Kerala High Court
V.Balakrishna Pai vs Corporation Of Cochin on 2 March, 2020
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941
WA.No.384 OF 2020
AGAINST THE JUDGMENT IN WP(C) 35555/2019(T) OF HIGH COURT OF
KERALA
APPELLANT/3RD RESPONDENT IN WPC:
V.BALAKRISHNA PAI,
AGED 83 YEARS, S/O.LATE VENKATESHWARA PAI,
VASANTHAS HOUSE, PERANDOOR ROAD, ELAMAKKARA,
KOCHI-26, ERNAKULAM DISTRICT.
BY ADV. SRI.JOHN MATHEW (THEREZHATH)
RESPONDENTS/RESPONDENTS 1 AND 2 IN WPC/PETITIONER IN WPC:
1 CORPORATION OF COCHIN
REPRESENTED BY ITS SECRETARY, SHANMUGHAM ROAD,
PARK AVENUE, ERNAKULAM, KOCHI-682 011.
2 ASSISTANT ENGINEER,
COCHIN CORPORATION, EDAPALLY ZONAL OFFICE,
EDAPALLY P.O., KOCHI-682 024.
3 K.S.BABY,
AGED 43 YEARS, D/O.K.R.SADANANDAN,
NIRANJANAM, PERANDOOR ROAD,
ELAMAKKARA P.O., KOCHI - 682 026.
R3 BY ADVS.SRI.T.M.MOHAMMED YOUSEFF (SR.)
SMT.AYSHA YOUSEFF
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02.03.2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.384 of 2020
2
JUDGMENT
Dated this the 2nd day of March, 2020 S.Manikumar, C.J.
Challenging the judgment dated 15.1.2020 in W.P.(C)No.35555 of 2019, instant writ appeal is filed.
2. Short facts leading to the writ petition are as hereunder:
The writ petitioner (3rd respondent herein) is the owner in possession and enjoyment of 0.71 Ares of land comprised in Sy.No.205/1A of Edappally South Village. The petitioner made an application for approval of building plan and permit. The respondent Corporation unduly delayed and refused to grant approval for the building plan and to issue building permit due to extraneous consideration under the undue influence of the 3 rd respondent (appellant herein). The alleged reason for not approving the plan was that there is a scheme for widening of Perandoor road which required land including that of the petitioner. According to the petitioner, actually there is no such scheme even under consideration. So the petitioner submitted a representation before the Hon'ble Minister for Local Self Government Department, who conducted an Adalath on 16.7.2019, in which, the objections of the respondents were found to be false and the Adalath took a decision to allow the application. Accordingly, a direction was W.A.No.384 of 2020 3 issued to the respondent Corporation to approve the plan and issue building permit within 7 days. The approved plan and building permit was issued on 20.8.2019. Thereafter Assistant Engineer, Cochin Corporation (2nd respondent) issued Exts.P11 notice and P11(a) stop memo dated 5.12.2019. Though the petitioner has submitted Ext.P12 explanation, the same has not been considered so far. The personal meeting of the petitioner with the Secretary and the Assistant Executive Engineer did not make any positive result. It is challenging Exts.P11 notice and P11(a) stop memo that W.P.(C)No.35555 of 2019 was filed, seeking for the following reliefs:
"(i) to call for the records leading to Ext.P11 and P11(a) and issue a writ of certiorari to quash the same and further proceedings pursuant to the same.
(ii) to issue a writ of mandamus to the respondent 1 and 2 or any other officer concerned of the 1 st respondent to allow the petitioner to carry on the construction of the 3 storied building as per Ext.P9 building plan for which Ext.P10 building permit is issued."
3. Writ court, vide judgment dated 15.1.2020, disposed of the writ petition as hereunder:
"4. Having heard both parties and perused the records, I am of the view that the impugned stop memos do not reveal any compliance, much less, the petitioner has been confronted with the impugned report alleging deviation from the conditions W.A.No.384 of 2020 4 contained in the permit. It is settled law that a person against whom an impugned is passed, is required to be heard, when the impugned order entails into a serious prejudice to that person. In view of what has been noticed above, the impugned orders Exts.P11 and Ext.P11(a) are set aside. The matter is remitted to the second respondent, ie Assistant Engineer, Cochin Corporation, Edappally Zonal Office, to afford an opportunity of hearing and confront the petitioner with the alleged report, if any and pass an appropriate order, in case necessity arises."
4. Being aggrieved, instant writ appeal is filed inter alia on the following grounds:
a) The learned single Judge has erroneously set aside Ext.P11 show cause notice and Ext.P11(a) stop memo without any just and reasonable basis. The learned single Judge ought to have considered that Ext.P11 show cause notice and Ext.P11(a) stop memo were duly issued by the Corporation in the light that the 3rd respondent was carrying on the construction in violation of Exts.P9 and P10 approved building plan and permit.
b) The learned single Judge ought to have appreciated that Ext.P10 building permit is issued to the 3rd respondent only for the renovation of the subject building. However, the 3 rd respondent/petitioner under the guise of Ext.P10 building permit, had completely demolished the subject building and thereafter, commenced with the reconstruction works. It is significant that the above said violation was duly brought to the notice of the Corporation by the appellant as a neighbouring resident.
