{"id":69336,"date":"2010-01-28T00:00:00","date_gmt":"2010-01-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/v-o-devassy-vs-state-of-kerala-represented-by-on-28-january-2010"},"modified":"2016-04-06T04:44:59","modified_gmt":"2016-04-05T23:14:59","slug":"v-o-devassy-vs-state-of-kerala-represented-by-on-28-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/v-o-devassy-vs-state-of-kerala-represented-by-on-28-january-2010","title":{"rendered":"V.O.Devassy vs State Of Kerala Represented By … on 28 January, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
V.O.Devassy vs State Of Kerala Represented By … on 28 January, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 17874 of 2009(D)\n\n\n1. V.O.DEVASSY, AGED 62, S\/O.OUSEPH,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA REPRESENTED BY SECRETARY\n                       ...       Respondent\n\n2. N.PARAVUR MUNICIPALITY, REPRESENTED BY\n\n3. SECRETARY, NORTH PARAVUR MUNICIPAL\n\n4. SUDHEESH, S\/O.THANKKAPPAN, SREEVISHNU\n\n                For Petitioner  :SRI.K.S.BHARATHAN\n\n                For Respondent  :SRI.JIJO PAUL\n\nThe Hon'ble MR. Justice ANTONY DOMINIC\n\n Dated :28\/01\/2010\n\n O R D E R\n                       ANTONY DOMINIC, J.\n                     ================\n                 W.P.(C) NO. 17874 OF 2009 (D)\n                =====================\n\n           Dated this the 28th day of January, 2010\n\n                          J U D G M E N T\n<\/pre>\n
      Petitioner is the owner of 7.116 cents of land in Sy.No.276\/5-<\/p>\n
3, 5-4, 5-8 and 5-9 of Paravur Village. In 2007, he made an<\/p>\n
application to the respondent Municipality for a building permit.<\/p>\n
According to the petitioner, defects were pointed out, which were<\/p>\n
rectified and a revised plan was submitted.       The revised plan<\/p>\n
submitted by him was considered, and Ext.P1 building permit and<\/p>\n
Ext.P2 approved plan were issued by the Municipality on<\/p>\n
8\/6\/2007, for the construction of a three storied commercial<\/p>\n
building.\n<\/p>\n
      2.    According to the petitioner, there was an old building<\/p>\n
in existence at the site, which was demolished and the site was<\/p>\n
cleared for starting construction. At that stage, the 4th respondent<\/p>\n
herein, owner of the neighbouring property filed a suit before the<\/p>\n
Munsiff’s Court, North Paravur, for a decree of injunction<\/p>\n
restraining the petitioner from proceeding with construction.<\/p>\n
Injunction was declined by the Civil Court. Soon thereafter, on<\/p>\n
14\/1\/2008, the 4th respondent made an application to the<\/p>\n
WPC 17874\/09
\n                                 :2 :<\/span><\/p>\n
Municipality, invoking the provisions of the Right to Information<\/p>\n
Act, for obtaining copies of Exts.P1 and P2.          The Secretary<\/p>\n
rejected his application and the appeal filed by him was also<\/p>\n
rejected. He filed a second appeal before the Chief Information<\/p>\n
Commissioner, which was allowed by Ext.R4(a) order dated<\/p>\n
4\/8\/2008. Accordingly, copies of Exts.P1 and P2 were issued.<\/p>\n
      3.   It is stated that on realising that in the plan approved,<\/p>\n
there were violations of the provisions of the Kerala Municipality<\/p>\n
Building Rules, the 4th respondent made a complaint to<\/p>\n
respondents 2 and 3 which led to Ext.P3 stop memo issued by the<\/p>\n
3rd respondent on 01\/02\/2008. The reason stated in Ext.P3 stop<\/p>\n
memo is that there were disputes between the petitioner and the<\/p>\n
4th respondent regarding the northern boundary of the plot and<\/p>\n
that the matter was pending consideration of the Civil Court.<\/p>\n
Petitioner challenged Ext.P3 before this Court in WP(C)<\/p>\n
No.5157\/08. In that writ petition, Ext.P4 interim order was passed<\/p>\n
