IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 15458 of 2005(M)
1. J.SASIKUMARI AMMA,
... Petitioner
2. L.S.BEENA, DO.DO.DO.
Vs
1. TRIVANDRUM DEVELOPMENT AUTHORITY,
... Respondent
2. CORPORATION OF THIRUVANANTHAPURAM,
3. TRIBUNAL FOR LOCAL SELF GOVERNMENT
4. NOUSHAD, S/O.ABDUL AZEEZ,
5. ABDUL AZEEZ, DO.DO.DO.
6. STATE OF KERALA, REP. BY THE
For Petitioner :SRI.N.SUKUMARAN
For Respondent :SRI.K.A.JALEEL, SC., TRIDA
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :11/05/2007
O R D E R
PIUS C. KURIAKOSE,J.
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W.P.(C)No.15458 of 2005
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Dated: 11th May, 2007
JUDGMENT
Seeking quashment of Ext.P5 building permit issued by the
Corporation of Trivandrum in favour of respondents 4 and 5, Ext.P12
order of the Tribunal for Local Self Government Institutions and
Ext.P15 order of the Secretary of the Corporation of Trivandrum, the
petitioners who are mother and daughter owning properties adjacent
to the property owned by respondents 4 and 5 have filed this Writ
Petition which seeks other reliefs also. The first respondent is the
Trivandrum Development Authority while respondents 2 and 3 are
respectively are the Trivandrum Corporation and the Tribunal for
Local Self Government Institutions and the 6th respondent is the State
of Kerala. The grievance of the petitioners is that their
representations against the violation of building rules by respondents
4 and 5 while making constructions in their property have not been
properly considered by respondents 1 to 3.
2. Ext.P1 is a rough sketch of the property belonging to the
petitioners and respondents 4 and 5. The extent of the 1st petitioner’s
property is 7 cents and it is on that property that the residential
building of the petitioners is situated. Respondents 4 and 5 together
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have 6 cents of land on the northern side of the 1st petitioner’s
property and the 2nd petitioner has two cents on the eastern side of
the respondents’ property. The properties of the 1st petitioner and the
respondents have frontage of the National Highway and is situated at
P.M.G.Junction. The door number of the 1st petitioner’s building is
T.C.11/52(1) to 11/52(4) and the construction of that building was
completed in the year 1998. It was only in 2000 that respondents 4
and 5 purchased their plot from its previous owner. Ext.P2 dated
29.11.2000 is copy of the building permit which was issued by the
Corporation to respondents 4 and 5. The petitioners allege that on
the strength of Ext.P2 respondents 4 and 5 proceeded with the
construction, but in violation of Ext.P2 as well as the building rules.
Unauthorised and illegal projections of 75 C.M. in width was made
reducing the mandatory open space which should have been left and
further construction above the ground floor was made from the
periphery of the extension. After filing a complaint before the
Corporation, the 2nd petitioner filed O.P.No.28472 of 2001 before this
court which was disposed of by Ext.P3 judgment dated 3.12.2001.
Under Ext.P3 the 2nd respondent was directed to take follow up action
in case of violation. Since the undertaking of the Corporation in
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Ext.P3 that proper action will be taken, was not honoured, the 2nd
petitioner filed a complaint before the Corporation, raising objection
against digging of an unauthorised well also. Noticing that only the
brick construction upwards on the unauthorised structure alone was
removed and the other offending structures were allowed to remain,
the 2nd petitioner filed O.P.No.19811 of 2002 before this court. This
court disposed of that O.P. by Ext.P4 judgment directing the 2nd
respondent to consider the objections of the 2nd petitioner in case a
detailed representation is made and pass orders. The petitioners
submit that an Advocate Commissioner appointed by this court in
Ext.P4 case reported existence of the objectionable well and 75 C.M.
of reduction of set back area on the eastern side of the building of
respondents 4 and 5. In the meanwhile Ext.P5 fresh permit dated
6.5.2002 was issued to respondents 4 and 5 by the Corporation for
the construction of an additional floor for their building over and
above those permitted under Ext.P2. On the strength of Ext.P5,
respondents 4 and 5 proceeded to construct an additional floor using
the 75 C.M. unauthorised beam on the rear side also as plinth area of
that floor. The same was in violation of the directions in Exts.P3 and
P4 judgments. Respondents 4 and 5 also started construction of a
W.P.C.No.15458/05 – 4 –
cellar room in front of their building without leaving any open space
on the southern side. The said room was constructed using the 1st
petitioner’s boundary wall in between the two properties as one wall.
