IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 8TH DECEMBER 2009 / 17TH AGRAHAYANA 1931 WP(C).No. 18134 of 2009(J) -------------------------- PETITIONER(S): --------------- NEDUMANGAD MUNICIPALITY, NEDUMANGAD, THIRUVANANTHAPURAM PRE.BY ITS SECRETARY. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENT(S): --------------- 1. A.A.ABDUL RASHEED, MANAGING DIRECTOR, HOTEL SUMMER SHADE, NEDUMANGAD. 2. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. ADDL.3. K.SOMASEKHARAN NAIR, S/O.LATE KRISHNANPILLAI, S.K.V.BHAVAN, NEDUMANGADU, THIRUVANANTHAPURAM. (IMPLEADED VIDE ORDER DTD.15.9.09 IN IA.8473/09) ADDL.4. V.PRAFULLA CHANDRAN NAIR, AGED 59, S/O.VASUDEVAN NAIR, RESIDING AT DRISYA, KULAVIKONAM, NEDUMANGAD, TRIVANDRUM DISTRICT. (IMPLEADED VIDE ORDER DTD.15.9.09 IN IA.8834/09) R1 BY ADV. SRI.ELVIN PETER P.J. R2 BY GOVT. PLEADER SRI.V.MANU R3 BY SRI.VINOD J.DEV SRI.PRAMOD J.DEV R4 BY ADV.SRI.VAKKOM N.VIJAYAN SMT.V.RENJU SRI.P.ANIYAN SMT.M.A.RAMITHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.18134/09 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF GOVERNMENT ORDER DATED 6.4.90. EXT.P2: TRUE COPY OF GOVERNMENT ORDER DATED 1.11.91. EXT.P3: TRUE COPY OF GOVERNMENT ORDER DATED 17.5.00. EXT.P4: TRUE COPY OF APPLICATION DATED 20.7.06 SUBVMITTED BY R1. EXT.P5: TRUE COPY OF UNDERTAKING DATED 23.8.06 GIVEN BY R1. EXT.P6: TRUE COPY OF SANCTION ORDER DATED 25.8.06 ISSUED BY THE SECRETARY OF THE PETITIONER. EXT.P7: TRUE COPY OF JUDGMENT DATED 12.4.07 IN W.A.NO.1043/07. EXT.P8: TRUE COPY OF GO DATED 5.11.07. EXT.P9: TRUE COPY OF ORDER DATED 17.11.08 ISSUED BY THE SECRETARY OF PETITIONER MUNICIPALITY. EXT.P10: TRUE COPY OF ORDER DATED 20.1.09 OF R2 IN APPEAL NO.665/08. EXT.P11: TRUE COPY OF JUDGMENT DATED 17.2.09 IN W.P(C).3917/09. EXT.P12: TRUE COPY OF LETTER DATED 20.2.09 SUBMITTED BY R1 BEFORE THE MUNICIPAL COUNCIL. EXT.P13: TRUE COPY OF PROVISIONAL ORDER DATED 27.2.09 ISSUED BY THE PETITIONER. EXT.P14: TRUE COPY OF REPORT DATED 9.3.09 OF THE ADVOCATE COMMISSIONER EXT.P15: TRUE COPY OF REPLY DATED 16.3.09 SUBMITTED BY R1. EXT.P16: TRUE COPY OF LETTER DATED 20.3.09 FROM THE PETITIONER TO THE SUB INSPECTOR OF POLICE, NEDUMANGAD. WPC.18134/09 2 EXT.P17: TRUE COPY OF ORDER DATED 21.4.09 ISSUED BY THE PETITIONER. EXT.P18: TRUE COPY OF ORDER DATED 12.6.09 IN APPEAL NO.350/09. EXT.P19: TRUE COPY OF ORDER DATED 12.6.09 ISSUED BY R2. RESPONDENTS' EXHIBITS: EXT.R1(a): TRUE COPY OF THE LETTER DATED 10.8.07 OF THE CHIEF TOWN PLANNER. EXT.R1(b)SERIES: TRUE COPY OF THE BUILDING TAX RECEIPTS ISSUED TO THE 1ST RESPONDENT. EXT.R1(c): TRUE COPY OF THE ORDER DATED 8.5.2009 IN W.P(C).13026/09 OF THIS HON'BLE COURT. EXT.R1(d): TRUE COPY OF THE PHOTOGRAPH OF THE BUILDING. EXT.R1(e): TRUE COPY OF THE INVITATION CARD. EXT.R1(f): TRUE COPY OF THE REPORT DT.5.6.07 SENT BY THE SECRETARY, NEDUMANGAD MUNICIPALITY TO THE GOVT. EXT.R3(a): TRUE COPY OF ORDER IN O.P.1253/08 PASSED BY THE OMBUDSMAN, TRIVANDRUM. EXT.R3(b): TRUE COPY OF ORDER IN W.P(C).36217/08 OF THIS HON'BLE COURT. EXT.R3(c): TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE MUNICIPALITY. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.18134 OF 2009 ------------------------------------------- Dated this the 8th day of December, 2009 JUDGMENT 1.The municipality is the writ petitioner. It is aggrieved by Exts.P18 and P19 orders issued by the Tribunal for Local Self Government Institutions on appeals filed by the first respondent. The parties were heard in an earlier round. That invited directions of the Division Bench requiring the Government to decide upon the matter. Taking note of the fact situations and the sequence of events, the following order was issued on 8.10.2009: “ This litigation relates to the construction of a hotel building. It is stated that it was a lodging house earlier. Parties on either side were here on different rounds including in public interest litigation and other matters