on   13\/2\/2008     permitting  the   petitioner to    continue the<\/p>\n
construction, making it clear that the same shall be at his risk and<\/p>\n
that in the event the construction was found to be illegal, the<\/p>\n
same will be liable for demolition. The writ petition was finally<\/p>\n
disposed of by Ext.P5 judgment dated 31\/3\/2008 relegating the<\/p>\n
WPC 17874\/09
\n                                 :3 :<\/span><\/p>\n
petitioner to file an appeal before the Tribunal for    Local Self<\/p>\n
Government Institutions and clarifying that in the meanwhile,<\/p>\n
Ext.P3 interim order will continue. Petitioner submits that on the<\/p>\n
same day, pursuant to Ext.R3(a) communication received by the<\/p>\n
3rd respondent from the Senior Town Planner, Ext.P6 notice was<\/p>\n
issued by the Secretary requiring the petitioner to stop further<\/p>\n
construction on the allegation that the provisions of the Building<\/p>\n
Rules mentioned therein were violated.\n<\/p>\n
      4.   Aggrieved by Ext.P3 stop memo and Ext.P6 notice<\/p>\n
referred to above, petitioner filed Ext.P7 Appeal No.172\/08 before<\/p>\n
the Tribunal for Local Self Government Institutions. Tribunal<\/p>\n
disposed of the appeal by Ext.P8 order dated 5\/7\/2008 quashing<\/p>\n
Exts.P3 and P6. In so far as Ext.P3 is concerned, Tribunal held<\/p>\n
that grounds specified in section 408(1) of the Kerala Municipality<\/p>\n
Act, were not pointed out in Ext.P3.       In so far as Ext.P6 is<\/p>\n
concerned, Tribunal held that in the absence of any notice under<\/p>\n
the proviso to Rule 16 of the Kerala Municipality Building Rules,<\/p>\n
there arise no question of issuing Ext.P6.\n<\/p>\n
      5.   According   to   the   petitioner, in  the  meantime,<\/p>\n
construction work was continuing, and that, subsequently, by<\/p>\n
Ext.P9 dated 8\/9\/2008, Municipality called upon the petitioner to<\/p>\n
WPC 17874\/09
\n                                 :4 :<\/span><\/p>\n
show cause why Ext.P1 building permit shall not be cancelled as<\/p>\n
provided under Rule 16 on account of the alleged violation of the<\/p>\n
various provisions of the Kerala Municipality Building Rules. On<\/p>\n
the same day, Ext.P10 order under Section 406(1) was also issued<\/p>\n
requiring the petitioner to stop further works on the basis that the<\/p>\n
petitioner had violated the provisions of the Kerala Municipality<\/p>\n
Building Rules.\n<\/p>\n
      6.   On receipt of Exts.P9 and P10, petitioner submitted<\/p>\n
Exts.P11 and P12 explanations contenting mainly that he has<\/p>\n
undertaken construction on the strength of Ext.P1 and Ext.P2,<\/p>\n
building permit and approved plan, and that in the absence of<\/p>\n
any violation of the plan or permit, he is entitled to continue the<\/p>\n
construction and that Exts.P9 and P10 are illegal for that reason.<\/p>\n
Against Exts.P9 and P10, petitioner filed Ext.P13, Appeal<\/p>\n
No.496\/08, before the Tribunal. The appeal was disposed of by<\/p>\n
Ext.P14 order. In Ext.P14 order, Tribunal took the view that the<\/p>\n
grounds mentioned in Exts.P9 and P10 were not available under<\/p>\n
Section 406 and that in the absence of having cancelled the<\/p>\n
building permit granted to the petitioner invoking the power<\/p>\n
under Rule 16 of the Kerala Municipality Building Rules, Exts.P9<\/p>\n
and P10 are illegal. Accordingly, the impugned orders were set<\/p>\n
WPC 17874\/09
\n                                :5 :<\/span><\/p>\n
aside and the Secretary was directed to initiate fresh and proper<\/p>\n
proceedings, if there are any reasons for doing so.<\/p>\n
     7.    This was followed by Ext.P15, another order dated<\/p>\n
14\/1\/2009 alleging violation of the provisions of the Kerala<\/p>\n
Municipality Building Rules and requiring the petitioner to stop<\/p>\n
