Kerala High Court
The Chief Town Planner And Member ... vs Kingsden Hospitality Private Limited on 24 February, 2022
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
W.A. No. 1917/2018 :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 24TH DAY OF FEBRUARY 2022 / 5TH PHALGUNA, 1943
WA NO. 1917 OF 2018
JUDGMENT DATED 12.04.2017 IN WP(C) 35126/2015 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENT NOS. 1, 4, 6 & 7 IN WPC:
1 THE CHIEF TOWN PLANNER AND MEMBER SECRETARY
ARTS AND HERITAGE COMMISSION, OFFICE OF THE CHIEF TOWN
PLANNER, SWARAJ BHAVAN, NANTHANKODE,
THIRUVANANTHAPURAM 695 003.
2 THE DIVISIONAL OFFICER,
DIVISION OFFICE, FIRE AND RESCUE SERVICES,
ERNAKULAM-682 020.
3 STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO THE LOCAL SELF GOVERNMENT
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.
4 THE ART AND HERITAGE COMMISSION
REPRESENTED BY ITS CHAIRMAN OFFICE OF THE SECRETARY TO THE
URBAN DEVELOPMENT, LOCAL SELF, GOVERNMENT DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
BY ADV SRI. TEK CHAND, SR. GOVERNMENT PLEADER
RESPONDENTS/PETITIONER & RESPONDENT NOS. 2,3 & 5 IN W.P.(C):
1 KINGSDEN HOSPITALITY PRIVATE LIMITED
MATTAMEL HOUSE, TRIPUNITHURA, EROOR POST, KOCHI 682306,
REPRESENTED BY ITS DIRECTOR MR.MICHAEL M.JOSEPH.
2 KOCHI MUNICIPAL CORPORATION,
CORPORATION OFFICE, SHANMUGHAM ROAD, ERNAKULAM,
KOCHI-682 011, REPRESENTED BY ITS SECRETARY.
3 THE ASSISTANT EXECUTIVE ENGINEER,
KOCHI MUNICIPAL CORPORATION (ZONAL OFFICE), FORT KOCHI,
W.A. No. 1917/2018 :2:
KOCHI-682 601.
4 THE CHIEF ENVIRONMENTAL ENGINEER, KERALA
STATE POLLUTION CONTROL BOARD, PATTOM,
THIRUVANANTHAPURAM-695 004.
R1 BY BY ADV SMT.SUMATHY DANDAPANI,SENIOR ADVOCATE (B/O)
R2 & R3 BY SRI. K. ANAND, SC
R4 BY SRI. T. NAVEEN, SC
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24.02.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. No. 1917/2018 :3:
Dated this the 24th day of February, 2022.
JUDGMENT
S. MANIKUMAR,CJ.
Challenging the judgment dated 12.04.2017 in W.P.(C) No. 35126 of 2015, this appeal is filed by the Chief Town Planner and Member Secretary, Arts and Heritage Commission, Thiruvananthapuram, the Divisional Officer, Fire and Rescue Services, Ernakulam, State of Kerala represented by its Secretary to the Local Self Government Department, Art & Heritage Commission represented by its Chairman, respondents 1, 4, 6 & 7 in the writ petition.
2. Before the writ court, the first respondent/writ petitioner sought for the following reliefs:
1. Call for the records leading to Ext. P4, Ext. P5 and Ext. P18 by issuing a writ of certiorari and quash the same that it adversely affect the petitioner.
2. Issue a writ of mandamus or any other writ, order or direction directing the respondents to consider the revised plan submitted by the petitioner on the basis of Ext. P7 consent issued by the 5th respondent.
3. Issue a writ of mandamus or any other writ, order or direction directing the 2nd respondent to reconsider W.A. No. 1917/2018 :4: the revised plan submitted by the petitioner in a positive manner after considering the violations mentioned in Ext. P5 order, based on the principles laid down in the decision in Padmini v. State of Kerala [1999 (3) KLT 465]
4. Issue a writ of mandamus or any other writ, order or direction directing the 2nd respondent to reconsider the revised plan submitted by the petitioner after reconsidering Ext. P19 explanations with regard to the irregularities committed by the petitioner while effecting the construction, which are enumerated in Ext. P5 order.