Thereupon, Ext.P11(a) stop memo was issued by the Corporation in the light of the inspection report of the Building Inspector, prepared on the physical inspection of the subject property.
W.A.No.384 of 2020 5c) The learned single Judge erroneously held that Ext.P11 proceedings were passed without affording an opportunity of being heard to the 3rd respondent. It may be noted that the Building Inspector had already inspected the subject property and submitted the report dated 28.11.2019 to the effect that the ongoing construction is carried out by the 3rd respondent in blatant violation of Ext.P10 permit. It is also reported that the 3 rd respondent had completely demolished the existing structure of the building at the subject property in violation of the terms of Ext.P8 affidavit. Thereupon, the Corporation issued Ext.P11 show cause notice to the 3 rd respondent under Rule 17 of the Kerala Municipality Building Rules, 1999 as to why the construction is being carried out in deviation of the approved plan and permit and also why the ongoing construction of the subject building may not be interdicted. Nevertheless, the 3 rd respondent did not give any satisfactory explanation and further continued with the construction. Hence Ext.P11(a) stop memo was issued requiring the 3 rd respondent to stop further works on the subject property.
d) The learned single Judge ought to have considered that if the Secretary of the Corporation finds that the construction is being carried out in violation of the approved building plan and permit, it is open to the Secretary to issue a show cause notice to the defaulter and further interdict him from carrying out the further construction. It is pertinent that Ext.P11 show cause notice and Ext.P11(a) stop memo were duly issued by the Corporation in accordance with the provisions of Kerala Municipality Building Rules, 1999 and there is no just and reasonable ground to set aside Ext.P11 show cause notice and Ext.P11(a) stop memo.
5. Heard the learned counsel for the parties and perused the W.A.No.384 of 2020 6 material available on record.
6. Ext.P3 representation submitted by the 3rd respondent/writ petitioner, before the Assistant Executive Engineer, Cochin Corporation reads thus:
"The representation filed by K.S.Baby, D/o K.R. Sathananthan of Niranjayil House, Perandoor Road, Elamakkara, Edappally Village South, Kanayannur Taluk of Ernakulam District before the respected Assistant Executive Engineer, Edappally Zonal Office of Cochin Corporation.
Dear Sir, Ref - My Application No.254/2018 I am the absolute owner in possession and enjoyment of the property admeasuring 0.71 Ares (1.750 cent) of land lying in Sy. No. 205/ 1A of Edappally West Village of Elamakkara Kara of Perandoor Road and the residential building bearing No CC 71/ 1831 (Old No.48/2497) situated thereon; with effect from 12/02/2016. I have remitted the building tax for the subject building in the Corporation for the 2nd half of the year of 2018 - 2019. The predecessor in title of the subject property viz K.S. Jayashree, my sister had already preferred an application dated 25/09/2015 before the Corporation for changing the roof of the subject building. However; the authorities have been refusing to entertain the above said application due to the following reasons
1. The names of the Applicant and the present building owner are distinct.
2. The concrete roofing of the building is not feasible since the building in question is too old.
3. The Application is refused in the light that the 10 metres of the subject landed property is included in the proposed 18 metres widening plan of the Perandoor Road.W.A.No.384 of 2020 7
It is submitted that I have already changed the name and ownership of the subject building to my name in the relevant records and I have already submitted the revised plan wherein; I left an area of 5.5 metres from the present road as per the DTP Scheme. I have also given an undertaking that I shall voluntarily surrender an area of 2.5 meters of land from the subject property for the purpose of road widening scheme and it is also undertaken that I shall remove the proposed building at my costs and expenses if there is any need to demolish the building for the reasons of road widening. The above said undertaking were duly notarized and also submitted along with the application. However, no effective measures have been taken on my application. The applicant is aggrieved that the authorities concerned have failed to consider the application for the last four years. I am unable to take care of my daughter's education due to the constant follow-ups for the above application. Therefore, I request your goodself to consider my kind application at the earliest without any further delay.
Yours faithfully."
7. Ext.P4 representation submitted by the 3rd respondent/writ petitioner before the Hon'ble Minister for Local Self Government Department reads thus:
The representation filed by K.S.Baby, D/o KR. Sathananthan of Niranjayil House, Perandoor Road, Elamakkara, Edappally Village South, Kanayannur Taluk of Ernakulam District before the respected Minister, the Local Self Government Department.
Dear Sir, W.A.No.384 of 2020 8 Ref - My Application No 254/2018 for the approval of the building plan.
