Kerala High Court
M/S. Sanketham Investments vs State Of Kerala on 4 January, 2019
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY ,THE 04TH DAY OF JANUARY 2019 / 14TH POUSHA, 1940
WP(C).No. 31575 of 2016
PETITIONER/S:
M/S. SANKETHAM INVESTMENTS,
"PRANAAMAM COMPLEX", CHOONDY, ALUVA-683 112,
REPRESENTED BY ITS MANAGING PARTNER, BOBAN JOSEPH.
BY ADVS.
SRI.JAI GEORGE
SMT.DAISY A.PHILIPOSE
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY,LOCAL SELF GOVERNMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 CHIEF TOWN PLANNER,
GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001.
3 ALUVA MUNICIPALITY,
REPRESENTED BY ITS SECRETARY.
*ADDL. THE PERIYAR RESIDENCY OWNERS ASSOCIATION,
R4 PERIYAR RESIDENCY APARTMENTS, CHEMPAKASSERY TEMPLE
ROAD, ALUVA P.O., ERNAKULAM DISTRICT, PIN - 683101,
REPRESENTED BY ITS PRESIDENT MR.P.N.V.NAIR, AGED 76
YEARS, S/O LATE NANU PILLAI, RESIDING AT FLAT NO.6-C,
PERIYAR RESIDENCY APARTMENTS, CHEMPAKASSERY TEMPLE
ROAD, ALUVA P.O., ERNAKULAM DISTRICT.
(*ADDL.R4 IMPLEADED VIDE ORDER DATED 27.09.2018 IN IA
1/2018.)
BY ADVS.
R1 & R2 BY SRI.PAUL ABRAHAM VAKKANAL, GOVERNMENT
PLEADER
R3 BY SRI.V.M.KURIAN, SC, ALUVA MUNICIPALITY
ADDL.R4 BY SRI.JAWAHAR JOSE
SMT.CISSY MATHEWS
SRI.SARUN RAJAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.31575 of 2016 2
JUDGMENT
This writ petition is filed by the petitioner seeking the following reliefs:
"i) Issue a writ of certiorari, calling for the records relating to Ext.P26 and quash the same as illegal;
ii) Issue a writ of mandamus directing 1st and 3rd respondents to regularize the construction of the residential building constructed on the basis of Ext.P1 to P4, in accordance with Ext.P10 and Kerala Municipality Building (Regularisation of Unauthorised Construction) Rules, 2014;
iii) Issue a writ of mandamus directing the 3rd respondent to issue occupancy certificate to the petitioner in respect of the residential building constructed on the basis of Ext.P1 to P4, in accordance with Ext.P21; and
iv) Grant such other relief as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case".
2. Brief material facts for the disposal of the writ petition are as follows:
3. Petitioner is a partnership firm represented by its Managing Partner. In the year 1996, the State Government as per Exts.P1 and P2 granted sanction for the construction of a multi-storied residential building by invoking the powers under Rule 5 of the Kerala Building Rules, 1984, subject to the condition that the 3rd respondent has to ensure that the access road is widened to 5.50 metres before the Project is completed. Petitioner provided clear width of access W.P.(C) No.31575 of 2016 3 to the residential building from the street. Petitioner also obtained NOC from the Pollution Control Board, Fire and Rescue Department, Airport Authority of India etc. Thereafter, the building tax has been assessed under Sec.242 of the Municipality Act, since the petitioner failed to submit the completion certificate in spite of the completion of the construction of the building and the building tax is assessed as 'UA'. In 2010, the Government announced a policy to regularize the unauthorised construction by applying the Building Rules, and the Government clarified that the Building Rules existing on the date of sanction would govern the matter and not those existing on the date of application. Thereupon, petitioner has submitted an application for regularisation, however, the same was rejected as per Ext.P26 order dated 18.03.2016, holding that, since as per Exts.P1 and P2, the Government have granted exemption on condition that the access road should have a width of 5.50 metres, regularisation cannot be granted.
4. Consequent to the rejection, 3rd respondent has issued an order under Sec.406(1) of the Kerala Municipality Act, directing the petitioner to demolish W.P.(C) No.31575 of 2016 4 the unauthorised construction. Petitioner filed a statutory appeal and the proceedings were stayed till the disposal of the appeal. The case of the petitioner is that, even though petitioner tried to get the benefit of Ext.P21 Government Order, by submitting a representation dated 14.10.2014, the 3rd respondent did not consider the same. The sum and substance of the contention advanced by the petitioner is that, Ext.P26 order is passed by the State Government without taking into account the building permit granted to the petitioner and all other requisite sanctions from the respective statutory authorities, and also without taking into account the benefit of the Building Rules that were made available to the petitioner.