3. Ext. P4 dated 21.03.2015 is the communication of the Senior Town Planner, Ernakulam to the Secretary, Corporation of Kochi, respondent No.2 herein, informing the latter, that since the construction of the building has been completed without obtaining the concurrence of the Art and Heritage Commission, the approval of lay out cannot be granted. Ext. P5 dated 20.05.2015 is the proceedings of the Secretary of the Corporation of Kochi, respondent No.2 initiated against the first respondent for unauthorised construction. Exts.P4 and P5 read thus: W.A. No. 1917/2018 :5: W.A. No. 1917/2018 :6: W.A. No. 1917/2018 :7: W.A. No. 1917/2018 :8: W.A. No. 1917/2018 :9: W.A. No. 1917/2018 : 10 :
4. Ext. P18 is the provisional order issued under Section 406(1) of the Kerala Municipality Act, 1994 ('Act, 1994' for short) calling upon the first respondent, to demolish the unauthorised construction exceeding the ground + 2 floors, for which alone permit was granted by the Secretary of the Kochi Corporation. Ext. P18 is reproduced hereunder:
"FcP1//413/14 Dated 22.05.2015 PROVISIONAL ORDER UNDER SECTION 406(1) OF THE KERALA MUNICIPALITY ACT, 1994 Whereas the undersigned is satisfied that Sri./Smt. M. J. Thomas, Managing Director, M/s. Kingsden Hospitality Pvt. Ltd. residing at House No................ has put up a three storied building violating approved plan and permit without obtaining the necessary permission from the Executive Authority. The said Sri./Smt. M.J. Thomas, Managing Director, M/s. Kingsden Hospitality Pvt. Ltd. is hereby required to demolish the unlawful work done and to show cause why this provisional order should not be confirmed and why the unlawful work done should not be demolished by the Corporation at his/her cost. Time confirm the order is stated in the notice annexed.
sd/ Secretary.
To,
M.J. Thomas,
Mg. Director,
M/s. Kingsden Hospitality, Fortcochin
Ref: Fcp1/413/14 Corporation of Cochin,
W.A. No. 1917/2018 : 11 :
P.B No. 1086, Ernakulam
22.05.2015
NOTICE
Sub: Unauthorized Construction
Action Taken regarding
Ref: Provisional Order under Section 4016(1) of the Kerala Municipality Act, 1994.
Sri./Smt. M. J. Thomas, Managing Director, M/s. Kingsden Hospitality Pvt. Ltd. is required to show cause within 10 days why the provisional order issued under Section 406(1) (therewith attached) should not be confirmed.
sd/ Secretary.
To, M.J. Thomas, Mg. Director, M/s. Kingsden Hospitality, Fortcochin"
5. Even though a specific contention was raised by the Government that the construction in the said area requires a prior permission from the Art and Heritage Commission, appellant No.4, and therefore, there is no manifest error in Exts. P4, P5 and P18 impugned in the writ petition, after adverting to the rival submissions, writ court, vide judgment dated 12 th April, 2017 in W.P.(C) No. 35126 of 2015, declined to accept the contentions advanced by the appellants and consequently, held that the first respondent would be entitled to construct as per the original W.A. No. 1917/2018 : 12 : building plan, subject to the acquisition to be done by the Corporation in future.
6. Writ court further directed that the application of the first respondent for revision of his plan be considered without reference to the above objection and in terms of the observations made in the judgment.
7. Relevant portion of the judgment dealing with the above issue is extracted hereunder:
"6. The issue, however, that grips my consideration in this writ petition is whether the petitioner requires the permission from the Art and Heritage Commission. I see that the Art and Heritage Commission is one that is constituted under Chapter XXII of the Kerala Municipality Building Rules, 1999 [for brevity, the Rules]. Under the provisions of this Chapter, the Government has to constitute such a Commission and that the Commission is to identify areas of Heritage and of architectural importance and also to identify places, trades, buildings etc. to be preserved and protected. However, the Chapter does not say in any manner expressly that a construction has to obtain prior approval from it. The provisions are only impliedly mentioning that the Commission may have the power to recommend or to decline developments, uses and constructions in the areas identified or advised by the Commission as having heritage value. Under all these provisions, it will be only to incumbent upon the persons, who intends to construct, to approach the Corporation which will then have to get W.A. No. 1917/2018 : 13 : the view of the Commission, if such construction is proposed in an area identified by the Commission as being a heritage area.