I am the absolute owner in possession and enjoyment of the property admeasuring 0.71 Ares (1.750 cent) of land lying in Sy. No. 205/ 1A of Edappally West Village of Elamakkara Kara of Perandoor Road and the residential building bearing No CC 71/1831 (Old No. 48/2497) situated thereon; with effect from 12/02/2016. I have remitted the building tax for the subject building in the Corporation for the 2nd half of the year of 2018 - 2019. The predecessor in title of the subject property viz K.S. J ayashree, my sister had already preferred an application dated 25/09/2015 before the Corporation for changing the roof of the subject building. However; the authorities have been refusing to entertain the above said application due to the following reasons:
1. The names of the Applicant and the present building owner are distinct.
2. The concrete roofing of the building is not feasible since the building in question is too old.
3. The Application is refused in the light that the 10 metres of the subject landed property is included in the proposed 18 metres widening plan of the Perandoor Road.
It is submitted that I have already changed the name and ownership of the subject building to my name in the relevant records and I have already submitted the revised plan wherein; I left an area of 5.5 metres from the present road as per the DTP Scheme. I have also given an undertaking that I shall voluntarily surrender an area of 2.5 meters of land from the subject property for the purpose of road widening scheme and it is also undertaken that I shall remove the proposed building at my costs and expenses if there is any need to demolish the building for the reasons of road widening. The above said undertaking were duly notarized and also W.A.No.384 of 2020 9 submitted along with the application. However, no effective measures have been taken on my application. It may be noted that the other private individuals have been carrying out the constructional activities at the eastern side of the Perandoor Road after having obtained the requisite permits from the very same authorities. The above said approvals had been obtained by such private individuals due to their financial and political influences. I am deeply aggrieved that the authorities have failed to consider the application for the last four years. I am unable to take care of my daughter's education due to the constant follow-ups for the above application. Therefore, I request your goodself to consider my kind application at the earliest without any further delay. Otherwise, I may be constrained to take extreme steps in my capacity as a house-wife.
Yours faithfully, K.S.Baby"
8. Ext.P5 letter issued by the Cochin Corporation to the writ petitioner reads thus:
THE COCHIN MUNICIPAL CORPORATION Date: 10/07/2019 AD/KMC/EYP1/003/2019 To, K.S.Baby, D/o K.R. Sathananthan, Niranjayil House, Perandoor Road, Elamakkara.
SUBJECT: The Cochin Municipal Corporation - Town Planning Department - File Adalath 2019 - The Application for the Building W.A.No.384 of 2020 10 Occupancy / Permit.
REFERENCE - Your Application No.AD/KMC/EYP1/003/2019 dated 04/07/2019 Pursuant to the inspection held after the perusal of the Reference Application submitted by you, it is found that the subject building has no requisite structural stability for the roof changing for the proposed construction of the First and Second Floors as provided under the Rule 100 of the Rules. Since the subject property is included in the proposed area of the Perandoor road widening scheme, you may be required to submit a revised plan in tune with the provisions of the Rule 99 of the KMBR and also under the DTP Scheme. Your application may be eligible to be considered upon the compliance of the above mentioned aspects.
Yours Faithfully Secretary Cochin Corporation"
9. Ext.P7 notice dated 18.7.2019 issued by the Assistant Executive Engineer to the 3rd respondent/writ petitioner reads thus:
"ISO/AD/KMC/EYP1/003/19 KOCHI MUNICIPAL CORPORATION EDAPPALLY ZONAL OFFICE DATE: 18/07/2019 NOTICE SUBJECT: COCHIN CORPORATION - EDAPPALLY ZONAL OFFICE - TOWN PLANNING DEPARTMENT - THE PROCEEDINGS WITH RESPECT TO THE APPLICATION SUBMITTED BEFORE THE HON'BLE MINISTER LOCAL SELF GOVERNMENT DEPARTMENT REF: l: The Application of Mrs. K.S.Baby W.A.No.384 of 2020 11 REF 2 : The order dated 16/07/2019 of the Hon'ble Minister of the Local Self Government Department.
This is to inform you that the building permit is issued to you under Rule 100 of KMBR vide Ref (2) order, on a condition that an extent of 4.5 metres shall be left for the subject building as a building lane and the relevant affidavit shall also be produced to that effect. However, as per your application No. EYP1/147/COC/EYP/0254/2018, it is seen that an extent of 5.5 Metres has already been left as a Building Line in the relevant building plan submitted by you. Therefore, you are required to submit the revised building plan and affidavit in tune with the decision taken by the Hon'ble Minister Local Self Government Department at the Adalath within 2 days of the receipt of this notice.
Asst. Executive Engineer"
10. Ext.P8 consent letter submitted by the writ petitioner reads thus:
"CONSENT LETTER The Consent Letter dated 18/07/2019 submitted by Mrs. K.S.Baby, Niranjayil House, Elamakkara P.O., Cochin - 26 before the Secretary of the Cochin Corporation.
