IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 17874 of 2009(D)
1. V.O.DEVASSY, AGED 62, S/O.OUSEPH,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY SECRETARY
... Respondent
2. N.PARAVUR MUNICIPALITY, REPRESENTED BY
3. SECRETARY, NORTH PARAVUR MUNICIPAL
4. SUDHEESH, S/O.THANKKAPPAN, SREEVISHNU
For Petitioner :SRI.K.S.BHARATHAN
For Respondent :SRI.JIJO PAUL
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :28/01/2010
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 17874 OF 2009 (D)
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Dated this the 28th day of January, 2010
J U D G M E N T
Petitioner is the owner of 7.116 cents of land in Sy.No.276/5-
3, 5-4, 5-8 and 5-9 of Paravur Village. In 2007, he made an
application to the respondent Municipality for a building permit.
According to the petitioner, defects were pointed out, which were
rectified and a revised plan was submitted. The revised plan
submitted by him was considered, and Ext.P1 building permit and
Ext.P2 approved plan were issued by the Municipality on
8/6/2007, for the construction of a three storied commercial
building.
2. According to the petitioner, there was an old building
in existence at the site, which was demolished and the site was
cleared for starting construction. At that stage, the 4th respondent
herein, owner of the neighbouring property filed a suit before the
Munsiff’s Court, North Paravur, for a decree of injunction
restraining the petitioner from proceeding with construction.
Injunction was declined by the Civil Court. Soon thereafter, on
14/1/2008, the 4th respondent made an application to the
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Municipality, invoking the provisions of the Right to Information
Act, for obtaining copies of Exts.P1 and P2. The Secretary
rejected his application and the appeal filed by him was also
rejected. He filed a second appeal before the Chief Information
Commissioner, which was allowed by Ext.R4(a) order dated
4/8/2008. Accordingly, copies of Exts.P1 and P2 were issued.
3. It is stated that on realising that in the plan approved,
there were violations of the provisions of the Kerala Municipality
Building Rules, the 4th respondent made a complaint to
respondents 2 and 3 which led to Ext.P3 stop memo issued by the
3rd respondent on 01/02/2008. The reason stated in Ext.P3 stop
memo is that there were disputes between the petitioner and the
4th respondent regarding the northern boundary of the plot and
that the matter was pending consideration of the Civil Court.
Petitioner challenged Ext.P3 before this Court in WP(C)
No.5157/08. In that writ petition, Ext.P4 interim order was passed
on 13/2/2008 permitting the petitioner to continue the
construction, making it clear that the same shall be at his risk and
that in the event the construction was found to be illegal, the
same will be liable for demolition. The writ petition was finally
disposed of by Ext.P5 judgment dated 31/3/2008 relegating the
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petitioner to file an appeal before the Tribunal for Local Self
Government Institutions and clarifying that in the meanwhile,
Ext.P3 interim order will continue. Petitioner submits that on the
same day, pursuant to Ext.R3(a) communication received by the
3rd respondent from the Senior Town Planner, Ext.P6 notice was
issued by the Secretary requiring the petitioner to stop further
construction on the allegation that the provisions of the Building
Rules mentioned therein were violated.
4. Aggrieved by Ext.P3 stop memo and Ext.P6 notice
referred to above, petitioner filed Ext.P7 Appeal No.172/08 before
the Tribunal for Local Self Government Institutions. Tribunal
disposed of the appeal by Ext.P8 order dated 5/7/2008 quashing
Exts.P3 and P6. In so far as Ext.P3 is concerned, Tribunal held
that grounds specified in section 408(1) of the Kerala Municipality
Act, were not pointed out in Ext.P3. In so far as Ext.P6 is
concerned, Tribunal held that in the absence of any notice under
the proviso to Rule 16 of the Kerala Municipality Building Rules,
there arise no question of issuing Ext.P6.