7. In the case at hand, I see that on the basis of an interim order of this Court an additional Counter Affidavit has been filed by the Corporation, where they say that the petitioner's construction is more than 503.65 meters away from an heritage area or a protected monument at Fort Kochi. They, therefore, say that the construction of the petitioner is beyond the restricted and prohibited area. However, ironically even after saying so, they say that the permission of the Art and Heritage Commission is required to be obtained. I do not know how the corporation can maintain this contention since it has been found that the petitioner's construction is beyond the restricted and prohibited area. Even the provisions of Rule 154 in Chapter XXII of the Rules, the jurisdiction of the Commission could be invited or involved only if the construction comes within an area, which is declared by the Commission to be an heritage area. The petitioner's construction, having been found to be much beyond such an area, the permission of the Art and Heritage Commission, obviously, is not required to be taken or applied for.
8. In such view of the matter, I have no hesitation in ordering this writ petition, quashing Ext.P5 to the extent to which the petitioner is directed to obtain the permission of the Art and Heritage Commission. However with respect to the other deficiencies shown therein relating to the petitioner's construction, it would be up to the petitioner to apply appropriately under the terms of the various applicable Rules, Regulations and Statutes for W.A. No. 1917/2018 : 14 : its rectification, as also to produce such consent and permissions, which are requisite under the terms of the Building Rules for variation of their building permit or renewal of the same.
9. The learned Senior Counsel for the petitioner at this point of time asserts that the 4 th objection in Ext.P5 raised against the petitioner, that they have constructed without leaving the requisite open space is concerned, that objection is based on the proposal of the Corporation to cause acquisition of land in future. She, therefore, says that merely because the Corporation intends to cause acquisition in the future, the petitioner cannot be burdened with the obligation to leave open space anticipating such acquisition. These issues have already been considered by this court in several judgments. It has been declared that merely because an acquisition is proposed, fetters cannot be placed on the right of the owners of the property with respect to enjoyment unless such restrictions are as mandated under the Rules. In the case at hand, there is no such acquisition that is now being conducted and therefore, the petitioner would be entitled to construct as per the original building plan, subject to any such acquisition to be done by the Corporation in future. The application of the petitioner for revision of his plan would obviously be considered without reference to this objection and in terms of my observations above.
This writ petition is thus ordered as above. In the peculiar facts and circumstances of this case, I make no order as to costs and I direct the parties to suffer their respective costs."
8. Being aggrieved, instant appeal is filed on the grounds inter alia that as per the varied zoning regulations of the sanctioned W.A. No. 1917/2018 : 15 : structure plan (sanctioned vide G.O.(Ms.) No. 143/07/LSGD dated 31.05.2007), no development, re-development, construction, including additions, alterations, repairs, renovations, replacement of special and architectural features, demolition of any part or whole thereof in respect of any objects or buildings in that area is permissible, except with the prior written recommendation of the Art and Heritage Commission constituted by the Government under Rule 154 of the Kerala Municipality Building Rules, 1999 ('Rules, 1999' for short).
9. Impugned judgment is also assailed on the ground that as per Rule 3A of the Rules, 1999, the provisions or regulations in any Town Planning Scheme in force under the Town Planning Act shall prevail over the respective provisions of the Rules, 1999, wherever such schemes exist.