5. The 2nd respondent has filed a detailed counter affidavit, refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, the State Government granted exemption from the provisions of the Kerala Building Rules, 1984 for the construction of a five storied Residential Apartment building within the limits of the Aluva Municipality, subject to certain conditions. Again, on request of the petitioner, another Government Order was issued, permitting the W.P.(C) No.31575 of 2016 5 petitioner to construct a 11 storied Residential Apartment building subject to an additional condition that the road is to be widened to 5.5 metres before the completion of the project. Subsequently, Ext.P3 building permit was also issued by the Secretary, Aluva Municipality, granting sanction for construction of a 13 storied building i.e., Ground + 11 floors + Pent House. According to the 2nd respondent, the action of the Secretary was not in order as the construction has violated the Government Order. Moreover, there was no provision for exemption from the Kerala Municipality Building Rules, 1999.
6. It is also submitted that, the building rules existing on the date of sanction of permit would govern the matter and not those existing on the date of application. But, this is not applicable for the regularisation of unauthorised constructions as per Government Order dated 21.08.2010, since the Government have issued a Circular clarifying that these regularisation rules are applicable to all unauthorised constructions carried out or completed on or before 31.12.2008, with existing provisions of the Kerala Municipality Building Rules, as on 31.12.2008. W.P.(C) No.31575 of 2016 6
7. According to the 2nd respondent, petitioner has secured a permit for construction of a 13 storied Residential Apartment without securing any orders from the Government. The completion plan submitted by the petitioner after completion of the building was not approved by the Secretary of the Municipality, since the completed construction did not satisfy the conditions specified in the exemption order. It was under that circumstances, petitioner submitted application for regularisation of the unauthorised construction taking advantage of the Government Order specified above. The application was rejected by the Secretary, LSGD, since the construction did not satisfy the minimum access width insisted as per the exemption order and the requirements and also, number of storeyes of the construction was not in conformity with the exemption order. It was thereupon that Secretary of the Municipality has issued a demolition order under Sec.406 of the Municipality Act, 1994. Therefore, according to the 2nd respondent, Ext.P26 order passed by the State Government does not warrant any interference by exercising the discretionary power conferred on this Court under Article 226 of the Constitution of India. W.P.(C) No.31575 of 2016 7
8. I have heard learned counsel for the petitioner, learned Government Pleader, as well as the learned Standing Counsel appearing for the 3rd respondent Municipality and the learned counsel appearing for the 4th respondent. Perused the pleadings and the documents on record.
9. The discussion made above would make it clear that, the issue revolves around Ext.P26 order passed by the 1st respondent, declining the regularisation application submitted by the petitioner in respect of the construction carried out based on Ext.P3 building permit and Exts.P1 and P2 exemption granted by the State Government. The sole reason assigned in Ext.P26 is that, since the petitioner has secured an exemption order from the Government, on condition that access road shall be maintained with a width of 5.50 metres, the regularisation application cannot be considered.
10. However, learned counsel for the petitioner has invited my attention to Ext.P11 notification issued under Rule 5(1)(f), stipulating the conditions for regularizing the unauthorised constructions. My attention was invited to clause (3) of Ext.P11, which read thus:
W.P.(C) No.31575 of 2016 8
"(3). Open spaces/yards from the boundaries of the plot to the construction and the minimum clear width access to the building and plot as well as the width of the street giving access to the plot from the main street shall not be less than two-third of the mandatory values required as per Building Rules.
However, the width of the access to the building and plot as well as the width of the street giving access to the plot from the main street shall not be less than 3.6 metres or as stipulated above whichever is higher and shall be motorable, if any parking is required as per item (5) below."
11. Therefore, according to the learned counsel, petitioner is also entitled to get the benefit of the said provision, and if the said provision is applied, there is no manner of illegality in the construction carried out by the petitioner. Apparently, from Ext.P26, it is quite clear and evident that the 1st respondent has passed the order relying upon Ext.P2 exemption order granted by the Government on condition that there should be an access road of 5.50 metres width. It is quite clear and evident from the notification as well as the counter affidavit filed by the 2nd respondent that, all unauthorised constructions up to 31.12.2008 can be considered in accordance with the notification issued by the State Government. Therefore, necessarily, the 2nd respondent should have considered the application submitted by the petitioner W.P.(C) No.31575 of 2016 9 taking into account the provisions of the notification issued by the Government regarding regularisation of unauthorised constructions. On a perusal of Ext.P26, I am satisfied that, no such exercise was undertaken by the 2nd respondent. I am of the view that, merely because an exemption was secured by the petitioner from the Government, with a rider of 5.50 metres access width, there is no prohibition created under the notification for considering the issue taking into account the beneficial provisions of the notification issued to regularize the unauthorised constructions.
