Dr. B. Vijayakumar v. Corporation of Thrissur (W.A. Nos. 478 of 2020 & 528 of 2020)

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 21ST DAY OF MAY 2020 / 31ST VAISAKHA, 1942 ## WA.No.478 OF 2020 AGAINST THE JUDGMENT DATED 07.08.2019 IN WP(C) 38043/2017(E) OF HIGH COURT OF KERALA ## APPELLANT/3RD RESPONDENT: DR. B. VIJAYAKUMAR, AGED 56 YEARS S/O.LATE K.BHASKARAN NAIR, RESIDING AT SIVADAM, 28/124/5, SOUHRIDA LANE, PATTURACKAL, THIRUVAMPADY P.O., THRISSUR DISTRICT - 680 022. BY ADVS. SRI.AYYAPPAN SANKAR SRI.JAYAN JOHN ## RESPONDENTS/RESPONDENTS 1, 2 & 4 AND WRIT PETITIONER: - 1 CORPORATION OF THRISSUR, MUNICIPAL OFFICE ROAD, KURUPPAM, THRISSUR - 680 001 REPRESENTED BY THE SECRETARY. - 2 THE SECRETARY, CORPORATION OF THRISSUR, MUNICIPAL OFFICE ROAD, KURUPPAM, THRISSUR - 680 001. 3 RAJANA, D/O.VATTEKAT RAMAN NAIR, RESIDING AT 5151, SHOBHA CITY, PUZHAKKAL, GURUVAYOOR ROAD, THRISSUR - 680 553. 4 KARTHIK RAMANI, MANAGING PARTNER, M/S.KALYAN DEVELOPERS, DOOR NO.TC 35/1403, SREEKRISHNA BUILDING, WEST PALACE ROAD, THRISSUR CITY P.O., THRISSUR - 680 020. R1-2 BY SRI. SANTHOSH P.PODUVAL, SC, THRISSUR CORPORATION W.A Nos. 478 & 528 of 2020 : 2 : R3 BY ADV. SRI. S. SREEKUMAR (SR.) R3 BY ADV. SRI.ANEESH JAMES R3 BY ADV. SRI.JIJO THOMAS R3 BY ADV. SMT.M.D.BEENA R4 BY ADV. SRI.P.RAMAKRISHNAN (B/O) THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21.05.2020, ALONG WITH WA.528/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A Nos. 478 & 528 of 2020 : 3 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 21ST DAY OF MAY 2020 / 31ST VAISAKHA, 1942 ## WA.No.528 OF 2020 AGAINST THE JUDGMENT DATED 7.8.2019 IN WP(C) 37239/2017(D) OF HIGH COURT OF KERALA ## APPELLANT/3RD RESPONDENT: DR.B.VIJAYAKUMAR AGED 56 YEARS,S/O.LATE K.BHASKARAN NAIR, RESIDING AT SIVADAM 28/124/5,SOUHRIDA LANE, PATTURACKAL,THIRUVAMPADY P.O., THRISSUR DISTRICT-680 022. BY ADVS. SRI.AYYAPPAN SANKAR SRI.JAYAN JOHN SMT.S.HRIDYA ## RESPONDENTS/RESPONDENTS 1 &2 AND WRIT PETITIONER: 1 CORPORATION OF THRISSUR, MUNICIPAL OFFICE ROAD,KURUPPAM, THRISSUR-680 001. REPRESENTED BY THE SECRETARY. - 2 THE SECRETARY, CORPORATION OF THRISSUR,MUNICIPAL OFFICE ROAD,KURUPPAM,THRISSUR-680 001. 3 RANJANA, AGED 55,D/O.VATTEKKAT RAMAN NAIR, 5151, SHOBHA CITY,PUZHAKKAL,GURUVAYOOR ROAD,THRISSUR-680 553, W.A Nos. 478 & 528 of 2020 : 4 : NOW RESIDING AT 12-A,BLOCK-D, CHAKOLAS HABITAT,THEVARA FERRY ROAD, THEVARA,COCHIN-682 013. R1-2 BY SRI. SANTHOSH P.PODUVAL, SC, THRISSUR CORPORATION R3 BY ADV. SRI.ANEESH JAMES R3 BY ADV. SRI.JIJO THOMAS R3 BY ADV. SMT.M.D.BEENA SRI.S.SREEKUMAR(SR) FOR R3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21.05.2020, ALONG WITH WA.478/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A Nos. 478 & 528 of 2020 : 5 : ## **Dated this the 21[st] day of May, 2020. JUDGMENT** ## **SHAJI P. CHALY, J** Writ appeals are filed by the 3[rd] respondent in the writ petitions against the common judgment of the learned single Judge in W.P.(C) Nos. 37239 and 38043 of 2017, whereby the learned single Judge allowed the writ petitions setting aside the order dated 23.10.2017 passed by the Local Self Government Institutions in Appeal No. 1188 of 2016. 2. The petitioner in W.P.(C) No. 37239 of 2017 corresponding to W.A. No. 528 of 2020 is the owner of a property ad-measuring 40 cents comprised in Survey No. 1611/1P of Thrissur Village of Thrissur District, who intends to construct a multi-storied apartment complex in her property. The petitioner in W.P.(C) No. 38043 of 2017 corresponding to W.A Nos. 478 & 528 of 2020 : 6 : W.A. No. 478 of 2020 is the builder who has entered into an agreement to construct the multi-storied apartment complex. 