As per the decision of The Hon 'ble Minister of the Local Self Government Department at the Adalath held on the date of 16/O7/2019, I have been directed to surrender and relinquish an extent of land admeasuring 0.12 Ares situated on the front portion of my property admeasuring 0.7 1 Ares of land lying in Sy.W.A.No.384 of 2020 12
No. 205/1A of Edappally South Village. The above said decision has been passed While considering my application for the renovation of my existing building situated on the subject property. In the event of surrender of land as aforesaid, it is further assured that the permission shall be granted for the construction of the additional floors on my existing building by leaving an area of 4.5 M from the present road boundary. I have duly agreed on the above said proposal so made. Therefore; I hereby voluntarily agree to surrender and relinquish an extent of land admeasuring 0.12 Ares of 2.5 Meters width situated on the front portion of my property. The above consent letter is voluntarily executed by agreeing upon the above said terms and conditions.
Sd/-
Sri. K.S.Baby"
11. Ext.P11 notice dated 5.12.2019 issued by the Assistant Engineer, Kochi Municipal Corporation to the petitioner, reads thus:
EYP1/091288/19 KOCHI MUNICIPAL CORPORATION EDAPPALLY ZONAL OFFICE DATE: 05/12/2019 NOTICE SUBJECT: COCHIN CORPORATION - EDAPALLY ZONAL OFFICE
- TOWN PLANNING DEPARTMENT - REGARDING THE UNAUTHORISED CONSTRUCTION REF (1): The Complaint lodged by Mr.Balakrishna Pai and Others REF (2): The Report dated 28/11/2019 of the Building Inspector.
It is learnt that you have been carrying out the W.A.No.384 of 2020 13 authorised constructional activities on the property lying in Sy.No.205/1A in Division No.71 of Edappally South Village within the limits of Cochin Corporation Edappally Zonal Office in contrast to the approved building permit issued to you.
The Building Permit has been issued in the light of the decision of the Hon'ble Minister of the Local Self Government Department at the Adalath held on the date of 16/07/2019. As per the terms of the above said decision, the permit was issued under Rule 100 of the KMBR for changing the roof of the Ground Floor and also for the First Floor construction. However, it is learnt that you have completely demolished the subject building as opposed to the terms of the above said order and presently you resume with the reconstruction work without any valid permit.
Therefore, you are directed to show cause on the receipt of this notice as to why the constructional activities are carried out in violation of the Building Permit issued in pursuant to the order passed by the Hon'ble Minister of Local Self Government Department and you are further directed to stop the ongoing constructional activities for the time being.
Otherwise, we may be constrained to invoke the further proceedings under the KMBR on a presumption that you have nothing to submit in the above matter.
Sd/-
Assistant Engineer.
12. Ext.P11(a) stop memo issued by the Cochin Corporation to the petitioner, reads thus:
"CORPORATION OF COCHIN No.180/EYP1/011288/19 Dated 05.12.2019 W.A.No.384 of 2020 14 NOTICE Whereas it is brought to the notice of the undersigned that you are proceeding with construction/extension of a building near H.No.71/1831 in Survey No.205/1A Dvn.No.71 without obtaining prior permission. You are required to stop the work forthwith. This notice is issued under Section 408(1) of the Kerala Municipality Act 1994.
Construction is going on contrary to the permit issued under Rule 100 of the Kerala Municipality Building Rules.
Sd/-
Secretary."
13. Ext.P12 representation filed by the writ petitioner before the Assistant Engineer, Edappally reads thus:
Date: 12/12/2019 From Baby K.S. D/o. K.R.Sadanandan, Niranjanam Perandoor Road, Elamakkara Ph.9895353551.
To.
The Asst.Engineer Cochin Corporation Edappally Zonal Office Edappally .
Sir, Sub: Explanation to the Notice Eyp1/091288/19, Dated.
5/12/2019 reg;-
Ref:- Your notice No.Eyp1/091288/I 9, Dated. 5/12/2019 issued to me on 9/12/2019 W.A.No.384 of 2020 15 I beg submit this explanation to your notice referred above. At the outset I humbly submit that I have not violated any provision of the Kerala Municipality Building Rules. From the notice it is seen that, the notice has issued based on a complaint from Balakrishna Pai and others, since the copy of the complaint not attached with the notice I am unaware of the contents of the complaint. The said complainant who had once a plan to purchase my property on a very meagre price could not materialise his intention. So he is deliberately making false complaint with a view to obstruct or disturb my construction.
As a matter of fact my sister who was the original owner of the property had made application for construction of a building vide No.Eypl/308/Coc/1162/15, Dtd. 25/9/2015. But under a false pretext of widening of the road which was not actually existing under any scheme, that proceeding was unduly delayed at the influence of persons interested to buy my property. There after on 12.2.2016 he property was assigned to me by my sister. Thereafter I made an application vide Application No.254/2018, originally I proposed to make rood changing of existing single storied building with tiled roof. For quite long time the application was kept idle without any action. So I submitted application under the right to information Act at Regional. Town Planning Office, Kakkanad to furnish details of Perandoor road widening scheme and they furnished digital of proposed scheme for widening of Perandoor Road from which I understood that a small portion of a width of 2.5 mtr only will be required from the road. Actually suppressing the real fact, the application of my sister which was later followed by my application were unnecessarily kept idle without action due to extraneous consideration. Various W.A.No.384 of 2020 16 representations submitted by me were not even responded. So I submitted application before the Hon'ble Minister for Local Self Government Department, Kerala.
