Kerala High Court
C.S.Udayalekshmi vs Thiruvananthapuram Corporation
Author: A.M. Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
MONDAY, THE 4TH DAY OF MARCH 2013/13TH PHALGUNA 1934
WP(C).No. 17881 of 2011 (I)
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PETITIONER(S):
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C.S.UDAYALEKSHMI,D/O.SUBHAYAMMA,
T.C .36/238, UDAYA DEEPAM, PERUMTHANI,
THIRUVANANTHAPURAM, REPRESENTED BY HER POWER OF ATTORNEY
HOKDER, CHANDRASEKHARAN, AGED 70,S/O.KRISHNAN,
R/AT T.C .36/238, UDAYA DEEPAM,PERUNTHANNI,
THIRUVANANTHAPURAM.
BY ADVS.SRI.D.S.SREEKUMARAN
SMT.T.S.MAYA (THIYADIL)
SMT.K.G.BINDU
RESPONDENT(S):
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1. THIRUVANANTHAPURAM CORPORATION,
REPRESENTED BY ITS SECRETARY,
THIRUVANANTHAPURAM, PIN -695 001.
2. TOWN PLANNING OFFICER, CORPORATION OF
THIRUVANANTHAPURAM, PIN- 695 001.
BY SRI.N.NANDAKUMARA MENON,SENIOR ADVOCATE
ADV. SRI.P.K.MANOJKUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 04-03-2013, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
sts
WP(C)NO.17881/2011
APPENDIX
PETITIONER'S EXHIBITS:
P1 COPY OF THE RELEASE DEED NO.1803/1969
P2 COPY OF THE PARITION DEED NO.2034/1962
P3 COPY OF THE AWARD NOTICE ISSUED BY THE SPECIAL THAHAZILDAR
KOVALAM DATED 24/2/83 TO THE PETITIONER'S MOTHER.
P4 COPY OF THE ACQUISITION SKETCH IN CONNECTION WITH THE ACQUISITION
OF PROPERTY ISSUED BY THE AUTHORITY TO THE PETITIONER'S MOTHER
P5 COPY OF THE SALE DEED NO.1176/1996
P6 COPY OF THE SETTLEMENT DEED NO.16/2005
P7 COPY OF THE SETTLEMENT DEED NO.17/2005
P8 COPY OF THE RECTIFICATION DEED EXECUTED BY PETITIONER'S MOTHER IN
FAVOUR OF PETITIONER.
P9 COPY OF THE TAX PAID RECEIPT OF THE PETITIONER'S PROPERTY
P10 COPY OF THE APPROVED BUILDING PLAN
P11 COPY OF THE FIR NO.509/2009 OF VANCHIYOOR POLICE STATION
P12 PHOTOGRAPHS TAKEN BY THE PETITIONER ON 16/10/09
P13 COPY OF THE REPORT SUBMITTED BY THE RDO DATED 11/11/2010 BEFORE THE
RESPONDENTS.
P14 COPY OF THE ORDER OF THE RESPONDENTS DATED 13/1/2011
P15 COPY OF THE BANK LOAN STATEMENT OF THE PETITIONER.
P16 COPY OF THE TRIBUNAL IN APPEAL.NO. 79/2011 DATED 9/6/2001
RESPONDENT'S EXHIBITS: NIL
/TRUE COPY/
P.A.TO.JUDGE
sts
A.M. SHAFFIQUE, J
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W.P.(C). NO. 17881 OF 2011
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Dated this the 04th day of March, 2013
JUDGMENT
The petitioner challenges Ext. P14 and P16. Ext.P14 is an order issued by the town planning officer of Thiruvananthapuram Corporation directing the petitioner to rectify the defects pointed out in respect of the building plan. The defect pointed out is that there is violation of Rule 25 of Kerala Municipality Building Rules (hereinafter referred to as 'KMBR'). It is stated that three meters width from the central line is required from the bye-lane, which apparently is the violation pointed out. For that reason according to the Corporation, occupancy certificate cannot be issued. The petitioner preferred an appeal before the Tribunal for Local Self Government Institutions as Appeal No. 79/2011 and by order dated 09.06.2011 the same came to be dismissed. Ext. P16 is the said order.
