Kerala High Court
E.V.M. Fuels (P) Ltd vs Guruvayoor Municipality on 2 July, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
FRIDAY, THE 8TH DAY OF FEBRUARY 2013/19TH MAGHA 1934
WP(C).No. 25987 of 2009 (P)
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PETITIONER(S):
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E.V.M. FUELS (P) LTD.,
REGISTERED OFFICE, CC.NO.31/696 ABC,
HONDA BUILDING, S.A. ROAD, ERNAKULAM.
BY ADVS. SRI.V.M.KRISHNAKUMAR,
SMT.P.A.ANITHA.
RESPONDENT(S):
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1. GURUVAYOOR MUNICIPALITY,
REP. BY ITS SECRETARY,
MUNICIPAL OFFICE, GURUVAYOOR.
2. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT
INSTITUTIONS, THIRUVANANTHAPURAM.
R1 BY ADVS. SRI.R.T.PRADEEP, SC.,
SRI.P.A.AHAMMED,
SRI.M.SREEKUMAR.
R2 BY GOVT. PLEADER MR.NOUSHAD THOTTATHIL.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 08-02-2013, ALONG WITH W.P.(C)NO. 13725 OF 2012 AND
W.P.(C) NO. 63 OF 2010, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
rs.
WP(C).No. 25987 of 2009 (P)
APPENDIX
PETITIONER'S EXHIBITS:-
EXT.P1 COPY OF THE BUILDING PERMIT ISSUED TO SIDHARTHAN.
EXT.P2 COPY OF THE PROCEEDINGS OF MUNICIPALITY REGARDING
EXTENSION OF BUILDING PERMIT.
EXT.P3 COPY OF THE JUDGMENT IN W.P.(C)NO. 12437/2008
DATED 02/07/2008.
EXT.P4 COPY OF THE MAHAZAR PREPARED BY THE RESPONDENT
DATED 30/08/2008.
EXT.P5 COPY OF THE NOTICE DATED 02/09/2008 OF THE MUNICIPALITY.
EXT.P6 COPY OF THE REPRESENTATION FILED BY THE PETITIONER
ON 02/10/2008.
EXT.P7 COPY OF THE ORDER NO.BA. NO.74/97-98 DATED 19/02/2009.
EXT.P8 COPY OF THE APPEAL MEMORANDUM FILED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT TRIBUNAL DATED 16/03/2009.
EXT.P9 COPY OF THE ORDER IN APPEAL NO.207/2009 DATED 19/05/2009.
EXT.P10 COPY OF THE LETTER DATED 22/06/2009 OF THE GURUVAYOOR
MUNICIPALITY.
EXT.P10A COPY OF THE ORDER DATED 22/06/2009 OF THE GURUVAYOOR
MUNICIPALITY.
EXT.P11 COPY OF THE REPLY FILED BY THE PETITIONER DATED 07/07/2009.
RESPONDENT'S EXHIBITS:-
EXT.R1A COPY OF THE COUNTER AFFIDAVIT DATED 17/06/2008 IN
W.P.(C)NO. 12437/2008 OF THIS HONOURABLE COURT.
EXT.R1B COPY OF THE GOVERNMENT ORDER DATED 09/07/1996 GRANTING
VARIOUS EXEMPTIONS.
EXT.R1C COPY OF THE NOTICE DATED 22/08/2008 ISSUED TO THE
MANAGING DIRECTOR.
EXT.R1D COPY OF THE NOTICE DATED 22/08/2008 ISSUED TO THE DIRECTOR.
//TRUE COPY//
P.S. TO JUDGE
rs.
A.M. SHAFFIQUE, J
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W.P. (C) NO. 25987/2009, 63/2010
& 13725 OF 2012
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Dated this the 8th day of February, 2013
JUDGMENT
These three writ petitions arise out of common issue relating to construction of a multi-storied complex by the petitioner in W.P.(C). No. 25987/2009 and W.P.(C).No. 13725/2012. The petitioner in W.P.(C). No. 25987/2009 is a Private Limited Company and the petitioner in W.P.(C).No. 13725/2012 is its Chief Executive. W.P.(C). No. 63/2010 is filed by the Municipality.
2. The facts as disclosed would indicate that the predecessor in interest of the petitioner company has obtained a building permit from the Municipality in the year 1995 and exemption from the Government and construction was being carried out. The building permit was extended twice, but it seems that the building has not been completed in full. The structure of the building was completed and only certain portion of the work remained to be completed. At that stage the petitioner in W.P.(C) W.P. (C) NO. 25987/2009, 63/2010 & 13725 OF 2012 2 No. 13725/2012 acquired the said property and they requested for permission to complete the construction activity which is rejected by the Municipality. The petitioner approached this Court by filing W.P.(C). No. 12437/2008. By judgment dated 02.07.2008 this Court permitted the petitioner to complete the remaining works without in any manner departing with the building permit issued. The operative portion of the said judgment reads as under:
i) The Respondent Municipality shall inspect the building in question and ascertain as to whether the construction undertaken is in compliance with Ext. P2 permit.
ii) If the construction undertaken by the petitioner thus far is found to be in compliance with Ext. P2 permit, the petitioner will be permitted to complete the remaining works without in any manner departing from Ext. P2 or increasing the built up area of the building in question.
iii) Once the remaining work is completed as above, petitioner will submit the completion certificate to the Municipality.
iv) On receipt of the completion certificate as above, the Municipality shall again inspect the building and after completing necessary formalities, issue occupancy certificate to the petitioner.
