High Court of KeralaDivision Bench2011-07-01Disposed of with directions

E.V. Homes Constructions Pvt. Ltd. v. State of Kerala & Others

Case / Petition Number:WP(C).No. 23278/2007-U

Neutral Citation:/null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: J. Chelameswar
Antony Dominic
Judgment Date: 2011-07-01
Court Decision / Holding: W.P.C.23278/2007 and connected matters are disposed of. It is held that the issues are covered by the Division Bench judgment in Meethian Kunju v. State of Kerala. The court directs that the petitioner may file an application for a building permit before the Municipality under the Kerala Municipality Building Rules, and that such applications will be dealt with and orders passed in accordance with the KMBR and the Meethian Kunju principles. Notices shall be issued to the petitioner and to the Additional Respondent 4 before passing any orders. The companion petitions (14590/2007 and 19608/2007) are disposed of similarly.
Final Disposition: Disposed of with directions

Parties to the Case

Appellants / Petitioners

E.V. Homes Constructions Pvt. Ltd.

Respondents

State of Kerala
The District Collector, Ernakulam
Thrikakkara Grama Panchayath
Ambadimoola Residents' Association

Legal Representation & Advocates

Counsels for Petitioners

• M. K. Damodaran, Senior Advocate
• P. Martin Jose
• S. Vaidyanathan
• S. Sreekumar

Counsels for Respondents

• Smt. K. Meera
• Sri. S. Shanavas Khan
• Sri. K. Raveendran
• Sri. P. K. Abdul Rahiman

Case Synopsis & Summary

This writ petition, filed by E.V. Homes Constructions Pvt. Ltd., challenges government circulars Ext.P7 and Ext.P8 issued by the Kerala Government relating to construction above ground level and building permits under the Kerala Municipality Building Rules (KMBR). The petitioner, a company engaged in land development and multi-storey construction, asserts that Ext.P7 provides a beneficial treatment to projects already above ground level as of 3 July 2007 and seeks its application to its own project; it further seeks quashing Ext.P7 to the extent of invalidity and calls for records underlying Ext.P7 and Ext.P8, including a certiorari if necessary. The respondents contest, and the court notes that the issues raised are covered by a Division Bench judgment in Meethian Kunju v. State of Kerala (2011(2) KLT 185). In light of that decision, the court disposes of the petitions, leaving it open to the petitioner to file an application before the Municipality under the Kerala Municipality Building Rules for a necessary building permit. If such an application is received, it will be dealt with and orders passed in accordance with the KMBR and the principles laid down in Meethian Kunju, with notices to the petitioner and to the Additional Respondent 4 before any orders are passed. The companion W.P.C Nos. 14590/2007 and 19608/2007 are disposed of similarly. The judgment concludes with the bench stating disposal of all petitions with directions as above.

Provisions of Law Cited

Kerala Municipality Building RulesG.O.(MS).NO.250/2006Companies Act, 1956

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Ext.P7 Circular confers a beneficial treatment to projects already above ground level as of 3 July 2007 and seeks its application to its own project. It prays for quashing Ext.P7 and Ext.P8 by certiorari, calls for records that led to Ext.P7/Ext.P8, and seeks relief under writs or directions as appropriate in the interests of justice. The petition relies on the Division Bench decision in Meethian Kunju v. State of Kerala to argue that the matter should be resolved in accordance with the Kerala Municipality Building Rules for a necessary building permit.

