Kerala High Court
K.Somasekharan Nair vs The Secretary on 28 January, 2021
Author: Shaji P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
WP(C) No. 10818/2017 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942
WP(C).No.10818 OF 2017(S)
PETITIONER:
K.SOMASEKHARAN NAIR,
AGED 75 YEARS, S/O.K.K.KUNJAN PILLAI, BHAVANI,
CHERUPPORAKONAM, MELAMCODE, PAZHAKUTTY, P O NEDUMANGAD,
THIRUVANANTHAPURAM-695 565.
BY ADVS.
DR.S.GOPAKUMARAN NAIR (SR.)
SRI.D.S.SREEKUMARAN
SMT.T.S.MAYA (THIYADIL)
SRI.SOORAJ T.ELENJICKAL
SRI.K.ARJUN VENUGOPAL
RESPONDENTS:
1 THE SECRETARY,
THE NEDUMANGAD MUNICIPALITY, MUNICIPAL OFFICE,
NEDUMANGAD, THIRUVANANTHAPURAM-695 561.
2 THE CHIEF TOWN PLANNER,
GOVERNMENT OF KERALA, ERNAKULAM 695 001.
3 ABDUL RASHEED
S/O.ALIYAR, (KNOWN AS HEERA BABU), 'CITADEL', GOLF LINKS
ROAD, KOWDIAR, THIRUVANANTHAPURAM-695 003.
4 THE DIVISIONAL OFFICER
OFFICE OF THE DIVISIONAL OFFICER, FIRE AND RESCUE SERVICES,
THIRUVANANTHAPURAM-695 003.
WP(C) No. 10818/2017 2
5 BIJU RAMESH
S/O.RAMESH, PARTNER HOTEL MYTHRI, RAJADHANI BUILDING,
EAST FORT, THIRUVANANTHAPURAM-695 005.
6 ARUN DINAKAR
S/O.DINAKARAN, PARTNER, HOTEL MYTHRI, INDRAPRASTHA
BUILDING, NEAR KSRTC BUS STATION, NEDUMANGADU,
THIRUVANANTHAPURAM-695 541.
7 ASSISTANT DIRECTOR GENERAL (H&R),
MEMBER SECRETARY(HRACC), MINISTRY OF TOURISM ,
GOVERNMENT OF INDIA, C-1, HUTMENTS, DALHOUSIE ROAD,
NEW DELHI-110 011.
R1 BY ADV. SRI.P.RAMAKRISHNAN
R3, R5 BY ADV. SRI.ELVIN PETER P.J.
R3, R5 & R6 BY ADV. SRI.K.R.GANESH
R6 BY ADV. ELVIN PETER P.J.
R7 BY ADV. SMT.MINI R.MENON, ADDL.CGSC
R2 BY SRI. SURIN GEORGE IPE, SR. GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-01-2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No. 10818/2017 3
JUDGMENT
Dated this the 28th day of January, 2021.
SHAJI P. CHALY, J.
This is a Public Interest Litigation filed by a person said to be a social activist and former Vice Chairman of Nedumangad Municipality for 8 years and Acting Chairman for one year. He also claims to be the Secretary of the Madhya Nirodhana Samithi (Anti Liquor Society), Kerala State and Gandhiyan Vijana Vedhi, Nedumangad and seeks to quash Ext.P7 No Objection Certificate (final) issued by the Divisional Fire Officer, Thiruvananthapuram dated 30.10.2010, Ext.P8 order dated 07.01.2011 passed by the Secretary of the first respondent, Ext.P9 occupancy certificate issued by the Secretary of the Nedumangad Municipality dated 12.01.2011 and Ext.P12 recommendation of the Government of India, Ministry of Tourism dated 23.07.2012 recommending Four Star Classification to Hotel 'Indraprastha', Nedumangad P.O., Thiruvananthapuram, apparently run by respondents 5 and 6 in a building owned by the 3 rd respondent, and further seeks issuance of a writ of mandamus to the Secretary of the Nedumangad Municipality to comply with the directions of this Court in Ext. P5 judgment dated 08.12.2009 in W.P.(C) No. 18134 of 2009 and Ext. P3 WP(C) No. 10818/2017 4 Government Order dated 05.11.2007 insofar as it is applicable to Rule 3(c) of the Kerala Municipality Building Rules, 1999 ('Rules, 1999' for short) and for other related reliefs.
2. The public interest put forth by the petitioner is with regard to an unauthorised construction of a building at Nedumangad, wherein Hotel 'Indraprastha is functioning. The sum and substance of the contention advanced is that respondent No.3, the owner of the building, and respondents 5 and 6 partners of the aforesaid hotel, have secured undue benefits exerting their undue influence, money power and corrupt practices and carried out unauthorised construction of the building and secured regularisation order and occupancy certificate from the Secretary of the Nedumangad Municipality. It is also the case of the petitioner that regularisation done and the occupancy certificate issued are in violation of Ext. P3 Government Order and the directions issued in Ext. P5 judgment rendered by this Court. It is also contended that the Secretary of the Municipality has abused the power vested in her by relying upon Ext. P7 Fire and Safety NOC issued by the 4 th respondent containing falsehood as to the height of the building recorded as 14.93 meters against the actual 16.60 meters, which was found and reported by the Advocate Commissioner appointed by this Court in a writ petition, who WP(C) No. 10818/2017 5 has carried out physical measurement of the height of the building in the presence of the Secretary of the Municipality, the Chief Town Planner and the owner of the building.
3. It is also contended that the violations committed by the Divisional Fire Officer and the Secretary of the Municipality are substantiated by the new incumbent in the office of the Fire Officer by declining to renew Ext. P7 No Objection Certificate, and in his letter issued to the partner of the hotel, he undoubtedly said that the building is a high rise building, which is an unauthorised one.
4. Other contentions are raised in regard to the enquiry conducted by the State Police Vigilance and the observation of the Enquiry Commissioner and Special Judge, Thiruvananthapuram, and relying upon the same, it is also stated that prima facie findings in regard to the height of the building as alleged by the petitioner are found to be correct. It is also stated that against the directions contained in Ext. P5 judgment and Ext. P3 order of the Government, the category of the building was changed to mercantile against the category of 'restaurant, lodging rooms, commercial office and ancillary parking falling under the category of A1, A2 and D of Rule 16 of Kerala Building Rules, 1984 ('Rules, 1984"
for short) and further that the Government as per Ext. P3 and this Court WP(C) No. 10818/2017 6 as per Ext. P5 judgment directed the Secretary, Chief Town Planner and the Divisional Fire Officer to follow Rule 3(c) of the Rules, 1999, which warrants 5 meters open space all around the building and which is not available.
5. It is further pointed out that after securing Ext.P8 regularisation and Ext.P9 occupancy certificate from the Secretary of Nedumangad Municipality, owner of the building and the lessees namely respondents 5 and 6 made changes to the room size and other portions of the building, in order to secure Four Star classification from the Government of India, Ministry of Tourism. Therefore, according to the petitioner, the law abiding public are mere onlookers and unless and until this Court interferes, the illegalities would continue. It is also against the public interest.
6. Respondents 5 and 6, the partners of the hotel, have filed a detailed counter affidavit refuting the allegations and justifying the construction carried out, additions and alterations made, and also claiming that the certificate issued by the District Fire and Rescue Officer, the regularisation done by the Secretary of the Municipality and the occupancy issued thereto are in accordance with law. It is also contended that the height of the building exceeding 15 meters as alleged by the WP(C) No. 10818/2017 7 petitioner is not correct in terms of law and submitted that the entire issues raised in this writ petition was considered by the Chief Town Planner in accordance with the directions issued by this Court in Ext. P5 judgment, that the petitioner was aware of the challenge made to Ext. P8 regularisation order and Ext.P9 occupancy certificate issued by the Secretary of the Nedumangad Municipality before the Tribunal for Local Self Government Institutions by one Prabhula Chandran Nair, who also was the Chairperson of the Nedumangad Municipality, and the interference declined. However, the said vital aspect is suppressed in the writ petition as an attempt to secure unmerited orders.