In the Adalath scheduled held on 16/7/2019 my case was also included. Thereupon the secretary of the Cochin Corporation on 16/7/2019 issued a letter to me vide AD/KMC/Eyp1/003/2009, Dated 10/7/2019, that my building does not have structural stability for roof changing and to construct 1st and 2nd floors and that my application can be considered on submitting fresh plan. That letter was issued to me just before I attend the adalath, with malafide intention to prevent me from attending adalath. However, I attended the adalath and in the adalath the official of Cochin Corporation disclosed that the scheme of Perandoor road widening not approved by Government and no scheme is in vogue.
In the adalath I submitted before minister that I will free surrender a portion of my property with a width of 2.5 meter, which is required for road widening of any. At adalath the official of the Cochin Corporation presented a photo showing dilapidated condition of my building to show that existing building does not have structural stability. Thereupon the Hon'ble Minister said the building can be constructed with new coloumn. The minister directed to approve the plan within 7 days provided, I submit a revised plan and affidavit for free surrender of 2.5 mts which accordingly I submitted revised plan for entire three floor of the building which was approved and building permit was granted on 20/8/2019.
Since the concerned officers themselves took a stand that roof changing and construction of additional floors in the existing dilapidated building could not be done. Due to lack of structure stability I have no other way except to construct the W.A.No.384 of 2020 17 building by erecting coloums for all the three floors together.
As a matter of fact most part of the old building situated in the portion of the property coming within the building line and since I had to surrender 2.5 meters width and leave 2 meters for the alleged building line, it was absolutely necessary to demolish the old dilapidated structure and construct a building as per the approved plan. Now there is no reason for the corporation to make any objection or obstruction to my construction since the construction is not in violation of building rules.
I am much surprised to see the notice referred above. When the Corporation officials take a strong stand that my old building does not have structural stability at the same time find fault in making construction of a structure with stability. If anybody can visit the plot and take stock of the position of as it is, I am sure that the officers will be convinced that the notice has issued under misconception of facts and under extraneous considerations.
In the circumstances I request your good office to conduct appropriate enquiry and allow me to make the construct of three storied building as per the approved plan for which I have surrendered a portion of my property as per the decision of the Adalath conducted by the Hon'ble Minister on 16/7/2019.
Thanking you, Yours faithfully, K.S.Baby"
14. The objection filed by the 3 rd respondent/writ petitioner in W.P. (C)No.35555 of 2019 reads thus:
W.A.No.384 of 2020 18"1. The above writ petition is not maintainable either in law or on facts. All the averments in the writ petition, save those that are specifically admitted hereunder, are false and hence denied. The petitioner approached this Hon'ble court with unclean hands by willfully suppressing the material facts of the case. The petitioner is the owner in possession and enjoyment of the land admeasuring 0.71 Ares (hereinafter referred to as the subject property) lying in Sy. No. 205/ 1A of Edappally South Village and a residential building No CC 71/ 1831 of Cochin Corporation situated thereon, obtained by virtue of Document No 559/2016 of Edappally SRO.
2. The predecessor in title of the petitioner had preferred an application for the building permit as early as in the year 2015. However, the above application was rejected by the Corporation on numerous grounds and later, the petitioner forwarded the Ext.P4 representation to the Minister, the Local Self Government Department (LSGD), to consider his fresh application for the building permit. The EXt.P4 representation was later referred to the Adalath wherein, the 1 st respondent Corporation was directed to issue the building permit under the Rule 100 of the KERALA MUNICIPALITY BUILDING RULES, 1999 on the following terms and conditions.- (i) The petitioner is permitted to carry out the additional construction of the first and second floors over the existing building structure situated on the subject property (ii) The petitioner shall surrender the front portion of the subject property to an extend of 0.12 Ares with a width of 4.5 meters for the purpose of the proposed road expansion (iii) The proposed construction shall be carried out by leaving a space of 4.50 metres as building line from the existing road boundary.W.A.No.384 of 2020 19
3. The Ministry of the LSGD Department, vide its order dated 16/07/2019, directed the 1st respondent Corporation to issue the building permit to the petitioner in the light of above mentioned terms and conditions. The petitioner was directed to execute an affidavit in tune with the terms as settled in Adalath. Thereupon, the Ext.P8 affidavit was furnished by the petitioner before the 1 st respondent along with the Ext.P9 revised building plan. As per the terms of Ext.P8 affidavit, the petitioner categorically averred that the building permit is to be issued only for constructing the additional floors over the existing structure after changing its roof. The Ext.P9 building plan only provides for the proposed construction of the First and Second Floors over the existing structure of ground floor. In the light of Ext.P8 and Ext.P9 documents filed by the petitioner, the 1 st respondent issued Ext.P10 building permit on the date of 20/08/2019.