10. Reference has also been made to Section 113 of the Kerala Town and Country Planning Act, 2016, which reads thus:
113. Repeal and saving.--(1) With effect on and from the commencement of this Act, the Town Planning Act, 1108 ME (Act IV of 1108 ME), the Travancore Town and Country Planning Act, 1120 (Act XXI of 1120 ME), the Madras Town Planning Act, 1920 (Madras Act VII of 1920) and the Kerala Town and Country Planning Ordinance, 2016 (4 of 2016) shall stand repealed.W.A. No. 1917/2018 : 16 :
(2) Notwithstanding such repeal,--
(i) any draft General Town Planning Scheme for an area including Master Plan or Development Plan or a draft Detailed Town Planning Scheme published under the repealed Acts shall be deemed to be a draft Master Plan or a draft Detailed Town Planning Scheme, as the case may be, published under this Act;
(ii) any General Town Planning Scheme for an area including Master Plan or Development Plan or a Detailed Town Planning Scheme sanctioned under the repealed Acts shall be deemed to be a Master Plan or a Detailed Town Planning Scheme, as the case may be, sanctioned under this Act;
(iii) any appointment, rules, bye-laws, regulations or forms made, notifications, notice, order, scheme or direction issued, tax, fee, fine or other penalty imposed, license, permission or exemption granted or plans prepared under the repealed enactments and in force at such commencement, shall in so far as they are not inconsistent with the provisions of this Act, continue to be in force as if made, issued, imposed or granted, as the case may be, under the provisions of this Act, until superseded, amended or modified by any appointment, rules, by-laws or regulations, notifications, notice, order, scheme, direction, tax, fee, fine or other penalty, license, permission or exemption made, issued, imposed, or granted or plans prepared, as the case may be, under this Act;
(iv) the Committees in office at the commencement of this Act appointed by the Government to exercise the powers and perform the functions under the repealed Acts shall continue as if it were Committees constituted under the said Acts, till corresponding W.A. No. 1917/2018 : 17 : Committees are constituted under this Act or they are dissolved by the Government, whichever occurs earlier;
(v) any tax, cess, fee, fine, surcharge or other amount due to the Government, the Development Authorities or the Local Self Government Institutions at such commencement shall, without prejudice to any action already taken under the repealed enactments, be recoverable under this Act in accordance with the provisions therein as if they were due under the provisions of this Act;
(vi) all contracts entered into and all instruments executed under the repealed Acts shall be deemed to have been entered into or executed under this Act;
(vii) in all suits and legal proceedings pending at such commencement in which the officers of the Town and Country Planning Department are parties the corresponding officers under this Act shall be deemed to have been substituted;
(viii) the officers and employees in the service of the department of Town and Country Planning in office at such commencement shall be deemed to have been transferred to the services of the corresponding department constituted under this Act;
(ix) any Development Authority constituted under the repealed enactments and in office at such commencement shall be deemed to be a Development Authority constituted under this Act. Such Development Authorities shall continue in office till such time as the Government may, by notification in the Official Gazette, constitute Development Authorities under this Act. (3) Notwithstanding the repeal of the Kerala Town and Country W.A. No. 1917/2018 : 18 : Planning Ordinance, 2016 (4 of 2016) anything done or deemed to have been done or any action taken or deemed to have been taken under the said Ordinance shall be deemed to have been done or taken under this Act. (4) Notwithstanding anything contained in this Act, (4) Notwithstanding anything contained in this Act, no person alleged to have committed an offence, during the period from the 21st day of July, 2015 to the 17th day of September, 2015 is liable to be convicted under this Act."
11. Impugned judgment is also assailed on the ground that the Art and Heritage Commission has already been constituted by the Government under Rule 154 of the Rules, 1999 in order to conserve the heritage character of the area; finding of the learned single Judge that no such area has been notified by the said Commission and therefore, there is no requirement to obtain prior permission is erroneous, for the reason that the area has already been included in the zoning regulations of the structural plan vide G.O. (Ms.) No. 143/07/LSGD dated 31.05.2007.