7. It was also submitted that the issue was brought to the attention of the Vigilance and Anti Corruption Bureau, Thiruvananthapuram, which had later conducted a quick verification as per the direction in Crl. M.P. No. 426/2013/ECT dated 05.06.2013 issued by the Enquiry Commissioner and Special Judge, Thiruvananthapuram, in which it was found that the violations alleged by the complainant in regard to the construction of the building, alterations and height of the building is not correct. It was also found that there was no corrupt practice in the matter of securing a 'No Objection Certificate' from the Divisional Fire Officer, which also was suppressed. The order passed by the Tribunal, the WP(C) No. 10818/2017 8 report of the Vigilance and the direction issued by the Enquiry Commissioner and Special Judge to conduct investigation into the complaint filed by the petitioner are all part of records, which would be discussed hereafter.
8. Therefore, according to respondents 5 and 6, the issues raised by the petitioner in this writ petition have attained finality pursuant to the order passed by the Tribunal for Local Self Government Institutions in Appeal No. 72 of 2011 filed by the said Prabhula Chandran Nair and therefore, the issues cannot be reopened, especially when the entire aspects, including the height of the building, were threadbare considered by the Tribunal, and declined to interfere with the orders passed by the Secretary of the Municipality regularising the construction and issuing occupancy certificate. It is also submitted that the allegations raised by the petitioner in regard to the violation of Ext. P3 Government Order and Ext.P5 judgment of this Court are all baseless, imaginary and unfounded. That apart, it is submitted that eleven writ petitions were filed before this Court, in regard to the construction by various persons, which are enumerated in detail, at paragraph 4 of the counter affidavit, and are as under:
WP(C) No. 10818/2017 9
"W.P.(C) Nos. 3917/2009, 13026 of 2009, 1417 of 2010, 27585 of 2011, 2351 of 2008, 9871 of 2010, 409 of 2011, 793 of 2011,1766 of 2011, 34249 of 2011 and 646 of 2012."
9. Therefore, respondents 5 and 6 seek dismissal of the writ petition. Though the Municipality has not filed a counter affidavit, learned counsel appearing for the Municipality has supported its stand in regard to Ext. P8 regularisation order and Ext. P9 occupancy certificate stating that those orders were issued only in accordance with the provisions of the Rules, 1999. Learned counsel has also submitted that the petitioner has not produced any document or reliable evidence to establish that any illegality was committed by the Secretary of the Municipality in the matter of regularising the construction of the building and issuing occupancy certificate. Therefore, according to him, the allegations raised in the writ petition have no basis and no interference is warranted to the orders passed by the Secretary of the Municipality.
10. We have heard learned Senior Counsel for the petitioner Sri. S. Gopakumaran Nair assisted by Adv. Sooraj Elanjikkal, Sri. Prathap for the Municipality, learned Senior Government Pleader Sri. Surin George Ipe for the State and Sri. K.R. Ganesh for respondents 5 and 6, and perused the pleadings and materials on record.
11. The paramount contention advanced by the learned Senior WP(C) No. 10818/2017 10 counsel for the petitioner is that in Ext. P7 No Objection Certificate, the height of the building is shown by the Divisional Officer, Fire and Rescue Services as 14.93 meters; whereas from Ext. P4 Advocate Commission report taken in the presence of the statutory authorities and the building owner, it is clear that the height of the building is 16.60 meters, which is in violation of Rule 110 of the Rules, 1999, wherein the height of a high rise building at the relevant time is 15 meters. It is also pointed out that the building was constructed with a height of 16.60 meters and therefore, unless and until a constructed portion is demolished, the height of the building cannot be reduced, which itself is an ultimate indication that the height of the building shown in Ext. P7 No Objection Certificate issued by the fire authority is not correct and further it was done purposefully employing corrupt practice to help the party respondents, and therefore, Ext. P8 regularisation granted by the Secretary of the Municipality and consequential Ext. P9 occupancy certificate issued can never be sustained under law. According to the learned Senior counsel, it would, in turn, seriously, tell upon the attempt of respondents 5 and 6 to secure Four Star classification to the hotel in question illegally. Other contentions are also raised relying upon Ext. P3 Government Order and Ext. P5 judgment rendered by this Court, WP(C) No. 10818/2017 11 especially to the effect that none of the requirements directed to be undertaken therein were taken into account by the District Fire Officer and the Municipal Secretary.
12. On the other hand, learned Senior Government Pleader submitted that Ext. P3 order was passed by the Government as early as on 05.11.2007 noting that exemption was granted to the owner of the building namely Abdul Rasheed, the 3 rd respondent, as per the provisions of the Rules, 1984 bearing G.O (Rt.) No. 1563/19/LAD dated 06.04.1990, which rules were in force before the introduction of the Rules, 1994, that the exemption was granted by the Government to the said building, subject to the conditions incorporated thereunder; however, fact remains, construction was started violating the conditions stipulated by the Government and hence, the Municipality issued notice under the Rules, 1984. Later, an application was submitted by the owner of the building for the change of user of the building. Accordingly, the Government obtained a report from the Chief Town Planner and granted exemption from the provisions of the Rules 32(c)(2), 15(5) and 17(2) of the Rules, 1984, subject to the condition that an emergency staircase should be provided in the said building. Later, the owner submitted a Review Petition dated 12.02.1999 requesting for the conversion of the WP(C) No. 10818/2017 12 use of the basement floor and the second floor of the existing building and for the construction of two storied additional building in the rear side.
13. It is apparent from Ext. P3 order that in consultation with the Chief Town Planner, the Government granted exemption from the provisions of the Rules, 1984 and accorded sanction for the change of use of the basement floor and second floor of the existing building into restaurant and lodge rooms. Exemptions were also granted by the Government in regard to the construction of additional building from the provisions of the Rules, 1984 in Survey Nos. 1698/3 and 1697/4/4 of Nedumangad Village, subject to the condition that a ramp should be constructed on the southern side as recommended by the Nedumangad Municipality as per its letter bearing No. TPI/7646/97 dated 16.08.1999 with a further rider that the ramp should not be blocked by using the area as a parking space. It is evident from Ext. P3 that, later the Government received a petition from one Santhakumar on 05.08.2006 alleging that unauthorised and illegal constructions were carried out by the owner. Accordingly, the Government have referred the above petition to the Regional Town Planner, Thiruvananthapuram and the Secretary, Nedumangad Municipality for report.
WP(C) No. 10818/2017 13
14. In the meanwhile, the Senior Town Planner (Vigilance) had made a site inspection and furnished a report on 27.10.2006 stating that change of use of the building had already been done and some conversions also were being done. Therefore, it was held that since the Rules, 1999 have come into force, Rule 3(c) thereto shall apply to all parts of the building affected by the change.
15. Anyhow, while the matters being so, in the judgment in W.P.(C) No. 32222 of 2006 dated 09.03.2007, this Court directed that the Government should, on receipt of report from the Nedumangad Municipality, issue notice to all concerned and take a decision within three months from the date of receipt of the report from the Nedumangad Municipality. In compliance with the directions, proceedings were initiated against the owner of the building under Section 406(1) of the Kerala Municipality Act, 1994 and also under the provisions of the Rules, 1999. To put it short, in the judgment in Writ Appeal No. 1043 of 2007 filed by the owner of the building impugning the judgment in the writ petition specified above, the Government, was directed, to obtain a report from an independent Officer after securing a report from the Municipality and issuing notice to the petitioner therein, for taking a fresh decision in the matter. Accordingly, the Government appointed the Chief WP(C) No. 10818/2017 14 Town Planner Thiruvanthapuram as the Independent Officer to carry out inspection. The Chief Town Planner, after taking into account the entire aspects, has submitted a report before the Government and after considering the report and the recommendation extended by the Chief Town Planner, sanction was accorded for the construction work in the property comprised in Survey No. 698/3 of Nedumangad Village on the following conditions:
"i) since there are variations in the area and open space provided between the approved plan and the existing building, the Municipality should verify thoroughly all Government orders, approved permits and plans in respect of the construction of the building, and then issue necessary directions so as to make it in conformity with the approved plan, permit and Government Orders.