4. The 3rd respondent is the neighbour of the petitioner. The 3 rd respondent shares the boundaries of his adjoining land with the subject property of the petitioner. The petitioner has completely demolished the existing building situated on the subject property as soon as the Ext.P10 building permit was issued to him. The petitioner also removed the existing septic tank and soak pit from the subject property. The 3rd respondent duly intimated the above said fact of the total demolition of the subject building to the 1 st respondent Corporation vide the complaint dated 26/10/2019. The existing building was completely demolished contrary to the undertaking of the petitioner as provided in Ext.P8 affidavit. It is significant that, the Ext.P9 building plan was prepared by showing the existing structure at the Ground Floor. Hence, the ongoing construction is carried out in violation of the Exts.P9 plan and P10 permit. Presently, the Ext.P10 permit stands no longer valid since W.A.No.384 of 2020 20 it was issued in the wake of Exts.P8 and P9 for the proposed construction of the First and Second Floors over the existing structure of ground floor. The present Ext.P9 plan and P10 permit has already become infructuous in the light of changed facts and circumstance of the case.
5. Pursuant to the complaint, the Building Inspector held an inspection at the subject property and prepared the report dated 28/11/2019 to the effect that the ongoing construction is carried out by the petitioner in blatant violation of the Ext P10 permit issued by the Corporation. It is further reported that the petitioner had completely demolished the existing structure of building at the subject property in violation of the terms of the Ext.P8 affidavit. Thereupon, the 1st respondent Corporation issued Ext.P1l notice to the petitioner to show cause why Ext.P10 building permit shall not be cancelled as provided under Rule 16 on account of the violation of the various provisions of the Kerala Municipality Building Rules. However, the petitioner did not give any explanation to the Ext.P11 show cause notice and further continued with the construction. Hence, the Ext.P11(a) stop memo under Section 40691) was issued requiring the petitioner to stop further works on the basis that the petitioner had violated the provisions of the Kerala Municipality Building Rules.
6. The petitioner prepared the EXt.P10 building sketch by suppressing the material facts. The northern and the eastern boundaries of the subject property is a pathway admeasuring 100 feet length and 4 feet width. The above said pathway starts from the north western corner of the property of the 3 rd respondent and proceeds towards the western direction along the subject property of the petitioner and ends at the public road viz., W.A.No.384 of 2020 21 Perandoor Road on the western side, with a width of 4.5 feet. However, the petitioner deliberately omitted to show the above said pathway in the Ext.P9 building plan as the northern and eastern side boundaries of the building, with an oblique motive to avoid the statutory setback to be left between the building and pathway. There should be a statutory clearance of 1.50 meters between the building and pathway as per the relevant provisions of the Building Rules. The staircase at the northern part of the proposed building originally abuts the pathway at the northern side of the building without leaving any setback under Kerala Municipality Building Rules, 1999. As per the terms of Ext.P8 affidavit and Ext.P9 plan, after surrendering 0.12 Ares of land from the subject property, the petitioner shall leave a space of 4.50 metres as a building line from the road boundary. However, the present construction is being carried out by the petitioner without leaving the statutory space of 4.50 metres as building line. In the light of above stated facts and circumstance, it is just and necessary that the ongoing construction of the building is liable to be interdicted under the provisions of Kerala Municipality Building Rules, 1999. The 3rd respondent being the neighbouring resident of the petitioner is deeply aggrieved by the violations committed by the petitioner. It is a settled proposition that Equity cannot be claimed at the cost of neighbour, whose rights are affected by the illegality.
7. The averment of the petitioner that the existing building was demolished in the light of the approval given by the Hon'ble Minister during the Adalath that the subject building can be constructed with the new column is false and hence denied. The Hon'ble Minister at no occasion given any such approval for the petitioner to demolish the existing structure on the subject W.A.No.384 of 2020 22 property. As stated earlier, the Ext.P10 building permit is issued only for constructing the additional floors over the existing structure after changing its roof. The petitioner deliberately omitted to produce the order dated 16/07/2019 passed by the Ministry of the LSGD Department in order to mislead this Hon'ble Court.
8. Exts.P9 plan and P10 permit were approved and issued in contravention of the provisions of the Kerala Municipality Building Rules, 1999. Rule 16 of the Kerala Municipality Building Rules provides that, if the Secretary is satisfied that a building permit was issued by a mistake or that a patent error has crept in a building permit issued, the Secretary is entitled to suspend or revoke any permit issued under the Rule. Rule 20 also provides that the grant of a permit or the approval of the drawings and specifications or inspections made by the Secretary during the erection of the building or structure, shall not in any way relieve the owner of such building of the responsibility for carrying out the work in accordance with the requirement of the rules. The aforesaid Rule reinforces that even in a case where a permit has been granted or a plan has been approved, if the construction is in violation of the provisions of the Act and the Rules, power is conferred on the Secretary of the Municipality, to take action under Rule 16 of the Kerala Municipality Building Rules.