3. The issue that arose for consideration before the learned single Judge was in respect of an access to the above specified property, through a street by name 'Ponnumveettil Lane' having a width of 5 metres inclusive of the width of a covered drain. Therefore, the substantial question ultimately considered by the learned single Judge was whether, for the purpose of calculating the width of a public road/street, the width of the public drain alongside the road can be taken into account for the purpose of the construction of a high rise building to comply with the provisions of the Kerala Municipality Act, 1994 ('the Act, 1994' for short) and the Kerala Municipality Building Rules, 1999 ('the Rules, 1999' for short). The learned W.A Nos. 478 & 528 of 2020 : 7 : single Judge, after taking into account the provisions of Act, 1994 and Rules, 1999, has held in paragraphs 10 and 11 as follows: **“** 10. The Government has, as per GO(Ms)No.76/2017/LSGD dated 31.3.2017, clarified that 'street, road furniture and services such as street lights, lamp posts, electricity/telecommunication holes/lines, road side drains, footpaths, wayside plants/trees etc, which are provided as integral constituent part of the right of way will also fall within the scope of the definition of width of the road under Rule 2(1)(bma) of the KMBR. 11. In such circumstances, the finding of the Tribunal that the road side drain cannot be included for measuring the width of the access road and that, after excluding the width of the drain, the width of the access road to the property of the owner is less than 5 metres cannot be sustained. The other violations raised by the 3rd respondent, in his appeal before the Tribunal, having been found against by the Tribunal itself, does not survive for consideration, in the absence of a challenge against those findings by the 3rd respondent. As far as the complaint against the permission granted by the Thrissur Corporation to the owner for strengthening the concrete slabs over the drain is concerned, it is the admitted case of all parties that the 3rd respondent has already filed a complaint in this regard before the Ombudsman for Local Self W.A Nos. 478 & 528 of 2020 : 8 : ## Government Institutions. In the result, the Writ Petitions are allowed. The order of the Tribunal for Local Self Government Institutions dated 23rd October, 2017 in Appeal No.1188 of 2016 is set aside. No order as to costs.” It is thus challenging the judgment of the learned single Judge, the appeals are preferred, basically raising typical contentions. 4. The paramount contention advanced is that the learned single Judge has arrived at the conclusions by incorrectly interpreting the provisions of Rules, 1999. According to the appellant, the access road is not having sufficient width excluding the drainage, which is an admitted fact in accordance with Rule 33 of the Rules, 1999. Rule 33(1) stipulates that the minimum clear width of access to a building and plots as well as the width of the street giving access to the plot from the main street shall be as shown in Table 4. It is also submitted that Rule 2 (1)(bm) of Rules, W.A Nos. 478 & 528 of 2020 : 9 : 1999 defines ‘road’ to mean 'any highway, street, lane, pathway, alley, passageway, carriageway, foot way or bridge whether a thoroughfare or not, over which the public have a right of passage or access uninterruptedly for a specified period; whether existing or proposed; in any town planning scheme. However, Rule 2(1)(bma) defines the 'width of the road’ to mean the right of way and includes medians, service roads and flyover. Therefore, the significant contention advanced by the appellant is that the road as well as the width of the road defined under Rules, 1999 is exclusive of the drainage and therefore, the requirement of access width provided to the high rise building as per Rule 116 of Rules, 1999 was not satisfied by the appellant to secure a permit for the construction of a high rise building. It is also submitted that the word 'public street' defined under Section 2(34) of Act, 1994 is only for the purpose of exercise of powers and functions of the W.A Nos. 478 & 528 of 2020 : 10 : Municipality in respect of a public street as provided in Chapter XVII of Act, 1994. Whereas the aim and object of the expressions 'road' and 'width of road' defined under Rules, 1999 is to ensure the strict compliance of the stipulations and safety measures in respect of a high rise building as provided in Rules 33 and 116 of Rules, 1999 and other safety stipulations provided under Chapter XVII of Rules, 1999. It is also submitted that there is no conflict among the definitions of 'public street' defined under the Act and 'road' and 'width of the road' in the Rules, 1999. Therefore, according to the appellants, the learned single Judge has exercised the power of discretion conferred under Article 226 of the Constitution of India incorrectly so as to arrive at the conclusions in the judgment. 