further construction work. He was also called upon to show cause<\/p>\n
why the building permit shall not be cancelled as it was allegedly<\/p>\n
issued in violation of the provisions of the Municipalities Act and<\/p>\n
the Building Rules. Ext.P15 also makes reference to the inspection<\/p>\n
conducted by a Building Inspector on 13\/1\/2009. On receipt of<\/p>\n
Ext.P15, petitioner submitted Ext.P16 explanation reiterating that<\/p>\n
there was no violation of the Building Rules and that he was<\/p>\n
constructing the building fully in compliance with the building<\/p>\n
permit and the approved plan. Ext.P15 was again challenged<\/p>\n
before the Tribunal by filing Appeal No.48\/09, a copy of which is<\/p>\n
Ext.P17.\n<\/p>\n
     8.    While the appeal was pending, the Municipality issued<\/p>\n
Ext.P18 informing that since Ext.P15 was issued without<\/p>\n
conducting an inspection with notice to the petitioner, they have<\/p>\n
decided to take fresh action in the matter and therefore were<\/p>\n
wtihdrawing Ext.P15. Despite Ext.P18, the Tribunal considered the<\/p>\n
WPC 17874\/09
\n                                  :6 :<\/span><\/p>\n
appeal on merits and by Ext.P19 order, allowed the appeal on the<\/p>\n
ground that no specific reason available under Rule 16 of the<\/p>\n
Kerala Municipality Building Rules is properly and clearly stated in<\/p>\n
Ext.P15 notice. It is also stated that though Ext.P15 is also an<\/p>\n
order directing stoppage of construction, no grounds specified in<\/p>\n
Section 408 of the Kerala Municipality Act are stated in the order.<\/p>\n
Accordingly, the appeal was allowed and Ext.P15 was set aside<\/p>\n
and the Secretary was directed to initiate fresh and proper<\/p>\n
proceedings, if any, as per law, provided there are any reasons for<\/p>\n
doing so.\n<\/p>\n
      9.   Pursuant to Ext.P19, Ext.P20 notice was issued by the<\/p>\n
Secretary on 18\/4\/2009. In this notice, it is alleged that the plan<\/p>\n
was approved in violation of the various provisions of the Kerala<\/p>\n
Municipality Building Rules. 7 violations have been pointed out in<\/p>\n
the notice. Accordingly, the petitioner was called upon to show<\/p>\n
cause why the permit shall not be cancelled.         On its receipt,<\/p>\n
petitioner submitted Ext.P21 reply. Accordingly,the matter was<\/p>\n
considered and the Municipality issued Ext.P22 order dated<\/p>\n
14\/6\/2009. In this order, it is stated that the plan approved by the<\/p>\n
Municipality violates various provisions of the Kerala Municipality<\/p>\n
Building Rules in the manner indicted in the order and that in view<\/p>\n
WPC 17874\/09
\n                                 :7 :<\/span><\/p>\n
of the violations noticed therein, building permit is ordered to be<\/p>\n
cancelled. Petitioner submits that in the meanwhile, he continued<\/p>\n
the construction and that structure of all the three floors have<\/p>\n
already been completed. It is in these circumstances, this writ<\/p>\n
petition has been filed seeking to quash Ext.P22 order passed by<\/p>\n
the 3rd respondent and to direct the respondents to permit the<\/p>\n
petitioner to continue the construction in confirmity with Exts.P1<\/p>\n
and P2.\n<\/p>\n
      10. The main contention raised by the counsel for the<\/p>\n
petitioner is that the construction is fully in compliance with<\/p>\n
Exts.P1 and P2, the permit and the plan approved             by the<\/p>\n
Municipality. It is his contention that once a plan and a permit are<\/p>\n
approved by the Municipality and the same has been acted upon,<\/p>\n
it is not open to the Municipality to thereafter turn around and<\/p>\n
contend that the permit is liable to be cancelled. It is also his<\/p>\n
contention that although permit and plan were issued as early as<\/p>\n
