Anu T. George and Peggy S. George v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **TUESDAY, THE 25TH DAY OF SEPTEMBER 2012/3RD ASWINA 1934** **WP(C).No. 216 of 2011 (B) -------------------------** **PETITIONER(S):** **-------------** **1. ANU.T.GEORGE , S/O. GEORGE VARGHESE, VADAKKEMURIYIL HOUSE,KURIYANOOR,THOTTAPUZHASSERI VILLAGE,PATHANAMTHITTA,REP.BY HIS P/A.HOLDER SHAJU GEORGE,S/O.LATE C.V.GEORGE,CHUNDAMANNIL (H) 19/KK NAGAR,CHRIST NAGAR ROAD,KARAKULAM P.O. THIRUVANANTHAPURAM.** **2. PEGGY S.GEORGE,W/O.SHAJU GEORGE, CHUNDAMANNIL (H),ROSE NAGAR,HOUSE NO.37 NALANCHIRA, THIRUVANANTHAPURAM REP.HER P/A.HOLDER SHAJU GEORGE, S/O.C.V.GEORGE CHUNDAMANNIL HOUSE,19/KK NAGAR, CHRIST NAGAR ROAD KARAKULAM P.O., THIRUVANANTHAPURAM-695001.** **BY ADV. SRI.V.PHILIP MATHEWS** **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA REP. BY ITS PRINCIPAL SECRETARY DEPARTMENT OF LOCAL SELF GOVERNMENT KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM PIN-695001.** **2. THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM, PIN-695001.** **3. KADINAMKULAM GRAMA PANCHAYATH, CHITTATUMUKKU P.O., THIRUVANANTHAPURAM-695588 REP. BY ITS SECRETARY.** **4. SECRETARY, SPECIAL GRADE, KADINAMKULAM GRAMA PANCHAYATH, CHITTATUMUKKU P.O. THIRUVANANTHAPURAM-695 588.** **5. UNION OF INDIA, REP. BY ITS SECRETARY MINISTRY OF ENVIRONMENT AND FORESTS PARYAVARAN BHAVAN, CGO COMPLEX, LODHI ROAD NEW DELHI-110003.** **-2-** **WP(C).No. 216 of 2011 (B)** **-2-** **BY ADV. SRI.M.R.SASITH R,R5 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA R1,R2 BY SPECIAL GOVERNMENT PLEADER, SRI.P.JAYASANKAR.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-03-2011. THE COURT ON 25-09-2012, DELIVERED THE FOLLOWING:** **SU/-** ## **WP(C).No. 216 of 2011 (B)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE RECEIPT ISSUED BY THE 4TH RESPONDENT ACKNOWLEDGING THE RECEIPT OF THE APPLICATION SUBMITTED BY THE FIRST PETITIONER.** - **P2: COPY OF THE LETTER DATED 11-3-2009 SEND BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT.** - **P3: COPY OF THE CHALAN DATED 13-11-2009 EVIDENCING PAYMENT OF RS.63,976/- FOR GRANTING NOC from the FIRE DEPARTMENT.** - **P4: COPY OF THE CHALAN DATED 12-3-2010 EVIDENCING PAYMENT OF RS.41,137/- FOR GRANTING NOC FROM THE FIRE DEPARTMENT.** - **P5: COPY OF THE RECEIPT DATED 14-12-2009 ISSUED FROM THE OFFICE OF THE KERALA STATE POLLUTION CONTROL BOARD, THIRUVANANTHAPURAM.** - **P6: COPY OF THE NO OBJECTION CERTIFICATE DATED 29-4-2010 ISSUED BY THE FIRE AND RESCUE DEPARTMENT.** - **P7: COPY OF THE ENVIRONMENTAL CLEARANCE DATED 19-5-2010 ISSUED BY THE MINISTRY OF ENVIRONMENT AND FORESTS, NEW DELHI.** ## **RESPONDENTS' EXHIBITS: NIL.** **/TRUE COPY/** **SU/-** **P.A. TO JUDGE** ## **C.T.RAVIKUMAR, J.** ---------------------------- W.P.(C)No.216 of 2011 ---------------------------Dated 25[th] September, 2012 ## **JUDGMENT** The first petitioner is the brother of the second petitioner and they respectively own and possess 172 cents of land situated in Survey No.243/2 and 18.50 cents situated in Survey Nos.243/1-1 and 243/1-2, of Meenamkulam Village in Thiruvananthapuram District. Both of them are represented in this proceedings by Shaju George, their power of attorney holder. The first petitioner and one Mr.Abraham Mathew, the previous owner of the second petitioner's property, jointly submitted an application dated 4.7.2008 before the fourth respondent seeking grant of building permit for constructing a 21 storied building with 310 dwelling units, as is obvious from Ext.P1 receipt. It is contended that on 25.7.2008 the fourth respondent forwarded that application to the second respondent. Admittedly, they did not approach the Panchayat Committee under section 235K of the Kerala Panchayat Raj Act, 1994 (for short `the Act') and Rule 15 of the Kerala Municipality Building Rules, 1999 (for short `KMBR') though the Secretary neither granted the permit nor refused the same within thirty days from the date of receipt of the application. They contend that they were virtually, prevented from approaching the Panchayat Committee under section 235K of the Act and Rule 15 of KMBR. As per Ext.P2 WP(C).No.216/2011 2 dated 11.3.2009 the second respondent notified eight defects in the aforesaid application for building permit, to the fourth respondent with further instruction to obtain fresh plan sans such notified defects from the petitioners and to take further action thereon. Thereafter, the petitioners submitted a revised plan before the fourth respondent after curing the notified defects and applied for `No Objection Certificate' from the Fire Department for the construction of flat. Exts.P3 and P4 would reveal the remittance of the fee and additional fee for grant of No Objection Certificate from the Fire Department. On 1.1.2009 the petitioners entered into an agreement with Mars Property Development Company (P) Ltd. for constructing flats in the aforementioned properties. Ext.P5 receipt dated 14.12.2009 is produced in proof of that. They submitted application for consent to construct the flats before the Kerala State Pollution Control Board. It is further contended that as their agent the said Company moved the