12. The Chief Town Planner and Member Secretary, Art and Heritage Commission, Thiruvananthapuram, has filed a counter affidavit in the writ petition, relevant portion of which reads thus:
"3. It is submitted that Rule 3A of the Kerala Municipality Building Rules, 1999 stipulates that "notwithstanding anything W.A. No. 1917/2018 : 19 : in these rules provisions or regulations in any Town Planning Scheme in force under Town Planning Acts shall pevail over the respective provisions of these rules wherever such scheme exist." The proposed site covered by Exhibit P6 plan falls under the Conservation Zone in the sanctioned Structure Plan (General Town Planning scheme) for Central City Kochi. As per the varied zoning regulations of the sanctioned Structure Plan (sanctioned vide G.O.(Ms.) No. 143/07/LSGD dated 31.05.2007) in this zone no development, redevelopment, construction, including additions, alterations, repairs, renovations, replacement of special and architectural features, demolition of any part or whole thereof in respect of any objects or buildings in this area shall be allowed, except with the prior written recommendation of the Art and Heritage Commission constituted by the Government under Rule 154 of the Kerala Municipality Building Rules, 1999, in order to conserve the heritage character of the area. The zoning regulation also stipulates that the Art and Heritage Commission if found necessary may entrust the above regulatory aspects to committee(s) constituted for the purpose by the Commission.
4. It is submitted that as per rule 154, Government have already constituted the Art and Heritage Commission vide G.O.Ms. No. 111/2000/LSGD dated 19.04.2000. The Chief Town Planner is the Member Secretary of the Commission. As per the recommendation of the Commission, an Art and Heritage Committee has been constituted comprising of Member Secretary of the Commission as Convener and Director W.A. No. 1917/2018 : 20 : Department of Archeology, Chief Architect PWD and a Conservation Architect as members for rendering recommendations/advice on behalf of the Commission on architectural character of the facade and heritage conservation on individual applications. In the case of Conservation zone in Kochi a Sub Committee has also been constituted with Senior Town Planner, Ernakulam as convener with K.J Sohan, INTACH and the representative of Department of Archaeology as other members.
5. It is submitted that the application forwarded by the Secretary, Kochi Corporation (Lr. No. FCP1-314/12 dated 03.04.2014) through the Senior Town Planner, Ernakulam was considered in the meeting of the Committee of Art & Heritage Commission held on 20.02.2015 and was rejected, since the construction has almost been completed without the concurrence of the Art & Heritage Committee. The applicant submitted an appeal petition to Government and the Government directed to hear the applicant in the Art & Heritage Committee. The exiting sub-committee constructed by the Art & Heritage Commission for rendering advices on individual applications/appeals convened by the Senior Town Planner, Ernakulam recommends only Ground +2 floors. This building has five floors including mezzanine floor. As per rule 35(1) of KMBR, 1999 the area of mezzanine floor shall not exceed 1/3rd of the area of the main floor or room accommodating the mezzanine floor. The ground floor area of the said building is 738.84m2 & the mezzanine for area constructed was 520.69 m2. As per the rules the W.A. No. 1917/2018 : 21 : permissible area of the mezzanine floor is only 246.28 m2. Hence, this cannot be considered as mezzanine floor & the construction violates the restriction of number of floors. As per the direction of the Government the committee heard the applicant in the meeting held on 19.05.2015. In the declaration submitted by the applicant at the time of hearing it is mentioned that permit was obtained for construction of a 3 storeyed building having an area of 728.19 m2 (Permit No. FCP1- 314/12). The committee discussed the matter in detail. The permit was obtained for G +2 floors only and they constructed five floors. The permit was also issued without obtaining concurrence from the Art & Heritage Committee. In these circumstances, committee decided "not to grant concurrence" for the construction. The permit was obtained for G +2 floors only. But, the applicant constructed five floors without obtaining revised permit. The initial permit was also issued without obtaining concurrence from the Art & Heritage Committee. As per the sanctioned structure Plan (General Town Planning Scheme) for Central City Kochi the road in front of the applicant property is proposed to be widened as 22m.
7. It is submitted that the existing sub-committee constituted by the Art & Heritage Commission for rendering advices on individual applications/appeals convened by the Senior Town Planner, Ernakulam recommends only Ground + 2 floors. The Corporation has to take appropriate action against the unauthorized construction as per the provisions contained in the Kerala Municipality Building Rule 1999 and Kerala W.A. No. 1917/2018 : 22 : Municipality Act, 1994."
13. In the above factual background, respondent No.1/writ petitioner has filed an affidavit dated 13.12.2018 in the writ appeal, undertaking that it would remove the unauthorised construction exceeding two floors and restore the building to ground + two floors, as per the permit granted by the Kochi Municipal Corporation, respondent No.2. The first respondent has also prayed that the writ appeal filed by the State be disposed of taking note of the affidavit dated 10 th February, 2022.