on 8\/6\/2007, notice under Rule 16 was issued for the first time<\/p>\n
only by Ext.P20 dated 18\/4\/2009.         It is stated that, in the<\/p>\n
meanwhile, he has proceeded with the construction and<\/p>\n
completed structure of the three floors and therefore, Municipality<\/p>\n
is estopped from raising the contention regarding the invalidity of<\/p>\n
WPC 17874\/09
\n                                 :8 :<\/span><\/p>\n
permit and plan. Counsel also relied on the judgment of this Court<\/p>\n
in  Heera     Construction      (P)  Ltd.    v.  Corporation       of<\/p>\n
Trivandrum (2008(3) KLT 553), in support of this contention.<\/p>\n
      11. The 2nd respondent contended that in terms of Rule 16<\/p>\n
of the Kerala Municipality Building Rules, if the Secretary is<\/p>\n
satisfied that a building permit was issued by a mistake or that a<\/p>\n
patent error has crept in a building permit issued, the Secretary is<\/p>\n
entitled to suspend or revoke any permit issued under the Rule. It<\/p>\n
is contended that in this case, evidently, there are violation of the<\/p>\n
various provisions of the Kerala Municipality Building Rules, and it<\/p>\n
was therefore that the Municipality have cancelled the building<\/p>\n
permit. It is stated that this exercise of power is a statutory one<\/p>\n
and therefore, the petitioner cannot object to Ext.P22.<\/p>\n
      12. The 3rd respondent, the Secretary of the Municipality is<\/p>\n
separately represented by a counsel. According to the Secretary,<\/p>\n
although permit has been issued and plan has been approved, the<\/p>\n
same was found to be in violation of the provisions of the Building<\/p>\n
Rules and that since a mistake has been committed, pursuant to<\/p>\n
Ext.P19 order passed by the Tribunal in Appeal No.48\/09, Ext.P20<\/p>\n
notice was issued and Ext.P22 final order was passed.       In so far<\/p>\n
as the claim of the petitioner of having proceeded with the work<\/p>\n
WPC 17874\/09
\n                                 :9 :<\/span><\/p>\n
and completed the structure of all the three floors is concerned,<\/p>\n
counsel contended that the petitioner is not entitled to claim<\/p>\n
equity, for the reason that, by Ext.P3 dated 01\/02\/2008, petitioner<\/p>\n
was alerted about the violations involved and that inspite of it, he<\/p>\n
continued the construction at his risk.\n<\/p>\n
      13. On behalf of the 4th respondent, the contention was<\/p>\n
that there is a patent violation of the Building Rules.         It is<\/p>\n
contended that he is not guilty of delay or latches in making<\/p>\n
complaint to the authorities, in as much as, immediately after<\/p>\n
coming to know of the plan and the permit, he applied for a copy<\/p>\n
of the same as early as on 14\/1\/2008. When the request was<\/p>\n
rejected, he had to pursue the matter upto second appeal level to<\/p>\n
give a favourable verdict, and that it was thereafter only, he got a<\/p>\n
copy of the permit and the plan and could make a complaint,<\/p>\n
which he did immediately thereafter.\n<\/p>\n
      14. As already seen, this court is concerned only with the<\/p>\n
validity of Ext.P22 order passed by the Secretary of the<\/p>\n
Municipality. In Ext.P22, the finding is that in the plan approved,<\/p>\n
various provisions of the Kerala Municipality Building Rules have<\/p>\n
been violated in six respects.       The fact that although these<\/p>\n
violations of the provisions of the Building Rules are highlighted in<\/p>\n
WPC 17874\/09
\n                                  :10 :<\/span><\/p>\n
the counter affidavit filed by the party respondents, even in the<\/p>\n
reply affidavit filed by the petitioner, the answer given by the<\/p>\n
petitioner is too evasive, and therefore, fact that there is violation<\/p>\n
of the various provisions of the Building Rules is not a matter,<\/p>\n