5. According to the petitioner, in the meantime,
construction work was continuing, and that, subsequently, by
Ext.P9 dated 8/9/2008, Municipality called upon the petitioner to
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show cause why Ext.P1 building permit shall not be cancelled as
provided under Rule 16 on account of the alleged violation of the
various provisions of the Kerala Municipality Building Rules. On
the same day, Ext.P10 order under Section 406(1) was also issued
requiring the petitioner to stop further works on the basis that the
petitioner had violated the provisions of the Kerala Municipality
Building Rules.
6. On receipt of Exts.P9 and P10, petitioner submitted
Exts.P11 and P12 explanations contenting mainly that he has
undertaken construction on the strength of Ext.P1 and Ext.P2,
building permit and approved plan, and that in the absence of
any violation of the plan or permit, he is entitled to continue the
construction and that Exts.P9 and P10 are illegal for that reason.
Against Exts.P9 and P10, petitioner filed Ext.P13, Appeal
No.496/08, before the Tribunal. The appeal was disposed of by
Ext.P14 order. In Ext.P14 order, Tribunal took the view that the
grounds mentioned in Exts.P9 and P10 were not available under
Section 406 and that in the absence of having cancelled the
building permit granted to the petitioner invoking the power
under Rule 16 of the Kerala Municipality Building Rules, Exts.P9
and P10 are illegal. Accordingly, the impugned orders were set
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aside and the Secretary was directed to initiate fresh and proper
proceedings, if there are any reasons for doing so.
7. This was followed by Ext.P15, another order dated
14/1/2009 alleging violation of the provisions of the Kerala
Municipality Building Rules and requiring the petitioner to stop
further construction work. He was also called upon to show cause
why the building permit shall not be cancelled as it was allegedly
issued in violation of the provisions of the Municipalities Act and
the Building Rules. Ext.P15 also makes reference to the inspection
conducted by a Building Inspector on 13/1/2009. On receipt of
Ext.P15, petitioner submitted Ext.P16 explanation reiterating that
there was no violation of the Building Rules and that he was
constructing the building fully in compliance with the building
permit and the approved plan. Ext.P15 was again challenged
before the Tribunal by filing Appeal No.48/09, a copy of which is
Ext.P17.
8. While the appeal was pending, the Municipality issued
Ext.P18 informing that since Ext.P15 was issued without
conducting an inspection with notice to the petitioner, they have
decided to take fresh action in the matter and therefore were
wtihdrawing Ext.P15. Despite Ext.P18, the Tribunal considered the
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appeal on merits and by Ext.P19 order, allowed the appeal on the
ground that no specific reason available under Rule 16 of the
Kerala Municipality Building Rules is properly and clearly stated in
Ext.P15 notice. It is also stated that though Ext.P15 is also an
order directing stoppage of construction, no grounds specified in
Section 408 of the Kerala Municipality Act are stated in the order.
Accordingly, the appeal was allowed and Ext.P15 was set aside
and the Secretary was directed to initiate fresh and proper
proceedings, if any, as per law, provided there are any reasons for
doing so.
9. Pursuant to Ext.P19, Ext.P20 notice was issued by the
Secretary on 18/4/2009. In this notice, it is alleged that the plan
was approved in violation of the various provisions of the Kerala
Municipality Building Rules. 7 violations have been pointed out in
the notice. Accordingly, the petitioner was called upon to show
cause why the permit shall not be cancelled. On its receipt,
petitioner submitted Ext.P21 reply. Accordingly,the matter was
considered and the Municipality issued Ext.P22 order dated
14/6/2009. In this order, it is stated that the plan approved by the
Municipality violates various provisions of the Kerala Municipality
Building Rules in the manner indicted in the order and that in view
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of the violations noticed therein, building permit is ordered to be
cancelled. Petitioner submits that in the meanwhile, he continued
the construction and that structure of all the three floors have
already been completed. It is in these circumstances, this writ
petition has been filed seeking to quash Ext.P22 order passed by
the 3rd respondent and to direct the respondents to permit the
petitioner to continue the construction in confirmity with Exts.P1
and P2.