(ii) After ensuring that the existing building is altered so as to make it in conformity with the Government Orders and approved plans the Nedumangad Municipality may take action to assess the remaining unassessed portion of the existing building after obtaining necessary applications and documents from the owners of the building. Before assessment NOC from Fire Force Department should be obtained and verified.
iii)After ensuring the completion of the course of action as suggested above, the Nedumangnd Municipality may consider the application and plan of the petitioner for their proposed renovations and change of occupancy, in accordance with the relevant provisions in Kerala Municipality Building Rules, 1999 and Kerala. Municipality Act, 1994 and may issue permit WP(C) No. 10818/2017 15 to those renovation, extension or change of occupancies if permissible as per rules and regulations."
16. However, challenging Ext. P3 Government Order, W.P.(C) No. 2351 of 2008 was filed, in which, an Advocate Commissioner was appointed and Ext.P4 report was accordingly submitted, wherein the Advocate Commissioner has reported that the building is five storeyed and has a total height of 16.60 meters. The case advanced by the petitioner is that the inspection was done in the presence of the petitioner in the said writ petition, the appropriate statutory authorities, the advocate for the building owner, his site Engineer and the Officer of the Town Planning Department and therefore, the said report is to be accepted in all respects and if that be so, the building is a high rise building, which is liable to follow the provisions of Rules, 1999 consequent to Rule 3(c) of Rules, 1999, including the one applicable to high rise buildings and shall apply to all parts of the building affected by the change. Admittedly, the said writ petition was disposed of directing to remove the unauthorised construction.
17. Anyhow, it is seen that the Municipality again proceeded against the building owner and thereupon, presumably the matter was taken up before the Tribunal for Local Self Government Institutions by WP(C) No. 10818/2017 16 the owner of the building. Challenging the Tribunal's order, the Municipality approached this Court by filing W.P.(C) No. 18134 of 2009, in which Ext. P5 judgment was rendered and the relevant portion of the same is extracted hereunder for convenience:
"2. Following Ext.P8, different exercises have been carried out by the Municipality and the petitioner leading ultimately to two appeals before the Tribunal for Local Self Government Institutions. Tribunal held that there is a deemed licence in favour of the builder on account of lethargy to decide on the building permit application(for revised sanction) within time. It also interfered with the proceedings of the Municipality requiring the builder to pull down certain portions of the building.
3. The aforesaid decisions of the Tribunal stand stayed by this court in this case.
4. While the Municipality would say that the question of deemed licence does not arise at all, in view of the fact that the builder stood notified of deficiencies in the rectification of the building in terms of Ext.P8 Government order, the final resolution of this dispute is necessary because a little bit of public interest including through erstwhile Chairman of the Municipality is also projected by way of impleading petitions in this matter.
5. The facts of the case make it abundantly clear, as already noted, that Ext.P8 is the decisive government order on the basis of which further action has to follow. If that were so, all that has to be ensured is that the terms of the directions contained in paragraph 14 of Ext.P8 Government order are WP(C) No. 10818/2017 17 complied with. On such compliance, the consequences have to follow in terms of Ext.P8 Government order.
6. Therefore, the Chief Town Planner, Thiruvananthapuram is hereby directed to conduct a site inspection following the report referred to in Ext.P8 within a period of two weeks from the date of receipt of a copy of this order and file a report before this court within two weeks thereafter, as to whether the directions issued by the Government in paragraph 14 have been complied with by the petitioner in relation to the construction in question.
7. If the answer of the Chief Town Planner to the aforesaid is in the affirmative, Municipality has to do the needful in terms of paragraph 14(3) of Ext.P8. If the answer is in the negative, petitioner has to comply with the directions contained in Ext.P8. This procedure will liquidate this litigation finally. The aforesaid directions are accordingly issued.
List after six weeks awaiting the report. Learned counsel for the Municipality will ensure that a set of this writ petition and other pleadings in this case is placed before the Chief Town Planner, Thiruvananthapuram along with a copy of this order."
2.Following that, the Chief Town Planner has placed on record a report dated 17.11.2009, the relevant portion of which reads as follows:
"In response to judgment in W.P(C).32222/06 dt.9.3.2007, Govt. have issued directions as per G.O.(Rt) No.3011/2007/LSGD dt.05/11/2007.
As per this (G.O.) it was required to rectify the WP(C) No. 10818/2017 18 deviations made in the building so as to make it in conformity with approved plan and Govt. orders. Thereafter, Municipality shall assess the building after verifying the required documents ad NOC from Fire Force Department. This Govt. Order has not yet been complied with.
During inspection the following points were noted.
1) There is no sufficient access width to rear parking space. As per the approved pan, the access width varies from 2.45 m to 2.60 m. The actual available width are 2.40 m and 2.00 m at two points.
2) Since the level of the Rear yard has been lowered, the fire escape stair is not connected to the ground level at present. It is also noted that there is no proper and sufficient access to the fire escape stair from all parts of each floor of the building.
3) It has been noted that an additional stair case and one lift has been provided inside the building in the north- west corner. This will facilitate more vertical circulation and is advisable in the safety point of view.
Along with this room & lift machine room an additional area of 5.90m x 3.45m is seen covered with slab for placing water tank. It is permissible if the structure is not used for any purpose other than storage of water.
4) In the upper floors, it is seen that at certain places the outer walls were shifted from the original position to the edge of the projecting slabs which were only weather shades as per approved plans. In certain places it is seen that door ways are provided giving entry to weather shade slab WP(C) No. 10818/2017 19 projections. This will cause serious violations of building rules and deviation of approved plan especially with respect to open space availability, coverage, FAR and Parking requirement.
5) It was also seen that two telecommunication tower along with accessories were erected as the Roof Top Terrace of the building. Municipal authorities has informed, that structures are authorised.
Based on the above observation, it can be seen that the alteration as per G.O.(Rt) No.3011/2007/LSGD dt.5/11/2007 has not been affected to the building.
As per the Government exemption orders the following uses only are permissible in this building.
Restaurant, lodge rooms, commercial office, residential use and ancillary parking. If the use of the building is intended to be changed to some other uses other than specified above, Rule 3(c) of the KMBR1999 has to be applicable. As per rule 3(c) "where the occupancy or use of building is changed these rule shall apply to all parts of the building affected by the change".
3.With the aforesaid, the first respondent has filed an additional affidavit and through his learned counsel, he undertakes today that he will carry out all necessary rectifications in terms of the G.O. dated 5.11.2007 and would rectify all the defects which have been noticed by the Chief Town Planner. All that he wants is to complete the project and start activities in the hotel building.
4.Taking the aforesaid into consideration, it is directed that as and when the petitioner carries out the rectifications in WP(C) No. 10818/2017 20 terms of G.O.(Rt) No.3011/2007/LSGD dated 5.11.2007, he may notify about such completion to the Chief Town Planner and to the secretary of the petitioner municipality. The Chief Town Planner will then ensure that an inspection is again made to certify whether all rectifications in terms of the aforesaid Govt. Order have been carried out. If the Chief Town Planner is satisfied that such rectifications have been done, a certificate in that regard would be issued by him, following which, the municipality will do the needful to regularise the construction.
5.All interim orders will stand vacated to enable the first respondent to do the needful in terms of this judgment. This Court records its appreciation for the efficient efforts taken by the Chief Town Planner in the matter. Exts.P18 and P19 will stand quashed to pave way for what is stated above. The writ petition is ordered accordingly."