14. Relevant paragraphs of the affidavit are extracted hereunder:
"3. As per para 7 of the writ appeal the appellant contents that the construction carried out by this respondent cannot be permitted as the same has exceeded the permitted number of floors and therefore the revised plan seeking approval of the existing structure cannot be permitted. It is humbly submitted that as per the approved plan the construction was allowed for Ground floor + 2 floors. The number of rooms sanctioned was 44. However, so as to meet the parking requirements and to adhere to the Kerala Municipality Building Rules this appellant had to dedicate the entire ground floor for vehicle parking. Accordingly 80% of the ground floor is lost for parking and to accommodate the W.A. No. 1917/2018 : 23 : sanctioned 44 rooms this respondent constructed one additional floor. Thus, the present structure admittedly has 4 floors excluding the mezzanine floor. However, as per the contention of the appellants the mezzanine floor cannot be considered as a mezzanine floor since the same is not in accordance to Rule 35(1) of the Kerala Municipality Building Rules, 1999, which stipulates that the area of the mezzanine floor shall not exceed 1/3 rd of the area of the main floor or room which accommodates the mezzanine floor. Admittedly, the area of the present mezzanine floor is 520.69 Sq. Mtr and the area of the floor which accommodates the mezzanine floor is 738.84 Sq. Mtr. As such the permissible area in accordance to Rule 35(1) of KMBR, 1999 of the mezzanine floor is only 246.28 Sq. Mtr. Therefore the appellants are of the view that the present mezzanine floor has to be considered as a separate floor and therefore the present structure has a total of 5 floors.
4. It is humbly submitted that this respondent is now ready and willing to demolish the top floor of the building and also reduce the area of the mezzanine floor to the permissible limit. Thereby the total number of floors will be 3 as the top floor will be demolished and the mezzanine floor can be regularized in accordance to Rule 35(1) of Kerala Municipality Building Rules, 1999.
5. It is humbly submitted that by carrying out the hereinabove mentioned modifications the irregularities in the construction as contented by the appellant will be removed and thereby the construction will not be an unauthorized one and will also fall W.A. No. 1917/2018 : 24 : within the recommendation of the sub -committee of the 4 th respondent which had recommended ground + 2 floors.
Hence, in light of the circumstances mentioned hereinabove it is humbly prayed that this Hon'ble Court may be pleased to dispose of the Writ Appeal permitting this respondent to carry out the hereinabove mentioned modification and directing the appellants to grant necessary sanction to this respondent.'
15. On the averments made in the affidavit dated 10 th February, 2022, Mr. Tek Chand, learned Senior Government Pleader submitted that permits for the construction ought not to have been granted by the Secretary, Kochi Municipal Corporation, respondent No.2, without the recommendation of Art & Heritage Commission as contemplated under Rules 155(2)(i) and (ii) of the Rules, 1999, which reads thus:
"155. Functions of the Commission.-
...
(2)(i) Notwithstanding anything contained in these rules and with due regard to the conservation of buildings, precincts and natural features of heritage value, the commission shall have powers to permit or recommend to decline land developments, uses and constructions including additions, alternations, demolitions etc. within the areas identified or advised by the commission as having heritage value.
(ii) The Municipality shall seek such recommendations of the W.A. No. 1917/2018 : 25 : commission and the recommendations of the commission shall be binding to the Municipality including any particular architectural or aesthetic form of construction in the case of land developments and constructions in such area."
16. Attention of this Court is also invited to the notification issued by the Government in G.O.(Ms.) No. 143/07/LSGD dated 31.05.2007, as per which the construction in conservation zone shall not be allowed without the prior written permission of the Commission constituted by the Government.
17. Learned Senior Government Pleader further submitted that in the light of the statutory provisions requiring specific recommendation to be made by the Art & Heritage Commission, permission granted itself is erroneous. He further submitted that the observations and findings of the writ court that no prior permission is required from the Art and Heritage Commission, are required to be set aside.
