C.P.Mohan and others v. Thrikkakara Grama Panchayat and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 23RD DAY OF AUGUST 2016/1ST BHADRA, 1938** **WP(C).No. 3367 of 2007 (A) ---------------------------** **PETITIONER(S):** **-------------** *** 1. C.P.MOHAN, CHERUVATHOOR HOUSE, AUTOMOBILE ROAD, MAMANGALAM, ERNAKULAM, REPRESENTED BY POWER OF HOLDER-SIRAJ MATHER. (DIED) 2. M.T.MATHEW, S/O.MATHEW THARIAN, PATHIKKAL HOUSE, PULLUVAZHY, KEEZHILLAM, REPRESENTED BY POWER HOLDER-SIRAJ MATHER. 3. MATHER PROJECTS, REPRESENTED BY MANAGING PARTNER K.I.RAFFI MATHER, RAJAJI ROAD, ERNAKULAM. * ADDITIONAL P4 TO P6 IMPLEADED** **4. MRS.SARAMMA MOHAN, AGED 62, W/O.LATE C.P.MOHAN NO.35/305, MAMMANGALAM, PALARIVATTOM, ERNAKULAM - 25.** **5. C.M.VIJAY, AGED 34, S/O.LATE C.P.MOHAN NO.35/305, MAMMANGALAM, PALARIVATTOM, ERNAKULAM - 25.** **6. C.M.AJAY, AGED 32, S/O.LATE C.P.MOHAN NO.35/305, MAMMANGALAM, PALARIVATTOM, ERNAKULAM - 25.** - **ARE IMPLEADED AS PER ORDER DTD.22.6.2016 IN IA.NO.9433/2016.** **BY ADVS.SRI.PRAVEEN K. JOY SRI.T.A.JOY SRI.K.P.DANDAPANI (SR.)** **RESPONDENT(S):** - **--------------** **1. THRIKKAKARA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, THRIKKAKARA.** **Msv/** **-2-** **-2-** **WP(C).No. 3367 of 2007 (A) ---------------------------** **2. GOVERNMENT OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY-LOCAL ADMINISTRATION (M) DEPARTMENT, SECRETARIAT, TRIVANDRUM.** **3. CHIEF TOWN PLANNING OFFICER,** **THIRUVANANTHAPURAM.** **R1 BY ADVS. SRI.K.K.RAVEENDRANATH** **SRI.SHANAVASKHAN** **R2 & R3 BY SENIOR GOVERNMENT PLEADER SRI.RENIL ANTO** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** **WP(C).No. 3367 of 2007 (A) --------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXHIBIT-P1: TRUE COPY OF DOCUMENT NO.478/1993 OBTAINED BY PETITIONERS 1 AND 2. EXHIBIT-P2: TRUE COPY OF DOCUMENT NO.463/1993 OBTAINED BY THE PETITIONERS 1 AND 2. EXHIBIT-P3: TRUE COPY OF AGREEMENT ENTERED INTO BY THE PETITIONERS 1 AND 2 WITH THE 3RD PETITIONER. EXHIBIT-P3(a):TRUE COPIES OF THE PLANS SUBMITTED BY THE PETITIONERS 1 AND 2 BEFORE THE 1ST RESPONDENT. EXHIBIT-P4: TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE 1ST RESPONDENT. EXHIBIT-P5: TRUE COPY OF NOTIFICATION ISSUED BY THE GOVERNMENT EXHIBIT-P6: TRUE COPY OF THE NOTIFICATION - DRAFT PROPOSAL TO INTRODUCE CHANGES IN THE ZONING AND SUB DIVISIONAL REGULATIONS IN THE TOWN PLANNING ACT, 1108 ME AND MADRAS TOWN PLANNING ACT, 1920. EXHIBIT-P7: TRUE COPY OF THE STOP MEMO ISSUED BY THE 1ST RESPONDENT. EXHIBIT-P8: TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. EXHIBIT-P9: TRUE COPY OF THE EXTRACT OF DETAILS PUBLISHED BY THE GOVERNMENT OF INDIA REGARDING THOSE BUILDING THAT HAS VIOLATED RULES. EXHIBIT-P10: TRUE COPY OF THE EXTRACT OF DETAILS PUBLISHED BY THE GOVERNMENT OF INDIA REGARDING DETAILS OF VIOLATION IN RESPECT OF THE BUILDING. EXHIBIT-P11: TRUE COPY OF GOVERNMENT NOTIFICATION G.O.(MS) NO.103/91/LAD. EXHIBIT-P12: TRUE PHOTOGRAPH OF THE COMPLETED BUILDING/FLAT OF THE PETITIONER. RESPONDENT(S)' EXHIBITS -----------------------** **NIL //TRUE COPY//** **Msv/** **P.S.TO JUDGE** ## K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 3367 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of August, 2016 **==> picture [128 x 21] intentionally omitted <==** The short contention raised by the petitioner herein is that as per Circular No.37348/RB1/07/LSGD. Dated 03/07/2007, the petitioner is entitled to complete the construction of the building which was permitted as per Ext.P4 No Objection Certificate; if necessary by paying the permit fees as made applicable to constructions in the Panchayath area. 2. The petitioner on 03.02.2006 obtained a No Objection Certificate (NOC) from the Panchayath for constructing a multi storied apartment complex. The petitioner proceeded with the construction and completed the structure. Months after obtaining the NOC, by Ext.P5 WPC.No.3367/2007 : 2 : Notification No. G.O(Ms) No.250/2006/LSGD dated 06.11.2006 the Kerala Municipality Building Rules, 1999 (KMBR for brevity) was extended and brought into force in the Thrikkakkara Grama Panchayat, the respondent herein. Subsequently by Circular No.24136/R.A1/07/LSGD dated 20/06/2007, KMBR application was extended to the entire State of Kerala; made effective from 20.06.2007. 