18. Thus, the issues leading to the present writ petition started. As per the directions in the aforementioned judgment, inspection was conducted by the Chief Town Planner and a report was submitted evident from Ext. P6 dated 05.10.2010, which reads thus:
"As per the direction of Honourable High Court in WP (C) No.18134 of 2009 dt, 8th October, 2009, I was.directed, to conduct a site inspection, within a period of two weeks from the date of receipt of copy of this order and file a report before the Honóurable High Court within two weeks thereafter this direction.
Accordingly inspection was conducted and the following points are observed.WP(C) No. 10818/2017 21
As per vide G.O.(Rt) No. 1568/90/LAD dt.6.4.1990 Government exempted Rules 15(5), 34/3), 17(2), 34[2),21(11)c, 21(11)a of KBR 84 and insisted certain conditions for the construction for a five storyed Ašsembly cum special residential building in Sy.No. 1698/3 of Nedumangad Municipality and Nedumangad Village by Shri. Abdul Rasheed, Panayam House, Near Muttaramman kol, Nedumangad.
Vide G.O.(Rt.) No. 4396/91/LAD dt. 1.11.1991 Government have modified the above order, granting further exemption from Rule 32(C)2, 15 (5), and 17 ( 2) of KBR 84 for construction of five storied office cum lodge building. Accordingly the Municipality had. issued building permit, the applicant had constructèd the building and the Municipality had assėssed the building.
Again, as per G.O(Rt) No. 1999/2000/ASGD dt.17.5.2000, Government have further granted exemption for conversion of use of Basement floor and Second floor to Restaurant and lodge rooms of the already constructed building from Rules 15(2) 34(3),15(5),15(7),17[2]5, (20) (2)2,5, 20(3), 18,21(11)d, 21(12)e(ii), 22, 24(4), 34(7) & 34(8) in this G.O. it was mentioned that the rest of the area of the building was still proposed as residential and commercial.
In the same G.O. exemption was also granted for the construction of a two storeyed building in the rear side of the main building from Rules 35(2),21(11)b,c,d, 17(2) & 35(7), in an additional land comprised in Sy.No.1697/4/4 of Nedumangad village purchased by the applicant. Since the additional land have a higher level, it was directed in the G.O that suitable ramp should be provided to reach the WP(C) No. 10818/2017 22 parking area proposed there.
This additional two storeyed building has not yet been constructed and the ground level has been found lowered to that of the main building.
In response to judgement WP (C) No.32222/06 dt.9.3.2007, Govt. have issued directions as per G.0. (Rt.)No.3011/20071/SGD dt.5.11.2007.
As per this (G.O) it was required to rectify the deviations made in the building so as to make it in conformity with approved plan and Govt. orders. Thereafter, the Municipality shall assess the building after verifying the required documents and NOC from Fire Force Department. This Govt. Order has not yet been compiled with.
During inspection the following points were noted.
1. There is no sufficient, access width to rear parking space. As per the approved plan the access width varies from 2,45m, to 2.60m. The actual aväilable widths are 2,40m. and 2.00m at two points.
2. Since the levęl of the Rear Yard has been lowered, the fire escàpe stair iš not connected to the ground level ät present, It is also noted that there is no proper and. sufficient access to the, fire escape stair from all parts of each floor of the building.
3. It is been noted that an additional stair case and one lift has been provided inside the building in the north-west corner.: This will facilitate more vertical circulation and is àdvisable in the safety point of view.
WP(C) No. 10818/2017 23
Along with this room & lift machine room an additional area of 5.90 m x 3.45 m is seen covered with slab for placing water tank. It is permissible if the strücture is not used for äny purposėé other than storage of water.
4. In the upper floors, it is seen thät at certain places the outer walls were shifted from the oríginal position to the edge of the projecting slabs which were only weather shades as per approved plans. In certain places it is seen that door ways are provided giving entry to weather shade slab projections. This will cause serious violations of building rules and deviation of approved plan especially with respect to open space availability, coverage, FAR and parking requírement.
5. It was also seen that two telecommunication tower along with açcessories were erected as the Roof Top Terrace of the building Municipal authorities has informed, that structures are authorised.
Based on the above observation, it can be seen that the alternation as per G.O.(Rt.) No. 3011/2007/LSGD dt. 5/11/2007 has not been affected to the building.
As per the Government exemption orders the following uses only are permíssible in this building.
Restaurant, lodge rooms, commercíal office, residential use and ancillary parking. If the use of the building is intended to be changed to some other uses other than specified above, Rule 3(c) of the KMBR 1999 has to be applicable. As per rule 3(c) "where the occupancý or use of building is changed these rule shall apply to all parts of the building affected by the change".
In accordance with the judgement WP(C) No.18134 WP(C) No. 10818/2017 24 of 2009 dated 8th December 2009, the respondent had again submitted an application dated 8/7/10. Accordingly 6/8/10 the Chief Town Planner and Senior Town Planner (Vigilance) inspected the site and found that the unauthorised construction has not been completely demolished in accordance with the judgement and give direction to the respondent to complete the modification and rectification in áccordance with the judgement and report the same for further verification.
Again on 27/9/10, the respondent infôrmed that the said rectification has been made and accordingly on 30/9/10 the Chief town Planner, Senior Town Planner (Vigilance) and the Regional Town Planner (Trivandrum) jointly inspectèd the site and observed that the modifications and the rectification works are ongoing and not completely carried out and it is also observed that there are certain minor differences in plot meaşurements and open spaces comparęd to the approved plan.
As per building rules the verifications of site méasurements are vested with the Municipal authorities. In this context the rèspondent has been directed to complete the rectificätions anid modifications completely in ačcordance with the júdgement and G.O(Rt). No 3011/2007/LSGD dt. 5/11/2007 and submit a revised plan through the Municipal authorities. On receipt of the same the Chief, Town Planner again will inspect the site and if fully satisfied will issue the certificate to the municipality in compliance with the judgement WP(C) No.18134 of 2009 Dt 8-12-2009."
WP(C) No. 10818/2017 25
19. Anyhow, Ext. P6(a) order dated 28.10.2010 was passed by the Chief Town Planner taking into account the earlier Government orders and permitting the Secretary of the Nedumangad Municipality to take steps to regularise construction of the building. It is also clear that in accordance with the directions in Ext.P5 judgment, inspection was conducted thrice in the premises in question and instructed to remove the unauthorised constructions, which has been carried out by the building owner Sri. Abdul Rasheed. It is also seen that the Divisional Officer, Fire and Rescue Services, Thiruvananthapuram, by Ext.P7 order dated 30.10.2010, has issued a No Objection Certificate permitting occupation of the building and with a direction that no construction be allowed in the vacant spaces provided in the approved plan. Other conditions are also incorporated for maintaining the fire fighting systems continuously, in order to make it always functional, inter alia, among other directions.
20. Matters being so, in accordance with the permission granted by the Chief Town Planner, the Secretary of the Nedumangad Municipality regularised the constructions carried out by the third respondent invoking the powers conferred under the proviso to Section 406 (1) of the Act, 1994 and also directing the owner to deposit an amount of WP(C) No. 10818/2017 26 Rs.88,461/- towards compounding fee. Relevant portion of Section 406 is extracted for convenience:
"406. Demolition or alteration of building work unlawfully commenced, carried on or completed.-- (1) Where the Secretary is satisfied-
(i) that the construction, reconstruction or alteration of any building or digging of any well-
(a) has been commenced without obtaining the permission of the Secretary or in contravention of the decision of the Council; or
(b) is being carried on, or has been completed otherwise than in accordance with the plans or specifications on which such permission or decision was based;
or (c) is being carried on, or has been completed in breach of any of the provisions of this Act or any rule or bye-law or order made or issued thereunder or any direction or requisition lawfully given or made under this Act, such rule, bye-law or order; or
(ii) that any alteration required by any notice issued under section 395 has not been duly made; or
(iii) that any alteration of or addition to any building or any other work made or done for any purpose in or upon any building has been commenced or is being carried on or has been completed in contravention of the provisions of Section 405, he may make a provisional order requiring the owner or the person for whom the work is done to demolish the work done, or so much of it as, in the opinion of the Secretary, has been unlawfully executed or to make such alterations as may, in the opinion of the Secretary, be necessary to bring the work in conformity with the WP(C) No. 10818/2017 27 provisions of this Act, bye-laws, rules, direction, order or requisition as aforesaid, or with the plans and specifications on which such permission or decision was based, and may also direct that until the said order is complied with, the owner or such person shall refrain from proceeding with the work.