10. The main contention raised by the counsel for the
petitioner is that the construction is fully in compliance with
Exts.P1 and P2, the permit and the plan approved by the
Municipality. It is his contention that once a plan and a permit are
approved by the Municipality and the same has been acted upon,
it is not open to the Municipality to thereafter turn around and
contend that the permit is liable to be cancelled. It is also his
contention that although permit and plan were issued as early as
on 8/6/2007, notice under Rule 16 was issued for the first time
only by Ext.P20 dated 18/4/2009. It is stated that, in the
meanwhile, he has proceeded with the construction and
completed structure of the three floors and therefore, Municipality
is estopped from raising the contention regarding the invalidity of
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permit and plan. Counsel also relied on the judgment of this Court
in Heera Construction (P) Ltd. v. Corporation of
Trivandrum (2008(3) KLT 553), in support of this contention.
11. The 2nd respondent contended that in terms of Rule 16
of the Kerala Municipality Building Rules, if the Secretary is
satisfied that a building permit was issued by a mistake or that a
patent error has crept in a building permit issued, the Secretary is
entitled to suspend or revoke any permit issued under the Rule. It
is contended that in this case, evidently, there are violation of the
various provisions of the Kerala Municipality Building Rules, and it
was therefore that the Municipality have cancelled the building
permit. It is stated that this exercise of power is a statutory one
and therefore, the petitioner cannot object to Ext.P22.
12. The 3rd respondent, the Secretary of the Municipality is
separately represented by a counsel. According to the Secretary,
although permit has been issued and plan has been approved, the
same was found to be in violation of the provisions of the Building
Rules and that since a mistake has been committed, pursuant to
Ext.P19 order passed by the Tribunal in Appeal No.48/09, Ext.P20
notice was issued and Ext.P22 final order was passed. In so far
as the claim of the petitioner of having proceeded with the work
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and completed the structure of all the three floors is concerned,
counsel contended that the petitioner is not entitled to claim
equity, for the reason that, by Ext.P3 dated 01/02/2008, petitioner
was alerted about the violations involved and that inspite of it, he
continued the construction at his risk.
13. On behalf of the 4th respondent, the contention was
that there is a patent violation of the Building Rules. It is
contended that he is not guilty of delay or latches in making
complaint to the authorities, in as much as, immediately after
coming to know of the plan and the permit, he applied for a copy
of the same as early as on 14/1/2008. When the request was
rejected, he had to pursue the matter upto second appeal level to
give a favourable verdict, and that it was thereafter only, he got a
copy of the permit and the plan and could make a complaint,
which he did immediately thereafter.
14. As already seen, this court is concerned only with the
validity of Ext.P22 order passed by the Secretary of the
Municipality. In Ext.P22, the finding is that in the plan approved,
various provisions of the Kerala Municipality Building Rules have
been violated in six respects. The fact that although these
violations of the provisions of the Building Rules are highlighted in
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the counter affidavit filed by the party respondents, even in the
reply affidavit filed by the petitioner, the answer given by the
petitioner is too evasive, and therefore, fact that there is violation
of the various provisions of the Building Rules is not a matter,
which can be disputed by the petitioner. Therefore, I should
proceed on the basis that in the permit that was granted and the
plan that was approved, there was violation of the provisions of
the Kerala Municipality Building Rules. If a permit has been
granted and it is in violation of the provisions of the Building Rules
or if the permit is vitiated by mistake or vitiated by errors, in such
a situation, Rule 16 enables the Secretary to suspend or revoke
the permit. The fact that a permit has been obtained by a person ,
will not, in my view, relieve the owner from his duty to ensure that
his construction is in accordance with the provisions of the
Municipality Act and the Building Rules. Indication to that effect is
available in Rule 18 and Rule 20 of the Building Rules. Rule 18
provides for demolition or alteration of work unlawfully
commenced, carried on or completed. Rule 18(1)(i)(a) provides
that if construction, reconstruction or alteration of any building or
digging of any well has been commenced without obtaining the
permission of the Secretary or in contravention of the decision of
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the Council, demolition can be ordered. Similarly, if the
construction or reconstruction or alteration is carried on, or has
been completed otherwise than in accordance with the plan and
specifications of permit, that also is a ground to order demolition.
