George Joseph and others v. Thrikkakara Grama Panchayath and Government of Kerala, Chief Town Planning Officer

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 15TH DAY OF JUNE 2016/25TH JYAISHTA, 1938** **WP(C).No. 37363 of 2007 (W) ----------------------------** **PETITIONER(S): --------------------------** **1. GEORGE JOSEPH, S/O.K.V.JOSEPH, ARCHITECT, 2A1, STAR PARK SUBASH CHANDRA BOSE, ROAD, VYTTILA P.O. COCHIN - 682 019, REPRESENTED BY POWER HOLDER - K.K.VINOD, MANAGING DIRECTOR ALMARK HOUSING CO.(P) LTD. 28/8, G-132, IST FLOOR UN** **2. MR.UDAYAKUMAR, S/O.MR.C.K.MOOSAD, AGED 24 YEARS TGUSUI, BHAGYASREE ROYALE, RACHANAHALLI, BANGALORE 560045 REPRESENTED BY POWER HOLDER K K VINOD MANAGING DIRECTOR, ALMARK HOUSING CO. P LTD., 28/8 G-132 1ST FLOOR UNION BANK BUILDING, MAIN AVENUE PANAMPILLY NAGAR, KOCHI 682 036** **3. SHAJI M.MANJOORAN, S/O.MANI.S.MANJOORAN, MANJOORAN HOUSE, L.P.S.ROAD, ROSE GARDEN COLONY PALARIVATTOM, ERNAKULAM - 682 025, REP. BY POWER HOLDER - K K VINOD MANAGING DIRECTOR, ALMARK HOUSING CO. P LTD., 28/8 G-132 1ST FLOOR UNION BANK BUILDING, MAIN AVENUE PANAMPILLY NAGAR, KOCHI 682 036** **4. MOLLY S.MANJOORAN, W/O.SHAJI M.MANJOORAN MANJOORAN HOUSE, L.P.S.ROAD, ROSE GARDEN COLONY PALARIVATTOM, ERNAKULAM - 682 025 REP. BYPOWER HOLDER K K VINOD MANAGING DIRECTOR, ALMARK HOUSING CO. P LTD., 28/8 G-132 1ST FLOOR UNION BANK BUILDING, MAIN AVENUE PANAMPILLY NAGAR, KOCHI 682 036** **5. ALMARK HOUSING CO.(P) LTD., REPRESENTED BY K.K.VINOD, MANAGING DIRECTOR, ALMARK HOUSING CO.(P) LTD., 28/8, G-132 IST FLOOR, UNION BANK, BUILDING MAIN AVENUE, PANAMPILLY NAGAR, KOCHI - 682 036.** **BY ADVS.SRI.V.V.ASOKAN SNT,S,AMNIA** **WP(C).No. 37363 of 2007 (W) ::2::** **RESPONDENT(S):** **----------------------------** **1. THRIKKAKARA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, THRIKKAKARA - 682 030.** **2. GOVERNMENT OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY - LOCAL ADMINISTRATION (M) DEPARTMENT, SECRETARIAT TRIVANDRUM - 695 003.** **3. CHIEF TOWN PLANNING OFFICER, THIRUVANANTHAPURAM - 695 003. R BY SRI.S.SHANAVAS KHAN,SC R BY SRI.S.SHANAVAS KHAN,SC R BY GOVERNMENT PLEADER SRI BIJU MEENATTOOR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 37363 of 2007 (W) ::3:: APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXT.P1**|**:**|**TRUE COPY OF THE DEVELOPMENT AGREEMENT ENTERED INTO BY**| |---|---|---| |||**THE PETITIONERS 1 TO 4 WITH THE 5TH PETITIONER**| |**EXT.P2**|**:**|**TRUE COPY OF THE NOC ISSUED BY THE 1ST RESPONDENT**| |**EXT.P3**|**:**|**TRUE COPY OF THE PLAN SUBMITTED BY THE PETITIONERS**| |||**BEFORE THE 1ST RESPONDENT**| |**EXT.P3(A)**|**:**|**TRUE COPY OF THE PLAN SUBMITTED BY THE PETITIONERS**| |||**BEFORE THE 1ST RESPONDENT**| |**EXT.P3(B)**|**:**|**TRUE COPY OF THE PLAN SUBMITTED BY THE PETITIONERS**| |||**BEFORE THE 1ST RESPONDENT**| |**EXT.P3(C)**|**:**|**TRUE COPY OF THE PLAN SUBMITTED BY THE PETITIONERS**| |||**BEFORE THE 1ST RESPONDENT**| |**EXT.P3(D)**|**:**|**TRUE COPY OF THE PLAN SUBMITTED BY THE PETITIONERS**| |||**BEFORE THE 1ST RESPONDENT**| |**EXT.P3(E)**|**:**|**TRUE COPY OF THE PLAN SUBMITTED BY THE PETITIONERS**| |||**BEFORE THE 1ST RESPONDENT**| |**EXT.P3(F)**|**:**|**TRUE COPY OF THE PLAN SUBMITTED BY THE PETITIONERS**| |||**BEFORE THE 1ST RESPONDENT**| |**EXT.P4**|**:**|**TRUE COPY OF THE PHOTOGRAPH SHOWING THE PRESENT STAGE**| |||**OF CONSTRUCTION**| |**EXT.P4(A)**|**:**|**TRUE COPY OF THE PHOTOGRAPH SHOWING THE PRESENT STAGE**| |||**OF CONSTRUCTION**| |**EXT.P(B)**|**:**|**TRUE