Ministry of Environment and Forests seeking prior environmental clearance. Obviously, later, the petitioners cancelled the agreement with the said company. Ext.P6 No Objection Certificate dated 29.4.2010 was subsequently, issued by the Fire and Rescue Department and Ext.P7 environmental clearance dated 19.05.2010 was issued by the Ministry of Environment and Forests. Naturally, Ext.P7 is addressed not to the petitioners whilst addressed to WP(C).No.216/2011 3 the aforesaid company. As noticed earlier, it is from the aforementioned Abraham Mathew that the second petitioner purchased the property mentioned above as per sale deed No.1465/09 of Kazhakuttam SRO dated 26.06.09. According to the petitioners, they are now in the possession of No Objection Certificate from the Fire and Rescue Department and Environmental Clearance from the Ministry of Environment and Forests. However, the fourth respondent has not so far, disposed of their application for building permit. The cause for the concern and grievance of the petitioners is the amendment subsequently brought into certain provisions under the KMBR, more particularly to Rule 31 of the KMBR. By virtue of the amendment to Rule 31 of KMBR, for Residential A1 occupancy, reduction in percentage of the coverage area and maximum permissible Floor Area Ratio were brought in. It is contended that if their application for building permit was granted by the fourth respondent on or before 16.12.2009, the date of coming into force of such amendments, the petitioners could have constructed apartments having coverage of 65% of the plot area with maximum permissible Floor Area Ratio as 4. However, on account of the amendment to Rule 31 of KMBR the percentage of the coverage area was reduced from 65% to 45% for the occupancies more than 300 sq.mts. with number of dwelling units above 200 and the maximum permissible Floor Area Ratio without WP(C).No.216/2011 4 additional fee was reduced to 1.50 from 3. The contention of the petitioners is that the said amendments brought into Rule 31 of the KMBR cannot and will not have any impact and effect on their application for building permit submitted as early as on 4.7.2008 and as such, they are entitled to construct flats based on the unamended provisions in Rule 31 of the KMBR with respect to the percentage of coverage area and the maximum permissible Floor Area Ratio. It is their contention that since they submitted their application for building permit on 4.7.2008 they are not responsible for the administrative delay on the part of respondents 2 to 4 and therefore, that cannot be put to their disadvantage. It is further contended that no fruitful purpose would be served by approaching the respondents by submitting representations and any such course of action would only delay the matter further. It is in the said circumstances that this writ petition has been filed with the following prayers:- - “(i) Issue appropriate writ or order declaring that petitioners are entitled to construct 310 multistoried apartments in 2 towers with club house and swimming pool based on the application dated 04.07.2008 as permitted by Exhibits P6 and P7 in Sy.No.243/2, 243/1-1 and 243/1-2 of Meenamkulam village, Thiruvananthapuram District. - (ii) Issue a writ of mandamus or other appropriate writ, order or direction commanding second respondent to permit petitioners to construct 310 WP(C).No.216/2011 5 multistoried apartments in 2 towers with club house and swimming pool based on the application dated 04.07.2008 as permitted by Exhibits P6 and P7 in Sy.No.243/2, 243/1-1 and 243/1-2 of Meenamkulam village, Thiruvananthapuram District.” 2. A counter affidavit has been filed in this writ petition by the second respondent. It is stated therein that the Secretary of third respondent Panchayat viz., the fourth respondent, forwarded an application for construction of a 17 storeyed residential apartment building in Sy.Nos.243/1-1 and 243/1-2 of Meenamkulam village to that office on 25.7.2008. As the site is located in Thiruvananthapuram District a report of the Regional Town Planner, Thiruvananthapuram was obtained. Further it is stated that on verification it was found that the application was not in conformity with the provisions of KMBR in force at that point of time. As per the Rules then prevailing no approval was required from the Department and therefore, after notifying the eight defects, in accordance with the provisions thus prevailing, the fourth respondent was instructed as per Ext.P2 dated 11.3.2009 to obtain modified plan from the petitioners rectifying the notified defects and then process the application there itself. It is further stated therein that KMBR was amended on 16.12.2009 and further amended on 21.6.2010. As regards the applicability of the building rules it is stated therein that WP(C).No.216/2011 6 Government have issued letter No.9877/RD2/2010/LSGD dated 8.9.2010 to the effect that the building rules existing on the date of sanction would govern the matter and not those existing on the date of application. It is further stated therein that the said view of the Government was virtually confirmed by the judgment of this Court in **Asset Home's** case. It is also stated therein that a perusal of the application brought out violations even with respect to the side open space Rule 55 and the distance from the street to the building Rule 25(1). The basement floor plan, detailed calculation for FAR etc. were also not furnished, it is further stated. Based on such averments, the respondents prayed for dismissal of the writ petition. 