In addition, a third ground provided to order demolition is a case
where construction, reconstruction or alteration of a building is
carried on or has been completed in breach of any of the
provisions contained in the Act or Municipality Building Rules or
bye law or order made or issued thereunder or any direction or
requisition lawfully given or made thereunder. Therefore, for this
provision, it is evident that even in a case where a permit has
been granted or plan is approved, if the Secretary is satisfied that
the construction is carried on in breach of the Act or the Rules, it
is open to the Secretary to initiate action. That apart, Rule 20
also provides that the grant of a permit or the approval of the
drawings and specifications or inspections made by the Secretary
during the erection of the building or structure, shall not in any
way relieve the owner of such building of the responsibility for
carrying out the work in accordance with the requirement of the
rules. The aforesaid Rule therefore reinforces the plea of the 4th
respondent that even in a case where a permit has been granted
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or a plan has been approved, if the construction is in violation of
the provisions of the Act and the Rules, power is conferred on the
Secretary of the Municipality, to take action under Rule 16 of the
Kerala Municipality Building Rules.
15. As contended by the counsel for the petitioner, Ext.P1
permit and Ext.P2 plan has been allowed, but however, on facts, I
found that the permit and plan have been issued in violation of
the provisions of the Kerala Municipality Building Rules. If so, in
the light of Rules, 16, 18 and 20 of the Kerala Municipality
Building Rules, it is open to the Secretary to take action in
accordance with the provisions of Rule 16, and if so, I cannot find
any jurisdictional error for having issued Ext.P22 order.
16. Now the surviving question is whether the petitioner is
entitled to save the structures constructed for the reason that
Ext.P22 has been issued only on 14/6/09, where as he was issued
Ext.P1 permit as early as on 8/6/2007. On facts, it can be seen
that soon after Ext.P1 was issued, the first stop memo issued was
Ext.P3 dated 01/02/2008. Thereafter, he was issued Ext.P9 stop
memo, Ext.P10 order under Section 406(1), Ext.P15 notice
stopping the work and Ext.P20 notice resulting in Ext.P22 order. It
is true that all notices other than Ext.P20 were set aside by the
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Tribunal in the appeals filed by the petitioner. However, as rightly
pointed out by the counsel for the 3rd respondent, from Ext.P3
onwards, the petitioner was alerted about the violation of the
provisions of the Building Rules. It was despite the fact that he
was alerted, that he continued with the construction and
completed the structure. Therefore, the petitioner was taking a
calculated risk, and if so, petitioner cannot claim equity from this
Court on the ground that he completed the structure. This is all
the more so, for the reason that, on account of the violation
committed by the petitioner, the rights of the third parties like the
4th respondent are affected. Equity cannot be claimed at the cost
of neighbour, whose rights are affected by the illegality.
Therefore, I am not persuaded to think that the petitioner is
entitled to succeed for equitable considerations.
17. As far as the judgment in Heera Construction (P)
Ltd. v. Corporation of Trivandrum (2008(3) KLT 553) relied
on by the counsel for the petitioner is concerned, that was a case
where building was constructed and thereafter permit was
cancelled by the Trivandrum Corporation on the ground that the
Committee which considered the application for building permit
was wrongly constituted. This Court accepting the case of the
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petitioner that the irregular constitution of the Committee will not
invalidate the decision of the Committee, granted relief to the
petitioner. In my view, facts of the case are totally different, and
therefore, the said judgment is of no assistance to the petitioner.
18. In the result, I do not find any illegality with Ext.P22.
However, counsel for the 3rd respondent points out that if the
construction is restricted to two floors, the violations pointed out
are all curable. Therefore, irrespective of Ext.P22, it is made clear
that it will be open to the petitioner to restrict the building to two
floors, cure the irregularities and make an application to the
Municipality, in which event, Municipality will take steps for
regularizing the construction, and on that basis, permit the
petitioner to proceed with the remaining works.
Writ petition is disposed of as above.
ANTONY DOMINIC, JUDGE
Rp