the building. Rule 2(bg) defines 'plot' to mean a parcel or piece of land enclosed by definite boundaries. Therefore, it is sufficient that parking space is provided within the plot. In that view of the matter, the FAR of the building, as covered by the building permit issued already, has no bearing on the determination of the question as to whether the land available with the petitioners within the plot could be utilised for the purpose of parking space in terms of Rule 34(2) of the KMBR. The reason contained in the impugned Ext.P8 is, therefore, unsustainable being contrary to the legal provision. WPC.19078/09 Page numbers In the result, the impugned order is quashed and it is directed that Ext.P7 application shall be taken up, considered and disposed of without reference to the reasons stated in Ext.P8 and this shall be done within a period of three weeks from the date of receipt of a copy of this judgment. The writ petition is allowed. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.15/9.