Being satisfied the genuineness of the compliant submitted before the
2nd respondent, the 2nd respondent issued Ext.P6 memo dated
26.11.2002 to respondents 4 and 5 for stopping the work. Since no
follow up action was taken pursuant to Ext.P6, the work was
continued and completed. The 1st petitioner filed O.P.No.4703 of 2003
before this court and that O.P. was disposed of by Ext.P7 judgment
in which in view of the directions already issued in Ext.P4, this court
did not issue further directions. Considering Exts.P4 and P7, Ext.P8
notice dated 8.10.2003 was issued by the Corporation to respondents
4 and 5 directing them to remove the three unauthorised
constructions, namely, (1) 60 C.M. extension on the rear of the 1st
floor (2) Cellar on front and (3) Well on the rear side. Ext.P8 also
informed respondents 4 and 5 about the rejection of their application
for regularisation of the unauthorised constructions. In continuation
of Ext.P8, Ext.P9 provisional order dated 10.9.2003 was issued by the
Corporation to respondents 4 and 5. Against Ext.P9 without making
the petitioners parties, the 5th respondent preferred appeal to the
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Government of Kerala. The 2nd petitioner got herself impleaded in
that appeal and this court under Ext.P10 judgment directed the
Government to transfer the appeal against Ext.P8 to the third
respondent-Tribunal and directed further to maintain status quo as
obtaining on 23.9.2004. Respondents 4 and 5 proceeded with the
unauthorised constructions and completed the same and also
converted the residential building as a commercial building as
proposed, inducted tenants into the same and at that juncture
W.P.C.No.29570 of 2004 was filed by the 1st petitioner. This court
disposed of that Writ Petition by Ext.P11 judgment. Under Ext.P11 it
was directed that the 5th respondent shall seek clarification from the
Tribunal and proceed only in accordance with the same. Against
Ext.P11, R.P.No.234 of 2005 has been filed by respondents 4 and 5.
The Tribunal disposed of the appeal by Ext.P12 order on 5.3.2005.
The appeal was allowed setting aside Ext.P8 and directing the
Corporation (1) to make a joint inspection with the Town Planner (2)
to consider the possibility of regularisation of violations, if any, and
(3) to initiate action for violation if regularisation is not permissible.
The petitioners submit that Ext.P12 is most arbitrary, unreasonable,
unjust and beyond the jurisdiction of the third respondent since the
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action of respondents 4 and 5 actually amounted to contempt of this
court’s judgments Exts.P10 and P11 and they submit that the Writ
Petition is filed without prejudice to initiation of proceedings under the
Contempt of Courts Act. The petitioners point out that C.C.C.No.1100
of 2003 filed by the 2nd petitioner against the Secretary of the 2nd
respondent-Corporation complaining of disobedience to Ext.P4 was
closed accepting the statement of the Secretary of the Corporation
that the unauthorised constructions have been removed. But actually
the unauthorised constructions even now remain and the third floor of
the building is completed on the unauthorised beam. Ext.P13
produced along with the Writ Petition is copy of the statement filed by
the Corporation in Ext.P12 case. Ext.P14 is copy of the written
statement filed by the petitioners who were additional respondents 2
and 3 in Ext.P12 case. Pursuant to the directions in Ext.P12, the 2nd
respondent heard the petitioners and issued Ext.P15 order dated
29.4.2005. Under Ext.P15 it has been found by the Corporation that
(1) deviation from the permit and plan on the rear side of the building
of respondents 4 and 5 does not violate Rule 24(4) of the Rules as
the building is only 7 meters height (2) the well on the rear is in
violation of the Rule and it is to be filled up (3) the cellar (bridge) in
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the front is to be shifted to a distance of 60 C.M. away from the
property of the 1st petitioner and (4) regularisation will be considered
on getting exemption from the Government in the matter of
conversion of use. The petitioners submit that Ext.P15 is not in
accordance with the directions in Ext.P12 and the Rules and Ext.P15
is also liable to be quashed. Impugning Exts.P5, P12 and P15 on
various grounds apart from seeking quashment of Exts.P5, P12 and
P15 the petitioners seek the following reliefs also:
1. Issue a writ of mandamus commanding respondents 2, 4 and 5 to
demolish the unauthorised structures as directed in Exts.P8 and P9.
2. Issue a writ of mandamus commanding respondents 2, 4 and 5 to
demolish the third floor of the building of respondents 4 and 5
constructed on the strength of Ext.P5 and also to fill up the well on
the rear and permanently restore the site to its original position.
3. Issue a writ of mandamus commanding the 2nd respondent not to
regularise the unauthorised constructions made by respondents 4 and
5 as directed in Exts.P12 and P15.
4. Issue a writ of mandamus commanding the 6th respondent not to
give exemption to the building constructed as per Exts.P2 and P5
from the zonal restrictions for use.