Contentions of Respondents

The respondents rely on the Meethian Kunju decision to contend that the issues are controlled by a binding precedent and that the petition should be disposed of accordingly; they advocate processing any building permit application under the Kerala Municipality Building Rules (KMBR) and in line with the court’s guiding principles in Meethian Kunju, with due process and notices to affected parties.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Meethian Kunju v. State of Kerala	2011(2) KLT 185	Positive	The court expressly relies on this Division Bench decision to determine that the issues are covered and directs disposition in line with Meethian Kunju.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933** **WP(C).No. 23278 of 2007(U)** **---------------------------------------** **PETITIONER:** **-------------------** **E.V.HOMES CONSTRUCTIONS PVT.LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING IT'S REGISTERED OFFICE AT VARDHAMAN CHAMBER, A-WING, PLOT NO.84, SECTION 17, NAVI MUMBAI, REPRESENTED BY POWER OF ATTORNEY AND GENERAL MANAGER E.V.MATHEW KUTTY, S/O.E.M.VARKEY, AGED 57.** **BY SRI.M.K.DAMODARAN, SENIOR ADVOCATE, ADVS. SRI.P.MARTIN JOSE, SRI.S.VAIDYANATHAN, SRI.S.SREEKUMAR.** **RESPONDENTS:** **------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, LOCAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM.** **2. THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD, ERNAKULAM.** **3. THRIKKAKARA GRAMA PANCHAYATH, REPRESENTED BY SECRETARY, (SPECIAL GRADE), KAKKANAD, KOCHI-30.** ## **W.P.(C). NO.23278/2007-U:** ## ***ADDITIONAL R.4. IMPLEADED:** **4. AMBADIMOOLA RESIDENTS' ASSOCIATION, REGISTER NO. ER-808, KAKKANADU, KOCHI-30, REPRESENTED BY IT'S SECRETARY M.A. ABOOBACKER.** ***IS IMPLEADED AS PER ORDER DT. 29/10/07 IN I.A. NO.11485/07.** **R1 & R2 BY SR. GOVT. PLEADER SMT. K. MEERA, R3 BY ADV. SRI.S.SHANAVAS KHAN, ADDL. R4 BY ADVS. SRI.K.RAVEENDRAN, SRI.P.K.ABDUL RAHIMAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/07/2011,ALONG WITH W.P.(C).NOS.14590/2007 AND 19608/2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.23278/2007-U:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **EXT.P.1: COPY OF THE CERTIFICATE DTD. 20/10/2006 OF THE R.3.** ## **EXT.P.2: COPY OF THE SKETCH APPROVED BY THE R.3.** **EXT.P.3: COPY OF THE PROCEEDINGS DTD 14/05/2007 OF THE R.2. WITH ITS ENGLISH TRANSLATION.** ## **EXT.P.4: COPY OF THE COVERING LETTER DTD 20/04/2007 OF THE R.2.** ## **EXT.P.5: COPY OF THE CONSENT FOR CONSTRUCTION INCLUDING IT IN ORANGE CATEGORY ISSUED BY THE POLLUTION CONTROL BOARD.** ## **EXT.P.6: COPY OF THE NOTIFICATION DTD. 06/11/2000 AS G.O.(MS).NO.250/2006.** **EXT.P.7: COPY OF THE CIRCULAR DTD. 03/07/2007 OF THE GOVERNMENT WITH ITS ENGLISH TRANSLATION.** **EXT.P.8: COPY OF THE NOTICE DTD. 24/07/2007 ISSUED BY THE R.3. WITH ITS ENGLISH TRANSLATION.** ## **EXT.P.9: COPY OF THE EXPLANATION DTD. 28/07/2007 ISSUED BY THE PETITIONER BEFORE THE R.3.** **EXT.P.10: COPY OF THE PHOTOGRAPHS SHOWING THE CONSTRUCTION AS ON 03/07/2007.** **EXT.P.11: COPY OF THE PLAINT DTD. 08/05/2007 IN O.S. NO. 616/2007 BEFORE THE DISTRICT COURT, ERNAKULAM.** ## **EXT.P.12: COPY OF THE INJUNCTION ORDER IN I.A. NO.2093/2007 OF THE DISTRICT COURT (VACATION COURT), ERNAKULAM.** ## **EXT.P.13: COPY OF THE JUDGMENT DTD. 25/02/2008 IN W.P.(C).NO.27381/2007 OF THIS HON'BLE COURT.** **EXT.P.14: COPY OF THE BUILDING PERIT NO.183/2008 DTD. 12/02/2008 AND THE PLAN SANCTIONED BY THE R.3. GRAMA PANCHAYATH.