2. The factual situation as seen from the records would reveal that the petitioner was granted a building permit for W.P. (C) NO.17881 OF 2011 2 construction of a residential building on 23.12.2008. When the building construction was completed, the petitioner applied for occupancy certificate, but the same was not granted. It is the contention of the petitioner that under the influence of some persons in the locality, a visit was conducted by the official respondents. Though the petitioner had completed the building in accordance with Ext. P10 approved plan and the permit, the respondents issued a show cause notice on 07.11.2009, the date on which she had applied for completion certificate and occupancy certificate and thereafter Ext. P14 is issued.
3. According to the petitioner she did not make any mis- representation with reference to the factual circumstances involved in the matter. The respondents have taken a contention that the southern side of the building was vacant land and as per the report of the Building Inspector it is shown as a pathway, therefore there is difference in opinion between the two reports of Inspecting Officers. According to the petitioner the Tribunal did not consider the aforesaid factual situation and have proceeded to confirm Ext. P14. Further it is contended that the petitioner's predecessor had given certain portion of their property for W.P. (C) NO.17881 OF 2011 3 formation of road and therefore petitioner is entitled for relaxation of KMBR as per Rule 82(1) of KMBR. It is also contented that the decision taken by the Corporation is arbitrary and illegal in so far as the building permit cannot be cancelled after the building is already completed.
4. Counter affidavit is filed by the respondent inter alia contending that the building permit was issued on 23.12.2008 in the process of giving building permits under 'one day counter' system. They referred to Rule 25(1) of KMBR 1999 and according to the Corporation there is violation of said Rule as height of the building exceeds 7 meters. Therefore no relaxation is possible. The set back now available from the pathway is only 1.50 meters whereas the required set back is 3 meters. According to the Corporation even though the passage is not a puramboke, as per the report of the Taluk Surveyor it has to be considered as a street as the street is synonymous with the road and giving access to more than one plot or one building in terms with Rule 2(1)(bz) of KMBR. The Corporation also denied the right of the petitioner to get the benefit of Rule 82 as the petitioner had not surrendered any land near the passage.
W.P. (C) NO.17881 OF 2011 4
5. Heard the learned counsel for the petitioner and the respondents.
6. Two questions arise for consideration in the above writ petition. One is whether there is any justification on the part of the 2nd respondent to have issued Ext. P14 dated 13.01.2011, after having issued a building permit on 23.12.2008. The learned counsel for respondents relies upon Rule 16 of KMBR which reads as under:-
16. Suspension and Revocation of permit :- The Secretary shall suspend or revoke any permit issued under these rules if it is satisfied that the permit was issued by mistake or that a patent error has crept in it 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.
7. The second question is whether Rule 16 can be invoked in a situation when the petitioner had fully constructed the building on the basis of valid building permit issued by the W.P. (C) NO.17881 OF 2011 5 Corporation. The contention raised by the learned counsel appearing for the Corporation is that the building permit had been issued under the 'one day counter' system and therefore initially there is no verification as to whether it is accordance with the prevailing Rules. It is the duty of the owner of the building to submit the building plan and request for permit after complying with all the provisions of KMBR. If the applicant fails to do so, he or she will be taking a risk in that matter and would become liable for the consequence arising therefrom. In this case though the building permit was issued, at the time when the petitioner requested for occupancy certificate after completion, on verification it is found that the petitioner had not given necessary set back and the site plan produced also did not show a pathway which was in existence. If the pathway was shown in the building plan necessarily this violation would have been taken note of much earlier. A reference is also made to Rule 22(3) of KMBR by which while issuing the occupancy certificate it is the obligation of the Secretary to verify whether the building is constructed in accordance with the building permit.
8. Therefore it is contended that as long as it is an W.P. (C) NO.17881 OF 2011 6 admitted fact that the petitioner does not have set back of 3 meters from the existing pathway and the set back available is only less than 1.5 meters, the occupancy certificate cannot be granted. The Tribunal also found in Ext. P16 order that in so far as the minimum distance have not been kept in terms with Rule 25(1) of KMBR, the building does not satisfy the requirements of KMBR and that the same is illegal.