[Provided that the Secretary may, on realisation of a compounding fees as may be fixed by the Government, regularise any constructions, reconstruction or alteration of any building or digging of any well, commenced, carried on or completed without getting a plan approved by the Secretary or in deviation of the approved plan, if such construction, reconstruction or alteration of the building or digging of the well does not contravene any of the provisions and specifications mentioned in this Act or the Building Rules made thereunder.] (2) The Secretary shall serve a copy of the provisional order made under sub-section (1) on the owner or the person for whom such work is done together with a notice requiring him to show cause within a reasonable time, to be specified in such notice why the order should not be confirmed.
(3) Where the owner or the person for whom the work is done fails to show cause to the satisfaction of the Secretary, the Secretary may confirm the order or modify the same to such extent as he may think fit to make, and such order shall then be binding on the owner or the person for whom the work is done and on the failure to comply with the order, the Secretary may himself cause the building or part thereof, demolished or the well dismantled, as the case may be and the expenses therefore shall be recoverable from the owner or such person.
xxxxxxxxxxxxxxxxxxxxxxx
21. Thereafter, Ext.P9 occupancy certificate was issued on 12.01.2011 by the Secretary of the Municipality invoking the WP(C) No. 10818/2017 28 powers conferred under Rule 22(3) of the Rules, 1999, which at present reads thus:
"22. Completion certificate, development certificate and occupancy certificate.-
Xxxxxxxxxxxxxxxxxxxxxxxxxxxx (3) The Secretary shall, on receipt of the completion certificate and on being satisfied that the construction or reconstruction or addition or alteration has been carried out in conformity with the permit given, issue occupancy certificate in the form in Appendix H not later than fifteen days from the date of receipt of the completion certificate:
Provided that, in case there is deficiency as per the provisions of these Rules, in minimum width of mandatory open space/yard after completion of the construction, other than the distance stipulated as per Section 383A of the Kerala Municipality Act, 1994 and Rule 117 of these Rules, the Secretary may allow a tolerance upto 5% of the minimum mandatory open space/yard to be provided as per these Rules or twenty five centimeters, whichever is less, for the building constructed.
Provided further that if no such occupancy certificate is issued within the said fifteen days, the owner may proceed as if such occupancy certificate has been duly issued to him."
22. Anyhow, it is seen that though a request was made by the 6 th respondent, namely the partner of the Hotel 'Indraprastha' for renewal of the fire NOC, it was declined by the fire officer by Exhibit P10 stating that the building has a height of 16.60 meters, which is dated 20.08.2015. It is also undisputed that the petitioner therein has WP(C) No. 10818/2017 29 approached the Enquiry Commissioner and Special Judge by filing Crl. M.P. No. 426 of 2013 attributing corruption on the part of the officials in granting NOC to the owner of the building. Evident from Ext. P11, a direction was issued by the Special Judge on 05.06.2013 to the Director, Vigilance and Anti Corruption Bureau, Thiruvananthapuram to conduct a preliminary enquiry in regard to the allegations raised in the complaint and submit a preliminary report within three months, and reserved the question of registering FIR to be considered thereafter. Those alone are the facts projected by the petitioner in the writ petition in order to secure the reliefs discussed above.
23. But, in the counter affidavit of the partners of the hotel 'Indraprastha', Ext.R5(a) preliminary report submitted by the Superintendent of Police, Vigilance and Anti Corruption Bureau is produced along with a quick verification report on the basis of the investigation conducted by the Inspector of Police Vigilance. On a reading of the report and the quick verification report, it is evident that the entire aspects with respect to the construction of the building and the allegations raised were considered and ultimately it is stated thus at paragraphs 12, 13 and 14:
WP(C) No. 10818/2017 30
"12.Issue of NOC to the alleged building by Fire and Rescue Services Another allellegation mentioned in the petition is against the issuance of NOC by the Fire and Rescue services to the alleged Building. Fire NOC was seen issued on 30-10-2010 by Shri E B Prasad Divisional Officer Fire and Rescue Services, Thiruvananthapuram. It is alleged in the petition that the building is a high rise building having height of above 15 metres and issued the same without following the procedure. Shri E B Prasad then Divisional Officer was questioned in this regard and recorded his statement also. He stated that before issuing the NOC a committee was constituted to inspect the building in which Shri Arun Alphonse, Assistant Divisional Officer, Chairman, Shri Gopakumar Station Officer and Shri TK Ajay as members. He also stated that as per the report of the Committee the height of the building is 14.92 m and as per the standing order No 3/2009 dated 06-07-09 the power to issue NOC to a building having less than 15 metres height is vested with the Divisional Officer, hence he issued the Fire NOC to the alleged building. In this regard Shri Arun Alphonse who was the Chairman of the Committee and Shri Gopa Kumar a member in the team were also questioned both of them stated that they had recommended for the issue of NOC to that building since it satisfied all the requirements in connection with the fire and safety arrangements. They also stated that the building is having a height of less than 15 meters.
13. Inspection of the alleged building by the Director (Admin) in Charge) Fire and Rescue Services:
In order to ascertain that there is any lapse in the issue of NOC to the alleged building. Director(Administration) Fire and Rescue Services Tinuvananthapuram was directed to inspect the alleged building and to verify that whether there is any lapse in the issue of NOC to the building in question. After conducting a inspection in the disputed building Shri R Prasad who is in Charge of Director (Admn) Fire & Rescue Services Headquarters Thiruvananthapuram submitted a report and the report read as follows:
"1 have conducted an inspection of a multi storied building named WP(C) No. 10818/2017 31 Indraprastha at Nedumangad on 23. 10.2013 and came in the following facts.
The height of the building measured is the vertical distance measured from the ground level to the terrace of the last livable floor of the building adjacent to the external wall. As such the height of the building is 14.92 meters as shown below:
(a) Height of the building from Basement to temace (above slab) - 16.58 m
(b) Height irom the Basement to Ground Floor - 03.04 Therefore the height of the building from the ground floor to terrace (above slab) - 13.54
c) Height from the ground level to ground floor - 01.38 m Therefore the total height of the building from ground level to terrace floor - 14.92 m ======= Therefore this building comes under Hotel category having height less than 15 metres and covered area exceeding 1000m2 in each floor. As such the Fire Fighting arrangements provided in this building is as per National building Code 2005 Part IV and in conformity with the height of the building. The fire fighting arrangements provided are tested by me and found working in satisfactory condition.
This rule is come into existence during 2005. Therefore there are no lapses in the issuance of fire NOC to that building in 2010". In this regard Shri R Prasad who conducted the site inspection was also questioned and he started that he had inspected the building and no lapse WP(C) No. 10818/2017 32 was found in fire safety arrangements installed in the building and he had measured the height of the building from the fire point of view and the same was found to be 14.92m. He also stated that there were no lapses in the issuance of fire NOC during 2010 and the same was in conformity with the existing rules. Regarding the difference in height of the building explanation was sought from him and he stated that he measured the height of the building as per the National Building Code 2005 Part IV and as per his measurement from the fire point of view the height of the buiging is 14.92 m. Fire and Rescue Services authorities are the ultimate authority to explain about the technical aspect of the fire and safety arrangements of a building. So that letter was given to the Director Administration, Fire and Rescue Services to examine the alleged building and to give a report regarding the inspection in the alleged matter. As per the report received from that end no lapse was noticed. Hence the report from the Fire and Rescue Services are to be relied upon and in this state allegation against the issuance of NOC from the fire and Rescue services to the alleged building could not be substantiated. Thus it is clear that the NOC issued from the fire and Rescue Services was in conformity with the Rules, hence no lapse was noticed in this regard in evidence.
