Kerala High Court
Prakash Kochu Parambil vs Secretary on 6 November, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
THURSDAY, THE 19TH DAY OF JANUARY 2012/29TH POUSHA 1933
WP(C).No. 23513 of 2008 (Y)
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PETITIONER(S):
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1. PRAKASH KOCHU PARAMBIL
THOTTATHUMURAYIL, PATHIYOOR PO., ALLEPPY DISTRICT
REP. BY THE P/AT.HOLDER, SRI.RAMAKRISHNAN,
RESIDING AT KOCHUPARAMBIL HOUSE, PATHIYOOR, THOTTATHUMMURI,
PATHIYOOR VILLAGE, ALLEPPY.
2. PRASEETHA KOCHU PARAMBIL
W/O.PRAKASH KOCHU PARAMBIL
THOTTATHUMURAYIL PATHIYOOR PO., ALLEPPEY
REP. BY THE P/A HOLDER, SRI.RAMAKRISHNAN RESIDING AT
KOCHUPARAMBIL HOUSE, PATHIYOOR, THOTTATHUMMURI,
PATHIYOOR VILLAGE, ALLEPPY.
BY ADVS.SMT.SUMATHY DANDAPANI (SR.)
SRI.MILLU DANDAPANI
RESPONDENT(S):
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1. SECRETARY, PATHIYOOR GRAMNA PANCHAYAT
2. PATHIYOOR GRAMA PANCHAYAT
REP. BY ITS SECRETARY
3. K.K.MATHEW, KOCHAALAUM MOOTTIL
PATHIYOOR KIZHAKKU, PATHIYOOR PO., ALLEPPEY.
R1 & R2 BY ADVS. SRI.M.V.THAMBAN
SRI.R.REJI
R3 BY ADVS. SRI.V.C.JAMES
SRI.GEORGE MECHERIL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
19-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PN
WP(C).No. 23513 of 2008 (Y)
APPENDIX
PETITIONER'S EXHIBITS
EXT. P1 COPY OF THE APPLICATION DATED 06.11.2007 SUBMITTED BY THE
PETITIONERS.
EXT. P1(a) COPY OF THE BUILDING PLAN SUBMITTED ALONG WITH THE
APPLICATION DATED 06.11.2007 BY THE PETITIONERS.
EXT. P2 COPY OF THE BUILDING PERMIT NO. R290/6.11.2007 DATED
5.12.2007 ISSUED BY THE 1ST RESPONDENT.
EXT. P3 COPY OF ORDER DATED 23.3.2008 ISSUED BY THE 1ST RESPONDENT,
VIDE NO.R.290/07.
EXT. P4 COPY OF ORDER PASSED by the TRIBUNAL FOR LOCAL SELF
GOVERNMENT INSTITUTIONS, DATED 25.06.2008 IN APPEAL NO.
142/2008
EXT. P5 COPY OF STOP MEMO NO. R.4/07 DATED 7.7.2008 ISSUED BY THE
1ST RESPONDENT.
EXT. P6 PHOTOGRAPHS SHOWING INSIDE WALLS OF THE BUILDING IN QUESTION
(ALREADY PRODUCED ALONG WITH THE REPLY AFFIDAVIT DATED
15.03.2011 TO THE COUNTER AFFIDAVIT FILED BY 3RD RESPONDENT.
EXT. P7 PHOTOCOPY OF ORDER NO.R-290/07 DATED 21.7.2008 OF THE 1ST
RESPONDENT.
RESPONDENT'S EXHIBITS : NIL
/TRUE COPY/
P. A. TO JUDGE
PN
C.K. ABDUL REHIM, J.
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WP(C). No. 23513 of 2008
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Dated this the 19th day of January, 2012
JUDGMENT
Challenge in this writ petition is against Exhibit P4 order passed by the Tribunal for Local Self Government Institutions on an appeal filed by the 3rd respondent challenging Exhibit P2 Building Permit issued in favour of the petitioners. The petitioners are also challenging the consequent steps taken by the 1st respondent through Exhibit P7.
2. The petitioners applied for grant of a Building Permit for alteration of an existing building, bearing Nos. VII/301, 302, 303 and 304. As evident from Exhibit P1 the permit application was specifically for the following constructions:
1. Roof changing, tiled to RCC,
2. Plastering of the existing building,
3. Shutter fixing
4. Construction of pillars and beams inside the building. WP(C). No. 23513 of 2008 2
3. The 2nd respondent Panchayat granted Exhibit P2 Building Permit on specific terms allowing construction of the above 4 items. The 3rd respondent submitted a complaint before the Panchayat against grant of the permit. It was rejected through Exhibit P3 letter issued by the 1st respondent. Thereupon the 3rd respondent took up the matter before the tribunal in appeal. The tribunal in Exhibit P4 order found that the permit was granted in violation of Rule 100(5) of the Kerala Municipality Building Rules 1999, to extent that no consent document obtained from the neighbouring owners were produced along with the application. Therefore Exhibit P2 building permit was set aside. The 1st respondent was directed to pass fresh on the application, as per law, within one month.