** ## **EXT.P.15: COPY OF THE REVISED PLAN PREPARED BY THE PETITIONER.** ## **RESPONDENTS' EXHIBITS:** ## **EXT.R4.A: COPY OF THE APPLICATION FOR PERMISSION DTD 20/10/2006 SUBMITTED BY M/S. KUNJUMUHAMMEDUNNI AND MATHEW ANTONY.** **EXT.R4.B: COPY OF THE COMMISSION REPORT IN I.A. NO. 2094/07 IN O.S. NO. 616/07 BEFORE THE HON'BLE MUNSIFF COURT, ERNAKULAM.** ## **W.P.(C). NO.23278/2007-U:** **EXT.R4.C: COPY OF THE ORDER DTD 21/08/07 IN CMA.NO.64/2007 OF THE HON'BLE DISTRICT JUDGE, ERNAKULAM.** ## **EXT.R4.D: COPY OF THE LETTER DTD. 06/08/07 OF THE PRINCIPAL SECRETARY TO GOVERNMENT ADDRESSED TO THE PANCHAYATH.** ## **//TRUE COPY//** ## **P.S. TO JUDGE.** **Prv.** ## **J.Chelameswar, C.J. & Antony Dominic, J. ----------------------------------------------------** W.P.(C) NO. 23278 OF 2007 & W.P.(C) NOs. 14590 & 19608 OF 2007 ----------------------------------------------------- Dated this the 1[st] day of July, 2011 ## **J U D G M E N T** ## Antony Dominic, J. The petitioner in W.P.C.23278/07, a Company incorporated under the provisions of the Companies Act 1950, which is stated to be engaged in the development of land and construction of multi storied residential and commercial apartments. It has approached this court, with the following prayers. (i) declare that the petitioner is entitled to the benefit of Ext.P7 Circular since the petitioner has proceeded with the construction above the ground level as on 3.7.2007. (ii) delete the second prayer to the extent of quashing Ext.P7. ## W.P.(C) NO. 23278 OF 2007 & con. Cases -:2:- (iii) declare that Ext.P7 circular is without authority, illegal and void. (iv) Call for records leading to Ext.P7 and P8 and quash the same by issuing a writ of certiorari or other writ or direction. ## and (v) issue such other writ or order or direction that may be necessary in the interest of justice. The issues raised in this petition, are all covered by a Division Bench judgment of this court in **Meethian Kunju v. State of Kerala (2011(2) KLT 185)** . In that view of the matter it is not necessary for us to examine the contentions raised by the parties. Therefore, in the light of the aforesaid judgment, this writ petition is also ## W.P.(C) NO. 23278 OF 2007 & con. Cases -:3:- disposed of leaving it open to the petitioner to make appropriate application before the respondent, Municipality, under the provisions of the Kerala Municipality Building Rules for necessary building permit. If such an application is received, it is directed that the said application will be dealt with and orders will be passed by the Municipal Authorities in accordance with the Kerala Municipality Building Rules and the principles laid down by this court in the judgment referred to above. It is directed that before orders are passed, notice will be issued to the petitioner and also to the additional 4[th] respondent. In the light of the above directions in W.P.C.23278 of 2007, W.P.(C) NOs. 14590 & 19608 of 2007 are also disposed of, directing that as and when ## W.P.(C) NO. 23278 OF 2007 & con. Cases -:4:- application for building permit is filed by the petitioner in W.P.C.23278/07, notice will be issued to the petitioners in W.P.(C) NOs. 14590 & 19608 of 2007 also by the Municipal Authorities and they will also be heard before orders are passed. Accordingly all the writ petitions are disposed of. Sd/- **J.Chelameswar, Chief Justice. Sd/Antony Dominic, Judge.** ul/- [true copy] P.S. to Judge.