9. Though the petitioner has been alerted about the violations of the provisions of the Kerala Building Rules, he has been making hasty attempts to complete the construction. The petitioner is determined to complete the construction for the time being and later approach the respondent Corporation with an application to regularize the same. If the construction is completed by violating W.A.No.384 of 2020 23 the provisions of the Building Rules, it shall cause serious prejudice to the neighbouring residents including the 3 rd respondent. The interim stay of the operation of the Ext.P11 stop memo shall expire by 15/01/2020. Therefore, it is just and necessary that interim stay passed by this Hon'ble Court may not be extended in the interest of justice. Otherwise, the petitioner shall complete the illegal construction in the strength of the interim stay and it shall cause serious prejudice to the neighbouring residents including the 3rd respondent. For the reasons stated in the above objection and other points which may be urged at the stage of argument, this Court may be pleased to dismiss the above writ petition in the interest of justice."
15. Rule 16 of the Kerala Municipality Building Rules, 1999 reads thus:
"16. Suspension and Revocation of permit.- The Secretary shall suspend or revoke any permit issued under these rules if it is satisfied that the applicant has violated any provisions of the Act or rules or any conditions stipulated in the permit or that the construction is carried out in deviation of the approved plan or Town Planning Scheme or that the permit was happened to be issued on misrepresentation of fact or law or that the construction if carried on will be a threat to life or property:
Provided that before revoking permit, the owner of the permit shall be given sufficient opportunity to explain and the explanation shall be duly considered by the Secretary."
16. Rule 17 of the Kerala Municipality Building Rules, 1999 reads thus:W.A.No.384 of 2020 24
"17. Deviation during construction and power of Secretary to require alteration in work.- (1) The applicant shall, if he intends to make any deviation from the approved plan or specification during the execution of any development or redevelopment of land or construction or reconstruction or alteration of any building, submit revised plans and drawings showing the deviation and obtain revised permit:
Provided that no permit is necessary for effecting minor deviations such as shifting the position of access to plots in the case of layouts and shifting the position of rooms, stairs, lifts, windows, doors, or ventilators and their sizes in the case of building constructions if they do not conflict with these rules:
Provided further that the deviations mentioned in the above proviso shall be incorporated in the completion plan and submitted along with completion certificate.
(2) Where it comes to the notice of the Secretary that a work-
(a) is not in accordance with the plans or specifications approved;
(b) is in contravention of any of the provisions of the Act, these rules, bye-law or declaration made thereunder;
he may, by notice, require the person for whom such work is done-
(i) to make such alterations as may be specified in the notice with the object of bringing the work in conformity with the plans or specifications approved or the provisions so contravened; or
(ii) to show cause why such alterations should not be made; within such period as may be specified in the notice:
Provided that any construction carried out in deviation of the approved plan or specific conditions shall not be required to be altered if such construction does not violate the provisions or W.A.No.384 of 2020 25 specific conditions contained in the Act or these rules.
3) Where the person to whom the notice under sub-rule (2) is issued does not show cause as aforesaid, he shall be bound to make the alterations specified in such notice.
(4) Where the person to whom the notice under sub-rule(2) is issued shows sufficient cause as aforesaid the Secretary may, cancel the notice and in other cases, by order confirm or modify the notice."
17. Rule 19 of the Kerala Municipality Building Rules, 1999 reads thus:
"19. Order of stoppage of building works in certain cases.- (1) Where the erection of any building or the execution of any work has been commenced or is being carried on (but has not been completed) without obtaining the permission of the Secretary or in contravention of any decision of the Council or any provision in the Act or these rules or byelaw made thereunder or any lawful direction or requisition given or made under the Act or these rules or byelaws made thereunder, the Secretary may without prejudice to any other action that may be taken under these rules, by order require the person at whose instance the building or the work has been commenced or is being carried on, to stop the same forthwith.
(2) Where the order under sub-rule (1) is not complied with, the Secretary may require any police officer to remove such person and all his assistants and workmen from the premises within such time as may be specified in the requisition, and such police officer shall comply with the requisition accordingly. (3) After the requisition under sub-rule (2) has been complied with, Secretary may, if he thinks fit, require in writing the W.A.No.384 of 2020 26 assistance of a police officer or depute by a written order an officer or employee of the Municipality to watch the premises in order to ensure that the erection of the building or, execution of the work is not continued and the cost thereof shall be paid by the person at whose instance such erection or execution was being continued or whom notice under sub-rule (1) was given, and shall be recoverable from such person as an arrear of property tax under the Act."
18. Rule 20 of the Kerala Municipality Building Rules, 1999 reads thus:
"20. Duties and responsibilities of the owner.- (1) The granting of permit or the approval of the drawings and specifications or inspections made by the Secretary during the erection of the building or structure or digging of well shall not in any way relieve the owner of such building of the responsibility for carrying out the work in accordance with the requirement of these rules.