5. We have heard the learned counsel for the appellants, W.A Nos. 478 & 528 of 2020 : 11 : learned Standing Counsel for the Thrissur Corporation and the learned Senior Counsel appearing for the party respondents, and perused the pleadings and documents on record. 6. The sole question emerges for consideration is whether any manner of interference is warranted to the judgment of the learned single Judge. On a perusal of the order passed by the Tribunal, we find that the Tribunal was of the firm view that the access width of 5 metres provided under rules 1999 is without including the width of the drain. However, the document available before it shows that the access road has lesser width, than as prescribed under law. Therefore primarily, the learned single Judge has undertaken the exercise of sorting out the issue by placing reliance on the provisions contained under Section 2(34) of Act, 1994 and 2(1)(bm) and 2(1)(bma) of Rules, 1999. W.A Nos. 478 & 528 of 2020 : 12 : ## Section 2(34) of Act, 1994 defines 'public street' which reads thus: “(34) "public street" means any street, road, square, court, alley, passage or riding path over which the public have a right of way, whether a thoroughfare or not, and includes- a) the roadway over any public bridge or causeway; (b) the footway attached to any such street, public bridge or causeway; and (c) the drains attached to any such street, public bridge or causeway and the land whether covered or not by any pavement, verandah, or other structure, which lies on either side of the roadway upto the boundaries of the adjacent property, whether that property is private property or property belonging to the Government;” 7. Accordingly, going by the definition contained under Act, 1994, a public street includes the drains attached to any such street, public bridge or causeway and the land whether covered or not by any pavement, verandah, or other structure, which lies on either side of the roadway upto the boundaries of the adjacent property, whether that property is private property or property belonging to the Government. However, as W.A Nos. 478 & 528 of 2020 : 13 : discussed above, 'road' and 'road width' defined under the Act, 1994 does not take in the drainage. Having been confronted with such a situation, the learned single Judge has relied upon the judgment of the Apex Court in Ispat Industries Ltd. v. Commissioner of Customs, Mumbai (2006) 12 SCC 583. Paragraph 32 of the said judgment reads thus: “32. It may be mentioned that the Mimamsa rules of interpretation were our traditional principles of interpretation laid down by Jaimini in the 5th century BC whose Sutras were explained by Shabar, Kumarila Bhatta, Prabhakar, etc. The Mimansa rules of interpretation were used in our country for at least 2500 years, whereas Maxwell’s first edition was published only in 1875. These Mimansa principles are very rational and logical and they were regularly used by our great jurists like Vijnaneshwara (author of Mitakshara), Jimutvahana (author of Dayabhaga), Nanda Pandit, etc. whenever they found any conflict between the various Smritis or any ambiguity or incongruity therein. There is no reason why we cannot use these principles on appropriate occasions even today. However, it is a matter of deep regret that these principles have rarely been used in our law W.A Nos. 478 & 528 of 2020 : 14 : courts. It is nowhere mentioned in our Constitution or any other law that only Maxwell’s Principles of Interpretation can be used by the court. We can use any system of interpretation which helps us to solve a difficulty. In certain situations Maxwell’s principles would be more appropriate, while in other situations the Mimansa principles may be more suitable. One of the Mimansa principles is the Gunapradhan Axiom, and since we are utilising it in this judgment we may describe it in some detail. “Guna” means subordinate or accessory, while “pradhan” means principal. The Gunapradhan Axiom states: “If a word or sentence purporting to express a subordinate idea clashes with the principal idea, the former must be adjusted to the latter or must be disregarded altogether.” 