3. I have heard the learned counsel appearing for the petitioners and the learned Government Pleader. 4. Obviously, the application dated 4.7.2008 submitted for building permit for constructing flat in the properties mentioned above was defective. The petitioners themselves admitted the fact that revised plan was submitted before the fourth respondent only on 10.11.2009, after curing the defects mentioned in Ext.P2. The said fact is very much evident from the averments in paragraph 8 of the writ petition. That WP(C).No.216/2011 7 apart, the averments in paragraph 6 of the writ petition would reveal that despite the failure on the part of the fourth respondent to act upon their application before the expiry of 30 days from the date of application, they had not approached the Committee of the third respondent Panchayat in terms of section 235-K of the Act and Rule 15 of the KMBR. Section 235-K of the Act reads thus:- “ **235K. Reference to Village Panchayat where Secretary makes delay in granting or refusing approval or permission** .-(1) Where, within the period specified in Section 235I or 235J, as the case may be, the Secretary has neither given nor refused approval of a building site, or permission to execute any work, as the case may be, the Village Panchayat shall be bound on the written request of the applicant, to determine whether such approval or permission should be given or not. (2) Where the Village Panchayat does not, within one month from the date of receipt of such written request, determine whether such approval or permission should be given or not, such approval or permission shall be deemed to have been given, and the applicant may proceed to execute the work. But it shall not be so as to contravene any of the provision of this Act or any rules or bye-laws made thereunder.” Rule 15 of KMBR reads thus:- “ **15. Reference to council where the Secretary delays to grant or refuse to approve or permit** .-(1) The Council shall, if the Secretary neither approves nor disapproves a building site, neither gives nor refuses WP(C).No.216/2011 8 permission to execute any work within thirty days from the date of receipt of the application, on the written request of the applicant, be bound to determine whether such approval or permission should be given or not. (2) Where the Council does not, within one month from the date of receipt of such written request, determine whether such approval or permission should be given or not, such approval or permission shall be deemed to have been given, and the applicant may proceed to execute work, but not so as to contravene any provision of the Act or these rules or bye-laws made thereunder. Provided that such execution of work shall be considered as duly permitted and not one for regularisation and permit shall be issued as per rules even if the work has been commenced, being carried on or completed if it otherwise complies with rule provisions.” 5. A bare perusal of Section 235-K of the Act and Rule 15 of KMBR would make it clear that in order to get the benefit of the deeming provision contained thereon, with respect to the grant of building permit, upon the failure of the committee to grant or refuse approval of a building site or permission to execute any work certain conditions have to be satisfied. Firstly, upon such failure on the part of Secretary of the concerned Panchayat within 30 days from the date of receipt of the application he/she should have made a request in writing to the concerned Panchayat council. Secondly, upon receipt of such a request in writing to the concerned Village Panchayat from the concerned applicant there should be failure from the part of the concerned Village WP(C).No.216/2011 9 Panchayat to determine whether such approval or permission should be given or not. The deeming provision would come into play only if the Village Panchayat fails to determine whether such approval or permission should be given or not within one month from the date of receipt of such written request from the concerned applicant requesting the Village Panchayat to determine whether such approval or permission should be given or not. In this case, in paragraph 6 of the writ petition, it is stated that when the petitioners approached the fourth respondent and informed him of their intention to approach the Panchayat Committee as per Section 235-K of the Act and Rule 15 of KMBR, they were informed that such an application would not be entertained on account of pendency of the issue before the second respondent. Further, it is stated therein that when they approached the second respondent they were informed that no queries in such a matter would be entertained before three months from the date of receipt of application in the office. Apart from