14. Pending Writ Petitions As per the letter No.R3 7516/13 dtd 17-07-13 received from the Secretary Nedumangadu, Muniçapality it is revealed that W.P(C)s 27585/11, 34249/11, 16776/12, 586/12 were pending before the Hon'ble WP(C) No. 10818/2017 33 HIgh Court of Kerala regarding the alleged building. IV. The likelihood of the allegations being true and persons if any, who have prima facie committed the crime/irregularities. Discussions made in the foregoing paragraphs revealed that the building was regularised after a long legal process. As per the direction of the Hon'ble HIgh Court of Kerala in W.P.(C) 18134/09 then Chief Town Planner Shri. Eapen Varghese inspected the building three times and finally issued direction to the Secretary, Nedumangadu Municipality to take steps to regularise the Building as per Lr. No.6640 dtd 28. 12.2010. Alter the receipt of such a letter from the CTP, then Secretary Smt. Anuja after obtaining a report from the Municipal Engineer Shri Baburaj, regularised the building on 07-01-2011 as per order No TP/6087/06 dtd 07-01-2011. Before regularising the building No Objection Certificate from Fire and Rescue services was also obtained. Henee the allegation against then Secretary Smt. Anuja regarding the regularisation of the alleged building could not be substantiated in evidence. Then Chief Town Planner visits the site as per the direction of the Hon'ble High Court of Kerala and he had acts accordingly. Hence the allegation against the Chief Town Planner also found to be baseless. Moreover the Hon'ble Apex Court of the State in its judgement in W.P(C).No. 18134/09 dtd 8 th December 2009, had recorded its appreciation for the efficient efforts taken by the Chief Town Planner in the matter.
Regarding the allegation of NOC issued Irom the Fire and Rescue WP(C) No. 10818/2017 34 Services, a report from the Divisional Officer who is in Charge of the Director (Admn) after the site inspection was obtained, As per the report the NOC issued to the building was legal and no lapse was found in that regard, hence the allegation could not be substantiated in evidence. It is important to note that a number of petitions were filed before the Hon'ble High Court of Kerala and other legal forums against the modifications and rectifications of the alleged building out of which 4 petitions are pending before the Hon'ble High Court of Kerala. The regularisation of the building was also challenged belore Tribunal for Local Self Government Institutions, Thiruvananthapuram, Ombudsman for Local Self Government Institutions. Both the forums were dismissed the petitions. Some petitions were also filed before the Hon'ble High Court of Kerala and the same are pending before the Hon'ble Court. The petitioner in this CMP also filed a petition before the Hon'ble High Court of Kerala in the same subject matter on 17-07-2012 and afterwards he filed a similar petition before the Hon ble Court ol Enquiry Commissioner and Special Judge, Thiruvananthapuram during April, 2013.
Enquiry so far conducted revealed that the litigants in the petitions were changed frequently but the subject matter was remaining unaltered in the petitions. It is actually the fights between the two big guns in the Hotel field in Thiruvananthapuram.
In short the allegations mentioned in the petitions could not be WP(C) No. 10818/2017 35 substantiated in evidence, hene no action is recommended against the Counter petitioners mentioned in the petition. Moreover petitions in the same subject matter are pending before the HOn'ble HIgh Court of Kerala.
Recommendation
1. No action is recommended against the Counter petitioners since theallegations mentioned in the petitions could not be substantiated in evidence."
24. In sum and substance, the report states that the allegations made are baseless and without any foundation. Anyhow, we are not stating anything in relation to the report further, for the reason that the learned Senior Counsel for the petitioner submitted that further proceedings on the basis of the said report is pending consideration before the Special Judge. However, we make it clear that no such documents are produced before us. That apart, along with I.A. No. 1 of 2021, the order passed by the Tribunal for Local Self Government Institutions, Thiruvananthapuram in Appeal No. 72 of 2011 is produced. On a perusal of the same, it is seen that the appeal was filed by the Prabhulla Chandran Nair referred to by the petitioner in the writ petition challenging Ext.P8 order of regularisation and Ext. P9 occupancy WP(C) No. 10818/2017 36 certificate issued by the Secretary of the Municipality. After considering the entire pros and cons of the matter, the Tribunal has dismissed the appeal and the relevant portion of the same is to be extracted in order to understand the real intricacies of the issues considered thereunder:
"7. Points (i) and (ii) The 2nd respondent has a hotel building. With the idea of renovating and altering the same he filed application before the Nedumangad Municipality for a permit. He also had obtained exemption from the Government with respect to certain regulations.
8. While the construction was in progress a stop memo was issued which was challenged before the Hon'ble High Court of Kerala and the order of stop memo was set aside. For making certain additions another application for permit was put in. As there was no response to the same the 2 nd respondent filed a reference and since there was no response he started construction on the ground of a deemed permit. At that time the 1st respondent issued proceedings under Section 406 of the Kerala Municipality Act which was challenged before this Tribunal and the said challenge was upheld and the Appeal was allowed. The 2nd respondent also filed an appeal before this Tribunal for declaring deemed permit which also was allowed. These two orders were challenged before the Hon'ble High Court of Kerala by the 1st respondent by following W.P.(C) No. 18134/2009. The said order of the Hon'ble High Court of Kerala is found on pages 269 to 280. The Hon'ble High Court of Kerala passed the following:
"Taking the aforesaid into consideration, it is directed that as and when the petitioner carried out the rectifications in terms of G.O.(Rt.) No. 3011/2007/LSGD dated 05.1.2007, he may notify about such completion to WP(C) No. 10818/2017 37 the Chief Town Planner and to the Secretary of the petitioner Municipalit. The Chief Town Planner will then ensure that an inspection is again made to certify whether all rectifications in terms of the aforesaid Government Order have been carried out. If the Chief Town Planner is satisfied that such rectifications have been done, a certificate in that regard would be issued by him, following which, the Municipality will do the needful to regularise the construction."
9. It appears the Chief Town Planner has conducted an inspection and filed a report. The report dated 28.12.2010 of the Chief Town Planner is document No. 8 produced by the appellant. The Chief Town Planner said that as per the direction of the Hon'be High Court of Kerala in W.P.(C) No. 18134/2009 inspection was done thrice and it was found that the unauthorised construction has already been demolished and the construction now is in accordance with the Kerala Municipality Building Rules. Basing on this report only the Secretary has issued the occupancy certificate.
10. The Appellant has got a contention that the building in question is a high rise building and therefore under Rule 117 of the Kerala Municipality Building Rules a motorable space of 5 meters ought to have been provided all around the building. It is also contended by him that under the approved plan there is no cellar floor and giving of occupancy. Including a cellar floor is incorrect. He would say that there is no motorable space all around the building having a width of 5 meters. Document No. 2 produced by the Appellant is the original approved plan in respect of the building of the 2nd Respondent. The same shows from the ground level the height of the building is 16.60 meters. A high rise building is defined under Rule 110 of the Kerala Municipality Building Rules, as a building having more than 4 floors and or 15 metres of height. Under Rule 2(aq) height of building means the vertical distance measured from the average level of the ground contiguous to the building. The height of 16.60 metres is shown WP(C) No. 10818/2017 38 in the plan already referred by me as calculated vertically from the ground level.
11. The 2nd respondent applied for a revised permit along with a revised plan. In the said revised plan the height of the building has been shown as below 15 meters. The ground floor mentioned in the original plan was converted as the cellar floor or basement floor and including the said cellar floor there are 4 floors. The height also has been reduced to less than 15 meters. If so, the report of the Chief Town Planner which I have already referred would indicate that the construction is in accordance with this plan. It would indicate that the respondent has re-submitted the plan and constructed the building reducing the height and making a cellar floor. Hence the building has escaped from the mandate of Rule 117 of the Kerala Municipality Building Rules. In that view basing on document 2 produced along with the appeal done, the appellant cannot say that the building is a high rise building and there is violation of Rule 117 of the Kerala Municipality Building Rules.