which can be disputed by the petitioner.         Therefore, I should<\/p>\n
proceed on the basis that in the permit that was granted and the<\/p>\n
plan that was approved, there was violation of the provisions of<\/p>\n
the Kerala Municipality Building Rules.       If a permit has been<\/p>\n
granted and it is in violation of the provisions of the Building Rules<\/p>\n
or if the permit is vitiated by mistake or vitiated by errors, in such<\/p>\n
a situation, Rule 16 enables the Secretary to suspend or revoke<\/p>\n
the permit. The fact that a permit has been obtained by a person ,<\/p>\n
will not, in my view, relieve the owner from his duty to ensure that<\/p>\n
his construction is in accordance with the provisions of the<\/p>\n
Municipality Act and the Building Rules. Indication to that effect is<\/p>\n
available in Rule 18 and Rule 20 of the Building Rules. Rule 18<\/p>\n
provides for demolition or alteration of work unlawfully<\/p>\n
commenced, carried on or completed. Rule 18(1)(i)(a) provides<\/p>\n
that if construction, reconstruction or alteration of any building or<\/p>\n
digging of any well has been commenced without obtaining the<\/p>\n
permission of the Secretary or in contravention of the decision of<\/p>\n
WPC 17874\/09
\n                                :11 :<\/span><\/p>\n
the Council, demolition can be ordered. Similarly, if the<\/p>\n
construction or reconstruction or alteration is carried on, or has<\/p>\n
been completed otherwise than in accordance with the plan and<\/p>\n
specifications of permit, that also is a ground to order demolition.<\/p>\n
In addition, a third ground provided to order demolition is a case<\/p>\n
where construction, reconstruction or alteration of a building is<\/p>\n
carried on or has been completed in breach of any of the<\/p>\n
provisions contained in the Act or Municipality Building Rules or<\/p>\n
bye law or order made or issued thereunder or any direction or<\/p>\n
requisition lawfully given or made thereunder. Therefore, for this<\/p>\n
provision, it is evident that even in a case where a permit has<\/p>\n
been granted or plan is approved, if the Secretary is satisfied that<\/p>\n
the construction is carried on in breach of the Act or the Rules, it<\/p>\n
is open to the Secretary to initiate action. That apart, Rule 20<\/p>\n
also provides that the grant of a permit or the approval of the<\/p>\n
drawings and specifications or inspections made by the Secretary<\/p>\n
during the erection of the building or structure, shall not in any<\/p>\n
way relieve the owner of such building of the responsibility for<\/p>\n
carrying out the work in accordance with the requirement of the<\/p>\n
rules. The aforesaid Rule therefore reinforces the plea of the 4th<\/p>\n
respondent that even in a case where a permit has been granted<\/p>\n
WPC 17874\/09
\n                                 :12 :<\/span><\/p>\n
or a plan has been approved, if the construction is in violation of<\/p>\n
the provisions of the Act and the Rules, power is conferred on the<\/p>\n
Secretary of the Municipality, to take action under Rule 16 of the<\/p>\n
Kerala Municipality Building Rules.\n<\/p>\n
      15. As contended by the counsel for the petitioner, Ext.P1<\/p>\n
permit and Ext.P2 plan has been allowed, but however, on facts, I<\/p>\n
found that the permit and plan have been issued in violation of<\/p>\n
the provisions of the Kerala Municipality Building Rules. If so, in<\/p>\n
the light of Rules, 16, 18 and 20 of the Kerala Municipality<\/p>\n
Building Rules, it is open to the Secretary to take action in<\/p>\n
accordance with the provisions of Rule 16, and if so, I cannot find<\/p>\n
any jurisdictional error for having issued Ext.P22 order.<\/p>\n
      16. Now the surviving question is whether the petitioner is<\/p>\n
