IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 3991 of 2008(A)
1. S.NARAYANAN NAIR,PRASANTH, TC 27/2312,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
2. CORPORATION OF THIRUVANANTHAPURAM
3. CHIEF TOWN PLANNER, PALAYAM,
For Petitioner :SRI.PIRAPPANCODE V.S.SUDHIR
For Respondent :SRI.N.NANDAKUMARA MENON (SR.)
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :25/08/2008
O R D E R
ANTONY DOMINIC, J
-----------------------------------------------------------
W.P.(C).No.3991/2008
-----------------------------------------------------------
Dated this the 25th day of August, 2008
JUDGMENT
Prayers sought for in this writ petition are to quash Exts.P3
and P13 and to direct the respondents to permit the petitioner to
resume construction of the building in accordance with Ext.P1
permit and Ext.P2 approved plan.
2. Facts of the case are that on 11.1.2005, the petitioner
submitted an application to the respondent corporation for a
building permit to construct a commercial complex. In terms of
the Kerala Municipality Building Rules, then prevailing, the matter
was considered by the Special Committee constituted in terms of
Rule 85. Ext.P19 dated 6.4.2005 shows that the committee had
considered the matter and resolved to grant permit subject to
Rule 79 to 86 of the Building Rules. In pursuance to Ext.P19,
Ext.P1 building permit was issued by the Town Planning Officer,
on 24.3.2006, permitting construction of a commercial complex
WP(c).No.3991/2008 2
having a cellar and six floors.
3. Petitioner submits that on the strength of Ext.P1, he
commenced construction in April, 2006 and construction up to
half of the second floor has been completed. At that stage, the
Town Planning Officer of the Corporation issued Ext.P3 stop
memo on 25.1.2007. Ext.P3 was in implementation of Ext.P17
order issued by the first respondent, directing the Secretary to
stop the construction and also initiate action in the manner
mentioned therein. A reading of Ext.P17 shows that the
proposed construction falls in the residential zone of the
sanctioned master plan for Thiruvananthapuram and the building
permit was issued without obtaining exemption from the Zoning
regulations and also in violation of the Kerala Municipality
Building Rules with reference to rear open space.
4. The petitioner submits that, on receipt of Ext.P3, he had
stopped further construction and he approached the authorities
for getting Ext.P3 revoked. Petitioner submits that Ext.P1 building
permit issued on the basis of the decision of the Special
Committee was fully in compliance with the Rules prevailing at
that time when Ext.P19 decision was taken by the Committee.
WP(c).No.3991/2008 3
5. He is referring to Ext.P4 dated 9.11.2005, the
undertaking given by him to surrender a part of his property
having an extent of 32.92 square meter for road widening
purposes. According to him, as is evident from Ext.P5, on
12.1.2006, the Revenue Divisional Officer accepted the surrender
in Ext.P4 and surrender was also completed. According to him
that was the reason why Ext.P1 permit was granted subject to
Rules 79 to 86 of the KMBR.
6. In view of Ext.P3, he submitted Ext.P6 representation to
the first respondent requesting to revoke Ext.P17 and allow him
to resume the work. It is stated that there was no response to
Ext.P6 and therefore he gave Ext.P7, requesting that he be
permitted to continue the work on an undertaking that he will
demolish the structure constructed, if so required. According to
him, there was no response to both Exts.P6 and P7 and that, in
the meanwhile the town planning scheme itself was modified by
Ext.P8 dated 31.5.2007. Thereupon he submitted Ext.P9,
claiming the benefit of Ext.P8, on the basis that, the modified
scheme allowed the construction. It is submitted that even to
Ext.P9 there was no response. Even thereafter, petitioner
WP(c).No.3991/2008 4
submitted Ext.P10 along with Ext.P11 revised plan. It is stated
that finally the Chief Town Planner was addressed by the second
respondent as per Ext.P12, intimating that the petitioner is
entitled to the benefit of Ext.P8 revised Town Planning Scheme.
Even after all those, since Exts.P3 and P17 were not recalled, this
writ petition was filed seeking to quash Exts.P13 and P17.
7. Senior counsel appearing for the 2nd respondent
Corporation submits that they have issued Ext. P3 stop memo,
as directed by Ext. P17, order issued by the 1st respondent. It
was contended that Ext. P3 is only a stop memo and that a final
decision in this matter has not been taken so far. For that reason,
according to him, the writ petition was premature. It was also
submitted that, if at all the petitioner is aggrieved by Ext. P3, the
course open to him was to file an appeal availing of the remedy
provided under Section 509 of the Municipalities Act.
8. Learned Govt. Pleader on the other hand would contend
for the position that the reasons which led the 1st respondent to
issue Ext. P17 are valid and therefore Ext. P17 is a valid order.
According to him, the 1st respondent is satisfied that the
petitioner had not obtained exemption from the zoning
WP(c).No.3991/2008 5
regulations and that there was violation of the Kerala Municipal
Building Rules with reference to the rear open space.
9. From the submissions made by both sides, it is obvious
that it was on account of Ext. P17 order issued by the 1st
respondent, that the Corporation issued Ext. P3 stop memo
compelling the petitioner to stop further continuance of the work
in pursuance to Ext. P1 building permit that was issued to him.