12. No other violation has been highlighted by the appellant.
13. In view of the discussion made above, I find that the present order has been passed only in accordance with the statutory requirements and directions of the Hon'ble High Court of Kerala, as also basing on the Chief Town Planner's report. The said order does not warrant any interference by this Court. In the result, the appeal is dismissed."
25. Therefore, according to respondents 5 and 6, the entire subject matter now raised in this writ petition was considered by a competent Tribunal, which cannot be reopened by filing a Public Interest Litigation. So also, it is relevant to note that Ext. P6(a) order of the Chief Town WP(C) No. 10818/2017 39 Planner granting permission to the Municipal Secretary to take steps for regularising the construction of the building is not under challenge at all.
26. We have evaluated the rival submissions made across the Bar. Section 110 of Rules, 1999 deals with 'high rise building' and the original Rule was substituted as per SRO No. 18/2013 with effect from 05.02.2013 and after the amendment, it reads thus:
"110. High rise building.- For the purposes of this Chapter, "high rise building" means a building having a height of 16 meters or more."
27. However, the subject matter of the issue raised in this writ petition has arisen prior to the amendment and the provision, as it originally stood, reads thus:
"110. High rise building:-- For the purpose of this chapter 'high rise building' means a building having more than 4 floors and or 15 meters of height."
28. It is an admitted fact that in Ext. P4 report of the Advocate Commissioner appointed by this Court and Ext. P10 communication of the Station Officer of the Fire and Safety Office, Nedumangad, the height of the building is shown as 16.60 meters. It is also an admitted fact that, the question with respect to the violation of the Rules was the subject matter of consideration by the Tribunal for Local Self Government WP(C) No. 10818/2017 40 Institutions and the Vigilance Department and it was found that the building in question has not violated any of the provisions of the Rules, 1999 and the height of the building is less than 15 meters. As far as a high rise building is concerned, it has to undergo special requirements over and above the other provisions of the Rules, 1999. In order to understand the implications of the height of the building, relevant provisions of the Rules, 1999 are liable to be discussed. Rule 2 (aq) defines 'height of building' which reads thus:
(aq) 'height of building' means the vertical distance measured from the average level of the centre line of the adjoining street in the case where the plot abuts the street and the average level of the adjoining ground in all other cases."
It is important to note, Rule 2(aq), as it originally existed, reads thus:
"Means the vertical distance measured from the lowest point of the building touching the ground surface and if any of the floor comes below the ground surface, from the lowest floor level."
29. Therefore, it is quite clear and evident that the height of the building was to be calculated from the lowest point of the building touching the ground surface and if any of the floor comes below the ground surface, from the lowest floor level. However, after the amendment and which existed at the time of consideration of the WP(C) No. 10818/2017 41 regularisation of the building, the height was liable to be measured from the average level of the adjoining street, in case where the plot abuts the street and the average level of the adjoining ground in all other cases. Which thus means, the measurement of the height of the building from the lowest floor level, if the floor comes below the floor surface was given a go bye as per the amendment made in accordance with SRO No. 170/2001 with effect from 22.02.2001. Viewed in that circumstances, it is unequivocal and clear that the petitioner is not having a case that after measuring in accordance with the amended provisions as extracted above, the height of the building exceeded 15 meters as it was then, for applying the Special Rules to the high rise buildings in contemplation of the Rule 110 and other consequential provisions of Chapter XVII of Rules, 1999. This would further be substantiated by making a reference to Rule 32 of the Rules, 1999, which reads thus:
"32. Height of buildings.-(1) The Maximum height of any building or part thereof shall be limited according to the width of the street as follows:-
(a) The maximum height of the building or part thereof shall not exceed twice the width of the street abutting the plot plus 2 times the width of the yard from the building to the abutting street and this height may further be increased proportionately at the rate of 3 metres for every 50 cms. by which the building or the corresponding portion or floor of the building is set back WP(C) No. 10818/2017 42 from the building line;
(b) If a building plot abuts on two or more streets of different width, the building plot shall be deemed to abut the street that has the greater width for the purposes of this rule and the height of the building shall be regulated by the width of that street and shall be continued at this height along the narrower street:
Provided that the height restriction as per this rule shall be compulsory only for buildings or part of building coming within 12 metres of building line:
Provided further that appurtenant roof structures like staircase tower over head tanks, air conditioning rooms, lift rooms, cellular telecommunication equipment or tower structures, cabin rooms, chimneys, parapet walls and similar roof structures other than pent houses shall not be included in the height of the building for the purpose of this rule:
Provided also that architectural features serving no other function except that of decoration shall not be included in the height of the building for the purpose of this rule.
(2) For buildings, structures and installations in the vicinity of airports the stipulations with regard to height shall be further limited subject to any notification as may be issued by the Government of India under the Aircrafts Act, 1934.
(3) In the case of construction or reconstruction of buildings or alteration or addition to existing buildings within any Security Zone, the overall height of building upto its topmost point shall not exceed 10 meters or as specified by the District Collector as per sub-Rule (6B) of Rule 5 and/or sub-Rule (6B) of Rule 7, whichever is less.
Provided that, if the overall height of any existing WP(C) No. 10818/2017 43 building in the Security Zone is 10 meters or more upto its topmost point, further vertical extension of that building shall not be permitted.
Provided further that the height of building shall be measured from the average level of ground contiguous to the building."
30. It is also relevant to note that the said provision was also introduced as per SRO No. 170/2001 with effect from 22.02.2001. The second proviso to sub-Rule (3) makes it clear that the height of the building shall be measured from the average level of ground contiguous to the building. The term 'contiguous' is not defined either under the Rules, 1999 or under the Act, 1994. The dictionary meaning of the term 'contiguous' provided in the Chambers 20 th Dictionary Deluxe Edition is as under:
" touching, adjoining; near; next;"
31. That apart, Rule 42 dealing with "fire escape staircase' is relevant, which reads thus:
"42. Fire escape staircase.- Fire escape stair case shall be provided for every buildings of,-
(a) residential occupancies exceeding three storeys above ground level;
(b) occupancies other than residential exceeding two storeys above ground level.
xxxxxxxxxxxxxxxxxxxx"
WP(C) No. 10818/2017 44
32. On a reading of the same, it is evident that fire escape stair case shall be provided for every buildings of residential occupancies exceeding three storeys above the ground level and occupancies other than residential exceeding two storeys above the ground level. The connotation 'above ground level' is very significant in the case on hand, because even according to the petitioner, the height of the building exceeds 15 meters only when it is measured from the basement floor, which is the lowest floor of the building in question. Yet another aspect arises in that regard is sub-Rule (3j) of Rule 56 dealing with 'Group F occupancy', as it originally stood, reads thus:
"(3j) In the case of mercantile commercial occupancy buildings other than parking buildings exceeding two floors from ground level a certificate of approval from the Director of Fire Force or an officer authorised by him in this behalf shall be produced for obtaining building permit;"
33. However, the said Rule has undergone a change only in the year 2017 consequent to the introduction of G.O(P) No. 82/2017. Thus, on a combined appreciation of the above said provisions, it can clearly be seen that the contentions put forth by the petitioner that the height of the building is to be calculated from the basement/cellar floor is baseless and unfounded. It was bearing in mind the said provisions alone, the Tribunal for Local Self Government Institutions has arrived at the WP(C) No. 10818/2017 45 conclusion that the building is not exceeding the height of 15 meters and therefore, the special provisions of Chapter XVII of the Rules, 1999 dealing with 'safety provisions for high rise buildings' would not be applicable.