entitled to save the structures constructed for the reason that<\/p>\n
Ext.P22 has been issued only on 14\/6\/09, where as he was issued<\/p>\n
Ext.P1 permit as early as on 8\/6\/2007. On facts, it can be seen<\/p>\n
that soon after Ext.P1 was issued, the first stop memo issued was<\/p>\n
Ext.P3 dated 01\/02\/2008. Thereafter, he was issued Ext.P9 stop<\/p>\n
memo, Ext.P10 order under Section 406(1), Ext.P15 notice<\/p>\n
stopping the work and Ext.P20 notice resulting in Ext.P22 order. It<\/p>\n
is true that all notices other than Ext.P20 were set aside by the<\/p>\n
WPC 17874\/09
\n                                 :13 :<\/span><\/p>\n
Tribunal in the appeals filed by the petitioner. However, as rightly<\/p>\n
pointed out by the counsel for the 3rd respondent, from Ext.P3<\/p>\n
onwards, the petitioner was alerted about the violation of the<\/p>\n
provisions of the Building Rules. It was despite the fact that he<\/p>\n
was alerted, that he continued with the construction and<\/p>\n
completed the structure. Therefore, the petitioner was taking a<\/p>\n
calculated risk, and if so, petitioner cannot claim equity from this<\/p>\n
Court on the ground that he completed the structure. This is all<\/p>\n
the more so, for the reason that, on account of the violation<\/p>\n
committed by the petitioner, the rights of the third parties like the<\/p>\n
4th respondent are affected. Equity cannot be claimed at the cost<\/p>\n
of neighbour, whose rights are affected by the illegality.<\/p>\n
Therefore, I am not persuaded to think that the petitioner is<\/p>\n
entitled to succeed for equitable considerations.<\/p>\n
      17. As far as the judgment in Heera Construction (P)<\/p>\n
Ltd. v. Corporation of Trivandrum (2008(3) KLT 553) relied<\/p>\n
on by the counsel for the petitioner is concerned, that was a case<\/p>\n
where building was constructed and thereafter permit was<\/p>\n
cancelled by the Trivandrum Corporation on the ground that the<\/p>\n
Committee which considered the application for building permit<\/p>\n
was wrongly constituted. This Court accepting the case of the<\/p>\n
WPC 17874\/09
\n                                 :14 :<\/span><\/p>\n
petitioner that the irregular constitution of the Committee will not<\/p>\n
invalidate the decision of the Committee, granted relief to the<\/p>\n
petitioner. In my view, facts of the case are totally different, and<\/p>\n
therefore, the said judgment is of no assistance to the petitioner.<\/p>\n
      18. In the result, I do not find any illegality with Ext.P22.<\/p>\n
However, counsel for the 3rd respondent points out that if the<\/p>\n
construction is restricted to two floors, the violations pointed out<\/p>\n
are all curable. Therefore, irrespective of Ext.P22, it is made clear<\/p>\n
that it will be open to the petitioner to restrict the building to two<\/p>\n
floors, cure the irregularities and make an application to the<\/p>\n
Municipality, in which event, Municipality will take steps for<\/p>\n
regularizing the construction, and on that basis, permit the<\/p>\n
petitioner to proceed with the remaining works.<\/p>\n
      Writ petition is disposed of as above.\n<\/p>\n<\/p>\n
                                        ANTONY DOMINIC, JUDGE
\nRp<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court V.O.Devassy vs State Of Kerala Represented By … on 28 January, 2010 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-69336","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nV.O.Devassy vs State Of Kerala Represented By ... on 28 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/v-o-devassy-vs-state-of-kerala-represented-by-on-28-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"V.O.Devassy vs State Of Kerala Represented By ... on 28 January, 2010 - 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