COPY OF THE PHOTOGRAPH SHOWING THE PRESENT STAGE**| |||**OF CONSTRUCTION**| |**EXT.P4(C)**|**:**|**TRUE COPY OF THE PHOTOGRAPH SHOWING THE PRESENT STAGE**| |||**OF CONSTRUCTION**| |**EXT.P5**|**:**|**TRUE COPY OF THE STATEMENT SHOWING THE LIST OF**| |||**PURCHASERS**| |**EXT.P6**|**:**|**TRUE COPY OF THE NOTIFICATION ISSUED BY THE GOVERNMENT**| |**EXT.P6(A)**|**:**|**TRUE COPY OF THE CIRCULAR ISSUED BY THE GOVERNMENT**| |**EXT.P6(B)**|**:**|**TRUE COPY OF THE CIRCULAR ISSUED BY THE GOVERNMENT**| |**EXT.P7**|**:**|**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**| |||**MADRASS TOWN PLANNING ACT, 1920**| |**EXT.P8**|**:**|**TRUE COPY OF THE STOP MEMO ISSUED BY THE 1ST RESPONDENT**| |**EXT.P9**|**:**|**TRUE COPY OF THE EXTRACT OF DETAILS PUBLISHED BY THE**| |||**GOVERNMENT OF INDIA REGARDING THOSE BUILDINGS THAT HAS**| |||**VIOLATED RULES**| |**EXT.P10**|**:**|**TRUE COPY OF the EXTRACT OF DETAILS PUBLISHED BY THE**| |||**GOVERNMENT OF INDIA REGARDING DETAILS OF VIOLATION IN**| |||**RESPECT OF THE BUILDINGS**| ## **WPC NO.37363/2007 ::3::** **EXT.P11 : TRUE COPY OF THE GOVERNMENT NOTIFICATION G.O (MS) NO. 103/91/ LAD EXT.P12 : TRUE COPY OF THE INTERIM ORDER IN WPC NO. 3367/2007** ## **RESPONDENTS EXHIBITS:NIL** ## **TRUE COPY** **P.A TO JUDGE** **jma** ## K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 37363 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15[th] day of June, 2016 **==> picture [128 x 21] intentionally omitted <==** The short contention raised by the petitioner herein is that as per Ext.P6(b) Circular, the petitioner is entitled to the construction of the which was complete building permitted as per Ext.P2 No Objection Certificate; if necessary by paying the permit fees as made applicable to constructions in the Panchayath area. 2. The petitioner on 16.08.2006 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. Immediately after obtaining the NOC, by Ext.P6 dated 06.11.2006 the Kerala Municipality Building Rules, 1999 WPC.No.37363/2007 : 2 : (KBR for brevity) was extended and brought in force in the Thrikkakkara Grama Panchayat, the respondent herein. Subsequently by Ext.P6(a), KBR 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 Ext.P6(b) circular which was made applicable specifically to the respondent Panchayath. Relevant Clause in Ext.P6(b) being 3, 4 and 5 are extracted herein: 3.®X ² Øß ÜÍߺíºÄᢠ®KÞW ÈßVNÞâ ¦ø¢ ÍߺíºßGßÜïÞJÄáÎÞÏ æµGß¿BZ æµ ®¢ Ìß ¦V 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 WPC.No.37363/2007 : 3 : ÌÞǵÎÞAß æÉVÎßxí ÈWµß ÎÞdÄçÎåÈßVNÞâ ¥ÈáÕÇßAÞÕâ. 5.Øíd¿µíºíºùßæa ÉÃß ÉâVJßÏÞAßÏÄᢠ®KÞW §ÄáÕæø ÈOV ÜÍߺíºßGßÜïÞJÄáÎÞÏ æµGß¿JßÈá æÉVÎßxí ËàØí ÌÞǵÎÞÏßøßAᢠ4. By Ext.P7 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 Ext.P6,P6(b) and P7 that Ext.P8 stop memo was issued. The Stop memo specifically refers to the NOC given by the Panchayath 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.P7 also WPC.No.37363/2007 : 4 : 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 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 WPC.No.37363/2007 : 5 : 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 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 WPC.No.37363/2007 : 6 : 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.P2 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 and completion certificate; on completion. The Stop memo shall stand set aside on the petitioner paying the permit fee within a period of two 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