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3. On behalf of the 2nd respondent-Corporation their Standing
Counsel filed a statement on 30th June, 2005. It is submitted therein
that in compliance with Ext.P12 order a hearing was conducted on
6.4.2005 and thereafter with the help of the Town Planning Officer
inspected the site on 16.4.2005 and noted the following violations of
the plan and permit as well as Building Rules in the matter of
construction of the building:
1. The bridge access provided in the building is constructed without
any prior sanction from the Corporation and the same is constructed
at a distance of 25 c.m. from the boundary of the petitioners whereas
the Rules mandate that the same should be 60 c.m.
2. The rear side of the cellar portion has 1.50 metre open space
which is sufficient as per the Building Rules. But in the ground floor as
well as the first floor there is 75 c.m. sunshade projection which is in
violation of rules.
3. Occupancy Certificate was issued to the cellar and ground floor of
the building as it is in conformity with the approved plan. At that time
respondents 4 and 5 had fully covered the well on the rear side with
slab and after obtaining occupancy certificate the slab covering the
well was removed and it is now found to be open. As per
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K.M.B.R.1999 well can be dug at an average of 1.50 metres from the
boundary. But in the instant case the well provided on the rear side is
only 60 c.m. from the boundary which is in violation of rules.
It is further stated that considering the directions in Ext.P12 to
explore the possibility of regularisation of deviation or violation, if
any, found on inspection as per Rule 143 of the K.M.B.R. Ext.P15
order has been passed directing respondents 4 and 5 to comply with
certain conditions for regularising unauthorised constructions. The
conditions are:
a) The bridge constructed by respondents 4 and 5 at a distance of 25
c.m. has to be 35 c.m. more so that there will be a distance of 60
c.m. from the petitioners boundary to be inconformity with Rule 24 of
the K.M.B.R.
b) The projection of 80 c.m. in the ground floor and the first floor
satisfies the K.M.B.R. This is because for buildings having height lupto
7 metres as per the proviso to Rule 24(4) permit can be granted if
the distance from the boundary is 75 c.m. on condition that there is
no opening such as doors and windows on that side. For granting
permits under such circumstances, even the consent of the nearest
land owner is not necessary.
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c) The well violates the K.M.B.R. and has to be filled up and closed
permanently.
(d) Since the respondents building is a commercial building which has
been constructed in a residential zone as per the approved master
plan, construction can be regularised only on obtaining zonal
exemption from the Government. If respondents 4 and 5 do not
produce zonal exemption within the stipulated period of 45 days, the
constructions will be considered as unauthorised and appropriate
action will be taken under the provisions of the K.M.Act.
4. Respondents 4 and 5 has filed a counter affidavit wherein it
is contended that when constructions were taken up on the strength
of Ext.P2 permit there were certain deviations and therefore fresh
building permit was applied for by submitting revised plan and it was
accordingly that Ext.P5 permit was issued. However construction of
the building is completed and door numbers are also assigned on the
strength of Ext.P5. Since their property is lying in a depth of more
than 3 metres from the abutting road after completion of
construction of the building, respondents 4 and 5 constructed an open
ramp as permitted in the K.M.B.R. for having access from the road.
The petitioners who are enimical towards respondents 4 and 5
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lodged a number of false complaints and the Corporation issued
notices to respondents 4 and 5 and they have filed an application for
regularisation of the constructions including the open ramp.
Regularisation application was not favourably considered by the
Corporation. Respondents 4 and 5 preferred appeal to the
Government which was transferred to the Tribunal after the Tribunal
was constituted. The Tribunal after considering the entire materials
passed Ext.P12 order issuing various directions. In compliance with
Ext.P12, the 2nd respondent considered the matter after hearing both
sides and passed Ext.P15 order directing respondents 4 and 5 to
dismantle 35 c.m. portion of the open ramp and to close down the
well on the rear side of the building and decided to regularise the
construction on production of zonal exemption from the Government.
It is further stated that though the building was originally intended for
use as a residential house because of the various hostile actions of
the petitioners, respondents 4 and 5 became constrained to let out
the building for commercial purposes to the tenants. This is why the
Corporation directed the respondents 4 and 5 to obtain zoning
exemption from the Government. Ext.R4(c) is the representation
submitted before the Government seeking zonal exemption. The
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matter is pending consideration before the Government. The counter
affidavit claims that respondents 4 and 5 have already complied with
the order and dismantled 35 c.m. portion of the ramp and
permanently closed down the well in the rear side of the building in
compliance with Ext.P15 order of the 2nd respondent. This fact was
intimated to the 2nd respondent on 8.6.2005 vide Ext.R1(a) letter
and Ext.R1(b) is copy of the acknowledgement card issued by the 2nd
respondent in this regard.