that ultimately led to a direction by the Division Bench requiring the matter to be heard by the Government and decided upon. WPC.18134/09 2 Following that Government issued Ext.P8 after hearing the parties relying on a report of the Chief Town Planner. Specific directions have been issued in paragraph 14 of Ext.P8, in view of the recommendations of the Town Planner. Once this court, in exercise of the extra ordinary jurisdiction under Article 226 of the Constitution having had referred the parties to a particular authority, in this case the Government, for resolution of the entire disputes, no such dispute survives anymore for being agitated before any other forum, except to consider the correctness or otherwise of the decision rendered by the government following such procedure. That order(Ext.P8) has become final. Therefore, the parties cannot, in any manner, go back from the status obtained as per Ext.P8. 2. Following Ext.P8, different exercises have been carried out by the Municipality and the petitioner leading ultimately to two appeals before the Tribunal for Local Self Government Institutions. Tribunal held that there is a deemed licence in favour of the builder on account of lethargy to decide on the building permit application(for revised sanction) within time. It also interfered with the WPC.18134/09 3 proceedings of the Municipality requiring the builder to pull down certain portions of the building. 3. The aforesaid decisions of the Tribunal stand stayed by this court in this case. 4. While the Municipality would say that the question of deemed licence does not arise at all, in view of the fact that the builder stood notified of deficiencies in the rectification of the building in terms of Ext.P8 Government order, the final resolution of this dispute is necessary because a little bit of public interest including through erstwhile Chairman of the Municipality is also projected by way of impleading petitions in this matter. 5. The facts of the case make it abundantly clear, as already noted, that Ext.P8 is the decisive government order on the basis of which further action has to follow. If that were so, all that has to be ensured is that the terms of the directions contained in paragraph 14 of Ext.P8 Government order are complied with. On such compliance, the consequences have to follow in terms of Ext.P8 Government order. WPC.18134/09 4 6. Therefore, the Chief Town Planner, Thiruvananthapuram is hereby directed to conduct a site inspection following the report referred to in Ext.P8 within a period of two weeks from the date of receipt of a copy of this order and file a report before this court within two weeks thereafter, as to whether the directions issued by the Government in paragraph 14 have been complied with by the petitioner in relation to the construction in question. 7. If the answer of the Chief Town Planner to the aforesaid is in the affirmative, Municipality has to do the needful in terms of paragraph 14(3) of Ext.P8. If the answer is in the negative, petitioner has to comply with the directions contained in Ext.P8. This procedure will liquidate this litigation finally. The aforesaid directions are accordingly issued. List after six weeks awaiting the report. Learned counsel for the Municipality will ensure that a set of this writ petition and other pleadings in this case is placed before the Chief Town Planner, Thiruvananthapuram along with a copy of this order“. WPC.18134/09 5 2.Following that, the Chief Town Planner has placed on record a report dated 17.11.2009, the relevant portion of which reads as follows: “In response to judgment in W.P(C).32222/06 dt.9.3.2007, Govt. have issued directions as per G.O.(Rt) No.3011/2007/LSGD dt.05/11/2007. As per this (G.O.) it was required to rectify the deviations made in the building so as to make it in conformity with approved plan and Govt. orders. Thereafter, Municipality shall assess the building after verifying the required documents ad NOC from Fire Force Department. This Govt. Order has not yet been complied with. During inspection the following points were noted. 