8. After analysing the factual and legal situations, it was held that the subordinate legislation should conform to the policy of the parent statute i.e., the Kerala Municipality Act, 1994. It was thus the order of the Tribunal was interfered with and the writ petition was allowed, however, leaving open the liberty of the parties to adjudicate the issue with respect to the strengthening of concrete slabs over the drain, before the Ombudsman for Local Self W.A Nos. 478 & 528 of 2020 : 15 : Government Institutions wherein a proceeding was pending. It is true, the issue raised has a clear correlation with Section 381 of Act, 1994, which deals with the general powers conferred on the Government to make the Rules, and Section 381(3)(b) confers power to make rules for the height of buildings, whether absolute or relative to the width of the streets. Being so, the contention advanced by the appellant is that the Rules framed as per Rules, 1999 has a clear purpose and therefore, the definition of public street contained under Section 2(34) of Act, 1994 has no bearing in the matter of consideration of the width of road for the purpose of the construction of a high rise building. It is an admitted fact that as per the Government Order dated 31.03.2017 bearing No. GO(Ms) No. 76/2017/LSGD, the Government clarified that the street includes roadside drains also. Considering so, we are of the clear opinion that the interpretation provided by the learned single judge W.A Nos. 478 & 528 of 2020 : 16 : to the provisions of the Act 1994 and Rules, 1999 to solve the issue arose for consideration cannot be said to be bad or legally infirm. Whatever that may be, the State Government has introduced the Kerala Municipality Building Rules, 2019 superseding Rules, 1999, wherein the width of the street is defined under Rule 2(ds), which reads thus: “ ‘width of street’ means the right of way and includes carriageway, footpath, service roads, flyovers, medians, road side drains, street furniture, wayside plants/trees and the like.” So also, the corresponding provision of Rule 116 of Rules, 1999 in Rules, 2019 is Rule 81(5), dealing with 'access', which reads thus: “ **(5) Access:—** The minimum width of access to a high rise building and plot as well as the minimum existing width of the street giving access to the plot from the main street shall be **5 metres** or as prescribed elsewhere in these rules, whichever is higher.” Analysing so, it is quite evident and clear that the W.A Nos. 478 & 528 of 2020 : 17 : provisions of Rules, 2019 so far as the width of the street and access to high rise building is concerned, it is in pari materia with Section 2(34) of Act, 1994. 9. Therefore, the issue raised by the appellant, by virtue of the introduction of Rules, 2019 on and with effect from 08.11.2019 has become fait accompli. In that view of the matter, even assuming that we provide a different interpretation than the one provided by the learned single Judge and allow the writ appeal thus upholding the order of the Tribunal, on submission of a fresh application for building permit, the writ petitioners are entitled to secure a permit as per the provisions of Rules, 2019 . 10. Taking into account all these aspects, we are of the considered view that the appellant has not made out any case W.A Nos. 478 & 528 of 2020 : 18 : justifying interference with the judgment of the learned single Judge as there is no legal infirmity in the matter of exercise of discretion by the learned single Judge under Article 226 of the Constitution of India, thus enabling us to exercise the power conferred under section 5 of the high court act. Needless to say, the appeals fail and accordingly they are dismissed. Sd/- **S. MANIKUMAR, CHIEF JUSTICE.** sd/- **SHAJI P. CHALY,** **JUDGE.** Rv W.A Nos. 478 & 528 of 2020 : 19 :