9. The learned counsel however relies upon Rule 82(1) of KMBR which reads as under.
82. Set back, height, etc.- (1) For buildings under various occupancies, the mandatory open space/set back from the proposed road boundary to the building shall be reduced by the breadth of the land so surrendered from that side, subject to a minimum of 3 meters from the boundary of the proposed road:
Provided that, in the case of plots up to 125 sq. meters of area left after surrendering land for road schemes other than National Highways and State Highways, the committee constituted under Rule 85 may, considering the width of the land, surrendered and left behind shall permit reduction in the said distance to such extent that, after such reduction, there shall be a minimum of 1.5 meters distance from the W.P. (C) NO.17881 OF 2011 7 abutting new road boundary:
Provided further that set backs on all other sides shall be reduced in proportion to the percentage of the land surrendered subject to a maximum reduction of 50% of the mandatory open space required for the respective occupancies:
10. According to the petitioner, her predecessor in interest had given free surrender of land for formation of road and therefore the petitioner was entitled for relaxation of the building Rules in respect of the set back and other Rules which are normally granted to such persons. Contention of the respondent Corporation is that said provision has no application as the petitioner had not given any such surrender of land. Still further it is argued that it is a Committee constituted under Rule 85, who has to decide on such exemption.
11. A learned Single Judge of this Court in Rekha Babu Jacob and Another v. State of Kerala and Others [2008 (2) KHC 337] had found that even if the predecessor in interest of the owner of land had given free surrender of any portion of the property, it is open for the holder of the land to claim exemption from the KMBR. Going by the said judgment definitely, the W.P. (C) NO.17881 OF 2011 8 petitioner can claim the said benefit and it is for the respondents to consider the said claim through the Committee constituted under Rule 85.
12. That apart one could see that an attempt had been made to deny occupancy certificate based on violation of Rule 25(1) after having issued a building permit. In a case where a building permit is issued, necessarily one has to proceed on the basis that the authority concerned had verified the plan and even after a site inspection, approved the building permit. Apparently in this case nothing has been done in the matter as according to the Corporation the building permit is issued from the 'one day counter' system. No doubt such system has been developed by the Corporation to avoid pendency of application for the building permits. But definitely it is the obligation of the Local Authority to verify the correctness of building plans submitted by the owners of such properties after conducting necessary site inspection within a reasonable time. This is not done in the present case.
Only when the petitioner had applied for an occupancy certificate, the Corporation had verified the site and had come to a finding that there is a violation of Rule 25(1) of the KMBR. This gross W.P. (C) NO.17881 OF 2011 9 delay has resulted in a situation, that the petitioner is called upon to demolish a portion of the building which she had constructed. Such a situation should not arise at all. Even in a case where building permits are issued on the day when it is presented it is for the authorities concerned to verify atleast within a reasonable time as to whether the plan and application submitted confirms to the specification under the KMBR. When a mistake is notified or an allegation of mis-representation is made after 3 years, it is very unfortunate that the persons who had constructed a building is called upon to demolish the same for the purpose of getting the occupancy certificate. Such a situation would clearly amount to arbitrariness on the part of the authorities concerned. This is a typical case where the delay in approving or verifying the building permit issued from the 'one day counter' had resulted in a situation that the petitioner had proceeded with the construction and completed the same.
13. In that view of the matter, it has to be verified whether at this point of time such an order could be issued. In the result, I am of the view that the Town Planner nor the Tribunal has considered the aforesaid factual situations including W.P. (C) NO.17881 OF 2011 10 the entitlement of the petitioner for exemption in terms of Rule 82(1) of KMBR.
In the result Ext. P14 and P16 are set aside. The respondents are directed to consider the petitioner's request for exemption under Rule 82(1) of KMBR and also to consider the factual circumstances involved in the matter for regularising the construction, within a period of two months from the date of receipt of a copy of this judgment.
Sd/-
A.M. SHAFFIQUE JUDGE DCS