IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 WP(C).No. 22269 of 2010(G) -------------------------------------- PETITIONER(S): ---------------------- P.S.KRISHNA KUMAR, RAJEEVAM, T.R.SUKUMARAN NAIR ROAD, PERINTHANNI, THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-1. 2. THIRUVANANTHAPURAM CORPORATION REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, THIRUVANANTHAPURAM-1. R2 BY SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE SRI.P.K.MANOJKUMAR R1 BY GOVERNMENT PLEADER SRI.SANDESH RAJA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.22269/2010-G APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE APPLICATION FOR PERMIT SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. P2 COPY OF THE CERTIFICATE NO.G1-3513/2008 DATED 8/4/2008 OF THE COMMANDANT GENERAL, FIRE AND RESCUE SERVICES. P3 COPY OF THE COMPLAINT DATED 28/4/2009 FILED BY THE PETITIONER AND HIS SISTER BEFORE THE MAYOR OF THE CORPORATION. P4 COPY OF THE PHOTOGRAPH OF THE SAID CONSTRUCTION IN QUESTION. P5 COPY OF THE NO OBJECTION CERTIFICATE NO.NAA/M/O-23/NOC/258 DATED 28/8/1992 ISSUED BY THE NATIONAL AIRPORTS AUTHORITY. P6 COPY OF THE CERTIFICATE NO.G1 -13341/09 DATED 18/12/2009. P7 COPY OF THE LETTER NO.E5/99131/10 DATED 19/6/2010 OF THE PUBLIC I I INFORMATION OFFICER, ATTACHED TO THE 2ND RESPONDENT. P8 COPY OF THE FILE NO.E5/BA/355/2008 CONTAINING THE ENTIRE NOTINGS. P9 COPY OF THE AMENDED RULES PUBLISHED AS S.R.O.NO.1070/2009 IN THE KERALA GAZETTE EXTRE ORIDINARY NO.2345 DATED 16/12/2009. P10 COPY OF THE LETTER DATED 23/1/2010 OF SRI.BABY JOHN. P11 COPY OF THE LETTERNO.2776/10/E11 DATED 28/1/2010 OF THE STATE PUBLIC INFORMATION OFFICER, DIRECTORATE OF PRINTING DEPARTMENT. P12 COPY OF THE LETTER DATED 29/1/2010 ADDRESSED TO THE SUPERINTENDENT, GOVERNMENT CENTRAL PRESS, THIRUVANANTHAPURAM. P13 COPY OF THE LETTER NO. 3620/10/E11 DATED 27/2/2010 OF THE STATE PUBLIC INFORMATION OFFICER, DIRECTORATE OF PRINTING DEPARTMENT, GOVERNMENT CENTRAL PRESS, THIRUVANANTHAPURAM. P14 COPY OF THE LETTER NO.E 16/41307/10 DATED 12/3/2010 OF THE INFORMATION OFFICER, ATTACHED TO THE 2ND RESPONDENT, ADDRESSED TO ONE MAHESH, UNDER THE RIGHT TO INFORMATION ACT. P15 COPY OF THE LETTER NO.E14/27388/10 DATED 25/1/2010 OF THE 2ND RESPONDENT ADDRESSED TO THE 1ST RESPONDENT. P16 COPY OF THE LETTER NO.E9/E/BA/719/2009 DATED 19/6/2010 OF THE 2ND RESPONDENT ADDRESSED TO THE 1ST RESPONDENT. P17 COPY OF THE G.O.(MS) NO.128/2010/LSGD DATED 21/6/2010. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO. JUDGE sts T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.22269 of 2010-G - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of October, 2010. JUDGMENT The petitioner seeks for a direction to the respondents to permit the petitioner to remit additional fees and to issue the building permit, in pursuance of Ext.P1 application, in accordance with the Kerala Municipality Building Rules, 1999 and existing prior to the issuance of Ext.P9 rules, i.e. the unamended rules. 2. The petitioner and his sister Smt. Indira Devi are in possession of 20 cents of property in Sy. Nos.7/5-1 and 7/5 of Thycaud village in Thiruvananthapuram taluk. The application for building was submitted on 1.2.2008 for constructing a multi storied building. Ext.P1 is the copy of the application for permit. At that point of time the petitioner had produced Ext.P2 certificate from the Commandant General, Fire and Rescue Services, conferring no objection for the construction. The application was originally allowed by the Corporation and the permit was issued on 17.7.2008. It appears that the petitioner did not receive any communication in that regard and therefore he could not remit the required fee also. wpc 22269/2010 2 3. A slight change in the plan was needed and the petitioner, on 28.12.2008 submitted a revised plan which, as a matter of fact, is only with regard to the change of user of the second floor from residential to commercial. The same was pending for some period and the petitioner thereafter filed Ext.P3 complaint before the Mayor requesting for urgent action to issue permit. 4. It appears that there was a further direction to get a revised No Objection Certificate also in terms of the revised plan from the Fire and Rescue Services, which according to the petitioner, was already obtained and forwarded and a copy of the same has been produced as Ext.P6 herein. The petitioner has been seeking permission to remit the fees. The difficulty which was projected, it appears, is the coming into force of the amended rules with effect from 16.12.2009. The respondents had taken a stand that the entire application has to be considered in terms of the amended rules, as there is a change of rule. 5. The counter affidavit filed by the Corporation shows that actually a permit was issued on 17.7.2008, subject to payment of fees for the additional F.A.R. and production of the No Objection Certificate from the Pollution Control Board after the completion of the building. It is further pointed out that if the petitioner had remitted the required licence fee at that wpc 22269/2010 3 time instead of producing a revised plan, necessary permit would have been granted to the petitioner. The revised plan submitted by the petitioner shows that the user of the second floor has been changed from residential to commercial. 6. Therefore, the only issue to be considered is whether the application will have to be considered afresh in terms of the amended rules. 7. Heard learned counsel for the petitioner Shri Sudhir and Shri N. Nandakumara Menon, learned Senior Counsel appearing for the corporation. Evidently, going by the counter affidavit, it is seen that the building permit was issued on 17.7.2008. Of course, learned counsel for the petitioner submitted that since the same was not received by the petitioner, permit fee could not be paid. Therefore, the situation is different unlike other cases where the application is pending consideration and the amended rules have come into force in the meanwhile. The facts herein show that actually a building permit was issued before the coming into force of the amended rules. Therefore, it is not a case where the application of the petitioner was pending without any action on the date of coming into force of the amended rules. Therefore, the requirement to have a fresh consideration in terms of the amended rules, does not arise going by the admitted facts of this case. Actually, revised plan, etc. were submitted only wpc 22269/2010 4 for a change of user which can be considered in terms of the relevant rules. The petitioner can also be permitted to pay the required fee, since it is the case of the petitioner that absence of a communication regarding issuance of the permit alone had resulted in non payment of the fee. Therefore, the petitioner could not be put into hardship as no fault can be attributed to the petitioner also. 8. In that view of the matter, the writ petition is disposed of with the following directions: There will be a direction to consider the application for change of user and to issue a revised permit in continuation of the permit which was issued on 17.7.2008 and the petitioner will also remit the required fee and he shall also comply with any other formalities, if any, remaining to be complied with. An appropriate decision will be taken and communicated to the petitioner and a revised permit will be issued to the petitioner within a period of one month from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/