4. Exhibit P7 is the proceedings issued by the 1st respondent in compliance with the directions contained in Exhibit P4 order. The 1st respondent observed that since Exhibit P2 permit has already been set aside by the tribunal, WP(C). No. 23513 of 2008 3 the construction can be allowed only as a new construction under Rule 60 of the Kerala Municipality Building Rules 1990. Therefore it was observed that, the petitioner is bound to complied all the conditions stipulated under the Building Rules with respect to providing set back. Observing that the petitioner can submit revised plan after demolishing the existing building within 3 months, the matter was closed.
5. Heard, Smt. Sumathi Dandapani, Senior counsel appearing on behalf of the petitioners. My attention was drawn to the definition of alteration contained in Rule 2(f) of the KMBR 1999, which says that, 'alteration' means a structural change, such as an addition to the area or height or addition of floor/floors or mezzanine floor within any existing floor height, or change of existing floor or change of roof to concrete slab or reconstruction of existing walls or construction of concrete beams and columns amounting to structural change etc. Admittedly Exhibit P1 application is for change of tiled Roof to concrete slab and for WP(C). No. 23513 of 2008 4 construction of concrete beams and columns. Hence it cannot be disputed that the activity is one coming within the definition of 'alteration'. Sub Rule (1) of Rule 100 provides that the provisions of Sub Rules (2) to (10) of Rule 100 will apply to any alteration which include conversion or creation of roof, shutter or door. Hence the contention that Sub Rule (5) of Rule 10 may not apply in the case of the alteration proposed, cannot be accepted. The petitioner is not in a position to point out anything to controvert the findings that there is violation of Sub Rule (5) of Rule 100.
6. The petitioners are also challenging Exhibit P7, the consequent proceedings issued by the 1st respondent. The observations therein that, in view of Exhibit P4 order, the application can be considered only as one for new construction, is erroneous. The application was only for grant of a permit for alteration and it was not for construction of any new building. Therefore I find that insistence for compliance of the conditions applicable to WP(C). No. 23513 of 2008 5 new construction, was illegal.
7. Learned senior counsel raised further contention based on the definition of 'row building' as contemplated under Rule 2(1)(bn). According to her the building in question contains 4 rooms in a row and the building will fall within the definition of 'row building'. Under Rule 2(1)(bn) 'row building' is defined as "a row of buildings with only front and rear open spaces with or without interior open spaces". Contention is to the effect that, with respect to alteration of a 'row building' Rule 72 provides certain special exemptions. On perusal of Rule 72, it is evident that the said Rule deals with reconstruction of existing building. Rule 72 enables reconstruction, repair, alteration of addition, both horizontal and vertical with respect to any 'row building' irrespective of the plot or and set back, subject to the condition that the number of floors shall be limited to 2. It is contented that since the building in question is a 'row building' the matter ought to have been reconsidered by the WP(C). No. 23513 of 2008 6 1st respondent taking note of Rule 72.
8. I am of the view that the above point need to be examined by the 1st respondent, taking note of the factual circumstances and the law prevailing. There is merit in the contention of the learned senior counsel that, since Exhibit P2 permit was already issued in December 2007 (05.12.2007), the reconsideration of the matter should be on the basis of the law prevailing as on that date. The position would have been different if the permit was not granted, because as per the settled legal position one cannot contented that there is any accrued right merely on the basis that application was submitted prior to change in law. But in this case, since the permit was already granted on the basis of law which prevailed, a reconsideration of the same need be based on the law which was prevailing at that time.
9. I take note of contentions of the 3rd respondent that the building in question was remaining totally dilapidated and the predecessor in ownership had abandoned the WP(C). No. 23513 of 2008 7 building and also applied for deletion of the building from the Assessment Register. But it is admitted that the building in question was renumbered and the assessment was revived, after purchase by the petitioner, on his request.
10. On the basis of the above findings, I am of the view that there is no illegality or error in the findings of the tribunal in Exhibit P4 and the challenge to that extent fails. But a reconsideration of Exhibit P7 is warranted in view of the observations contained herein above. Hence Exhibit P7 order is hereby quashed. The 1st respondent is directed to consider the matter afresh, in view of the directions contained in Exhibit P4. The 1st respondent shall take note of the claim of the petitioner based on KMBR Rules 1999 as it stood as on the date of Exhibit P2. The 1st respondent shall consider the specific claims of the petitioner based on Rule 72, based on the definition or 'row building' contained in Rule 2(1)(bn). The 1st respondent shall afford an opportunity of hearing to the petitioner and the 3rd WP(C). No. 23513 of 2008 8 respondent, before taking a fresh decision in the matter. A decision in this regard shall be taken at the earliest possible, at any rate within a period of 6 weeks from the date of receipt of copy of the judgment.
Sd/-
C.K. ABDUL REHIM, JUDGE /True copy/ P. A. to Judge Pn