34. We do not find any illegality or irrationality in the order passed by the Tribunal even assuming that a Public Interest Litigant is entitled to canvass for the proposition that the order passed by the Tribunal would not form as res judicata. We are also not inclined to consider the issues applying the principles of res judicata, since W.P.(C) No. 27585 of 2011 filed by yet another K. Somasekharan Nair, Ex. MLA, was closed as per Ext. P1 judgment of a learned Division Bench dated 25.01.2017 consequent to his death, leaving open the points raised in the Public Interest Litigation to be raised by filing another writ petition.
35. Various other contentions were also raised by the petitioner in respect of the alterations made in the building and making the rooms more spacious. We do not think, petitioner was entitled to make any legally sustainable case in that regard, because Rule 10 of Rules, 1999 permits certain works without securing any permit under the Rules, which includes (i) providing or removing of windows or doors or ventilators (iii) providing or removing of partitions (vii) petty repairs to WP(C) No. 10818/2017 46 the building and pitched roof (viii) plastering and patch work and (ix) interior decoration without any structural alterations etc. by obliging certain conditions contained thereunder.
36. Moreover, the Secretary of the Municipality, at the stage of the regularisation of the building as per Ext.P8 order and issuance of occupancy, had occasion to consider those aspects and it can only be legally presumed that the Secretary has exercised the powers in accordance with law, being an official act protected under Section 114 of the Evidence Act. Therefore, the factual and legal presumptions available in favour of the official acts as per the orders referred to above were bound to be rebutted by the petitioner by adducing satisfactory evidence in the writ petition, especially due to the fact that the factual and illegal circumstances attributed by the petitioner against the owner of the building were considered by various fact finding bodies and rendered favourable decisions to the owner, as discussed above. To put it plainly, no such efforts were made by the petitioner.
37. So also, Rule 30 speaks about the occupancy of buildings and the buildings are categorised in accordance with the occupancy, and Group A1, Group A2 and continuously upto Group I(1) and Group I (2) are prescribed. It is an admitted fact that the building in question is WP(C) No. 10818/2017 47 categorised as Group F, which reads thus:
"(g) Group F. - Mercantile or commercial building shall include any building or part of a building which is used for display and sale of merchandise such as shops, stores, markets, either wholesale or retail.
Banking and financial institutions, public and private business houses, professional establishment of doctors, dentist, engineers, architects, lawyers, pathological laboratories, tailor shops, video shops, barbershop, beauty parlors, news stands, milk booths, restaurants and non-nuisance type of small establishment like armature winding shops using power motor or machine of capacity not exceeding 3 horse power are included in this group. Further, buildings or part of buildings used exclusively for parking of vehicles (parking buildings, parking plazas etc.) are also included in this group."
38. The petitioner is not having any specific case that the requirements as is provided under the Rules, 1999 for Group F buildings are not complied with by the owner. Thinking so, it is clear that the findings of the Chief Town Planner in Ext.P6(a), Ext.P7 NOC issued by the Divisional Officer of the Fire and Rescue Services, the order passed by the Secretary of the Municipality regularising the construction of the building as per Ext. P8 and occupancy certificate issued as per Ext. P9 WP(C) No. 10818/2017 48 are illegal or bad as is claimed by the petitioner. The discussed circumstances would also prove that the findings rendered by the Advocate Commissioner that the building exceeds the height of 15 meters is not at all legalistic also, in view of the fact that the measurement was taken from the cellar floor. It would also prove that the measurement given as 16.60 meters by the Station Officer of the Fire and Safety as per Ext. P10 is also not correct, though the methodology adopted to carry out the measurement is not specified thereunder. This we say because, after measurement of the height from the cellar floor alone, the Advocate Commissioner has reported the height as 16.60 meters, which would tally with the measurement specified by the Fire Officer in Ext. P10 and therefore, it can only be presumed that the measurement was taken by the Station Officer from the cellar floor. The factual and legal circumstances would also show that consequent to the change of the use of the building, none of the rules of Rules, 1999 is violated by the owner of the building, nor any such contentions are raised pinpointedly, except stating that due to the said reason rules are violated. At this juncture, it is only appropriate to say that the Rules, 1999 are absolutely of technical nature in regard to building construction, and therefore until and otherwise it is established WP(C) No. 10818/2017 49 that any of the rule or rules has any sort of technical flaw, it will not be proper for a writ court to sit over the rules and hold it or them astray.
39. We are also of the view that the Secretary has regularised the construction in accordance with the powers conferred under the proviso to Section 406(1) of the Act, 1994 r/w Rule 143 of the Rules, 1999, whereby the Secretary is empowered to regularise any construction commenced, being carried on or completed without approved plan or in deviation of the approved plan, provided that the construction shall not be in violation of the provisions of the Act or the Rules. That apart, the Tribunal for Local Self Government Institutions, had considered the matter of regularisation of the construction and issuance of occupancy certificate by the Secretary, by virtue of the powers conferred under Rule 160 of Rules, 1999, and the Tribunal was vested with all powers to re- appreciate the matter in regard to the regularisation of construction or reconstruction or alteration of building and therefore, it it can only be legally presumed that the order passed by it is in accordance with law.
40. Thus, to conclude we have no hesitation to hold that the petitioner has not made out any case of arbitrariness or illegality as is alleged in the writ petition so as to exercise the discretionary power conferred under Article 226 of the Constitution of India. Needless to say, WP(C) No. 10818/2017 50 the writ petition fails, and accordingly it is dismissed.
However, we make it clear that the issue with respect to the classification of the hotel in question is left open, since we are informed that a writ petition in that regard is pending consideration before a learned Single Judge.
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S. MANIKUMAR, CHIEF JUSTICE.
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SHAJI P. CHALY, JUDGE Rv WP(C) No. 10818/2017 51 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF JUDGMENT IN WPCNO 27585/2011 DTD 25/1/2017 OF THIS HONOURABLE COURT.
EXHIBIT P2 TRUE COPY OF PEPER REPORT APPEARED IN MALAYALA MANORAMA DAILY DTD 30/7/2011 WITH ENGLISH TRANSLATION.
EXHIBIT P3 TRUE COPY OF GOVERNMENT ORDER
GO(RT)NO.3011/2007/LSGD DTD 5/11/2007
EXHIBIT P4 TRUE COPY OF REPORT SUBMITTED BY THE ADVOCATE
COMMISSIONER.
EXHIBIT P5 TRUE COPY OF JUDGMENT IN WPC NO 18134/2009 DTD
8/12/2009 OF THIS HONOURABLE COURT.
EXHIBIT P6 TRUE COPY OF REORT DTD 5/10/2010.
EXHIBIT P6(A) TRUE COPY OF NOC DTD 28/12/2010 ISSUED BY THE 2ND
RESPONDENT WITH ENGLISH TRANSLATION
EXHIBIT P7 TRUE COPY OF CLEARANCE CERTIFICATE ISSUED BY THE
4TH RESPONDENT NO. B1 6179/10 DTD 30/10/2010.
EXHIBIT P8 TRUE COPY OF REGULARIZATION ORDER NO. T P1
6087/06/VOL II DTD 7/1/2011 OF IST RESPONDENT.
EXHIBIT P9 TRUE COPY OF OCCUPANCY CERTIFICATE DTD 12/1/2011 WITH ENGLISH TRANSLATION.
EXHIBIT P10 TRUE COPY OF LETTER ISSUED BY THE NEW INCUMBENT 4TH RESPONDENT DTD 20/8/2015 WITH ENGLISH TRANSLATION.
EXHIBIT P11 TRUE COPY OF ORDER IN CRIMINAL MP 426/2013 DTD 5/6/2013 OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM.
EXHIBIT P12 TRUE COPY OF CLASSIFICATION LETTER NO 12- WP(C) No. 10818/2017 52 HRACC(12)/12 DTD 23/7/2012.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R5(A) TRUE PHOTOCOPY OF THE FINAL REPORT IN CRL.MP NO 426/2013 SUBMITTED BEFORE THE HON'BLE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM /True Copy/ PS To Judge.
rv