18. Even though Smt. Sumathi Dandapani, learned Senior Counsel for the first respondent/writ petitioner, submitted that the construction has not been made in a prohibited area and that there are other buildings in the said zone, we are not inclined to accept the said contention for the reasons stated thereon.
19. Learned Senior Counsel has not disputed that the building W.A. No. 1917/2018 : 26 : is situated in the conservation zone as per the structural plan for the Central city of Kochi, which is in force.
20. Learned Senior Counsel has also not disputed the applicability of the statutory provisions of Rule 3A of the Rules, 1999 and Section 113 of the Act, 2016 to the facts of the case on hand.
21. In the light of the statutory provisions squarely applicable to the facts on hand and the discussion in the foregoing paragraphs, the observations and findings of the writ court, insofar as it directs that prior permission or recommendation is not required from the Arts and Heritage Commission, need to be set aside and accordingly, the findings, as against the appellants and the Art & Heritage Commission, appellant No. 4, has to be set aside, and consequently, empower the Commission to consider any proposal made by the Kochi Municipal Corporation represented by its Secretary, respondent No.2, for the approval of the lay out of the subject building, and make a recommendation, in accordance with law.
22. In terms of the affidavit dated 10.02.2022 filed by respondent No.1/writ petitioner, the first respondent is permitted to submit a revised plan along with all attendant documents to the W.A. No. 1917/2018 : 27 : Secretary, Kochi Municipal Corporation, respondent No.2 for the grant of approval of the lay out of the building and construction.
23. On receipt of the above, the Secretary, Corporation of Kochi, is directed to seek for recommendation of the Art and Heritage Commission as to whether the approval could be granted or not as expeditiously as possible.
24. While considering the above proposal, the Art and Heritage Commission, appellant No.4, is directed to consider the submissions made in the counter affidavit filed by the Chief Town Planner dated 19th September, 2016 before the writ court, in the writ petition.
25. We reiterate that the directions and observations contained in the impugned judgment of the learned single Judge that there is no requirement for securing the recommendation of the Art & Heritage Commission constituted under Rule 154 of the Rules, 1999 and other findings rendered in that regard are set aside.
26. Findings in respect of Ext. P5 order passed by the Secretary of the Kochi Corporation dismissing the application for regularisation submitted by the first respondent, is upheld. This is basically for the reason that in the light of the directions made W.A. No. 1917/2018 : 28 : above to the Commission, the Secretary may have to reconsider the application for regularisation, at a later point of time.
27. We further direct that the application for regularisation submitted by the writ petitioner/first respondent shall be considered, when the recommendation is received from the Arts & Heritage Commission in accordance with law and taking into account all the attendant documents and the facts and circumstances involved in the subject issue. Even though the learned counsel for the respondent requested to quash Ext. P4, we are not inclined to accept the said contention.
28. The Secretary, Kochi Municipal Corporation, respondent No.2, is directed only to seek for recommendation without giving due reference to Ext. P4 i.e., rejection.
29. As regards the prayer to quash Ext. P18 is concerned, we are of the view that it is only a provisional order issued under Section 406(1) of the Act, 1994 to demolish unauthorised construction, to which the petitioner had the opportunity to file objection and participate in the proceedings in accordance with the stipulations contained under Section 406 of the Act, 1994.
30. In as much as the Secretary, Kochi Municipal Corporation is directed to act in accordance with Rule 154 of the Rules, 1999, W.A. No. 1917/2018 : 29 : there is no need to proceed with Ext. P18, till a decision is taken by the Secretary, Kochi Municipal Corporation on the recommendation of the Art & Heritage Commission. Revised building plan be submitted as early as possible.
31. In the light of the statutory provisions, we hold that whenever any construction, repair, development etc., as referred to in clause 4.10 of the Government Order, in a conservation zone, is made, the same requires prior written/recommendation of the Art & Heritage Commission constituted by the Government under Rule 154 of the Rules, 1999, which provision has been introduced to preserve the heritage character of the area.
With the above observations and directions, this appeal is allowed to the above extent.
sd/-
S. MANIKUMAR, CHIEF JUSTICE.
sd/-
SHAJI P. CHALY, JUDGE.
Rv