5. In answer to the statement filed by the Corporation and the
counter affidavit filed by respondents 4 and 5, the petitioners has
filed a reply affidavit on 2.8.2005. It is contended therein that the
crucial facts raised by the petitioners and positions of law averred in
the Writ Petition are not answered either by the Corporation or by the
party respondents. The construction which is described as a bridge
access is not a bridge or a ramp, rather the same is a building and
therefore an open space of 2 metres should have been left. The
direction that only 60 c.m. is to be left is a wrong direction. It is then
contended that the height of the building is more than 9 metres and
therefore the open space at the rear should have been 2 metres. No
projection is also permissible. It is further contended that the third
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floor of the building is an unauthorised construction even on the 2nd
respondent’s earlier pleadings in Ext.P12 case and Exts.P8 and P9.
The occupancy certificate and Corporation building number has been
given in violation of the rules and against the directions given by this
court. The reply affidavit denies the allegation of hostile attitude from
their side. The respondents converted the residential building into a
commercial building in violaltion of the rules and they let it out to
various tenants for commercial purposes in violation of the directions
in Exts.P10 and P11 judgments of this court. The action of
respondents 2 to 4 amounts to contempt of court.
6. On 18.11.2005 this court directed the Secretary of the
Corporation to file an affidavit regarding the height of the building in
question and directed respondents 4 and 5 to make available copy of
the plan. Pursuant to that direction the Secretary of the Corporation
has filed an affidavit on 6.12.2005. It is stated therein that as per the
site inspection made it is found that the height of the building in
question is six metres from the central line of the road. It is further
stated in the affidavit that the height of the building is defined under
Rule 2(aq) of the Kerala Municipality Building Rules and the
measurement of the height of the building was taken in accordance
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with the rules.
6. The petitioners have filed an additional reply affidavit on
13.12.2005. It is pointed out therein that this court directed the 2nd
respondent to produce the two plans approved by the Corporation in
respect of the building in question and to file an affidavit giving height
of the building. The 2nd respondent did not file the approved plans.
The approved plan will show the height of the building. The additional
reply affidavit states that respondents 2, 4 and 5 do not state the real
height of the building. They only say that the height of the building
from the central line of the road is six metres and that is relevant in
accordance with Rule 2(aq) of the Kerala Municipality Building Rules.
It is contended that Rule Rule 2(aq) does not apply to the facts of the
case as this building has a ground contiguous to it and the vertical
height from the ground is what is material. The reall height is
purposely suppressed by respondents 2, 4 and 5. The non-production
of the approved plan is deliberate. It is then contended that there is
no street adjacent to the disputed building. There is an old building
with several rooms in between the building of respondents 4 and 5
and the public road. Ext.P16 produced along with the additional reply
affidavit is copy of the report submitted by the Advocate
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Commissioner in Ext.P4 case. It is submitted that in Ext.P16 the
Commissioner has reported that the height of the building is is 10.26
metres. Ext.P17 is copy of the approved plan in respect of Ext.P2
permit and Ext.P18 is the copy of the approved plan in respect of
Ext.P5 permit. Going by Ext.P17 the height of the building is more
than 7 metres. In Ext.P18 the height of the building is more than 9
metres. Over and above height in the approved plan, there is a
further stair case with height of two metres. Thus the total height will
be more than 11 metres.
7. I have heard the submissions of Mr.N.Sukumaran, counsel
for the petitioner, Mr.M.Sreekumar, counsel for respondents 4 and 5,
Mr.K.A.Jaleel, Standing Counsel for the 1st respondent and
Mr.N.Nandakumara Menon, Standing Counsel for the second
respondent.
8. Learned counsel have addressed me elaborately on the basis
of the respective pleadings and my attention was drawn to the
documents placed on record to the extent they support the respective
contentions.
9. I do not however propose to decide the various issues which
have arisen between the parties since it is reported by the
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Government Pleader that the Government after considering the
application dated 4.5.2005 submitted by the 4th respondent seeking
zonal exemption for the constructions has rejected the same, copy of
the Government Order No.33129/A2/05 dated 17.8.2005 issued by
the Government in that regard was made available for my perusal.
According to me, since the Government has rejected the application
for zoning exemption, it is not necessary that this court decides the
controversy as to what was the height of the building in question.
Now that the Government has rejected the application for zoning
exemption, the Corporation will take appropriate action treating the
building put up by the 4th respondent as an unauthorised building.
Necessary action will be taken by the Corporation in this regard
within two months of receiving copy of the judgment. Copy of the
Government Order dated 17.8.2005 is annexed to this judgment.
The Writ Petition is disposed of as above. No costs.
srd PIUS C.KURIAKOSE, JUDGE
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