such assertion no material whatsoever has been produced in this writ petition to show that the petitioners were thus, prevented from approaching the committee of the third respondent in terms of the provisions under section 235-K of the Act and Rule 15 of the KMBR. At any rate, in terms of the specific provisions under section 235-K of the Act and Rule 15 of KMBR the petitioners cannot be permitted to WP(C).No.216/2011 10 claim the benefit of the deeming provisions thereunder without making any such written request as contemplated under the aforesaid provisions contending that they were prevented from approaching the Panchayat Committee. Even going by their own assertions in paragraph 6 of the writ petition it is not clear as to which officer had informed them or gave them such instructions or information. Even if such intimations or informations were given they cannot be assigned as a reason for the failure to make a written request in terms of the aforesaid provisions and then staking a claim for the benefit of the deeming provisions under the aforementioned provisions in the Act and the Rules even without making a written request in terms of the statutory provisions. The deeming provision would operate only on satisfaction of the aforesaid twin conditions. In fact, on that sole score itself the petitioners are disentitled to get any relief in this writ petition. 6. The other contention raised by the petitioners is that since they submitted the application for building permit on 4.7.2008 and the delay occurred solely on account of the non-feasance on the part of respondents 2 and 4, such administrative delay shall not be permitted to affect the right available under the unamended provisions of Rule 31 of KMBR. In other words, the contention of the petitioners is that as the WP(C).No.216/2011 11 amendment to Rule 31 bringing changes in the percentage of coverage area and Floor Area Ratio came only with effect from 16.12.2009, it cannot and will not have any effect on their application submitted for building permit as early as on 4.7.2008. Whether it is minor or major, admittedly, the application submitted for building permit in this case on 4.7.2008 was defective and even going by the contentions of the petitioners a revised plan after curing the defects mentioned in Ext.P2 was submitted only on 10.11.2009. The petitioners did not have a case that upon the failure of the fourth respondent to take a decision either to grant or refuse permission within 30 days from 10.11.2009 they made a written request for taking a decision in terms of section 235-K of the Act and Rule 15 of the KMBR to the Committee of the third respondent. That apart, the specific contention of the second respondent is that in terms of Government letter NO.9877/RD2/2010-LSGD dated 8.9.2010 an application for building permit has to be considered in the light of the rules existing on the date of sanction and not the rules existing on the date of application. The second respondent contends that the said stand of the Government is virtually confirmed by this Court in M/s.Asset **Homes Private Ltd. and another** v. **State of Kerala** ( **2011 (1) KHC 276** ). It has been held therein by this Court that issuance of building permit is not a ministerial act and that reports of No Objection WP(C).No.216/2011 12 Certificates from various departments also may not automatically lead to the issuance of a building permit. Grant of NOC coupled with the completion of all other formalities under Rule 11(3) alone would lead to issuance of the permit. In short, despite the fact that the application dated 4.7.2008 being defective and the petitioners' failure to make a written request in terms of the provisions under section 235-K of the Act and Rule 15 of KMBR, either after one month from 4.7.2008 or after submission of the revised plan on 10.11.2009 to the Committee of the third respondent, the petitioners cannot be heard to contend that they should be given the benefit of the deeming provisions under the aforesaid provisions. I had occasion to consider a similar case. Despite the coming into force of the amended provisions the petitioners/ applicants who made applications prior to the amendment prayed for a direction to consider their applications in the light of the unamended provisions. That contention was considered in W.P.(C)No.26611 of 2010 in the light of the decision in **Asset Home's** case (supra) and it was repelled as per judgment dated 15.11.2011. Having failed to make a written request to the Panchayat Committee either one month after 4.7.2008 or after 10.11.2009, the petitioners cannot legally claim that they are entitled to get the benefit of the deeming provisions and a deeming permit by virtue of the provisions under section 235-K of the WP(C).No.216/2011 13 Act and Rule 15 of KMBR. In short, the application submitted by the petitioners cannot be directed to be considered in the light of the unamended provisions in Rule 31 of the KMBR ignoring the amendments that came into force with effect from 16.12.2009. For all these reasons, this writ petition is liable to fail and accordingly, it is dismissed. Sd/C.T.RAVIKUMAR Judge TKS