(2) Every owner shall, -
(a) permit the Secretary or any person authorized by the Secretary or by the Government for this purpose to enter the plot or building or premises at any time between 7 a.m. and 6 p.m. normally or at any other time as may be deemed necessary for purpose of enforcing the rules;
(b) submit a proof of ownership of the plot;
(c) obtain from the Secretary, sanction for any other allied matter connected with the development or redevelopment of land or construction or reconstruction or addition or alteration of building;
(d) given notice to the Secretary of the intention to start W.A.No.384 of 2020 27 work in the form Appendix D;
(f) give written notice to the Secretary regarding completion of work in the form in Appendix E; and
(g) obtain a development certificate from the Secretary prior to any sale or transaction of the plot subdivision or building construction in developed or redeveloped plots as given in Appendix G or obtain an occupancy certificate from the Secretary prior to any occupancy of the building or part thereof, after construction or reconstruction or addition or alteration of the building or part thereof, or change of occupancy of any building or part thereof as given in Appendix H. (3) Every owner shall, as soon as any development or redevelopment of land or construction or reconstruction or addition or alteration of building is completed, remove all rubbish, refuse or debris of any description from the plot or plots on which such operation have been carried out or from any adjoining land which may have been used for depositing of materials and debris.
(4) Every owner shall keep in safe custody the permit, approved plans and drawings and specifications and results of tests, if any, on any material used for construction and produce before the Secretary or any officer authorised by him for inspection or demand.
(5) Every owner shall display the permit number in the site in a visible place in a visible manner.
(6) Every owner shall take adequate safety precautions at all stages of construction or reconstruction or addition or alteration or repair or demolition or removal of the various parts of the building for safeguarding the life of workers and public against hazards consequent on any aspects of the work.
(7) Every owner shall ensure that all protective works carried out to safeguard the adjoining properties, during construction are W.A.No.384 of 2020 28 sufficient and in good order to ensure safety.
(7a) The owner and or developer shall also comply with the provisions contained in sub-rule (1a) of Rule 5 and sub-rule (1a) of Rule 7 wherever applicable. In addition, in driven piles vibration is set up which may cause damage to adjoining structures or service lines depending on the nature of soil condition and the construction standard of such structures and service lines. Possible extent of all such damages shall be ascertained in advance, and operation and mode of driving shall be planned with appropriate measures to ensure safety. Where, in the vicinity of a site where bored or driven piling works are to be carried out there are old structures which are likely to be damaged, tell-tales shall be fixed on such structures to watch their behaviour and timely precautions taken against any undesirable effect.
(7c) If the owner engages any developer(s) at any time for the construction, reconstruction, repairs, additions or alterations of buildings or development or redevelopment of land, the same shall be intimated to the Secretary within a week from the date of agreement (executed between the owner and the developer) along with the copy of such agreement by which the owner authorises the developer to undertake construction, reconstruction, repairs, additions or alterations of building(s) or development or redevelopment of land in that plot, on behalf of the owner.
(7d) Every owner and developer shall include the following details as part of all advertisements through website pertaining to the building and or land development:
(i) name and address of the owner and developer;
(ii) number and date of layout approval and or approval of usage of plot and layout of building wherever applicable;
(iii) number and date of layout approval and or approval W.A.No.384 of 2020 29 of usage of plot and layout of building wherever applicable;
(iv) name of the Local Self Government Institution issuing the permits;
(v) date till which the building permit is valid;
(vi) number of floors permitted;
(vii) conditions if any stipulated in the permits;
(viii) following details shall be furnished as against the respective provisions of the rules;
(a) coverage and FAR of the construction;
(b) area of recreational space inside and outside the building with area in the case of apartment houses/flats under Group A1 occupancy;
(c) number of parking and loading and unloading spaces and area earmarked for such spaces;
(d) minimum width of access to the site and building;
(ix) any other occupancy other than Group Al-Residential in the case of apartment houses/flats, with details of floor area of such occupancy:
(7e) In the case of advertisements pertaining to building construction or land developments through visual - print media and hoardings, the owner or developer shall include the details mentioned in item (i) to (vi) in sub rule (7d) of rule 20 and the address of the website carrying details under sub rule (7d) of rule
20.
(7f) The Secretary may also publish the details of the permits issued in the website of the municipality as required under Section 517B(3) of the Kerala Municipality Act, 1994.
(7g) If any such advertisements are made in contravention to sub rules (7d), (7e) and (7f) of this rule, the Secretary or the Government may interfere in the matter.
(8) Every owner shall be responsible for the loss or injury W.A.No.384 of 2020 30 caused to any person or property due to the lapse on his part to provide safety precautions or protective measures or safeguards."
19. We have given our due consideration to the pleadings and material on record and we are of the view that there is no gross error in the judgment impugned before us.
In the light of the above, instant writ appeal is disposed of, directing the Cochin Corporation to proceed in accordance with law, as per Section 406 of the Act, giving adequate opportunity to both the appellant as well as the contesting respondents, and thereafter, to pass orders, in accordance with law. Such exercise be done within one month from the date of receipt of a copy of this judgment.
Sd/-
S.Manikumar, Chief Justice Sd/-
Shaji P.Chaly Judge vpv /TRUE COPY/ P.A. TO JUDGE