10. A reading of Ext. P17 issued on 4.1.2007 shows that
there are two reasons which persuaded the Government to issue
the said order and those two reasons are, that the petitioner had
not obtained exemption from zoning regulations and that there
was violation of the KMBR with reference to rear open space. By
the time Ext.P17 was issued, the KMB Rules were amended with
effect from 11.1.2006. If the amended rules are applied to the
petitioner’s construction then there is necessity of exemption
from the zoning regulations and there is also violation with
reference to rear open space. But then the question is whether it
is the amended building rules which governs the petitioner or not.
According to the Senior Counsel for the Corporation and the
learned Govt. Pleader it is the amended KMBR which governs the
WP(c).No.3991/2008 6
petitioner while according to the counsel for the petitioner it is
the unamended rule which applies to him.
11. Having considered the submissions made by both sides
I am inclined to agree with the counsel for the petitioner that it is
the rule as it stood prior to the amendment with effect from
11.1.2006 which applies to him. As already noticed, application
for building permit was made by the petitioner on 11.1.2005. At
the time when the application was made, Rule 85 of the Kerala
Municipality Building Rules provided for the constitution of special
committees. This rules enabled the Government to constitute
special committees for all or any of the municipalities to consider
and decide on the application for building permits that may be
submitted. Sub rule (5) of the said rule provided that the
Secretary shall place all applications before the special
committee for consideration and shall issue permit as decided by
the special committee.
12. In this case, as is evident from Ext. P19, in its meeting
held on 6.4.2005, the special committee considered the
application made by the petitioner on 11.1.2005 and resolved to
grant him building permit. In view of Rule 85(5) as it stood then,
WP(c).No.3991/2008 7
the permit is to be issued as decided by the committee.
Therefore, it is on the basis of the decision taken by the special
committee on 6.4.2005, Ext. P1 building permit was issued on
24.3.2006. Since Ext. P1 permit was issued on the basis of the
decision taken on 6.4.2005, the grant of Ext.P1 permit can be
governed only by the rules as stood as on 6.4.2005, viz. the
unamended rule.
13. Now that I have held that it is the rule as stood prior to
its amendment on 11.1.2006, that governs the petitioner the
question is whether in the light of the provisions contained in the
rule as stood then, there was any requirement for exemption
from the zonal regulations and whether there is any violation with
reference to the rear open space. Rule 80 of the rule as it stood
on 6.4.2005 provided that the Secretary may permit any use
which is otherwise compatible with the use of buildings in that
area, which does not adversely affect the existing trend of
development and which does not cause indirect condemnation of
the uses in the neighbouring plots of land and buildings. This
rule authorized the Secretary to issue permits for construction of
buildings, which is otherwise compatible with the uses of
WP(c).No.3991/2008 8
buildings in the area and subject to the condition that such
construction will not adversely affect the existing trend of
development and which does not cause indirect condemnation of
the uses in the neighbouring plots. This rule did not contemplate
any exemption from zoning regulations and the counsel for the
respondents could not point out requirement of any exemption in
the rules as it stood as on 6.4.2005. If that be so, I must hold in
favour of the petitioner that at the time when Ext. P19 decision
was taken by the special committee, there was no requirement of
any exemption from the zoning regulations of the Town Planning
Scheme.
14. Now what remains is whether there is any violation in
regard to the rear open space. As far as the rear open space is
concerned, what governed the parties was Rule 82(3) of the
unamended KMBR which provided that the rear set back for
buildings above two floors from ground level shall be minimum
one metre. It is not the case of the respondents that one metre
rear open space is not left by the petitioner. If that be so, the
construction undertaken by the petitioner satisfied the
requirements of Rule 82(3) and if that be so, there cannot be a
WP(c).No.3991/2008 9
violation on that ground either.
15. From the aforesaid conclusions that I have arrived at, I
am not in a position to take a view that the construction
undertaken by the petitioner was in violation on the above two
counts based onwhich Ext.P17 has been issued. If that be so, the
decision of the special committee cannot be faulted and the
consequent permit, Ext. P1 issued on 24.3.2006 also is liable to
be upheld. Consequently, I am unable to sustain Exts. P3 and
P17.
16. True, the learned senior counsel for the Corporation
contended that the writ petition is premature and that the
remedy available to the petitioner is to pursue the matter in
appeal. Since, the Corporation is yet to take a final decision in
this matter and in that sense it is premature. But the fact
remains that in Ext. P17 the Ist respondent has entered adverse
findings against the petitioner on both counts and if at all the
petitioner is to contest the matter before the Corporation I am
sure, the Corporation would be guided by the findings in Ext.
P17. In such a situation, I cannot hold that the writ petition is
liable to be dismissed as premature. For that reason itself, I
WP(c).No.3991/2008 10
should also overrule the contention of the learned senior counsel
regarding the alternate remedy available. In any case the parties
having joined issue, completed pleadings and argued the matter
on merits, I do not think that at this stage the petitioner should
be relegated to pursue the alternate remedy available. This is all
the more so for the reason that as rightly contended by the
counsel for the petitioner, he has already lost more than 1 =
years of time since Ext.P3, and if he is to pursue the matter
before the statutory authorities again, he will loosing further
valuable time, resulting in huge loss due to escalation in cost and
other similar factors.
The writ petition is allowed and Exts.P3 and P17 are
quashed. Respondents are directed to permit the petitioner to
resume construction of the building based on Ext.P1 permit and
Ext.P2 approved plan.
ANTONY DOMINIC,
JUDGE
vi.
WP(c).No.3991/2008 11