1) There is no sufficient access width to rear parking space. As per the approved pan, the access width varies from 2.45 m to 2.60 m. The actual available width are 2.40 m and 2.00 m at two points. WPC.18134/09 6 2) Since the level of the Rear yard has been lowered, the fire escape stair is not connected to the ground level at present. It is also noted that there is no proper and sufficient access to the fire escape stair from all parts of each floor of the building. 3) It has been noted that an additional stair case and one lift has been provided inside the building in the north-west corner. This will facilitate more vertical circulation and is advisable in the safety point of view. Along with this room & lift machine room an additional area of 5.90m x 3.45m is seen covered with slab for placing water tank. It is permissible if the structure is not used for any purpose other than storage of water. 4) In the upper floors, it is seen that at certain places the outer walls were shifted from the original position to the edge of the projecting slabs which were only weather shades as per approved plans. In certain places it is seen that door ways are provided giving entry to weather shade slab projections. This will cause serious violations of building rules and WPC.18134/09 7 deviation of approved plan especially with respect to open space availability, coverage, FAR and Parking requirement. 5) It was also seen that two telecommunication tower along with accessories were erected as the Roof Top Terrace of the building. Municipal authorities has informed, that structures are authorised. Based on the above observation, it can be seen that the alteration as per G.O.(Rt) No.3011/2007/LSGD dt.5/11/2007 has not been affected to the building. As per the Government exemption orders the following uses only are permissible in this building. Restaurant, lodge rooms, commercial office, residential use and ancillary parking. If the use of the building is intended to be changed to some other uses other than specified above, Rule 3(c) of the KMBR1999 has to be applicable. As per rule 3(c) “where the occupancy or use of building is changed WPC.18134/09 8 these rule shall apply to all parts of the building affected by the change”. 3.With the aforesaid, the first respondent has filed an additional affidavit and through his learned counsel, he undertakes today that he will carry out all necessary rectifications in terms of the G.O. dated 5.11.2007 and would rectify all the defects which have been noticed by the Chief Town Planner. All that he wants is to complete the project and start activities in the hotel building. 4.Taking the aforesaid into consideration, it is directed that as and when the petitioner carries out the rectifications in terms of G.O.(Rt) No.3011/2007/LSGD dated 5.11.2007, he may notify about such completion to the Chief Town Planner and to the secretary of the petitioner municipality. The Chief Town Planner will then ensure that an inspection is again made to certify whether all rectifications in terms of the aforesaid Govt. Order have been carried out. If the Chief Town Planner is WPC.18134/09 9 satisfied that such rectifications have been done, a certificate in that regard would be issued by him, following which, the municipality will do the needful to regularise the construction. 5.All interim orders will stand vacated to enable the first respondent to do the needful in terms of this judgment. This Court records its appreciation for the efficient efforts taken by the Chief Town Planner in the matter. Exts.P18 and P19 will stand quashed to pave way for what is stated above. The writ petition is ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.10/12.