3. Obviously on representations being made, there was a mitigation provided insofar as the constructions already permitted and carried on by Circular No.37348/R.B1/07/LSGD which was made applicable specifically to the respondent Panchayath. Relevant Clause in the said circular being 3, 4 and 5 are extracted herein: 3.®X ² Øß ÜÍߺíºÄᢠ®KÞW ÈßVNÞâ ¦ø¢ ÍߺíºßGßÜïÞJÄáÎÞÏ æµGß¿BZ æµ ®¢ Ìß ¦V WPC.No.3367/2007 : 3 : dɵÞø¢ ÈßVNÞÃÞÈáÎÄß ÕÞBß ÎÞdÄçÎ ÈßVNßAáÕÞX ÉÞ¿áUâ. 4.®X ² Øß ÕÞBߺíºßGáUÄá¢, ®KÞW ground level--Èá Îáµ{ßçÜAí ÈßVNÞâ ¦ø¢ ÍߺíºßGßÜïÞJÄáÎÞÏ æµGß¿BZAí æµ ®¢ Ìß ¦V ÌÞǵÎÞAß æÉVÎßxí ÈWµß ÎÞdÄçÎåÈßVNÞâ ¥ÈáÕÇßAÞÕâ. 5.Øíd¿µíºíºùßæa ÉÃß ÉâVJßÏÞAßÏÄᢠ®KÞW §ÄáÕæø ÈOV ÜÍߺíºßGßÜïÞJÄáÎÞÏ æµGß¿JßÈá æÉVÎßxí ËàØí ÌÞǵÎÞÏßøßAᢠ4. By Ext.P6 again with reference to the respondent Panchayath, certain zoning regulations were brought into force as per Town Planning Act, 1108 ME and Madras Town Planning Act, 1920. It is in consequence of above referred Circulars and P6 that Ext.P7 stop memo was issued. The Stop memo specifically refers to the NOC given by the Panchayath WPC.No.3367/2007 : 4 : and despite that; directed compliance of provisions of the KMBR. The petitioners contention is that it is impossible of compliance for reason of the structure having been completed prior to the introduction of the KMBR and Ext.P6 also permitting regularisation on payment of the permit fee. 5. I have heard the learned counsel for the petitioner as also the learned Standing Counsel for the Thrikkakkara Panchayath, which is now a Municipality. 6. Relevant is the decision of a Division Bench of this Court in 2009 (4) KLT 986 (Mather Projects (P) Ltd. v. Government of Kerala for deciding the issue. There the issue was whether by a notification under the Kerala Panchayath Raj Act, 1994 the Building Rules can be made applicable to the Panchayath. The Division Bench upheld the extension of the Building Rules to the Panchayath and also noticed the WPC.No.3367/2007 : 5 : circular brought out by the Government in mitigation of the constructions already started with NOC from the Panchayath. The stipulation in the Circulars to collect permit fees was held to be legal. In Paragraph 9, the Division Bench noticed that the levy of permit fees on persons who proceeded with the construction as per the NOC was without quid pro quo, since the Panchayat, but for issuing an NOC, was not involved in providing any service or implementing a regulatory measure. 7. It was noticed that the KMBR was extended to the Panchayaths too abruptly and after such extension, the Government issued circulars waiving almost all the provisions of the KMBR in mitigation of the constructions already carried out and directed levy of permit fee alone. The Court found that such concessions having been freely WPC.No.3367/2007 : 6 : extended to the constructions; even when there was no such requirement in law; the levy of permit fee was proper. In such circumstance, going by Ext.P7 there could be no stipulation made of following the provisions of KMBR, inter alia, including that of floor area ratio (FAR). The Division Bench of this Court however requires the levy to be paid. 8. In such circumstance, on the petitioner remitting the permit fee as available under the KMBR, the construction proposed as per the NOC at Ext.P4 shall be permitted to be completed, if not already completed and the same shall be regularised. The respondent local body, now a Municipality, shall also issue the occupancy certificate; on completion certificate being produced, after inspection, if necessary. The Stop memo shall stand set aside on the petitioner paying the permit fee within a period of two WPC.No.3367/2007 : 7 : months from the date of receipt of a certified copy of this judgment. Writ petition is disposed of. No costs. Sd/- (K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A to Judge