12. In that view of the matter, I am of the considered opinion that, Ext.P26 order suffers from the vice of arbitrariness and illegality, liable to be interfered with by this Court under Article 226 of the Constitution of India, so also for the reason that, it is not discernible from Ext.P26, whether an opportunity of hearing was provided to the petitioner before passing Ext.P26 order. Therefore, I quash Ext.P26 order and direct the 1st respondent to re-consider the issue taking into account the notification issued by the State Government in the year 2010 to regularize the unauthorised constructions, and all other relevant aspects discussed and observed above, at the earliest, W.P.(C) No.31575 of 2016 10 and at any rate, within three months from the date of receipt of a copy of this judgment, after providing opportunity of hearing to the petitioner, Municipality and any other interested persons.
The writ petition is allowed to the above extent.
Sd/-
SHAJI P.CHALY JUDGE St/-
04.01.2019 W.P.(C) No.31575 of 2016 11 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 : A TRUE COPY OF THE GO(RT)NO.2904/96/LAD DATED 23-7-1996 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P2 : A TRUE COPY OF THE GO(RT)NO.1752/97/LAD DATED 24-5-1997 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P3 : A TRUE COPY OF THE BUILDING PERMIT BA NO.112/95-96 DATED 21-7-2005.
EXHIBIT P4 : A TRUE COPY OF THE BUILDING PERMIT BA NO.112/95-96 DATED 26-8-2006.
EXHIBIT P5 : A TRUE COPY OF THE LETTER NO.BA 112/95-96 DATED 11-7-2008 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P6 : A TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 27-4-2005 ISSUED BY THE AIRPORT AUTHORITY CHENNAI.
EXHIBIT P7 : A TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 23-5-2008 ISSUED BY THE COMMANDANT GENERAL, FIRE & RESCUE SERVICES, THIRUVANANTHAPURAM.
EXHIBIT P8 : A TRUE COPY OF THE CONSENT NO.PCB/EKM/DO2/MFB/ICO-05/2011 ISSUED BY THE POLLUTION CONTROL BOARD, ERNAKULAM.
EXHIBIT P9 : A TRUE COPY OF THE COMMUNICATION R3- 11978/09 DATED 23-11-2009 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P10 : A TRUE COPY OF GO NO.9877/RD2/2010/LSGD DATED 8-9-2010.
EXHIBIT P11 : A TRUE COPY OF THE APPLICATION DATED 20-11- 2010.
EXHIBIT P12 : A TRUE COPY OF THE LETTER NO.BA 112/95-96 DATED 17-1-2011 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P13 : A TRUE COPY OF THE DETAILED REPORT DATED 5- 2-2011 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P14 : A TRUE COPY OF THE LETTER NO.C1/5406/11[2] W.P.(C) No.31575 of 2016 12 [R] DATED 18-1-2012 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P15 : A TRUE COPY OF THE ORDER DATED 27-2-2012 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P16 : A TRUE COPY OF THE ORDER DATED 16-6-2012 UNDER SECTION 406[1] OF THE KERALA MUNICIPALITIES ACT ALONG WITH SHOW CAUSE NOTICE.
EXHIBIT P17 : A TRUE COPY OF THE ORDER DATED 9-7-2012 EXHIBIT P18 : A TRUE COPY OF THE LETTER DATED 5-6-2013 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 1ST RESPONDENT.
EXHIBIT P19 : A TRUE COPY OF THE NOTICE DATED 20-12-2013 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.
EXHIBIT P20 : A TRUE COPY OF THE LETTER DATED 22-4-2014 ISSUED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT.
EXHIBIT P21 : A TRUE COPY OF GO(MS) NO.167/2014 LSGD DATED 27-9-2014 EXHIBIT P22 : A TRUE COPY OF THE REPRESENTATION DATED 14- 10-2014 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.
EXHIBIT P23 : A TRUE COPY OF THE NOTICE DATED 11-11-2014 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P24 : A TRUE COPY OF THE LETTER E2-9452/14 DATED 13-4-2015 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P25 : A TRUE COPY OF THE LETTER C-1/237/15 DATED 18-8-2015 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P26 : A TRUE COPY OF THE ORDER 410169/RB/LOCAL SELF DEPT/ DATED 18-3-2016 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P27 : A TRUE COPY OF THE GO(RT)NO.1420/2012/LSGD DATED 23-5-2012.
RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE St/-W.P.(C) No.31575 of 2016 13