3. It seems that the Municipality had conducted an inspection, but they still rejected the request on the ground that there had been variations with that of Ext. P2 building plan. Ext. W.P. (C) NO. 25987/2009, 63/2010 & 13725 OF 2012 3 P4 is the Mahazar prepared by the Municipality which would indicate slight modification in the actual construction when compared to the building plan. Apparently there had been some deviation.
4. The Municipality thereafter issued Ext. P7 order rejecting the request of the petitioner to proceed with the construction. The petitioner filed an appeal before the Tribunal for Local Self Government Institutions and Ext. P9 is the order passed. The Tribunal while allowing the appeal, directed the Secretary to initiate fresh proceedings under Section 406 of the Kerala Municipality Act.
5. In the meantime the petitioner applied for regularisation on the basis of a scheme of the Government of Kerala. The regularisation application was considered by the Municipality. Ext. P8 in W.P.(C). No. 13725/2012 is the detailed report submitted by the Secretary, who recommended regularisation of the construction of the building on condition that the petitioner shall remit Rs. 88,90,408/-. But by Ext. P10 order dated 24.03.2012 the Government on the basis of the Chief Town Planner's report, rejected the regularisation application. It is indicated in the said order that the building W.P. (C) NO. 25987/2009, 63/2010 & 13725 OF 2012 4 violates the Rules 55(2), 31(2), 34, 112 and 117 of the Kerala Municipality Building Rules. Apparently reference is made to the Kerala Municipality Building Rules, 1999. Ext. P10 is under challenge.
6. Counter affidavits had been filed by the Municipality supporting the stand taken by them in the matter and the Government also has filed counter affidavit.
7. W.P.(C) No. 25987/2009 is filed to quash Ext. P9, the order passed by the Tribunal for Local Self Government Institutions in the appeal filed by the petitioner. The very same order produced as Ext. P5 is challenged by the Municipality in W.P.(C) No. 63/2010.
8. The factual situation remaining so, the question to be considered is whether the petitioner is entitled for regularisation of the construction.
9. Apparently there had been minor changes in the construction compared to the building permit issued. The question is whether such minor changes amounts to violation of the Building Rules as envisaged in the Kerala Municipality Building Rules, 1984 or 1999 and the exemption granted in favour of the petitioner's predecessor in interest. The first W.P. (C) NO. 25987/2009, 63/2010 & 13725 OF 2012 5 question is whether the violation is in relation to Kerala Municipality Building Rules, 1999 or the 1984 Building Rules. The fact remains that this Court by Ext. P3 judgment had permitted the petitioner to complete the construction on the basis of the approved Building Plan. The said building permit and plan was approved as per 1984 Building Rules. If there are minor variations in the actual construction it is for the Municipality to consider whether it violates any of the provisions of Kerala Municipality Building Rules, 1984 as the building permit and exemption was granted under the 1984 Rules. On such a consideration and if it is found that there are violations, a question may arise, as to whether regularisation could be granted or not.
10. Going by the present scheme of regularising unauthorised constructions, it is for the Government to take a decision. But the question would be whether the construction is unauthorised. The Rules that governed the field was Kerala Municipality Building Rules, 1984 which should apparently govern the situation as far as the building of the petitioner is concerned. It is pointed out that if the building is verified based on 1984 Building Rules and the exemption granted there may W.P. (C) NO. 25987/2009, 63/2010 & 13725 OF 2012 6 not be violation, but for certain minor deviations. That being the situation I am of the view that an opportunity can be granted to the petitioner to ventilate his grievances and it is for the Municipality to consider whether the construction of the building is in violation of the Kerala Municipality Building Rules, 1984.
11. Since the structure had already been completed one cannot now contend that the building has not completed at all. Probably some area of the building requires internal partition and other structures to be constructed for the actual completion. But the fact remains that this Court had as per Ext. P3 judgment permitted the construction of the building. In that view of the matter the petitioner is entitled to complete the construction without violating any other stipulation in the building plan and it is for the Municipality and the Government to consider whether there is any violation on the basis of Kerala Municipality Building Rules, 1984 and the exemption obtained by the petitioner produced as R1(b) in W.P.(C). No. 25987/2009.
12. Consequently there is no necessity to consider the directions issued by the Tribunal for Local Self Government Institutions and challenged in W.P.(C). No. 25987/2009 and W.P. W.P. (C) NO. 25987/2009, 63/2010 & 13725 OF 2012 7 (C). No. 63/2010. In view of the directions I intend to issue the said order is liable to be set aside.
In the result these writ petitions are allowed as follows:-
i) Ext. P10 in W.P.(C). No. 13725/2012 is quashed.
W.P.(C). No. 25987/2009 and W.P.(C). No. 63/2010 are allowed setting aside Ext. P9 and P5 respectively and directing the parties to comply with the following directions:-
ii) The Municipality shall consider whether the building constructed by the petitioner has violated any of the provisions of the Kerala Municipality Building Rules, 1984 and the exemption granted by the Government.
iii) If there is any violation, it is open for the Municipality to recommend regularisation of the said construction and if so the Government shall consider such regularisation application on the basis of the situation as prevailing in 1984 and shall pass appropriate orders as expeditiously as possible.
iv) The entire exercise shall be completed within three months from the date of receipt of a copy of this judgment sd/-
A.M. SHAFFIQUE JUDGE DCS